KOMAR AND OTHERS v. UKRAINE - 68786/14 (Judgment : Article 5 - Right to liberty and security : Fifth Section Committee) [2023] ECHR 510 (22 June 2023)

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You are here: BAILII >> Databases >> European Court of Human Rights >> KOMAR AND OTHERS v. UKRAINE - 68786/14 (Judgment : Article 5 - Right to liberty and security : Fifth Section Committee) [2023] ECHR 510 (22 June 2023) URL: http://www.bailii.org/eu/cases/ECHR/2023/510.html Cite as: CE:ECHR:2023:0622JUD006878614, ECLI:CE:ECHR:2023:0622JUD006878614, [2023] ECHR 510

In the case of Komar 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 1 June 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

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. In some of the applications they 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. SCOPE OF APPLICATION NO. 33066/16

6. In his submissions of 8 April 2022 made in reply to the Government’s observations, the applicant in application no. 33066/16 complained, for the first time, that he had been denied family visits in detention.

7. The Court notes that this new complaint does not constitute an elaboration or elucidation of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 122 and 129, 20 March 2018 and Korneykova and Korneykov v. Ukraine, no. 56660/12, §§ 95-96, 24 March 2016).

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

8. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention.

9. 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).

10. 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.

11. 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.

12. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.

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

13. In applications set out in the appended table the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court. 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.

V. REMAINING COMPLAINTS

14. In applications nos. 68786/14 and 33066/16 the applicants also raised other complaints under various Articles of the Convention.

15. As to the complaints under Article 5 § 4 of the Convention in applications nos. 68786/14 and 33066/16 (insofar as the latter concerned participation of lay judges in examination of matters of detention), the Court considers that it has examined the main legal question raised in the case and that there is no need to give a separate ruling on the admissibility and merits of this part of the applications (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and, for example, Minayev and Korzh v. Ukraine, nos. 82724/17 and 40291/18 [Committee], § 11, 16 December 2021).

16. As to the applicant’s complaint in application no. 33066/16 that certain statements and publications resulted in a violation of his rights under Article 6 § 2 and Articles 8 and 13 of the Convention, the Court observes that the applicant’s several defamation claims were successful, having resulted in the acknowledgement of a violation of his rights and an award of compensation. The applicant did not provide any convincing explanation as to why he still considered his rights violated despite the positive outcome of those proceedings. Nor did he explain why the same remedy would have been ineffective in respect of those episodes where he decided not to pursue it (see Mamaladze v. Georgia, no. 9487/19, § 63, 3 November 2022, and Januškevičienė v. Lithuania, no. 69717/14, § 59, 3 September 2019, with further references). Accordingly, these complaints should be rejected in part as being manifestly ill-founded and in part for non-exhaustion of domestic remedies. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

17. In application no. 33066/16 the applicant also raised an additional complaint under Article 3 of the Convention as to his nutrition on hearing days. The Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

18. 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.”

19. 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 and rejects any additional claims for just satisfaction in application no. 33066/16.

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, finds that it is not necessary to examine separately the complaints raised under Article 5 § 4 of the Convention in applications nos. 68786/14 and 33066/16 (insofar as the latter concerned participation of lay judges in examination of matters of detention), and dismisses the remainder of application no. 33066/16 as 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 of the Convention as regards the other complaints raised under 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. In application no. 33066/16 the amount awarded for costs and expenses is to be paid directly into the account of the applicant’s representative, Mr A. Kristenko;

(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;

