European Court of Human Rights

 

 

FIFTH SECTION

CASE OF BIDASHKO AND SAGAYDAK v. UKRAINE

(Applications nos. 64973/19 and 28230/20)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

10 June 2021

 

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

In the case of Bidashko and Sagaydak v. Ukraine,

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

          Stéphanie Mourou-Vikström, President,
          Jovan Ilievski,
          Mattias Guyomar, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 20 May 2021,

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. The applicants also raised other complaints under the provisions of the Convention.

THE LAW

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 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.”

A.    Admissibility

7.  As regards application no. 64973/19, the Government submitted that during the period between 2 December 2016 and 30 March 2017 the applicant did not appeal against the detention orders, so he failed to exhaust the domestic remedy available to him.

8.  The Court notes that, in view of the applicant’s complaint about unreasonably long pre-trial detention, the appeal procedure, to which the Government have referred, cannot be regarded as an effective domestic remedy for such complaints insofar as it concerns court decisions authorising the applicant’s initial pre-trial detention, as well as his further detention for the period of less than one year. The Court reiterates that the applicant has, by now, spent over four years in pre-trial detention and his detention is still pending.

9.  The Court thus rejects the Government’s observations as to non-exhaustion of domestic remedies and concludes that, in the above circumstances, the applicant was absolved from having recourse to the mentioned remedy.

10.  The Court further notes that the applicants’ complaints under Article 5 § 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. They must therefore be declared admissible.

B.    Merits

11.  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).

12.  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.

13.  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 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.

14.  These complaints therefore disclose a breach of Article 5 § 3 of the Convention.

III.   OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

15.  The 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 Merit v. Ukraine (no. 66561/01, 30 March 2004) related to the complaint about the excessively lengthy criminal proceedings and lack of an effective remedy in this regard, Tymoshenko v. Ukraine (no. 49872/11, 30 April 2013) and Kotiy v. Ukraine (no. 28718/09, 5 March 2015), as concerns the complaint under Article 5 § 5 of the Convention in relation to the lack of compensation for lengthy detention on remand.

IV.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  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.”

17.  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.

18.  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 the well-established case-law of the Court, as set out in the appended table, admissible;

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 of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table);

5.      Holds

(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 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Viktoriya Maradudina                                             Stéphanie Mourou-Vikström
  Acting Deputy Registrar                                                          President

 

APPENDIX

List of applications raising complaints under Article 5 § 3 of the Convention

(excessive length of pre-trial detention)