FIFTH SECTION

CASE OF SKLYAR AND YEKUSHENKO v. UKRAINE

( Applications nos. 28513/10 and 47646/10 )

JUDGMENT

STRASBOURG

21 February 2019

This judgment is final but it may be subject to editorial revision.

In the case of Sklyar and Yekushenko v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Síofra O ’ Leary, President, Mārtiņš Mits , Lado Chanturia, judges, and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 31 January 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table .

2. Notice of the application s was given to the Ukrainian Government (“the Government”).

THE FACTS

3. The list of applicant s and the relevant details of the applications are set out in the appended table.

4. The applicant s complained of the excessive length of their pre-trial detention . They also raised other complaints under the provisions of the Convention and its Protocols.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

6. The applicant s complained principally that their pre-trial detention had been unreasonably long . They relied on Article 5 § 3 of the Convention, which read as follows:

Article 5 § 3

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, KudÅ‚a v. Poland [GC], no. 30210/96, § 110, ECHR 2000 ‑ XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006 ‑ X, with further references).

8. In the leading cases of Kharchenko v. Ukraine (no. 40107/02, 10 February 2011) and Ignatov v. Ukraine (no. 40583/15, 15 December 2016), the Court already found a violation in respect of issues similar to those in the present case.

9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant s ’ pre-trial detention was excessive.

10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. The applicant in application no. 47646/10 also submitted a complaint under Article 5 § 1 (c) of the Convention which raised issues, given the relevant well-established case-law of the Court relating to unlawful pre-trial detention (see appended table). This complaint is not manifestly ill-founde d within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Kharchenko v. Ukraine (no. 40107/02, §§ 70-76, 10 February 2011) .

IV. REMAINING COMPLAINTS

12. The applicants further raised other complaints under various Articles of the Convention and its Protocols.

13. The Court has examined those other complaints in the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

15. Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum indicated in the appended table to the applicant in application no. 47646/10. It rejects any additional claims for just satisfaction raised by him. As concerns the applicant in application no. 28513/10 , the Court makes no award since he failed to submit his just satisfaction claims in accordance with Rule 60 of the Rules of Court.

16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints concerning the excessive length of pre-trial detention and the other complaint under well-established case-law of the Court , as set out in the appended table, admissible, and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention ;

4. Holds that there has been a violation of Article 5 § 1 (c) of the Convention in application no. 47646/10 (see appended table);

5. Holds

(a) that the respondent State is to pay the applicant in application no. 47646/10, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

6. Dismisses the remainder of the claims for just satisfaction by the applicant in application no. 47646/10.

Done in English, and notified in writing on 21 February 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Síofra O ’ Leary Acting D eputy Registrar President

APPENDIX

List of applications raising complaints under Article 5 § 3 of the Convention

( excessive length of pre-trial detention )

No.

Application no.

Date of introduction

Applicant ’ s name

Date of birth

Period of detention

Length of detention

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]

28513/10

12/04/2010

Gennadiy Dmitriyevich Sklyar

28/07/1964

02/09/2007 to

19/04/2012

4 years, 7 months and 18 days

0

47646/10

06/08/2010

Oleksandr Volodymyrovych Yekushenko

28/08/1969

27/01/2009 to

17/01/2011

1 year, 11 months and 22 days

Art. 5 (1) (c) - unlawful pre-trial detention:

from 27/10/2009 to 17/01/2011 the applicant was detained either without any court order or based on a court order without setting out the grounds and/or time for his continued detention

5,900

[1] . Plus any tax that may be chargeable to the applicants.