FIFTH SECTION

CASE OF LAVRIK AND OTHERS v. UKRAINE

( Applications nos. 63542/13 and 4 others )

JUDGMENT

STRASBOURG

25 June 2020

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

In the case of Lavrik and o thers v. Ukraine ,

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

Gabriele Kucsko-Stadlmayer, President, Lado Chanturia, Anja Seibert-Fohr, judges, and Anne-Marie Dougin , Acting Deputy Section Registrar ,

Having regard to:

the applications (nos. 63542/13, 11237/14, 20415/14, 24962/15 and 43478/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yuriy Viktorovich Lavrik (“the first applicant”) and four Ukrainian nationals, Mr Dmytro Fedorovych Abgash (“the second applicant”), Mr Artur Petrovych Paseka (“the third applicant”), Mr Ivan Bogdanovych Krutiy (“the fourth applicant”) and Mr Kuzma Yuriyovych Ivanov (“the fifth applicant”), on the dates indicated in the appended table ;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 5 § 3 of the Convention, and to declare inadmissible the remainder of the applications;

the Russian Government ’ s indication that they did not wish to exercise their right to intervene in the present case in so far as it concerns application no. 63542/13;

the decision to grant legal aid to the first applicant;

the parties ’ observations;

Having deliberated in private on 2 June 2020 ,

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

INTRODUCTION

The case concerns the alleged lack of reasoning of the judicial decisions ordering the applicants ’ arrest and continued detention, and the allegedly unreasonable duration of their pre-trial detention.

THE FACTS

1 . The applicants ’ personal 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 . On various dates the applicants were arrested in the context of criminal investigations against them. Shortly afterwards the courts ordered their pre-trial detention. The relevant judicial decisions stated that the applicants were accused of serious crimes and could abscond and hinder the investigation or continue with their criminal activities. The courts did not provide specific details explaining why the above-mentioned reasons persisted.

5 . In addition to the above-mentioned reasons, in application no. 63542/13 the domestic court noted, without providing specific details, that the crime imputed to the applicant had been committed while he had been on probation for a similar crime.

6 . In the course of the proceedings, the courts extended the applicants ’ detention a number of times, referring to the reasons indicated in the initial decisions to detain them. The courts furthermore noted that there were no reasons for the applicants to be released, since no new circumstances warranting release had been identified or the circumstances that had led to the decision to place the applicants in pre-trial detention persisted, without providing specific details.

7 . On 8 November 2012 the trial court convicted the first applicant and sentenced him to fourteen years and eight months ’ imprisonment. On 10 February 2015 that sentence was quashed on points of law and the case was remitted for retrial. On 20 July 2016 the trial court again convicted the first applicant and sentenced him to the same term of imprisonment as before.

8 . On 11 February 2014 the trial court convicted the second applicant and sentenced him to five years ’ imprisonment with probation.

9 . On 26 May 2014 the trial court convicted the third applicant and sentenced him to five years ’ imprisonment.

10 . O n 21 December 2015, in the course of the proceedings, the fourth applicant was released on bail .

11 . On 15 December 2017 the trial court convicted the fifth applicant and sentenced him to five years ’ imprisonment.

THE LAW

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

13 . In his response to the Government ’ s observations, the fifth applicant complained, under Article 6 § 3 (c) of the Convention, that one of the court hearings in his case had been held in the absence of his lawyer.

14 . In the Court ’ s view, this is a new complaint that was not included in the original complaints on which the parties have commented. It is therefore inappropriate to take this matter up in the context of the present case (see, mutatis mutandis , Piryanik v. Ukraine , no. 75788/01, § 20, 19 April 2005).

15 . The applicants complained under Article 5 § 3 of the Convention that their pre-trial detention had been unjustified and unreasonable.

The relevant part of Article 5 § 3 of the Convention reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

16 . The Court notes that the applications are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.

17 . The applicants submitted that their pre-trial detention had not been based on sufficient grounds and had been unreasonable and too lengthy.

18 . The Government contested the applicants ’ arguments, stating that their detention had been justified and reasonable.

19 . The applicable general principles are set out in Buzadji v. the Republic of Moldova [GC], no. 23755/07 , §§ 84-91 and 102, 5 July 2016.

20 . Information about the dates and length of the applicants ’ detention is indicated in the appended table.

21 . The Court observes that the seriousness of the charges against the applicants and the risk of their absconding or interfering with the respective investigations were mentioned in the initial orders for their detention (see paragraph 4 above). Those reasons remained the main grounds for the applicants ’ detention until their conviction or release. The Court furthermore notes that the decisions on the applicants ’ detention were couched in general terms and contained repetitive phrases. They did not suggest that the courts had made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the respective stages of proceedings.

