40232/19;19336/20;1302/21

FIFTH SECTION CASE OF DYSHUK AND OTHERS v. UKRAINE (Applications nos. 40232/19 and 2 others – see appended list)             JUDGMENT   STRASBOURG 2 March 2023   This judgment is final but it may be subject to editorial revision. In the case of Dyshuk and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Mārtiņš Mits, President,  Mattias Guyomar,  Mykola Gnatovskyy, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 2 February 2023, 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. In applications nos. 19336/20 and 1302/21, the applicants also raised other complaints under the provisions of the Convention. THE LAW 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. 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. 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 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 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 § 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.  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. 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.  These complaints as set out in the appended table are therefore admissible and disclose a breach of Article 5 § 1 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.  In application no. 1302/21 the applicant 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 Tymoshenko v. Ukraine (no. 49872/11, §§ 286 and 287, 30 April 2013), Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015) and Nechay v. Ukraine (no. 15360/10, 1 July 2021). REMAINING COMPLAINTS 13.  In application no. 19336/20 the applicant also raised other complaints under various Articles 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. 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.  In applications nos. 40232/19 and 19336/20, the applicants 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 them any sum on that account. 17.  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 to the applicant in application no. 1302/21. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints concerning the unlawful detention and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 19336/20 inadmissible; Holds that the complaints concerning the unlawful detention disclose a breach of Article 5 § 1 of the Convention; 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); Holds (a)  that the respondent State is to pay the applicant in application no. 1302/21, 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 2 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Mārtiņš Mits  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)[1] Amount awarded for costs and expenses per application (in euros)[2]     40232/19 22/07/2019 Vitaliy Grygorovych DYSHUK Polishchuk Denys Viktorovych Kharkiv 15/04/2019 to 22/04/2019 delayed release (Ruslan Yakovenko v. Ukraine, no. 5425/11, §§ 68-70, ECHR 2015) Petrovskyi Local Court of Kirovograd Region, 22/03/2019   - -     19336/20 24/04/2020 Dmytro Oleksandrovych KHMIL Koryenkov Igor Anatoliyovych Kyiv 31/10/2018 to 03/11/2018 no legal basis for arrest without a prior court decision (Stroganv. Ukraine, no. 30198/11, §§ 88-89, 6 October 2016, and Grubnyk v. Ukraine, no. 58444/15, §§ 83-85, 17 September 2020)     none   - -     1302/21 16/12/2020 Oleksandr Volodymyrovych SMIRNOV Polikanov Andriy Mykolayovych Kharkiv 06/12/2018 to 27/11/2020 decision on detention without a time-limit (Kharchenko v. Ukraine, no. 40107/02, §§ 74-76, 10 February 2011) Kharkiv Court of Appeal, 06/12/2018 Art. 6 (1) - excessive length of criminal proceedings - 20/09/2011 - 27/11/2020,   3 levels of jurisdiction,   Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention - applicant complains about a violation of Article 5 § 5. The right to compensation for breaches of the Convention is not however provided for in the domestic legal system (see Tymoshenko v. Ukraine, no. 49872/11, §§ 286-87, 30 April 2013; Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015). 3,900   [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.