72970/13;12818/16

FIFTH SECTION CASE OF GRYSHKO AND KOSHLYAK v. UKRAINE (Applications nos. 72970/13 and 12818/16)             JUDGMENT   STRASBOURG 24 February 2022   This judgment is final but it may be subject to editorial revision. In the case of Gryshko and Koshlyak v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Lətif Hüseynov, President,  Lado Chanturia,  Arnfinn Bårdsen, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 3 February 2022, 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. 72970/13 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, which reads as follows: Article 5 § 1 “1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;” 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 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.  In the leading cases of Kharchenko v. Ukraine, no. 40107/02, §§ 74‑76, 10 February 2011, Strogan v. Ukraine, no. 30198/11, §§ 88-89, 6 October 2016 and Grubnyk v. Ukraine , no. 58444/15, §§ 83-85, 17 September 2020, the Court already found a violation in respect of issues similar to those in the present case. 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 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. 72970/13 the applicant submitted another complaint which also raised an issue under the Convention, given the relevant well‑established case-law of the Court (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (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 Kharchenko, cited above, §§ 84-87. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13.  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.” 14.  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 and it rejects any additional claims for just satisfaction raised by the applicant in application no. 72970/13. 15.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. 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 complaint raised under well-established case-law of the Court (see appended table); Holds (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; (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; Dismisses the remainder of the applicant’s claims for just satisfaction in application no. 72970/13. Done in English, and notified in writing on 24 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Lətif Hüseynov  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]     72970/13 12/11/2013 Roman Ivanovych GRYSHKO Voytovych Yevgen Mykhaylovych Zaporizhzhya from 19/04/2013 to at least 09/12/2014 (according to the documents available in the casefile) decision on detention without a time-limit (Kharchenko v. Ukraine, no. 40107/02, §§ 74‑76, 10 February 2011) Leninskyy District Court of Zaporizhzhya of 19/04/2013 Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention – impossibility to initiate review of the lawfulness of the applicant’s detention at reasonable intervals during the trial 2,340     12818/16 21/02/2016 Mykhaylo Anatoliyovych KOSHLYAK Solodko Yevgen Viktorovych Kyiv 31/10/2015-02/11/2015 no legal basis for arrest without a prior court decision (Strogan v. Ukraine, no. 30198/11, §§ 87‑89, 6 October 2016, and Grubnyk v. Ukraine, no. 58444/15, §§ 83-85, 17 September 2020) arrest report of 31/10/2015   1,800   [1] Plus any tax that may be chargeable to the applicants.  [2] Plus any tax that may be chargeable to the applicants.