FIFTH SECTION

CASE OF GORBACHOV AND OTHERS v. UKRAINE

(Applications nos. 14693/20 and 4 others –

see appended list)

JUDGMENT

STRASBOURG

10 February 2022

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

In the case of Gorbachev and Others v. Ukraine,

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

Lətif Hüseynov, President, Lado Chanturia, Arnfinn Bårdsen, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 20 January 2022,

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. The Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

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

4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

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

6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which reads 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, §§ 77-81, 10 February 2011) and Ignatov v. Ukraine (no. 40583/15, §§ 38-42, 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 applicants’ pre-trial detention was excessive.

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

11. Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Kharchenko (cited above, §§ 84-87) and G.B. and Others v. Turkey (no. 4633/15, § 176, 17 October 2019).

12. 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.”

13. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Ignatov, cited above, § 57), the Court considers it reasonable to award the sums indicated in the appended table.

14. The Court further 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,

(a) that the respondent State is to pay the applicants, within three months, the amounts 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 10 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Lətif Hüseynov

Acting Deputy 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

Year of birth

Representative’s name and location

Period of detention

Length of detention

Specific defects

House arrest

Other complaints under well-established case-law

Amount awarded for pecuniary and

non-pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

14693/20

11/03/2020

Oleksandr Oleksandrovych GORBACHOV

1979Serikova Kateryna Sergiyivna

Syevyerodonetsk

20/07/2017 to

17/09/2019

2 years and 1 month and 29 days

fragility of the reasons employed by the courts;

Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - Failure by the courts to address the applicant’s arguments raised in his applications for release and his appeals ( G.B. and Others v. Turkey , no. 4633/15, § 176, 17 October 2019)

1,700

250

45555/20

30/09/2020

Kostyantyn Oleksiyovych SHEVCHUK

1995

24/09/2019

pending

More than 2 years and 3 months

failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding

Art. 5 (4) - excessive length of judicial review of detention - The applicant’s appeals of 04/10/2019, 28/12/2019, 28/02/2020, 22/04/2020, 22/06/2020, 03/08/2020 were examined by the Kyiv Court of Appeal on 28/04/2020, 27/05/2020, 19/05/2020, 02/05/2020, 19/11/2020, 19/10/2020 respectively

1,800

1442/21

22/12/2020

Igor Anatoliyovych KUNYK

1971Kiyashko Sergey Leonidovich

Kharkiv

25/06/2020

pending

More than 1 year and 6 months

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; fragility of the reasons employed by the courts

Art. 5 (4) - excessive length of judicial review of detention - the applicant’s appeals of 10/06/2020, 30/07/2020, 30/09/2020 and 26/11/2020 against the decisions extending his detention were considered by the court of appeal with significant delays on 10/08/2020, 23/04/2021, 20/01/2021 and 18/06/2021 respectively

1,200

250

11575/21

17/02/2021

Mikhail Sergeyevich ZHARKOV

1980

15/03/2018 to

11/08/2021

3 years and 5 months and 28 days

fragility of the reasons employed by the courts

2,100

13667/21

25/02/2021

Vladyslav Maksymovych STIKHARYOV

2002Bondarenko Yuriy Yuryevich

Lysychansk

05/07/2018 to

01/09/2020

2 years and 3 months and 28 days

fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint

01/09/2020

01/11/2020

1,400

250[1] Plus any tax that may be chargeable to the applicants.

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