I correctly predicted that there was a violation of human rights in SHCHEGOLYEV v. UKRAINE.

Information

  • Judgment date: 2023-03-02
  • Communication date: 2021-05-10
  • Application number(s): 60833/15
  • Country:   UKR
  • Relevant ECHR article(s): 5, 5-1, 5-2, 5-3, 5-4, 6, 6-1, 6-2, 6-3-c
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
    Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
    Article 6-1 - Reasonable time)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.788829
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

Published on 31 May 2021 The application concerns the applicant’s allegations under Article 5 § 3 of the Convention that the domestic courts failed to give relevant and sufficient reasons for their decisions ordering and extending his detention, and that his detention was therefore unreasonably long.
The application furthermore concerns the applicant’s allegations under the same provision that the courts refused to set bail as a preventive measure.
Lastly, the application concerns the applicant’s allegations under Article 6 § 1 of the Convention that the proceedings against him are unreasonably long.
On 3 March 2015, within the framework of the criminal investigation into the Maidan events in Kyiv (see Shmorgunov and Others v. Ukraine, nos.
15367/14 and 13 others, 21 January 2021), the applicant, a Security Service officer at the material time, was formally notified that he was suspected of having used excessive power.
On 12 March 2015 the court applied a night house arrest to him.
On 20 August 2015 the applicant was formally notified of the modification of the level of suspicion against him when the scope of the charges against him was extended – more charges, in particular murder charges, were added to the investigation.
On the basis of new charges, on 20 August 2015 the applicant was arrested and on 21 August 2015 the Kyiv Pecherskyi District Court ordered his detention, noting as the reasons for detention the gravity of the charges and the risk of his absconding and influencing other participants in the proceedings.
The applicant’s detention was extended by the courts a number of times with reference to the reasons previously mentioned.
When making a decision on the applicant’s detention the courts referred to the provisions of the Code of Criminal Procedure which did not allow the courts to set bail in such circumstances.
On 20 June 2019 the applicant’s detention was altered to a twenty-four hour house arrest which was further changed to personal commitment on 25 October 2019.
As of today, the proceedings against the applicant are still pending at the trial court.

Judgment

FIFTH SECTION
CASE OF SHCHEGOLYEV AND KVACHAN v. UKRAINE
(Applications nos. 60833/15 and 19957/20)

JUDGMENT

STRASBOURG
2 March 2023

This judgment is final but it may be subject to editorial revision. In the case of Shchegolyev and Kvachan v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, Mattias Guyomar, Mykola Gnatovskyy, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 2 February 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 application no. 60833/15, the applicant 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, which, insofar as relevant, reads as follows:
“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 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. 11. In application no. 60833/15, the applicant submitted a complaint under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings. 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 violations of the Convention in the light of its findings in Nechay v. Ukraine, no. 15360/10, 1 July 2021. 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. It rejects any additional claims for just satisfaction raised by the applicant in application no. 60833/15. 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 2 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Mārtiņš Mits
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/house arrest
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]
60833/15
30/11/2015
Oleksandr Yuriyovych SHCHEGOLYEV
1963
Legkykh Kyrylo Viktorovych
Kyiv
20/08/2015 to
25/10/2019
4 years and 2 months and 6 days

failure to conduct the proceedings with due diligence during the period of detention
from 26/06/2019 to 25/10/2019
Art. 6 (1) - excessive length of criminal proceedings - from 03/03/2015 and still pending before one instance
3,900
850
19957/20
23/04/2020
Anatoliy Borysovych KVACHAN
1973
Shapoval Olena Viktorivna
Kyiv
30/11/2016 to
03/11/2019
2 years and 11 months and 5 days

fragility of the reasons employed by the courts
from 05/09/2019 to 03/11/2019

1,800
250

[1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants. FIFTH SECTION
CASE OF SHCHEGOLYEV AND KVACHAN v. UKRAINE
(Applications nos. 60833/15 and 19957/20)

JUDGMENT

STRASBOURG
2 March 2023

This judgment is final but it may be subject to editorial revision. In the case of Shchegolyev and Kvachan v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, Mattias Guyomar, Mykola Gnatovskyy, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 2 February 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 application no. 60833/15, the applicant 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, which, insofar as relevant, reads as follows:
“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 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. 11. In application no. 60833/15, the applicant submitted a complaint under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings. 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 violations of the Convention in the light of its findings in Nechay v. Ukraine, no. 15360/10, 1 July 2021. 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. It rejects any additional claims for just satisfaction raised by the applicant in application no. 60833/15. 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 2 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Mārtiņš Mits
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/house arrest
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]
60833/15
30/11/2015
Oleksandr Yuriyovych SHCHEGOLYEV
1963
Legkykh Kyrylo Viktorovych
Kyiv
20/08/2015 to
25/10/2019
4 years and 2 months and 6 days

failure to conduct the proceedings with due diligence during the period of detention
from 26/06/2019 to 25/10/2019
Art. 6 (1) - excessive length of criminal proceedings - from 03/03/2015 and still pending before one instance
3,900
850
19957/20
23/04/2020
Anatoliy Borysovych KVACHAN
1973
Shapoval Olena Viktorivna
Kyiv
30/11/2016 to
03/11/2019
2 years and 11 months and 5 days

fragility of the reasons employed by the courts
from 05/09/2019 to 03/11/2019

1,800
250

No. Application no. Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention/house arrest
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]
60833/15
30/11/2015
Oleksandr Yuriyovych SHCHEGOLYEV
1963
Legkykh Kyrylo Viktorovych
Kyiv
20/08/2015 to
25/10/2019
4 years and 2 months and 6 days

failure to conduct the proceedings with due diligence during the period of detention
from 26/06/2019 to 25/10/2019
Art. 6 (1) - excessive length of criminal proceedings - from 03/03/2015 and still pending before one instance
3,900
850
19957/20
23/04/2020
Anatoliy Borysovych KVACHAN
1973
Shapoval Olena Viktorivna
Kyiv
30/11/2016 to
03/11/2019
2 years and 11 months and 5 days

fragility of the reasons employed by the courts
from 05/09/2019 to 03/11/2019

1,800
250
[1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.