FIFTH SECTION

CASE OF DOBRYN v. UKRAINE

( Application no. 27916/12 )

JUDGMENT

STRASBOURG

29 April 2021

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

In the case of Dobryn v. Ukraine ,

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

Stéphanie Mourou-Vikström , President, Jovan Ilievski , Mattias Guyomar, judges, and Viktoriya Maradudina , Acting Deputy Section Registrar ,

Having deliberated in private on 8 April 2021 ,

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 27 April 2012.

2 . The applicant was represented by Mr Y.O. Dobryn , a lawyer practising in Zaporizhzhya .

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 lack of relevant and sufficient reasons for detention . The applicant also raised other complaints under the provisions of the Convention.

THE LAW

6 . The applicant complained principally of the lack of relevant and sufficient reasons for detention . He relied on Article 5 § 3 of the Convention , which read s as follows:

Article 5 § 3

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ”

7 . The Court reiterates that, according to its established case-law under Article 5 § 3 of the Convention, the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures for ensuring this person ’ s appearance at trial. The requirement for the judicial officer to give “relevant” and “sufficient” reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see, among other authorities, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87 and 102, 5 July 2016).

8 . In the leading case of Korban v. Ukraine (no. 26744/16, §§ 158-81, 4 July 2019), 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. Having regard to its case-law on the subject, the Court considers that in the instant case the domestic courts failed to provide relevant and sufficient reasons for the applicants ’ pre-trial detention.

10 . These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention .

11 . 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 Yeloyev v. Ukraine (no. 17283/02, § 50, 6 November 2008) and Kharchenko v. Ukraine (no. 40107/02, § 71, 10 February 2011) .

12 . The applicant also raised other complaints under various Articles of the Convention.

13 . The Court has examined the application 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, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

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

14 . 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.”

15 . The applicant claimed 30,000 euros (EUR) in compensation for non ‑ pecuniary damage. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Ara Harutyunyan v. Armenia , no. 629/11, § 66, 20 October 2016), 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 applicant.

16 . 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,

(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 29 April 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Stéphanie Mourou-Vikström

Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 5 § 3 of the Convention

( lack of relevant and sufficient reasons for detention )

Application no.

Date of introduction

Applicant ’ s name

Year of birth

Period of detention

Court which issued detention order/ examined appeal

Specific defects

Other complaints under well-established case-law

Amount awarded for pecuniary

and non-pecuniary damage

per applicant

(in euros) [1]

Amount awarded for costs and expenses

per application

(in euros) [2]

27916/12

27/04/2012

Oleksiy Ivanovych DOBRYN

1962From 06/08/2010

to 28/03/2012

Leninskyy

District Court

of Zaporizhzhya ,

Ordzhonikidzevskyy District Court

of Zaporizhzhya ,

Shevchenkivskyy District Court

of Zaporizhzhya

failure to assess the applicant ’ s personal situation reducing the risks of re-offending, colluding or absconding, failure to examine the possibility of applying other measures of restraint, fragility of the reasons employed by the courts

Art. 5 (1) (c) –

unlawful pre-trial detention - the period between 02/04/2011 and 14/04/2011 (between sending the case to a court and the first hearing) was not covered by any decision –

a recurrent problem in the Ukrainian cases (see, Yeloyev v. Ukraine (no. 17283/02, § 50, 6 November 2008) and Kharchenko v. Ukraine (no. 40107/02, § 71, 10 February 2011)

2,600

250[1] Plus any tax that may be chargeable to the applicant.

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