CASE OF LIFINTSEV AND OTHERS v. UKRAINE (European Court of Human Rights) 6768/11 and 7 others

Last Updated on February 24, 2022 by LawEuro

The applicants complained of the unlawful detention. Some applicants also raised other complaints under the provisions of the Convention.

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FIFTH SECTION
CASE OF LIFINTSEV AND OTHERS v. UKRAINE
(Applications nos. 6768/11 and 7 others – see appended list)
JUDGMENT
STRASBOURG
24 February 2022

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

In the case of Lifintsev and Others v. Ukraine,

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

Lətif Hüseynov, President,
Lado Chanturia,
Arnfinn Bårdsen, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 3 February 2022,

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 unlawful detention. Some 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 § 1 of the Convention

6. The applicants complained principally of the unlawful detention. They relied, expressly or in substance, on Article 5 § 1 of the Convention, which reads as follows:

Article 5 § 1

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

7. The Court reiterates that Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts), with further references).

8. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see S., V. and A. v. Denmark [GC], nos. 35553/12, 36678/12 and 36711/12, § 74, 22 October 2018, with further references).

9. In the leading cases of Kharchenko v. Ukraine (no. 40107/02, §§ 70‑72 and 74-76, 10 February 2011), Ruslan Yakovenko v. Ukraine (no. 5425/11, §§ 68-70, 4 June 2015), Strogan v. Ukraine (no. 30198/11, §§ 88-89, 6 October 2016), Ignatov v. Ukraine (no. 40583/15, §§ 36-37, 15 December 2016), Fortalnov and Others v. Russia (nos. 7077/06 and 12 others,
§§ 76-79, 26 June 2018) and Grubnyk v. Ukraine (no. 58444/15, §§ 71-73 and 83-85, 17 September 2020), the Court found a violation in respect of issues similar to those in the present case (see the appended table).

10. 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 applicants’ detention was not in accordance with Article 5 § 1 of the Convention.

11. It follows that the applicants’ complaints are admissible and discloses a violation of Article 5 § 1 of the Convention.

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

12. Some 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 Kharchenko (cited above), Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015), Ignatov (cited above), and Nechay v. Ukraine (no. 15360/10,
§§ 67-79, 1 July 2021).

IV. REMAINING COMPLAINTS

13. In application no. 917/17 the applicant also raised other complaints under Article 5 §§ 3 and 4 of the Convention.

14. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

15. 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.”

16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Malyk v. Ukraine, no. 37198/10, 29 January 2015), the Court considers it reasonable to award the sums indicated in the appended table.

17. 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 unlawful detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 917/17 inadmissible;

3. Holds that these complaints disclose a breach of Article 5 § 1 of the Convention concerning the unlawful 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;

(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 24 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                           Lətif Hüseynov
Acting Deputy Registrar                          President

____________

APPENDIX

List of applications raising complaints under Article 5 § 1 of the Convention

(unlawful detention)

