European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF GOROZHANKIN AND OTHERS v. UKRAINE

(Applications nos. 13582/11 and 2 others –

see appended list)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

2 December 2021

 

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

In the case of Gorozhankin and Others 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 10 November 2021,

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.

THE LAW

I.        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.

II.     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 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.  In the leading cases of Kharchenko v. Ukraine, no. 40107/02,
§§ 70-72, 10 February 2011, the Court already found a violation in respect of issues similar to those in the present cases.

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 applicant’s 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.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  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.”

13.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Malyk v. Ukraine, no. 37198/10, § 43, 29 January 2015), the Court considers it reasonable to award the sums indicated in the appended table and rejects any additional claims for just satisfaction raised by the applicants.

14.  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 the applications admissible;

3.      Holds that these applications disclose a breach of Article 5 § 1 of the Convention concerning the unlawful detention;

4.      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;

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

Done in English, and notified in writing on 2 December 2021, 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	Amount awarded for non-pecuniary damage per applicant (in euros)[1]	Amount awarded for costs and expenses per application (in euros)[2]
	13582/11 18/02/2011	Aleksandr Aleksandrovich GOROZHANKIN 1979	Lesovoy Aleksandr Vladimirovich Simferopol	21/11/2010 - 10/12/2010	detention not covered by any judicial order (Kharchenko v. Ukraine, no. 40107/02, §§ 70-72, 10 February 2011)	1,800	250
	53764/13 16/08/2013	Oleksandr Yuriyovych PYLYPENKO 1983	Zbarska Iryna Volodymyrivna Dnipro	29/12/2012 - 19/03/2013	detention not covered by any judicial order (Kharchenko v. Ukraine, no. 40107/02, §§ 70-72, 10 February 2011)	1,800	250
	27331/16 28/04/2016	Valentyn Tsezarovych ZHYZITSKYY 1971	Chukhas Maya Stepanivna Gorodok	09/11/2015 - 03/02/2016	detention not covered by any judicial order (Kharchenko v. Ukraine, no. 40107/02, §§ 70-72, 10 February 2011)	1,800	250