CASE OF SHUST AND SIDORENKO v. UKRAINE
(Applications nos. 41385/06 and 56391/11)
23 March 2017
This judgment is final but it may be subject to editorial revision.
In the case of Shust and Sidorenko v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Vincent A. De Gaetano,
Gabriele Kucsko-Stadlmayer, judges,
and Karen Reid, Section Registrar,
Having deliberated in private on 2 March 2017,
Delivers the following judgment, which was adopted on that date:
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 applications were communicated to the Ukrainian Government (“the Government”).
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. They also raised other complaints under the provisions of the Convention.
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 applicants 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, 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 case of Kharchenko v. Ukraine, no. 40107/02, 10 February 2011, 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.
III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
11. The applicants submitted other complaints which also raised issues under the Convention, in accordance with 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 leading cases of Merit v. Ukraine, no. 66561/01, 30 March 2004; and Kharchenko v. Ukraine, cited above.
IV. REMAINING COMPLAINTS
12. In application no. 41385/06 the applicant also raised other complaints under various Articles of the Convention.
13. The Court has examined the application 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 application 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 second applicant, Mr Sidorenko. It makes no award in respect of the first applicant, Mr Shust, who failed to respond to the Court’s invitation 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 complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of application no. 41385/06 inadmissible;
3. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;
4. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table);
(a) that the respondent State is to pay the second applicant, Mr Sidorenko, 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 applicant’s claims for just satisfaction.
Done in English, and notified in writing on 23 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Karen Reid Vincent
A. De Gaetano
List of applications raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Date of birth
Representative name and location
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
Andrey Nikolayevich Shust
15/01/2004 to 28/04/2005
29/11/2005 to 13/12/2006
04/12/2007 to 09/07/2008
1 year, 3 months and 14 days
1 year and 15 days
7 months and 6 days
Art. 6 (1) - excessive length of criminal proceedings between 24/09/2003 and 16/12/2008:
5 years and 3 months,
2 levels of jurisdiction.
Vladislav Viktorovich Sidorenko
Nataliya Gennadyevna Okhotnikova
19/12/2005 to 28/04/2007
11/12/2007 to 17/02/2011
11/05/2011 to 05/03/2013
1 year, 4 months and 10 days
3 years, 2 months and 7 days
1 year, 9 months and 23 days
Art. 5 (4) - excessive length of judicial review of detention;
Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention;
Art. 6 (1) - excessive length of criminal proceedings between 19/12/2005 and 05/03/2013:
7 years and 3 months,
2 levels of jurisdiction
 Plus any tax that may be chargeable to the applicant.