{"id":21353,"date":"2023-10-19T08:30:02","date_gmt":"2023-10-19T08:30:02","guid":{"rendered":"https:\/\/laweuro.com\/?p=21353"},"modified":"2023-10-24T12:08:33","modified_gmt":"2023-10-24T12:08:33","slug":"case-of-ushakov-and-others-v-ukraine-47954-16-and-3-others","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21353","title":{"rendered":"CASE OF USHAKOV AND OTHERS v. UKRAINE – 47954\/16 and 3 others"},"content":{"rendered":"

The applicants complained of the unlawful detention. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants\u2019 detention during periods described in the appended table was not in accordance with Article 5 \u00a7 1 of the Convention.<\/span><\/p>\n

\n

FIFTH SECTION
\nCASE OF USHAKOV AND OTHERS v. UKRAINE<\/strong>
\n(Application no. 47954\/16 and 3 others \u2013 see appended list)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n19 October 2023<\/p>\n

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

In the case of Ushakov and Others v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
\nCarlo Ranzoni, President,
\nLado Chanturia,
\nMar\u00eda El\u00f3segui, judges,<\/p>\n

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

Having deliberated in private on 28 September 2023,<\/p>\n

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

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

1. The case originated in applications 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 the various dates indicated in the appended table<\/p>\n

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

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

3. The list of applicants and the relevant details of the applications are set out in the appended table.<\/p>\n

4. The applicants complained of the unlawful detention. In application no.\u00a067076\/16, the applicant also raised other complaints under the provisions of the Convention.<\/p>\n

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

I. JOINDER OF THE APPLICATIONS<\/strong><\/p>\n

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 5 \u00a7 1 of the Convention<\/strong><\/p>\n

6. The applicants complained principally of their unlawful detention. They relied, expressly or in substance, on Article 5 \u00a7 1 of the Convention.<\/p>\n

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 deprivation of liberty (see\u00a0Buzadji v. the Republic of Moldova [GC], no. 23755\/07, \u00a7 84, ECHR 2016 (extracts), with further references).<\/p>\n

8. Where the \u201clawfulness\u201d of detention is in issue, including the question whether \u201ca procedure prescribed by law\u201d has been followed, the Convention refers essentially to the national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with the national law is not, however, sufficient: Article 5 \u00a7 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.\u00a035553\/12, 36678\/12 and 36711\/12, \u00a7 74, 22 October 2018, with further references).<\/p>\n

9. The Court found violations in respect of issues similar to those in the present case in the leading cases set out in the appended table.<\/p>\n

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\u2019 detention during periods described in the appended table was not in accordance with Article 5 \u00a7 1 of the Convention.<\/p>\n

11. These complaints as set out in the appended table are therefore admissible and disclose a breach of Article 5 \u00a7 1 of the Convention.<\/p>\n

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

12. In application no.\u00a067076\/16, the applicant submitted other complaints which also raised issues under the Convention, given the relevant well\u2011established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(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 the cases set out in the appended table.<\/p>\n

IV. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/strong><\/p>\n

13. 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

14. Regard being had to the documents in its possession and to its case\u2011law (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.<\/p>\n

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

1. Decides to join the applications;<\/p>\n

2. Declares the applications admissible;<\/p>\n

3. Holds that these applications disclose a breach of Article 5 \u00a7 1 of the Convention concerning the unlawful detention;<\/p>\n

4. Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table);<\/p>\n

5. Holds<\/p>\n

(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;<\/p>\n

(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.<\/p>\n

Done in English, and notified in writing on 19 October 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 Carlo Ranzoni
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

___________<\/p>\n

APPENDIX<\/strong>
\nList of applications raising complaints under Article 5 \u00a7 1 of the Convention
\n(unlawful detention)<\/p>\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong><\/p>\n

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

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

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

Representative\u2019s name and location<\/strong><\/td>\nPeriod of unlawful detention<\/strong><\/td>\nSpecific defects<\/strong><\/td>\nRelevant domestic decision<\/strong><\/td>\nOther complaints under well\u2011established case\u2011law<\/strong><\/td>\nAmount awarded for non\u2011pecuniary damage per applicant<\/strong><\/p>\n

(in euros)[1]<\/a><\/strong><\/td>\n

Amount awarded for costs and expenses per application<\/strong><\/p>\n

(in euros)[2]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n

1.<\/td>\n47954\/16<\/p>\n

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

Sergiy Viktorovych USHAKOV<\/strong><\/p>\n

1976<\/td>\n

Tokarev Gennadiy Volodymyrovych<\/p>\n

Kharkiv<\/td>\n

21\/12\/2015 to 18\/02\/2016<\/td>\nDetention not covered by any judicial order (Kharchenko v.\u00a0Ukraine<\/em>, no.\u00a040107\/02, \u00a7\u00a7\u00a070-72, 10\u00a0February 2011).<\/td>\nSupreme Court of Ukraine,<\/p>\n

