FIFTH SECTION

CASE OF SHTEPA v. UKRAINE

(Application no. 16349/17)

JUDGMENT

STRASBOURG

24 October 2019

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

 SHTEPA v. UKRAINE JUDGMENT 1

In the case of Shtepa v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 1 October 2019,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 16349/17) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Ms Nelya Igorivna Shtepa (“the applicant”), on
17 February 2017.
2. The applicant was represented by Mr O.V. Tananakin, a lawyer
practising in Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr I. Lishchyna, from the Ministry of Justice.
3. The applicant complained, under Article 5 § 3 of the Convention, that
her pre-trial detention had been lengthy and unjustified. She further
complained, under Article 6 § 1 of the Convention, that the criminal
proceedings against her had been unreasonably long.
4. On 17 October 2017 the Court rejected the applicant’s request for an
interim measure under Rule 39 of the Rules of Court, to provide her with
necessary medical treatment in detention. On 20 April 2018 the application
was granted priority under Rule 41 of the Rules of Court.
5. On 11 September 2018 notice of the application was given to the
Government.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1962 and lives in Slovyansk.

7. The applicant was the mayor of Slovyansk between November 2010
and April 2014.
8. On 12 July 2014 criminal proceedings on a charge of infringement of
State sovereignty and inviolability were instituted against the applicant. On
the same day the investigator requested the court to detain her pending
completion of the investigation, relying on the seriousness of the charges
against her and the risk that she might abscond and hinder the investigation
2 SHTEPA v. UKRAINE JUDGMENT

by witnesses tampering or destroying or concealing evidence, or that she

might pursue her criminal activity.
9. On 13 July 2014 the Kharkiv Chervonozavodskyi District Court (“the
District Court”) ordered the applicant’s detention within the framework of
the above proceedings. The relevant decision stated that she was accused of
a serious offence, and that she might otherwise escape and hinder the
investigation or continue with her criminal activity. It was also mentioned in
the court decision that the applicant was not living at her registered address
in Slovyansk and that as former city mayor she might influence a victim and
witnesses. No further details of the above-mentioned reasons were provided
by the court.
10. In the meantime, additional terrorism charges were brought against
the applicant.
11. On 13 February 2015 the District Court committed the applicant for
trial. Given that the parties did not submit any requests to change or revoke
the preventive measure, the court ruled that the applicant’s detention was
deemed extended until 28 May 2015.
12. In the course of the pre-trial investigation and the trial, the courts, at
the request of the prosecution, extended the applicant’s detention on remand
on twenty occasions in total. In their reasoning for the decisions on the
applicant’s continued detention the courts referred to the same grounds as
those mentioned in the court decision of 13 July 2014 (see paragraph 9
above). In some decisions the courts, without providing further details,
additionally noted that:
(i) the applicant had failed to present evidence confirming that the risks
in favour of her detention that had previously been assessed by the courts
were no longer pertinent;
(ii) the applicant as former city mayor might influence witnesses;
(iii) the applicant’s arguments in favour of her release did not outweigh
the public interest in keeping her detained; and
(iv) the provisions of the Code of Criminal Procedure barred the use of
any preventive measures other than pre-trial detention in her case.
13. In the course of the court hearing on 20 September 2017, the
prosecution, relying on reasons similar to those given earlier (see
paragraph 8 above), requested the District Court to extend the applicant’s
detention for another term. The court found that the prosecution had failed
to prove the existence of the risk that the applicant might abscond and
hinder the investigation. The court changed the preventive measure in
respect of the applicant to house arrest, having released her from detention.
When deciding on the applicant’s release, the District Court took note of the
fact that the applicant had a family and a permanent place of residence in
Slovyansk (the same place the applicant had prior to her arrest in July 2014,
see paragraph 9 above), had no criminal record, had previously served as a
city mayor and had a good reputation.
 SHTEPA v. UKRAINE JUDGMENT 3

14. The criminal case against the applicant is currently pending before
the trial court.
15. According to the applicant, in the course of the trial, nineteen of the
judges who heard her case withdrew, were disqualified or were dismissed,
took sick or paternity leave under pressure from the prosecution, or quit
their career entirely. As a result, the trial was restarted four times.
16. In the course of the trial, the court held 69 hearings in total. On 32
occasions the court dealt with the merits of the case (hearing the parties’
submissions and the witness testimony, and examined the evidence).

