European Court of Human Rights

 

 

FIFTH SECTION

CASE OF KARAPAS AND OTHERS v. UKRAINE

(Applications nos. 54575/12 and 4 others)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

22 October 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Karapas and others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Gabriele Kucsko-Stadlmayer, President,
          Latif Hüseynov,
          Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 29 September 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The case concerns the applicants’ allegations that their continued detention had been in breach of Article 5 § 1 of the Convention after the relevant grounds for the detention had ceased to exist. It also concerns the first applicant’s complaint under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation for his unjustified detention.

THE FACTS

1.  The applicants’ details are set out in the appended table.

2.  The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  The applicants were serving prison sentences for various crimes.

5.  On the dates indicated in the appended table, the domestic courts allowed petitions by the prison authorities seeking the early release of the applicants. No appeal having been lodged against those decisions, they became final on the dates indicated in the appended table. The applicants were released from prison on various dates ranging from three to six days after the respective court decisions ordering their early release had become final.

6.  According to the material in the case file, the decisions concerning the early release of the second, third, fourth and fifth applicants were handed down by Judge K. In their submissions concerning the applications of the above-mentioned applicants, the Government provided documents stating that Judge K. had been on sick leave from 29 June to 7 July 2017 and could not notify the parties to the proceedings that the relevant court decisions had become final during that time.

RELEVANT LEGAL FRAMEWORK

7.  Article 153 § 5 of the Code of Execution of Sentences provides that the early release of a prisoner is to be carried out by the prison authorities on the day of receipt of the relevant documents. If the relevant documents arrive outside business hours, the release is to be carried out the following morning.

THE LAW

I. JOINDER OF THE APPLICATIONS

8.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

9.  The applicants complained that their continued detention after the relevant grounds had ceased to exist had been unlawful. The first applicant complained furthermore that he had not had an enforceable right to compensation for his unlawful detention. The applicants relied on Article 5 of the Convention, the relevant parts of which read as follows:

“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:

(a)  the lawful detention of a person after conviction by a competent court;

...

(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;

...

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.    Admissibility

10.  The Court notes that the above complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B.     Merits

1.    Article 5 § 1 of the Convention

11.  The applicants submitted that the delay in their release from prison, ranging from three to six days after the respective court decisions had become final, had been unlawful and unjustified.

12.  The Government submitted that the applicants’ detention had not been in contravention of Article 5 § 1 of the Convention. Referring to Article 153 of the Code of Execution of Sentences (see paragraph 7 above), they stated that the applicants had been released without undue delay upon receipt of the courts’ notifications that the relevant judicial decisions ordering the applicants’ early release had become final.

13.  As the Court has repeatedly held, some delay in implementing a decision to release a detainee is understandable, and often inevitable, in view of the practical considerations relating to the running of the courts and the observance of particular formalities. However, the national authorities must attempt to keep this to a minimum (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; Giulia Manzoni v. Italy, 1 July 1997, § 25 in fine, Reports of Judgments and Decisions 1997‑IV; K. F. v Germany, 27 November 1997, § 71, Reports 1997‑VII; and Mancini v. Italy, no. 44955/98, § 24, ECHR 2001‑IX). Administrative formalities connected with release cannot justify a delay of more than a few hours (see Nikolov v. Bulgaria, no. 38884/97, § 82, 30 January 2003). It is for the Contracting States to organise their legal system in such a way that their law‑enforcement authorities can meet the obligation to avoid unjustified deprivations of liberty (see, for example, Shukhardin v. Russia, no. 65734/01, § 93, 28 June 2007, and Mokallal v. Ukraine, no. 19246/10, § 44, 10 November 2011).

14.  The Court notes that in the present case it took the authorities between three and six days to effect the applicants’ release. It appears that the delay in releasing the second, third, fourth and fifth applicants was not caused by the inactivity of the prison authorities but by delays on the part of the domestic courts to notify the prison authorities in due course that the relevant decisions had become final (see paragraph 6 above).

15.  The Court furthermore refers to the judgment in Ruslan Yakovenko v. Ukraine (no. 5425/11, § 69, 4 June 2015), in which it found that a delay of two days in releasing the applicant from detention had been incompatible with the requirements of Article 5 § 1 of the Convention.

16.  In the light of the foregoing, the Court considers that the applicants’ detention after the courts’ decisions ordering their early release had become final was not justified under Article 5 § 1 of the Convention, and there has accordingly been a violation of that provision.