6. Dismisses the remainder of the applicant’s claims for just satisfaction in application no. 33066/16.

Done in English, and notified in writing on 22 June 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	House arrest	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]
	68786/14 18/10/2014	Oleg Ivanovych KOMAR 1971		11/06/2011 to 02/12/2015	4 years and 5 months and 22 days	fragility of the reasons employed by the courts; failure to conduct the proceedings diligently leading to excessive length of detention on remand	-	Art. 6 (1) - excessive length of criminal proceedings - since 20/05/2009 and still pending (see Nechay v. Ukraine, no. 15360/10, 1 July 2021).	8,600	-
	33066/16 30/05/2016	Oleksandr Oleksiyovych MELNYK 1963	Kristenko Andriy Anatoliyovych Kharkiv	04/09/2014 pending	More than 8 years and 7 months and 21 days	fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention	12/07/2017-20/07/2017	Art. 3 - inadequate medical treatment in detention - There were delays in carrying out the applicant’s medical examinations and tests recommended by doctors. In particular, in December 2015 a cardiologist diagnosed the applicant with ischemic heart disease, stable effort angina, postinfarction cardiosclerosis and heart insufficiency, and recommended additional medical examinations including cardiac ventriculography. It appears that the aforementioned examination was only carried out on 31 August 2016. Furthermore, on 12 October 2017 a urologist diagnosed the applicant with urinary tract condition and chronic prostatitis in an aggravation stage and recommended additional examinations. Those examinations were apparently not carried out. On 31 May 2018 a court granted the applicant’s complaint on the lack of adequate medical care in detention. It ruled “to oblige the [SIZO] to provide [the applicant] with adequate medical treatment”, having noted that there had been no reaction by the SIZO administration to his repeated applications in that regard. No indication that the court decision had been complied with. These circumstances disclose shortcomings in the medical care provided to the applicant in detention similar to those already criticised by the Court (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-05, ECHR 2005-II (extracts), and Avraamova v. Ukraine [Committee], no. 2718/12, §§ 77‑84, 20 September 2022), Art. 3 - inadequate conditions of detention during transport - It is confirmed by the findings of the domestic courts that the applicant was transported from the detention facility to the court and back in a van allowing only 0.47 sq. m. per detainee. The courts, however, rejected the applicant’s claim for compensation in respect of non-pecuniary damage. - The conditions of the applicant’s transport were similar to those, in respect of which the Court has already found a violation of Article 3 of the Convention (see, e.g., Yakovenko v. Ukraine, no. 15825/06, §§ 105-13, 25 October 2007, and Andrey Yakovenko v. Ukraine, no. 63727/11, §§ 100-03, 13 March 2014), Art. 5 (4) - excessive length of judicial review of detention - On many occasions the applicant’s appeals concerning his pre-trial detention were examined with delays varying from two months to almost two years, mainly owing to the fact that the case was often transferred to a different court following numerous judges’ recusals and self-recusals. The applicant’s appeal against an extension of his pre-trial detention, which he lodged on 3 September 2019, was examined on 26 July 2021. His similar appeal against such an extension on 24 October 2019 (lodged within a seven-day time-limit from that date) was examined on 19 February 2020. It follows that the requirement for a speedy review was not complied with (Ignatov v. Ukraine, no. 40583/15, § 46, 15 December 2016).	9,750	2,000
	44069/21 23/08/2021	Yuriy Mykolayovych LYASOVYY 1999	Polushchenko Denys Georgiyovych Kyiv	29/09/2020 pending	More than 2 years and 6 months and 27 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 assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; 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 (Korban v. Ukraine, no. 26744/16, §§ 101 and 102, 4 July 2019)	2,100	250
	2328/22 29/12/2021	Maksym Viktorovych LI-SHU-SHAN 1987	Gurevych Maksym Gennadiyovych Kyiv	29/12/2020 pending	More than 2 years and 3 months and 27 days	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			1,400	250
	28025/22 23/05/2022	Dmytro Mykhaylovych GAVRYLYUK 1978	Kanikayev Yuriy Olegovych Odesa	27/09/2016 pending	More than 6 years and 6 months and 29 days	fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint; fragility and repetitiveness of the reasoning employed by the courts as the case progressed		Art. 5 (4) - excessive length of judicial review of detention - excessive length of consideration of the applicant’s appeal against the detention order dated 21/10/2021. In particular, his appeal of 27/10/2021 was considered by an appellate court on 18/02/2022 (Kharchenko v. Ukraine, no. 40107/02, §§ 86-87, 10 February 2011).	3,900	250
	35752/22 07/07/2022	Myroslav Olegovych MARTYNYUK 2001	Ogorilko Yuriy Volodymyrovych Chervonograd	19/06/2020 pending	More than 2 years and 10 months and 6 days	fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint			1,900	250
	39887/22 30/07/2022	Sergiy Stepanovych YAKOVLEV 2004	Voronyuk Kateryna Yuriyivna Rivne	03/10/2019 to 27/04/2022	2 years and 6 months and 25 days	fragility of the reasons employed by the courts; fragility and repetitiveness of the reasoning employed by the courts as the case progressed			1,600	250

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

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