FIFTH SECTION

CASE OF BÍRÓ AND OTHERS v. UKRAINE

(Applications nos. 77948/13 and 2 others –

see appended list)

JUDGMENT

STRASBOURG

6 October 2022

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

In the case of Bíró and Others v. Ukraine,

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

Stéphanie Mourou-Vikström, President, Ivana Jelić, Kateřina Šimáčková, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 16 June 2022,

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.

3. The applicant in case no. 77948/13 is a Hungarian national. The Hungarian Government were informed of their right to intervene in the case. They did not inform the Court about their wish to intervene in the proceedings.

THE FACTS

4. The list of applicants and the relevant details of the applications are set out in the appended table.

5. The applicants complained of unlawful detention and also raised other complaints under the provisions of the Convention.

THE LAW

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

7. 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;”

8. 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).

9. 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).

10. The Court found violations in respect of issues similar to those in the present case in the leading cases set out in the appended table.

11. 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 applicants’ detention was not in accordance with Article 5 § 1 of the Convention.

12. These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.

13. In applications nos. 77948/13 and 23887/20, the applicants 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 Tymoshenko v. Ukraine, no. 49872/11, §§ 286-287, 30 April 2013, Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015, and Korban v. Ukraine, no. 26744/16 , §§ 158-81, 4 July 2019.

14. In application no. 10957/18, the applicant also raised other complaint under Article 5 § 4 of the Convention.

15. 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 either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

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

17. 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.”

18. In application no. 10957/18, the applicant did not submit any claims for just satisfaction, despite being invited to do so. Accordingly, the Court considers that there is no call to award him any sum on that account.

19. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Malyk v. Ukraine , no. 37198/10, 29 January 2015), the Court considers it reasonable to award the sums indicated in the appended table to the remaining applicants and rejects any additional claims for just satisfaction raised by the applicant in application no. 77948/13.

20. 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,

(a) that the respondent State is to pay the applicants, save for applicant in case no. 10957/18, within three months, the amounts indicated in the appended table, to be converted, as far as the applicant in application no. 23887/20 is concerned, 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 Stéphanie Mourou-Vikström 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

Relevant domestic decision

Other complaints under well-established case-law

Amount awarded for non-pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

77948/13

05/12/2013

László BÍRÓ

1984Gavrylets Tetyana Ivanivna

Mukachevo

10/06/2011

-

11/06/2011

10/06/2011

-

14/06/2011

25/06/2013

-

16/07/2013

unacknowledged deprivation of liberty or delay in drawing up arrest report ( Belozorov v. Russia and Ukraine , no. 43611/02, §§ 113-15, 15 October 2015, Grubnyk v. Ukraine , no. 58444/15, §§ 71-73, 17 September 2020, and Fortalnov and Others v. Russia , nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018);

four days’ detention without a court order in excess of maximum period allowed by the domestic law (up to 72 hours from the moment of arrest) (see Gal v. Ukraine , no. 6759/11, § 28, 16 April 2015);

detention which was not covered by any court order (see Kharchenko v. Ukraine , no. 40107/02, §§ 71, 72, 98, 10 February 2011)

none

investigator’s resolution on suspect’s arrest of 11/06/2011

none

Art. 5 (3) - lack of relevant and sufficient reasons for detention–

from 10/06/2011 (date of actual arrest) to 25/09/2012 (conviction by the first instance court) and from 04/04/2013 (quashing of the sentence on appeal) to 23/12/2013 (conviction by the first instance court) (see Korban v. Ukraine , no. 26744/16 , §§ 158-81, 4 July 2019)

2,600

–

10957/18

26/02/2018

Oleksandr Arsenovych AVAKOV

1988Lysak Oleksandr Mykolayovych

Kyiv

31/10/2017

-

01/11/2017

no legal basis for arrest without a prior court decision ( Strogan v. Ukraine , no. 30198/11, §§ 88-89, 6 October 2016, and Grubnyk v. Ukraine , no. 58444/15, §§ 83 ‑ 85, 17 September 2020)

none

–

–

23887/20

29/04/2020

Tetyana Anatoliyivna SAULEVYCH

1987Kychenok Andriy Sergiyovych

Kyiv

25/11/2019

-

26/11/2019

delayed release ( Ruslan Yakovenko v. Ukraine , no. 5425/11, §§ 68-70, ECHR 2015)

none

Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention - the right to compensation for breaches of the Convention is not provided for in the domestic legal system (see Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015, and Tymoshenko v. Ukraine , no. 49872/11, §§ 286-287, 30 April 2013).

1,800

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

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