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

17. The applicant complained that the decisions of the domestic courts
ordering her pre-trial detention had been arbitrary and lacked reasoning. She
further complained that her detention had been unreasonably long. She
relied on Article 5 § 3 of the Convention, which reads as follows:
“... 3. Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power, and 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

18. The Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that they are not inadmissible on any other grounds. They must therefore be
declared admissible.

B. Merits

19. The applicant submitted that her detention had been based solely on
the seriousness of the crimes of which she stood accused. She further stated
that the courts had failed to give relevant and sufficient reasons for her
detention, which had been unreasonably long, and that there had been no
risk of her absconding from justice.
20. The Government submitted that the applicant’s detention had been
under the permanent supervision of the courts, which had provided reasoned
decisions for that measure. They further maintained that the applicant’s
detention had been justified by the risk of her absconding from justice.
21. The applicable general principles are set out in Buzadji
v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July
2016).
4 SHTEPA v. UKRAINE JUDGMENT

22. Turning to the circumstances of the present case, the Court observes
that the applicant was held in detention within the meaning of Article 5
§ 1 (c) of the Convention from 13 July 2014 to 20 September 2017. Her
pre-trial detention therefore lasted for around three years and three months.
23. The Court observes that, contrary to the Government’s argument, the
District Court’s decision of 13 July 2014 did not contain clear and precise
reasons for the applicant’s detention but simply referred to the investigator’s
submissions, without any examination of the plausibility of the grounds
invoked by the latter (see paragraphs 8 and 9 above).
24. The Court further observes that the seriousness of the charges
against the applicant and the risk of her absconding or interfering with the
investigation were mentioned in the initial order for her detention (ibid.).
However, that reasoning did not evolve with the passage of time and
continued to consist of the same formulaic and stereotypical conclusions
(see paragraph 12 above). Moreover, when committing the applicant for
trial on 13 February 2015, the District Court maintained the applicant’s
detention but without giving any reasons whatsoever for its decision (see
paragraph 11 above).
25. The Court particularly notes that, in the present case, the domestic
courts repeatedly justified the applicant’s further detention by the absence of
reasons to release her, while Article 5 § 3 of the Convention implies an
opposite approach and requires the national authorities to indicate grounds
for the person’s continuing detention (see Neumeister v. Austria, 27 June
1968, § 4, Series A no. 8).
26. The Court further observes that the applicant’s absence from her
registered address in Slovyansk and her potential influence on a victim and
witnesses in her capacity as former city mayor (see paragraph 9 above) were
mentioned by the domestic court as justification for her detention. At the
same time, these elements, while they seem to remain unchanged according
to the case file materials (see paragraphs 9 and 13 above), were relied upon
by the domestic court to dismiss, on 20 September 2017, the prosecution’s
request for an extension of the applicant’s uninterrupted detention. In the
absence of any explanation in the relevant judicial decision and the
Government’s observations, it remains unclear how factors which were
interpreted in her favour in 2017 had been initially used against the
applicant in 2014.
27. The Court has often found a violation of Article 5 § 3 of the
Convention in cases against Ukraine on the basis that, even for lengthy
periods of detention, the domestic courts referred to the same set of grounds,
if there were any, throughout the period of the applicant’s detention (see, for
example, Komarova v. Ukraine, no. 13371/06, §§ 77-81, 16 May 2013).
28. Having regard to the above, the Court considers that by failing to
address specific facts or consider alternatives to pre-trial detention and by
relying essentially and routinely on the seriousness of the charges, the
 SHTEPA v. UKRAINE JUDGMENT 5

authorities extended the applicant’s detention pending trial on grounds

which cannot be regarded as “sufficient” and “relevant” such as to justify its
duration.
29. There has accordingly been a violation of Article 5 § 3 of the
Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

30. The applicant complained that the length of the criminal proceedings
in her case had been incompatible with the “reasonable time” requirement.
She relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a
... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