22 . Moreover, with the passage of time, the applicants ’ continued detention required further justification, but the courts did not provide any further reasoning. It appears that the domestic courts did not attempt to demonstrate the existence of specific facts proving that the declared risks outweighing the rule of respect for individual liberty existed. In fact, the burden of proof was wrongly shifted onto the applicants (compare Khayredinov v. Ukraine , no. 38717/04, §§ 40-41, 14 October 2010, and Makarenko v. Ukraine , no. 622/11, § 91, 30 January 2018 ).

23 . The Court notes in particular that the domestic courts repeatedly justified the applicants ’ further detention by the absence of reasons to release them (see paragraph 6 above), whereas Article 5 § 3 of the Convention implies the opposite approach and requires the national authorities to provide grounds for the person ’ s continuing detention (see Komarova v. Ukraine , no. 13371/06, § 79, 16 May 2013 ).

24 . The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even in respect of lengthy periods of detention, the domestic courts referred to the same set of grounds (if indeed any were given) throughout the period of the applicant ’ s detention (see, for example, Kharchenko v. Ukraine , no. 40107/02 , §§ 80-81 and 99 , 10 February 2011, and Ignatov v. Ukraine , no. 40583/15, §§ 41-42, 15 December 2016).

25 . Having regard to the above, the Court considers that by failing to address specific facts or consider other measures as an alternative to pre-trial detention and by relying essentially and routinely on the seriousness of the charges, the authorities extended the applicants ’ pre-trial detention on grounds that cannot be regarded as “sufficient” and “relevant” to justify its duration.

26 . There have accordingly been violations of Article 5 § 3 of the Convention.

27 . 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.”

28 . The fifth applicant claimed 8,700 euros (EUR) in respect of pecuniary damage for alleged loss of profit. The remaining applicants did not claim pecuniary damage.

29 . All the applicants, except the third, also claimed the amounts indicated in the appended table in respect of non-pecuniary damage. The third applicant left the issue of the amount of non-pecuniary damage to the Court ’ s discretion.

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

31 . As regards the claim for pecuniary damage raised by the fifth applicant, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 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.

32 . The first applicant claimed EUR 1,200 for the costs and expenses incurred before the Court. The other four applicants did not make a claim for costs and expenses. The Government contested the above claim.

33 . 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.

34 . Regard being had to the documents in its possession, the low level of complexity of the case, the legal aid in the amount of EUR 850 awarded to the first applicant, and the fact that his representative intervened in the proceedings at the communication stage only, the Court makes no additional award under this head.

35 . 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, within three months, the amounts indicated in the appended table in respect of each of the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 25 June 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Date of Birth

Place of Residence

Nationality

Represented by

Nature of charges against the applicant

Name of court ordering the applicant ’ s arrest, date

Period of detention under consideration, length

Amount of non-pecuniary damage claimed

Amount of non-pecuniary damage awarded

1

63542/13

Lavrik v. Ukraine

26/09/2013

Yuriy Viktorovich LAVRIK

1969Kherson

Russian

Represented by

Yegor Leonidovych

BOYCHENKO

Murder

Zavodskyi District Court of Mykolayiv , 12/02/2012

09/02/2012- 08/11/2012 ;

10/02/2015- 20/07/2016

2 years and 2 months

EUR 30,000

EUR 1,300

2

11237/14

Abgash v. Ukraine

22/01/2014

Dmytro Fedorovych ABGASH

1994Orlivka

Ukrainian

Represented by

Dmytro Spyrydonovych ZLATI

Theft

Reni District Court of Odesa Region,

19/04/2013

18/04/2013- 11/02/2014,

10 months

EUR 10,000

EUR 600

3

20415/14

Paseka v. Ukraine

03/03/2014

Artur Petrovych PASEKA

1989Odesa

Ukrainian

Represented by

Oleksandr Oleksandrovych BULGAROV

Robbery

Kyivskyi District Court of Odesa,

02/08/2013

31/07/13-26/05/14

10 months

Amount of JS left for the Court to determine

EUR 600

4

24962/15

Krutiy v. Ukraine

30/04/2015

Ivan Bogdanovych KRUTIY

1981Lviv

Ukrainian

Represented by

Ruslana Ivanivna YUKHYMENKO

Extortion

Galytskyi District Court of Lviv ,

11/12/2013

11/12/13-21/12/15

2 years

EUR 25,000

EUR 1,200

5

43478/16

Ivanov v. Ukraine

11/07/2016

Kuzma Yuriyovych IVANOV

1976Odesa

Ukrainian

Represented by

Maryanna Mykolayivna GOLOTOVA

Corruption

Prymorskyi District Court of Odesa,

16/12/2015

13/12/15-15/12/17

2 years

EUR 100,000

EUR 1,200