FIFTH SECTION

CASE OF ZAVADSKIY AND OTHERS v. UKRAINE

(Applications nos. 31173/17 and 4 others –see appended list)

JUDGMENT

STRASBOURG

5 October 2023

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

In the case of Zavadskiy and Others v. Ukraine,

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

Carlo Ranzoni, President , Lado Chanturia, María Elósegui , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 14 September 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

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.

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, Kudła 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 applicants’ pre-trial detention was unreasonably long.

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 the cases set out in the appended table.

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.

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 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Carlo Ranzoni

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

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]

31173/17

04/08/2017

Anatoliy Yefimovich ZAVADSKIY

1960Preobrazhenskaya Oksana Vladimirovna

Strasbourg

24/01/2017 to

28/05/2020

3 years and 4 months and 5 days

failure to conduct the proceedings with due diligence during the period of detention;

fragility and repetitiveness of the reasoning employed by the courts as the case progressed

Art. 5 (4) - excessive length of judicial review of detention - the applicant’s appeal of 27/03/2017 (amended on 10/04/2017) against the court’s decision on his detention of 22/03/2017 was examined by the court of appeal on 17/05/2017

(see Kharchenko v. Ukraine , no. 40107/02, §§ 86-87, 10 February 2011)

2,700

250

5041/20

05/01/2020

Bogdan Igorovych KOZUBAL

1992Fokiy Bogdan Vasylyovych

Chernivtsi

25/07/2017 to

21/05/2018

10/12/2018 to

21/02/2020

9 months and 27 days

1 year and 2 months and 12 days

fragility of the reasons employed by the courts;

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;

failure to conduct the proceedings with due diligence during the period of detention

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - the right to compensation for breaches of the Convention is not provided for in the domestic legal system (see Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015, and Tymoshenko v. Ukraine , no 49872/11, §§ 286-87, 30 April 2013)

1,600

250

9891/21

09/09/2021

Mykola Petrovych SHAPOVAL

1981

06/05/2010 to

29/10/2011

08/09/2016 to

09/03/2021

1 year and 5 months and 24 days

4 years and 6 months and 2 days

failure to conduct the proceedings with due diligence during the period of detention

Art. 6 (1) - excessive length of criminal proceedings- from 06/05/2010 - pending, three levels of jurisdiction,

Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings (see Nechay v. Ukraine , no. 15360/10, 1 July 2021)

3,000

-

44590/21

27/08/2021

Oleg Mykhaylovych SHCHERBATUK

1978Kryzhanovskyy Mykola Valentynovych

Kharkiv

15/03/2020 to

06/12/2021

1 year and 8 months and 22 days

fragility of the reasons employed by the courts;

failure to conduct the proceedings with due diligence during the period of detention;

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice

1,100

250

60585/21

06/12/2021

Oleksandr Kostyantynovych KHYZHNYY

1997Polushchenko Denys Georgiyovych

Kyiv

27/02/2017 to

23/02/2022

4 years and 11 months and 28 days

fragility of the reasons employed by the courts;

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;

failure to examine the possibility of applying other measures of restraint;

failure to conduct the proceedings with due diligence during the period of detention

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - the right to compensation for breaches of the Convention is not provided for in the domestic legal system (see Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015, and Tymoshenko v. Ukraine , no. 49872/11, §§ 286-87, 30 April 2013).

3,000

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

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