40424/23

FIFTH SECTION CASE OF BEREZHNA v. UKRAINE (Application no. 40424/23)             JUDGMENT   STRASBOURG 3 April 2025   This judgment is final but it may be subject to editorial revision. In the case of Berezhna v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Diana Sârcu, President,  Kateřina Šimáčková,  Mykola Gnatovskyy, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 13 March 2025, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 November 2023. 2.  The Ukrainian Government (“the Government”) were given notice of the application. THE FACTS 3.  The applicant’s details and information relevant to the application are set out in the appended table. 4.  The applicant complained of the unlawful detention. She also raised other complaints under the provisions of the Convention. THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 of the Convention 5.  The applicant complained principally of the unlawful detention. She relied on Article 5 § 1 of the Convention. 6.  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 deprivations of liberty (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts), with further references). 7.  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 national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with 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). 8.  The Court found a violation in respect of issues similar to those in the present case in the leading cases set out in the appended table. 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 applicant’s detention was not in accordance with Article 5 § 1 of the Convention. 10.  It follows that the applicant’s complaint is admissible and that there been a violation of Article 5 § 1 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11.  The applicant submitted other complaints which also raised issues under Article 5 of 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 the case set out in the appended table. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.  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 sum indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that this application discloses a breach of Article 5 § 1 of the Convention concerning the unlawful detention; 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); Holds (a)  that the respondent State is to pay the applicant, within three months, the amount 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 amount 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 3 April 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Diana Sârcu  Acting Deputy Registrar President APPENDIX Application raising complaints under Article 5 § 1 of the Convention (unlawful detention) Application no. Date of introduction Applicant’s name Year of birth Period of unlawful detention Specific defects Other complaints under well‑established case-law Amount awarded for non-pecuniary damage per applicant (in euros)[1] 40424/23 07/11/2023 Olena Petrivna BEREZHNA   14/03/2022-16/03/2022 Unacknowledged deprivation of liberty or delay in drawing up an arrest report (Belozorov v. Russia and Ukraine, no. 43611/02, §§ 113-15, 15 October 2015, Grubnyk v. Ukraine, no. 58444/15, §§ 71-73, 17 September 2020, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018). Art. 5 (3) - excessive length of pre-trial detention - 14/03/2022 - pending, failure to examine the possibility of applying other measures of restraint, failure to conduct the proceedings with due diligence during the period of detention (see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine, 40583/15, §§ 38-42, 15 December 2016). 2,500     [1] Plus any tax that may be chargeable to the applicant.