The case concerns the alleged arbitrariness of a court order of 10\u00a0July\u00a02013 to remand the applicant in custody, in breach of Article 5 \u00a7 1 of the Convention, and the unavailability of an effective procedure whereby he could obtain a review of the lawfulness of his detention, in breach of Article\u00a05\u00a0\u00a7 4.<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Babich v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a\u00a0Committee composed of:<\/p>\n Lado Chanturia, President, Having regard to:<\/p>\n the application (no.\u00a054014\/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 11 August 2013 by a\u00a0Ukrainian national, Mr Dmitriy Vasilyevich Babich, born in 1974 and detained in Lysychansk (\u201cthe applicant\u201d), who was represented before the\u00a0Court by Mr S.S.\u00a0Medvedev, a lawyer practising in Lysychansk;<\/p>\n the decision to give notice of the complaints under Article 5 \u00a7\u00a7 1 and 4 of the Convention to the Ukrainian Government (\u201cthe Government\u201d), represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice, and to declare the remainder of the application inadmissible;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 10 March 2022,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT MATTER OF THE CASE<\/strong><\/p>\n 1. The case concerns the alleged arbitrariness of a court order of 10\u00a0July\u00a02013 to remand the applicant in custody, in breach of Article 5 \u00a7 1 of the Convention, and the unavailability of an effective procedure whereby he could obtain a review of the lawfulness of his detention, in breach of Article\u00a05\u00a0\u00a7 4.<\/p>\n 2. On 20 September 2012 the applicant was arrested on suspicion of having engaged in a number of fraudulent real-estate transactions in association with several other individuals.<\/p>\n 3. On 21 September 2012 the Leninskiy District Court of Luhansk remanded the applicant in custody, referring to the gravity of the offences with which he had been charged and noting that, if at liberty, he could obstruct the investigation into his case or abscond. The court had particular regard to the fact that he was officially employed outside Lysychansk, whereas Lysychansk was the town in which he was registered as a resident.<\/p>\n 4. On 5 October 2012 the Luhansk Regional Court of Appeal allowed an appeal by the applicant against that decision and released him after he had given an undertaking not to abscond. It noted, in particular, that the\u00a0applicant\u2019s detention was unwarranted considering that his permanent residence was in Lysychansk; he had a family to support, including two minor children and his elderly mother; he was officially employed; he had provided positive character references; and he had no criminal record. The court also noted that the applicant\u2019s alleged role in the offences with which he had been charged (involving other individuals) was minor.<\/p>\n 5. On 18 November 2012 the applicant was committed to stand trial before the Lysychansk City Court (\u201cthe Lysychansk Court\u201d).<\/p>\n 6. On 10 July 2013 the prosecutor asked the court to remand the applicant in custody, referring to the gravity of the offences with which he had been charged and the fact that, if convicted, he could face a prison term exceeding three years. The prosecutor also submitted, without providing any details, that, while at liberty, the applicant was obstructing the investigation into his case and influencing witnesses to either refuse to testify or to give false testimonies.<\/p>\n 7. The Lysychansk Court granted the request on the same day that it was submitted, referring to the gravity of the offences with which the applicant had been charged and to the need to prevent him from absconding, obstructing the investigation and engaging in further criminal activity. The court also made reference to the need to secure procedural efficiency. In accordance with the applicable law, that decision was not subject to appeal.<\/p>\n 8. While in detention, the applicant lodged complaints with the\u00a0Lysychansk Court and the Lugansk Regional Court of Appeal requesting his release from detention, but to no avail. On 11 July 2014 the applicant was released from detention following a judgment given by the trial court on 8\u00a0July 2014 finding him guilty as charged but releasing him from serving the\u00a0sentence.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 5 \u00a7 1 OF THE CONVENTION<\/strong><\/p>\n 9. The applicant submitted that the Leninskiy District Court\u2019s decision of 21 September 2012 to remand him in custody, which had referred to the same grounds for his detention as in the Lysychansk Court\u2019s decision of 10\u00a0July\u00a02013, had already been quashed as unsubstantiated. After his release from detention in 2012, he had dutifully reported to the investigating authorities and attended court hearings when summoned, and there was no evidence that he had put witnesses under any pressure, tampered with evidence in any way or obstructed the investigation into his case. The\u00a0Government contested the applicant\u2019s assertion, arguing that the decision of the trial court to detain him had been lawful, necessary and justified.<\/p>\n 10. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 11. The applicable case-law is summarised in, for example, Assanidze\u00a0v.\u00a0Georgia ([GC], no. 71503\/01, \u00a7 171, ECHR 2004\u2011II), Winterwerp v.\u00a0the\u00a0Netherlands (24 October 1979, \u00a7\u00a045, Series A no. 33), Ne\u0161\u0165\u00e1k v.\u00a0Slovakia (no.\u00a065559\/01, \u00a7 74, 27 February 2007) and Khayredinov\u00a0v.\u00a0Ukraine (no.\u00a038717\/04, \u00a7\u00a7 27-28, 14 October 2010).<\/p>\n 12. In the present case, the Lysychansk Court decided on 10 July 2013 to change the preventive measure imposed on the applicant from an undertaking not to abscond to remand in custody, in view of the seriousness and the nature of the criminal offences at issue. Neither the Government\u2019s observations nor the available material suggest that the Lysychansk Court made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances. While referring to the existence of the risk of the applicant\u2019s absconding, influencing witnesses or hindering the investigation, the Lysychansk Court did not provide any further substantiation of its decision. Furthermore, it remains unexplained by the\u00a0Lysychansk Court whether the applicant had breached his undertaking not to abscond during the pre-trial investigation and the trial, that is, from 5\u00a0October 2012 to 10 July 2013.<\/p>\n 13. In the light of the foregoing, the Court considers that the Lysychansk Court\u2019s decision of 10 July 2013 did not afford the applicant the adequate protection from arbitrariness which is an essential element of the lawfulness of detention within the meaning of Article 5 \u00a7 1 of the Convention. Therefore, the applicant\u2019s detention based on the decision of 10 July 2013 was in breach of that provision.<\/p>\n II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/strong><\/p>\n 14. The applicant also complained under Article 13 of the Convention that he had not had at his disposal an effective procedure by which he could challenge the lawfulness of his detention. Being covered by the\u00a0well\u2011established case-law of the Court, this complaint falls to be examined under Article\u00a05\u00a0\u00a7\u00a04 of the Convention. The complaint is not manifestly ill\u2011founded within the meaning of Article\u00a035 \u00a7\u00a03\u00a0(a) of the\u00a0Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the\u00a0Court concludes that this complaint discloses a violation of Article 5 \u00a7 4 of the Convention in the light of its findings in Molodorych v. Ukraine (no.\u00a02161\/02, \u00a7\u00a7 104-10, 28 October 2010).<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 15. Without providing any substantiation, the applicant claimed 30,000\u00a0euros (EUR) in respect of pecuniary and non-pecuniary damage.<\/p>\n 16. The Government contested that claim.<\/p>\n 17. 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 2,300 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.<\/p>\n 18. 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 5 \u00a7 1 of the Convention;<\/p>\n 3. Holds that there has been a violation of Article 5 \u00a7 4 of the Convention;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;<\/p>\n (b) that from the expiry of the above-mentioned three months until rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 5. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20 September 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Lado Chanturia
\nCASE OF BABICH v. UKRAINE<\/strong>
\n(Application no. 54014\/13)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n20 September 2022<\/p>\n
\nGanna Yudkivska,
\nMattias Guyomar, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n