European Court of Human Rights

FIFTH SECTION

CASE OF KORNILOV v. UKRAINE

(Application no. 25633/18)

JUDGMENT

STRASBOURG

6 October 2022

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

In the case of Kornilov 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 March 2022,

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 23 May 2018.

2.     The applicant was represented by Mr V.S. Bunyak , a lawyer practising in Kyiv.

3.     The Ukrainian Government ("the Government") were given notice of the application.

THE FACTS

4.     The applicant's details and information relevant to the application are set out in the appended table.

5.     The applicant complained of the deficiencies in the proceedings for review of the lawfulness of his detention.

THE LAW

1. ALLEGED VIOLATION OF ARTICLE 5 § 4 of the Convention

6.     The applicant complained of the deficiencies in the proceedings for review of the lawfulness of his detention. He relied, expressly or in substance, on Article 5 § 4 of the Convention, which reads as follows:

Article 5 § 4

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

7.     The Court reiterates that under Article 5 § 4 of the Convention arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty (see Lietzow v. Germany , no. 24479/94, § 44, ECHR 2001-I). It is true that the provision in question does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Fodale v. Italy , no. 70148/01, §   39, ECHR 2006-VII).

8.     In the leading case of Kharchenko v. Ukraine (no. 40107/02, §§ 84-87), the Court already found a violation in respect of issues similar to those in the present case.

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.

10.     The Court therefore concludes that there has been a breach of Article   5 §   4 of the Convention in the instant case

2. REMAINING COMPLAINTS

11.     The applicant also raised a complaint under Article 5 § 3 of the Convention.

12.     The Court has examined this complaint and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, it does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. In particular, the Court notes that the risks justifying the applicant's detention were assessed by the domestic courts with sufficient scrutiny; alternative measures to the detention were also considered but reasonably found to be insufficient. No delays on the part of the authorities while dealing with the case could also be identified.

It follows that this part of the application must be rejected in accordance with Article  
35   §   4 of the Convention.

3. 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, Oravec v. Croatia, no. 51249/11, §§ 78-80, 11   July 2017), the Court considers it reasonable to award the sums indicated in the appended table.

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,

1. Declares the complaints concerning the deficiencies in the proceedings for review of the lawfulness of the applicant's detention admissible and the remainder of the application inadmissible;
2. Holds that these complaints disclose a breach of Article 5 § 4 of the Convention concerning the deficiencies in the proceedings for review of the lawfulness of the applicant's detention;
3. Holds

(a)   that the respondent State is to pay the applicant, 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.

Done in English, and notified in writing on 6 October 2022, pursuant to Rule  
77   §§   2 and   3 of the Rules of Court.

  Viktoriya Maradudina   Lətif Hüseynov

  Acting Deputy Registrar   President

APPENDIX

Application raising complaints under Article 5 § 4 of the Convention

(deficiencies in proceedings for review of the lawfulness of detention)

[1] Plus any tax that may be chargeable to the applicant.

[2] Plus any tax that may be chargeable to the applicant.