2.    Article 5 § 5 of the Convention

17.  The Court observes that the first applicant’s complaint under Article 5 § 5 is similar to those examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that the first applicant did not have an enforceable right to compensation for his unjustified detention, as required by Article 5 § 5. There has therefore been a violation of that provision.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  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.”

A.    Damage

19.  The first applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage. The remaining applicants claimed various amounts as indicated in the appended table in respect of pecuniary and non-pecuniary damage. They did not specify the amount and nature of the pecuniary damage allegedly sustained and did not support their claims with any documentary evidence.

20.  The Government considered the applicants’ claims unsubstantiated and excessive.

21.  The Court observes that the second, third, fourth and fifth applicants failed to give details of their claims in respect of pecuniary damage and to support them with documentary evidence. It therefore rejects those claims as unsubstantiated. On the other hand, making its assessment on an equitable basis, it awards the applicants the amounts indicated in the appended table in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

22.  The first, second and third applicants claimed EUR 1,200, EUR 1,000 and EUR 1,000 respectively for the costs and expenses incurred before the Court. They asked that the awards be paid directly into their representatives’ bank accounts. The remaining applicants did not make a claim under this head. The Government contested the above claims.

23.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

24.  Regard being had to the documents in its possession, the complexity of the case, the fact that the first applicant’s representative intervened in the proceedings at the communication stage only, and to the fact that the second and third applicants were represented by the same lawyer, the Court awards the first applicant EUR 850, which is to be paid into the bank account of Mr Y.L. Boychenko as indicated by the first applicant and EUR 1,000 to the second and third applicants jointly, which is to be paid into the bank account of Mr V.B. Glushchenko as indicated by them (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116‑17, 7 November 2013, and Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

C.    Default interest

25.  The Court 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,

1.      Decides to join the applications;

2.      Declares admissible the applicants’ complaints under Article 5 § 1 of the Convention regarding the lack of justification for their continued detention after the relevant grounds had ceased to exist;

3.      Declares admissible the first applicant’s complaint under Article 5 § 5 of the Convention regarding the lack of an enforceable right to compensation for his unjustified detention;

4.      Holds that there have been violations of Article 5 § 1 of the Convention in respect of all the applicants;

5.      Holds that there has been a violation of Article 5 § 5 of the Convention in respect of the first applicant;

6.      Holds

(a)   that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) the amounts indicated in the appended table in respect of each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, to be paid into the bank account of the first applicant’s representative, Mr Y.L. Boychenko;

(iii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the second and third applicants jointly, in respect of costs and expenses, to be paid into the bank account of the second and third applicants’ representative, Mr V.B. Glushchenko;

(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;

7.      Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 22 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Anne-Marie Dougin                                         Gabriele Kucsko-Stadlmayer
Acting Deputy Registrar                                                  President

 

 

Appendix

List of cases

No.	Application no. Lodged on	Applicant’s Date of birth Place of residence Represented by	Reason for the applicant’s release	Due date of the applicant’s release	Date of the applicant’s actual release	Length of detention without justification	Amount of damage claimed	Amount of just satisfaction awarded
1	54575/12 07/08/2012	Igor Andriyovych KARAPAS 17/08/1965 Kirovograd Yegor Leonidovych BOYCHENKO	Decision of the Kirovograd Leninskyi District Court of 14/05/2010	22/05/2010	25/05/2010	3 days	EUR 10,000	EUR 900
2	84541/17 14/12/2017	Vyacheslav Viktorovych PONOMARYOV 19/06/1986 Mariupоl Vladimir Borisovich GLUSHCHENKO	Decision of the Mashivka District Court of Poltava Region of 22/06/2017	30/06/2017	06/07/2017	6 days	EUR 6,000	EUR 1,800
3	110/18 14/12/2017	Oleg Volodymyrovych KINASH 25/12/1980 Novoyavorivsk Vladimir Borisovich GLUSHCHENKO	Decision of the Mashivka District Court of Poltava Region of 22/06/2017	30/06/2017	06/07/2017	6 days	EUR 6,000	EUR 1,800
4	1414/18 18/12/2017	Maksym Yuriyovych SEVERIN 25/03/1980 Zaporizhzhya Ganna Volodymyrivna OVDIYENKO	Decision of the Mashivka District Court of Poltava Region of 23/06/2017	03/07/2017	06/07/2017	3 days	EUR 5,000	EUR 900
5	1648/18 18/12/2017	Oleg Oleksandrovych LYNNYK 22/02/1978 Kremenchug Ganna Volodymyrivna OVDIYENKO	Decision of the Mashivka District Court of Poltava Region of 23/06/2017	03/07/2017	06/07/2017	3 days	EUR 5,000	EUR 900