CASE OF SHAPKIN AND MAKOVSKYY v. UKRAINE (European Court of Human Rights) 13795/20 and 19927/21

The applicants complained of the deficiencies in proceedings for review of the lawfulness of their detention.


FIFTH SECTION
CASE OF SHAPKIN AND MAKOVSKYY v. UKRAINE
(Applications nos. 13795/20 and 19927/21)
JUDGMENT
STRASBOURG
10 November 2022

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

In the case of Shapkinand Makovskyy v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Ivana Jelić,
Kateřina Šimáčková, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 20 October 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 deficiencies in proceedings for review of the lawfulness of their detention.

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 § 4 of the Convention

6. The applicants complained of the deficiencies in proceedings for review of the lawfulness of their detention.They relied, expressly or in substance, on Article 5 § 4 of the Convention, which reads as follows:

Article 5 § 4

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful…”

7. The Court reiterates that under Article 5 § 4 of the Convention arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty (see Lietzow v. Germany, no. 24479/94, § 44, ECHR 2001-I). It is true that the provision in question does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Fodale v. Italy, no. 70148/01, § 39, ECHR 2006-VII).

8. In the leading case of Kharchenko v. Ukraine (no. 40107/02, §§ 84-87, 10 February 2011), 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.

10. The Court therefore concludes that there has been a breach of Article 5 § 4 of the Convention in the instant case.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. 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.”

12. Regard being had to the documents in its possession and to its case‑law (see, in particular, Oravec v. Croatia, no. 51249/11, §§ 78-80, 11 July 2017), the Court considers it reasonable to award the sums indicated in the appended table.

13. The Court further 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 applications admissible;

3. Holds that these applications disclose a breach of Article 5 § 4 of the Convention concerning the deficiencies in proceedings for review of the lawfulness of detention;

4. 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 10November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                        Stéphanie Mourou-Vikström
Acting Deputy Registrar                             President

____________

APPENDIX
List of applications raising complaints under Article 5 § 4 of the Convention
(deficiencies in proceedings for review of the lawfulness of detention)

No. Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location Name of the

first-instance court

Date of detention order

Appellate court or court examining request for release

Date of decision

Procedural deficiencies Amount awarded for non-pecuniary damage

per applicant

(in euros)[1]

Amount awarded for costs and expenses

per application

(in euros)[2]

1. 13795/20

05/03/2020

Oleg Anatoliyovych SHAPKIN

1964

Avramenko Gennadiy Mykolayovych

Chernigiv

Pecherskiy Local

Court of Kyiv,

13/09/2019

Kyiv Court

of Appeal, 12/02/2020

lack of speediness of review of detention (Kharchenko v. Ukraine, no. 40107/02,

§§ 86-87, 10 February 2011)

500 250
2. 19927/21

06/04/2021

Maryan Oleksiyovych MAKOVSKYY

1977

Kushnirenko ValeriyIsayevych

Kyiv

Svyatoshynskiy Local Court of Kyiv, 14/11/2020 Kyiv Court

of Appeal, 27/01/2021

lack of speediness of review of detention (Kharchenko v. Ukraine, no. 40107/02,

§§ 86-87, 10 February 2011)

500 250

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

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