FIFTH SECTION

DECISION

Application no. 38741/21 Andriy Anatoliyovych MUSHTAY

against Ukraine

(see appended table)

The European Court of Human Rights (Fifth Section), sitting on 19 January 2023 as a Committee composed of:

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

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 21 July 2021,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s details are set out in the appended table.

The applicant was represented by Mr S.M. Rybiy, a lawyer practising in Dnipro.

The applicant’s complaints under Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings and the lack of any effective remedy in domestic law were communicated to the Ukrainian Government.

THE LAW

In the present application, having examined all the material before it, the Court considers that for the reasons stated below, the applicant’s complaint about the allegedly excessive length of criminal proceedings is inadmissible.

In particular, the Court notes that the proceedings were delayed in part because the parties to the proceedings, including the applicant and his lawyers, on a number of occasions failed to appear before the domestic court and asked to adjourn court hearings, having cited the involvement of the applicant’s representative in another set of judicial proceedings or having relied on the applicant’s or his representative’s illness as an excuse. Another significant delay was also caused by the applicant’s and his representative’s failure to appear before the court and their requests for adjournment without reference to any valid reasons. The Court points out that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see, Humen v. Poland [GC], no. 26614/95, § 66, 15 October 1999). The applicant’s behaviour, in itself legitimate, nonetheless constitutes an objective fact which cannot be attributed to the respondent State, and which must be taken into account for the purpose of determining whether or not the reasonable time referred to in Article 6 § 1 has been exceeded. Having regard to the circumstances of the case, the applicant failed to make an arguable case that the overall length of the proceedings in his case was excessive as a result of the State’s actions or inaction.

In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court, having found the complaint under Article 6 § 1 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention (see Rodić and Others v. Bosnia and Herzegovina , no. 22893/05, § 82, 27 May 2008). The applicant’s complaint under Article 13 of the Convention taken in conjunction with Article 6 § 1 of the Convention is thus likewise manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 February 2023.

Viktoriya Maradudina Mārtiņš Mits Acting Deputy Registrar President

APPENDIX

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

(excessive length of criminal proceedings)

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

38741/21

21/07/2021

Andriy Anatoliyovych MUSHTAY

1981Rybiy Sergiy Mykolayovych

Dnipro

08/04/2015

08/02/2021

5 years and 10 months and 1 day

3 levels of jurisdiction