FIFTH SECTION

CASE OF MALYAVIN AND OTHERS v. UKRAINE

(Applications nos. 23805/20 and 2 others –

see appended list)

JUDGMENT

STRASBOURG

9 February 2023

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

In the case of Malyavin and Others v. Ukraine,

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

Mārtiņš Mits , President , Mattias Guyomar, Mykola Gnatovskyy , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 19 January 2023,

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 criminal proceedings and of the lack of any effective remedy in domestic law. In application no. 23805/20, the applicant also raised other complaint 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 the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention.

7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 ‑ II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII).

8. In the leading case of Nechay v. Ukraine (no. 15360/10, 1 July 2021) 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 justifying the overall length of the proceedings at the national level. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.

11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.

12. In application no. 23805/20 the applicant submitted a complaint under Article 2 of Protocol No. 4 to the Convention. This complaint is not manifestly ill-founded 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 violation of the Convention in the light of its findings in Ivanov v. Ukraine (no. 15007/02, 7 December 2006) and Nikiforenko v. Ukraine (no. 14613/03, § 59, 18 February 2010).

13. 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.”

14. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Bevz v. Ukraine, no. 7307/05, § 52, 18 June 2009), the Court finds it reasonable to award the sums indicated in the appended table.

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 9 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Mārtiņš Mits

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention

(excessive length of criminal proceedings and lack of any effective remedy in domestic law)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Start of proceedings

End of proceedings

Total length

Levels of jurisdiction

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]

23805/20

23/05/2020

Yuriy Oleksiyovych MALYAVIN

1961Tarakhkalo Mykhaylo Oleksandrovych

Kyiv

23/09/2011

pending

More than 11 years and 1 month and 24 days

3 levels of jurisdiction

Prot. 4 Art. 2 (1) - excessive length of obligation not to abscond

- the applicant has been under an undertaking not to leave town since 2011

3,900

250

34648/20

15/07/2020

Vadym Mykolayovych TOKUNOV

1962Gavrylyuk Mykhaylo Dmytrovych

Kyiv

23/07/2014

15/01/2020

5 years and 5 months and 24 days

2 levels of jurisdiction;

In its judgment Bondarenko and Others v. Ukraine (no. 40818/12, 28 June 2018) the Court found a violation of the Convention, inter alia , as regards the excessive length of the criminal proceedings against him for the period between 22/09/2009 and 22/07/2014 (four years and ten months before one level of jurisdiction).

1,200

28325/21

24/05/2021

Igor Olegovych SHOYKO

1975Malyar Vyacheslav Yuriyovych

Odesa

08/06/2008

pending

More than 14 years and 5 months and 8 days

1 level of jurisdiction

6,600

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

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