European Court of Human Rights

 

 

 

FIFTH SECTION

 

CASE OF POVAROV v. UKRAINE

(Application no. 7220/19)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

20 February 2020

 

 

 

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

 

In the case of Povarov v. Ukraine,

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

          Gabriele Kucsko-Stadlmayer, President,
          Mārtiņš Mits,
          Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 30 January 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 January 2019.

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

3.  The Ukrainian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of the excessive length of his pre-trial detention. The applicant also raised other complaints under the provisions of the Convention.

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

6.  The applicant complained principally that his pre-trial detention had been unreasonably long. He 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.”

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 this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant’s pre-trial detention was excessive.

10.  This complaint is therefore admissible and discloses a breach of Article 5 § 3 of the Convention.

II.    OTHER ALLEGED VIOLATION UNDER WELL-ESTABLISHED CASE-LAW

11.  The applicant submitted a complaint under Article 5 § 5 of the Convention, which also raised issues, given the relevant well-established case-law of the Court relating to lack of compensation for unlawful detention (see appended table). 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 a violation of the Convention in the light of its findings in Kharchenko v. Ukraine and Ignatov v. Ukraine (both cited above).

III. REMAINING COMPLAINTS

12.  The applicant further raised complaints under Article 6 § 1 and 13 of the Convention as to the excessive length of proceedings in his case and the lack of any effective remedy in the domestic law. The Court, having examined all the materials submitted to it and having regard to the criteria established in its case-law on the subject (see, for example, Merit v. Ukraine, no. 66561/01, §§ 70 and 72, 30 March 2004; Obermeier v. Austria, 28 June 1990, § 72, Series A no. 179; Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000 IV; and Pretto and Others v. Italy, 8 December 1983, § 37, Series A no. 71) finds that these complaints are inadmissible since examination of the case in three instances took roughly four years and nine months which cannot be considered unreasonably long.

13. 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.

IV. 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 (see, in particular, Ignatov v. Ukraine, cited above), the Court considers it reasonable to award the sum indicated in the appended table.

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.      Declares the complaints concerning the excessive length of pre-trial detention and the other complaint under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;

3.      Holds that there has been a violation of Article 5 § 5 of the Convention concerning the other complaint under the well-established case-law of the Court (see the appended table);

4.      Holds

(a)   that the respondent State is to pay the applicant, 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.

Done in English, and notified in writing on 20 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

        Liv Tigerstedt                                                     Gabriele Kucsko-Stadlmayer

Acting Deputy Registrar                                                    President

APPENDIX

Application raising complaints under Article 5 § 3 of the Convention

(excessive length of pre-trial detention)