No.	Application no. Date of introduction	Applicant’s name Year of birth	Representative’s name and location	Period of unlawful detention	Specific defects	Relevant domestic decision	Other complaints under well-established case-law	Amount awarded for non-pecuniary damage per applicant (in euros)[i]	Amount awarded for costs and expenses per application (in euros)[ii]
1.	6768/11 20/01/2011	Sergey Nikolayevich LIFINTSEV 1971	Martynovskyy Roman Yuriyovych Kyiv	31/08/2007 – 02/03/2011	Decision on detention without a time-limit (Kharchenko v. Ukraine, no. 40107/02, §§ 74-76, 10 February 2011). Absence of any grounds given by the court in the decision authorising detention (Ignatov v. Ukraine, no. 40583/15, §§ 36-37, 15 December 2016).	Nakhimovsky Local Court of Sevastopol, 31/08/2007, Nakhimovsky Local Court of Sevastopol, 07/11/2007, Nakhimovsky Local Court of Sevastopol, 02/03/2011	Art. 6 (1) – excessive length of criminal proceedings 29/08/2007 – 21/01/2013, 5 years, 4 months, 25 days, before one level of jurisdiction; Art. 5 (3) – excessive length of pre-trial detention 29/08/2007 – 02/03/2011, 3 years, 6 months, 3 days; lack of proper reasoning in the detention orders.	5,900	250
2.	64231/13 09/09/2013	Dmitriy Nersesovich STEPANYAN 1978		03/12/2012 – 14/03/2013	Detention not covered by any judicial order (Kharchenko v. Ukraine, no. 40107/02, §§ 70-72, 10 February 2011).			1,800
3.	8290/16 01/02/2016	Sergiy Anatoliyovch TARASENKO 1969	Lebid Vitaliya Pavlivna Kyiv	11/03/2015 – 24/03/2015	Delay in the drawing up of the arrest report (Grubnyk v. Ukraine, no. 58444/15, §§ 71-73, 17 September 2020, and Fortalnov and Others v. Russia, no. 7077/06 and 12 others, §§ 76-79, 26 June 2018). No legal basis for arrest without a prior court decision (Strogan v. Ukraine, no. 30198/11, §§ 88-89, 6 October 2016, and Grubnyk v. Ukraine, no. 58444/15, §§ 83-85, 17 September 2020).	arrest report of 24/03/2015	Art. 5 (2) – failure to inform promptly of the reasons for arrest – no information about the grounds for arrest until the arrest record was drawn up on 24/03/2015; Art. 5 (3) – lack of relevant and sufficient reasons for detention – 11/03/2015 – 03/03/2016, 11 months, 23 days; fragility of the reasons for detention orders; failure to assess the applicant’s personal situation to decide on measures alternative to detention.	2,600	250
4.	54957/16 04/09/2016	Vadim Semenovich REPKIN 1966	Samarets Alina Mykolayivna Kyiv	25/06/2012 – 26/06/2012 26/10/2012 – 11/02/2013 11/02/2013 – 13/08/2013 16/09/2013 – 08/11/2013	Delay in the drawing up of the arrest report (Grubnyk v. Ukraine, no. 58444/15, §§ 71-73, 17 September 2020, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018). Detention not covered by any judicial order (Kharchenko v. Ukraine, no. 40107/02, §§ 70-72, 10 February 2011). Decision on detention without a time-limit (Kharchenko v. Ukraine, no. 40107/02, §§ 74-76, 10 February 2011). Absence of any grounds given by the court in the decision authorising detention (Ignatov v. Ukraine, no. 40583/15, §§ 36-37, 15 December 2016).	none none Dniprovskyy District Court of Kyiv, 11/02/2013 Dniprovskyy District Court of Kyiv, 16/09/2013	Art. 5 (3) – excessive length of pre-trial detention – 25/06/2012 – 05/12/2017, 5 years, 5 months, 12 days; failure to conduct the proceedings with due diligence during the period of detention; Art. 5 (5) – lack of, or inadequate, compensation for unlawful arrest or detention, (Tymoshenko v. Ukraine, no. 49872/11, §§ 286-287, 30 April 2013 and Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015); Art. 6 (1) – excessive length of criminal proceedings – 25/06/2012 – 19/12/2018, 6 years, 5 months, 26 days, before three levels of jurisdiction; Art. 13 – lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings.	3,900	250
5.	917/17 12/12/2016	Denis Vladimirovich PURIK 1986	Bondarenko Yuriy Yuryevich Lysychansk	12/07/2016 – 04/08/2016	Delayed release (Ruslan Yakovenko v. Ukraine, no. 5425/11, §§ 68-70, ECHR 2015)	none		1,800	250
6.	49607/17 29/06/2017	Aleksandr Yuryevich YURCHENKO 1986	Shadrin Oleksandr Sergiyovych Irpin	16/12/2016 – 17/12/2016	No legal basis for arrest without a prior court decision (Strogan v. Ukraine, no. 30198/11, §§ 88-89, 6 October 2016, and Grubnyk v. Ukraine, no. 58444/15, §§ 83-85, 17 September 2020), delay in the drawing up of the arrest report (Grubnyk v. Ukraine, no. 58444/15, §§ 71-73, 17 September 2020, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018).	none	Art. 5 (5) – lack of, or inadequate, compensation for unlawful arrest or detention, (Tymoshenko v. Ukraine, no. 49872/11, §§ 286-287, 30 April 2013 and Kotiy v. Ukraine, no. 28718/09, §§ 55, 5 March 2015).	1,800	250
7.	51004/17 11/07/2017	Oleksandr Stanislavovych TSYMBAL 1974		30/03/2017 – 20/06/2017	Delayed release (Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, §§ 143-153, 3 December 2015).			1,800
8.	54147/18 06/11/2018	Ivan Vasylyovych ZHOSAN 1992	Leshchenko Andriy Viktorovych Odesa	18/07/2014 – 26/07/2014	Delay in the drawing up of the arrest report (Grubnyk v. Ukraine, no. 58444/15, §§ 71-73, 17 September 2020, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018). No legal basis for arrest without a prior court decision (Strogan v. Ukraine, no. 30198/11, §§ 88-89, 6 October 2016, and Grubnyk v. Ukraine, no.58444/15, §§ 83-85, 17 September 2020). Detention not covered by any judicial order (Kharchenko v. Ukraine, no. 40107/02, §§ 70-72, 10 February 2011).	none	Art. 5 (3) – excessive length of pre-trial detention – 18/07/2014 – 17/05/2018, 3 years, 9 months, 21 days, failure to examine the possibility of applying other measures of restraint, 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.	3,100	250

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