31. The Court notes that the above complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.

B. Merits

32. The applicant reiterated her initial submission that the length of the
criminal proceedings in her case had been in breach of the “reasonable
time” requirement.
33. The Government disputed that submission, arguing that the case had
been complex. They further stated that the proceedings had been delayed
due to the conduct of the applicant’s defence lawyers, who had lodged
numerous appeals and requests for the replacement of the trial court judges.
Overall, in their view, the court hearings had been scheduled with
reasonable intervals and there were no delays which could be attributed to
the State.
34. In the present case, the proceedings started on 12 July 2014, when a
criminal investigation for infringement of State sovereignty and
inviolability was instituted in respect of the applicant (see paragraph 8
above), and appear to be currently pending before the trial court. They have
thus lasted for about five years and two months at one level of jurisdiction.
35. The Court reiterates that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of the case
and with reference to the following criteria: the complexity of the case, the
conduct of the applicant and the relevant authorities, and what was at stake
for the applicant in the dispute (see, among many other authorities, Pélissier
6 SHTEPA v. UKRAINE JUDGMENT

and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and
Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
36. In Merit v. Ukraine (no. 66561/01, 30 March 2004) the Court found
a violation in respect of issues similar to those in the present case.
37. The Court further reiterates that it is the role of the domestic courts
to manage their proceedings so that they are expeditious and effective (see,
Silin v. Ukraine, no. 23926/02, § 34, 13 July 2006). However, in the Court’s
opinion the national court did not act with due diligence in the present case.
In particular, according to the information provided by the Government, the
hearings were often scheduled with intervals of three to four weeks and on
six occasions the hearings were postponed owing to the failure of witnesses
to appear before the court. The witnesses’ failures resulted in the
postponement of the hearings for three and a half months in total. The
Government did not state whether any measures had been taken in order to
shorten the intervals between the hearings or discipline the absent witnesses.
38. As regards the judges’ repeated withdrawals from the case, the Court
notes that each withdrawal resulted in the trial being restarted from the very
beginning (see paragraph 15 above). The total delay in the proceedings was
therefore more than seven months. In this connection, having no doubt
about the right of any judge to withdraw from a case, the Court reiterates
that Article 6 § 1 of the Convention imposes on the Contracting States the
duty to organise their legal systems in such a way that their courts can meet
the requirement to hear cases within a reasonable time (see, among many
other authorities, Duclos v. France, 17 December 1996, § 55 in fine,
Reports of Judgments and Decisions 1996-VI).
39. Having examined all the material submitted to it and in the light of
its case-law on the subject, the Court considers that, in the instant case, the
length of the proceedings was excessive and failed to meet the “reasonable
time” requirement.
40. There has accordingly been a violation of Article 6 § 1 of the
Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

41. Lastly, the applicant complained under Article 3 of the Convention,

that she had been subjected to physical and psychological ill-treatment in
detention and that the material conditions of her detention, including
medical treatment, had been inadequate. She further complained under
Articles 14 and 18 in conjunction with Article 5 of the Convention, that she
had suffered discriminatory treatment aimed at her isolation from political
activity while in detention.
42. In the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that the
above issues do not disclose any appearance of a violation of the rights and
 SHTEPA v. UKRAINE JUDGMENT 7

freedoms set out in the Convention or its Protocols. Accordingly, this part
of the application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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.”

A. Damage

44. The applicant claimed 8,650 euros (EUR) in respect of pecuniary

damage which she had sustained in the form of potential salary loss. She
further claimed EUR 30,000 in respect of non-pecuniary damage.
45. The Government considered the claims unsubstantiated and
excessive.
46. The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,600 in respect of
non-pecuniary damage.

B. Costs and expenses

47. The applicant also claimed EUR 21,450 for the costs and expenses
incurred both before the domestic courts and before the Court.
48. The Government considered the amount claimed unsubstantiated.
49. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and to its case-law, the Court considers it reasonable to award
the sum of EUR 1,000 covering costs under all heads.

C. Default interest

50. 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.
8 SHTEPA v. UKRAINE JUDGMENT

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the lack of reasons for the

applicant’s detention on remand and the excessive length of criminal
proceedings against her admissible and the remainder of the application
inadmissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 2,600 (two thousand six hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 October 2019, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Gabriele Kucsko-Stadlmayer

Deputy Registrar President