{"id":20901,"date":"2023-05-11T10:16:34","date_gmt":"2023-05-11T10:16:34","guid":{"rendered":"https:\/\/laweuro.com\/?p=20901"},"modified":"2023-05-11T10:16:34","modified_gmt":"2023-05-11T10:16:34","slug":"case-of-zaikin-v-ukraine-37822-16","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=20901","title":{"rendered":"CASE OF ZAIKIN v. UKRAINE – 37822\/16"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF ZAIKIN v. UKRAINE<\/strong>
\n(Application no. 37822\/16)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n11 May 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Zaikin v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
\nM\u0101rti\u0146\u0161 Mits, President,
\nMattias Guyomar,
\nMykola Gnatovskyy, judges,<\/p>\n

and Viktoriya Maradudina, Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 6 April 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1. The case originated in an application against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 17 June 2016.<\/p>\n

2. The applicant was represented by Mr O.V. Mytsyk, a lawyer practising in Lviv.<\/p>\n

3. The Ukrainian Government (\u201cthe Government\u201d) were given notice of the application.<\/p>\n

THE FACTS<\/strong><\/p>\n

4. The applicant\u2019s details and information relevant to the application are set out in the appended table.<\/p>\n

5. The applicant complained of the lack of relevant and sufficient reasons for detention. He also raised a complaint under Article 6 \u00a7 1 of the Convention concerning the excessive length of criminal proceedings.<\/p>\n

THE LAW<\/strong><\/p>\n

I. ALLEGED VIOLATION OF ARTICLE 5 \u00a7 3 of the Convention<\/strong><\/p>\n

6. The applicant complained principally of the lack of relevant and sufficient reasons for detention. He relied on Article 5 \u00a7 3 of the Convention.<\/p>\n

7. The Court reiterates that, according to its established case-law under Article 5 \u00a7 3 of the Convention, the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were \u201crelevant\u201d and \u201csufficient\u201d, the Court must also ascertain whether the competent national authorities displayed \u201cspecial diligence\u201d in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures for ensuring this person\u2019s appearance at trial. The\u00a0requirement for the judicial officer to give \u201crelevant\u201d and \u201csufficient\u201d reasons for the detention \u2013 in addition to the persistence of reasonable suspicion \u2013 applies already at the time of the first decision ordering detention on remand, that is to say \u201cpromptly\u201d after the arrest (see, among other authorities, Buzadji\u00a0v. the Republic of Moldova [GC], no.\u00a023755\/07, \u00a7\u00a7 87 and 102, 5 July 2016).<\/p>\n

8. In the leading case of Korban v. Ukraine, no. 26744\/16, \u00a7\u00a7 158-81, 4\u00a0July 2019, the Court already found a violation in respect of issues similar to those in the present case.<\/p>\n

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 domestic courts failed to provide relevant and sufficient reasons for the applicant\u2019s pre-trial detention.<\/p>\n

10. These complaints are therefore admissible and disclose a breach of Article\u00a05 \u00a7 3 of the Convention.<\/p>\n

II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/strong><\/p>\n

11. The applicant submitted a complaint under Article 6 \u00a7 1 of the Convention concerning the excessive length of criminal proceedings. This complaint is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(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 a violation of the Convention in the light of its findings in Nechay v. Ukraine, no. 15360\/10, 1\u00a0July 2021.<\/p>\n

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

12. Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

13. The applicant did not submit any claims for just satisfaction, despite being invited to do so. Accordingly, the Court considers that there is no call to award him any sum on that account.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the application admissible;<\/p>\n

2. Holds that this application discloses a breach of Article 5 \u00a7 3 of the Convention concerning the lack of relevant and sufficient reasons for detention;<\/p>\n

3. 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\u00a0appended table).<\/p>\n

Done in English, and notified in writing on 11 May 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Viktoriya Maradudina\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 M\u0101rti\u0146\u0161 Mits
\nActing Deputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

______________<\/p>\n

APPENDIX<\/strong>
\nApplication raising complaints under Article 5 \u00a7 3 of the Convention
\n(lack of relevant and sufficient reasons for detention)<\/p>\n\n\n\n\n
Application no.<\/strong><\/p>\n

Date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Year of birth<\/strong><\/td>\n

Period of detention<\/strong><\/td>\nCourt which issued detention order\/ examined appeal<\/strong><\/td>\nSpecific defects<\/strong><\/td>\nOther complaints under well-established case-law<\/strong><\/td>\n<\/tr>\n
37822\/16<\/p>\n

17\/06\/2016<\/td>\n

Vyacheslav Yuriyovych ZAIKIN<\/strong><\/p>\n

1981<\/td>\n

from 09\/02\/2016<\/p>\n

to 08\/04\/2016<\/td>\n

Shevchenkivskyy District Court of Lviv<\/td>\nfailure to assess the applicant\u2019s personal situation reducing the risks of re\u2011offending, colluding or absconding;
\nuse of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice<\/td>\n		Art. 6 (1) \u2013 excessive length of criminal proceedings \u2013 since 09\/02\/2016 and still pending before the first instance<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n