21\/12\/2015.<\/td>\n

<\/td>\n1,800<\/td>\n250<\/td>\n<\/tr>\n
2.<\/td>\n64534\/16<\/p>\n

13\/10\/2016<\/td>\n

Olga<\/strong><\/p>\n

Igorivna KHATKEVYCH<\/strong><\/p>\n

1986<\/td>\n

Shadrin Oleksandr Sergiyovych<\/p>\n

Irpin<\/td>\n

13\/04\/2016 to<\/p>\n

15\/04\/2016<\/td>\n

No legal basis for arrest without a prior court decision (Strogan v.\u00a0Ukraine<\/em>, no.\u00a030198\/11, \u00a7\u00a7\u00a088-89, 6\u00a0October 2016, and Grubnyk v.\u00a0Ukraine<\/em>, no.\u00a058444\/15, \u00a7\u00a7\u00a083-85, 17\u00a0September 2020).<\/td>\nArrest record of 13\/04\/2016.<\/td>\n<\/td>\n1,800<\/td>\n250<\/td>\n<\/tr>\n
3.<\/td>\n67076\/16<\/p>\n

09\/11\/2016<\/td>\n

Maksim Vladimirovich SAKAUOV<\/strong><\/p>\n

1976<\/td>\n

Lisova<\/p>\n

Yuliya Oleksandrivna<\/p>\n

Kyiv<\/td>\n

26\/03\/2015 to<\/p>\n

22\/05\/2015<\/td>\n

Absence of any grounds given by the court in the decision authorising detention (Ignatov v.\u00a0Ukraine<\/em>, no.\u00a040583\/15, \u00a7\u00a7\u00a036-37, 15\u00a0December 2016).<\/td>\nDecision of the Malynovskyy District Court of Odesa of 26\/03\/2015; the applicant\u2019s pre-trial detention lasted until 18\/09\/2017 when he was acquitted of the criminal charges<\/p>\n

(see Popovych v.\u00a0Ukraine<\/em>, no.\u00a044704\/11, \u00a7\u00a7 30-34, 22 April 2021).<\/td>\n

Art. 5 (3) – excessive length of pre-trial detention – from 03\/05\/2014 to 18\/09\/2017, lack of proper reasoning for the continued detention; failure to consider alternative to detention measures of restraint; failure to assess the applicant\u2019s personal situation warranting his release (Kharchenko v.\u00a0Ukraine<\/em>, no.\u00a040107\/02, \u00a7\u00a7\u00a077\u201181, 10\u00a0February 2011, Ignatov v.\u00a0Ukraine<\/em>, 40583\/15, \u00a7\u00a7 38-42, 15\u00a0February 2016);<\/p>\n

Art. 5 (5) – lack of, or inadequate, compensation for unlawful arrest or detention \u2013 (Tymoshenko v.\u00a0Ukraine<\/em>, no.\u00a049872\/11, \u00a7\u00a7\u00a0286\u201187, 30 April 2013 and Kotiy v.\u00a0Ukraine<\/em>, no.\u00a028718\/09, \u00a7 55, 5\u00a0March 2015).<\/td>\n

2,700<\/td>\n250<\/td>\n<\/tr>\n
4.<\/td>\n16215\/22<\/p>\n

22\/02\/2022<\/td>\n

Bogdan Ivanovych KEPENKO<\/strong><\/p>\n

1988<\/td>\n

 <\/p>\n

 <\/td>\n

Between 22\/10\/2021 02:05 a.m. – 23\/10\/2021 02:47 a.m.<\/td>\nUnacknowledged deprivation of liberty or delay in drawing up arrest report (Belozorov v.\u00a0Russia and Ukraine<\/em>, no.\u00a043611\/02, \u00a7\u00a7\u00a0113-15, 15\u00a0October 2015, Grubnyk v.\u00a0Ukraine<\/em>, no.\u00a058444\/15, \u00a7\u00a7\u00a071-73, 17\u00a0September 2020, and Fortalnov and Others v.\u00a0Russia<\/em>, nos. 7077\/06 and 12\u00a0others, \u00a7\u00a7\u00a076\u201179, 26\u00a0June 2018).<\/td>\nOn 24\/10\/2021 a local court dismissed the applicant\u2019s complaint about his unlawful detention, reasoning that the applicant\u2019s apprehension was substantiated.<\/p>\n

 <\/td>\n

<\/td>\n1,800<\/td>\n–<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[1]<\/a> Plus any tax that may be chargeable to the applicants.<\/p>\n

[2]<\/a> Plus any tax that may be chargeable to the applicants.<\/p>\n