49105/18;4992/23

FIFTH SECTION CASE OF TKACHENKO AND MILINCHUK v. UKRAINE (Applications nos. 49105/18 and 4992/23 – see appended list)             JUDGMENT   STRASBOURG 6 June 2024   This judgment is final but it may be subject to editorial revision. In the case of Tkachenko and Milinchuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Carlo Ranzoni, President,  Mārtiņš Mits,  María Elósegui, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 16 May 2024, 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 application no. 4992/23 the applicant 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 deprivations 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 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). 9.  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. 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.  It follows that there been a violation of Article 5 § 1 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.  In application no. 4992/23, 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 the well-established case law set out in the appended table. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13.  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 to the applicant in application no. 4992/23. As concerns the applicant in application no. 49105/18, the Court makes no award since he failed to submit his just satisfaction claims in accordance with Rule 60 of the Rules of Court. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose 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 in application no. 4992/23, 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 point. Done in English, and notified in writing on 6 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Carlo Ranzoni  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]     49105/18 01/10/2018 Sergiy Oleksandrovych TKACHENKO Ragozina Oksana Vadymivna Kryvyy Rig 09/08/2018 to 10/08/2018 no legal basis for arrest without a prior court decision (Strogan v. Ukraine, no. 30198/11, §§ 88-89, 6 October 2016, and Grubnyk v. Ukraine, no. 58444/15, §§ 83-85, 17 September 2020) Arrest report of 09/08/2018   -     4992/23 04/01/2023 Mykola Mykolayovych MILINCHUK     28/09/2022 to 05/10/2022 delayed release (Ruslan Yakovenko v. Ukraine, no. 5425/11, §§ 68-70, ECHR 2015) Supreme Court, 28/09/2022 Art. 6 (1) - excessive length of criminal proceedings - 20/01/2015 - pending, 3 levels of jurisdiction (see Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021); Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings (see Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021) 2,300   [1] Plus any tax that may be chargeable to the applicants.