FIFTH SECTION

CASE OF LUKASH AND MAGDALITS v. UKRAINE

(Applications nos. 57967/15 and 37540/16)

JUDGMENT

STRASBOURG

29 September 2022

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

In the case of Lukash and Magdalits 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 8 September 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.

THE FACTS

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

4. The applicants complained of the unlawful detention (see appended table for further details).

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 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;”

7. 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).

8. 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 the national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with the 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).

9. 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.

10. 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.

11. These complaints as set out in the appended table are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.

12. 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.”

13. 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 and rejects any additional claims for just satisfaction raised by the applicant in application no. 57967/15.

14. 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, 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 September 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

Amount awarded for non-pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

57967/15

10/11/2015

Vladyslav Stanislavovych LUKASH

1973Olena Yuriyivna Lyoshenko

Kyiv

Nataliya Anatoliyivna Voznyuk

Kyiv

21/04/2015 -23/04/2015

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)

1,800

250

37540/16

22/06/2016

Oleksandr Sergiyovych MAGDALITS

1988Oksana Ivanivna Chernysh

Mariupol

from 3.25 p.m. until 11.20 p.m. on 04/05/2016

delay in the drawing up of the arrest report ( 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)

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.