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CASE OF BORISENKO AND OTHERS v. UKRAINE

Doc ref: 19102/20;22938/20;23703/20;26856/20;28353/20;29172/20 • ECHR ID: 001-209184

Document date: April 15, 2021

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CASE OF BORISENKO AND OTHERS v. UKRAINE

Doc ref: 19102/20;22938/20;23703/20;26856/20;28353/20;29172/20 • ECHR ID: 001-209184

Document date: April 15, 2021

Cited paragraphs only

FIFTH SECTION

CASE OF BORISENKO AND OTHERS v. UKRAINE

( Application no. 19102/20 and 5 others –

see appended list )

JUDGMENT

This version was r ectified on 26 May 2021

u nder Rule 81 of the Rules of Court.

STRASBOURG

1 5 April 2021

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

In the case of Borisenko and Others v. Ukraine ,

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

Ivana Jelić , President, Ganna Yudkivska , Arnfinn Bårdsen , judges, and Liv Tigerstedt , Deputy Section Registrar ,

Having deliberated in private on 25 March 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 applicant s and the relevant details of the applications are set out in the appended table.

4 . The applicant s complained under Article 3 of the Convention of the ir life sentence with no prospect of release.

THE LAW

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

6 . The applicants complained of the ir life sentence with no prospect of release . They relied, expressly or in substance, on Article 3 of the Convention , which read s as follows:

Article 3

“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

7 . The Court reiterates that the Convention does not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder. Yet to be compatible with Article 3 such a sentence must be reducible de jure and de facto , meaning that there must be both a prospect of release for the prisoner and a possibility of review. The basis of such review must extend to assessing whether there are legitimate penological grounds for the continuing incarceration of the prisoner. These grounds include punishment, deterrence, public protection and rehabilitation. The balance between them is not necessarily static and may shift in the course of a sentence, so that the primary justification for detention at the outset may not be so after a lengthy period of service of sentence. The importance of the ground of rehabilitation is underlined, since it is here that the emphasis of European penal policy now lies, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials ( see Vinter and Others v. the United Kingdom [GC] , nos. 66069/09 and 2 others, §§ 59-81 , ECHR 2013 (extracts) ).

8 . In the leading case of Petukhov v. Ukraine (no. 2) , no. 41216/13, 12 March 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. The y are therefore admissible and disclose a breach of Article 3 of the Convention .

10 . 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.”

11 . Regard being had to the documents in its possession and to its case ‑ law (see , in particular, Petukhov (no. 2) , cited above, § 201 ) , the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

Done in English, and notified in writing on 15 April 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

{signature_p_1} {signature_p_2}

Liv Tigerstedt Ivana Jelić

Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 of the Convention

( life sentence with no prospect of release )

No.

Application no.

Date of introduction

Applicant ’ s name

Year of birth

Representative ’ s name and location

Name of the trial court

Date of the life sentence

Judicial decision upholding the conviction

19102/20

06/05/2020

Yuriy Sergeyevich BORISENKO

1976Preobrazhenskaya Oksana Vladimirovna

Strasbourg

Donetsk Regional Court,

19/05/1997

Supreme Court,

17/07/1997

22938/20

18/05/2020

Vitaliy Viktorovych ALYEKSYEYEV

1982Revyakin Maksym Oleksandrovych

Kharkiv

Khmelnytskyy Town Court, 07/09/2017

Khmelnytskyy Court of Appeal, 10/01/2018;

Supreme Court,

06/06/2019

23703/20

03/06/2020

Tyberiy Yosypovych BALOG

1978Kychenok Andriy Sergiyovych

Kyiv

Zakarpattya Regional Court of Appeal,

18/01/2002

Supreme Court,

02/04/2002

26856/20

15/06/2020

Dmytro Oleksandrovych KALIY

1981Veremiy Tetyana Mykolayivna

Chernigiv

Chernigiv [1] Regional Court,

01/06/2001

Supreme Court,

09/10/2001

28353/20

16/03/2020

Igor Volodymyrovych PETRYSHAK

1983Ovdiyenko Ganna Volodymyrivna

Kharkiv

Ivano-Frankivsk Regional Court of Appeal,

25/01/2002

N/A

29172/20

16/03/2020

Vitaliy Oleksandrovych NEZDAYMIN

1969Ovdiyenko Ganna Volodymyrivna

Kharkiv

Mykolayiv Regional Court of Appeal,

27/09/2002

Supreme Court,

16/01/2003

[1] Rectified on 26 May 2021: the text w as “ Cherkasy ”.

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