FIFTH SECTION

CASE OF LIFINTSEV AND OTHERS v. UKRAINE

(Applications nos. 6768/11 and 7 others –

see appended list)

JUDGMENT

STRASBOURG

24 February 2022

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

In the case of Lifintsev and Others v. Ukraine,

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

Lətif Hüseynov, President, Lado Chanturia, Arnfinn Bårdsen, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 3 February 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. Some applicants also raised other complaints under the provisions of the Convention.

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 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;”

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 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).

9. In the leading cases of Kharchenko v. Ukraine (no. 40107/02, §§ 70 ‑ 72 and 74-76, 10 February 2011), Ruslan Yakovenko v. Ukraine (no. 5425/11, §§ 68-70, 4 June 2015), Strogan v. Ukraine (no. 30198/11, §§ 88-89, 6 October 2016), Ignatov v. Ukraine (no. 40583/15, §§ 36-37, 15 December 2016), Fortalnov and Others v. Russia (nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018) and Grubnyk v. Ukraine (no. 58444/15, §§ 71-73 and 83-85, 17 September 2020), the Court found a violation in respect of issues similar to those in the present case (see 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. It follows that the applicants’ complaints are admissible and discloses a violation of Article 5 § 1 of the Convention.

12. Some 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 Kharchenko (cited above), Kotiy v. Ukraine (no. 28718/09 , § 55, 5 March 2015), Ignatov (cited above), and Nechay v. Ukraine (no. 15360/10, §§ 67-79, 1 July 2021).

13. In application no. 917/17 the applicant also raised other complaints under Article 5 §§ 3 and 4 of the Convention.

14. The Court has examined these complaints 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, they 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.

15. 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.”

16. 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.

17. 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 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 24 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Lətif Hüseynov

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]

6768/11

20/01/2011

Sergey Nikolayevich LIFINTSEV

1971Martynovskyy Roman Yuriyovych

Kyiv

31/08/2007 –

02/03/2011

Decision on detention without a time-limit ( Kharchenko v. Ukraine , no. 40107/02, §§ 74-76,

10 February 2011).

Absence of any grounds given by the court in the decision authorising detention ( Ignatov

v. Ukraine , no. 40583/15,

§§ 36-37, 15 December 2016).

Nakhimovsky Local Court of Sevastopol, 31/08/2007,

Nakhimovsky Local Court of Sevastopol, 07/11/2007,

Nakhimovsky Local Court of Sevastopol, 02/03/2011

Art. 6 (1) - excessive length of criminal proceedings

29/08/2007 - 21/01/2013,

5 years, 4 months, 25 days,

before one level of jurisdiction;

Art. 5 (3) - excessive length of pre-trial detention

29/08/2007 - 02/03/2011,

3 years, 6 months, 3 days; lack of proper reasoning in the detention orders.

5,900

250

64231/13

09/09/2013

Dmitriy Nersesovich STEPANYAN

1978

03/12/2012 - 14/03/2013

Detention not covered by any judicial order ( Kharchenko v. Ukraine , no. 40107/02,

§§ 70-72, 10 February 2011).

1,800

8290/16

01/02/2016

Sergiy Anatoliyovch TARASENKO

1969Lebid Vitaliya Pavlivna

Kyiv

11/03/2015 - 24/03/2015

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 , no. 7077/06 and 12 others, §§ 76-79,

26 June 2018).

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).

arrest report of 24/03/2015

Art. 5 (2) - failure to inform promptly of the reasons for arrest – no information about the grounds for arrest until the arrest record was drawn up on 24/03/2015;

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

11/03/2015 - 03/03/2016,

11 months, 23 days; fragility of the reasons for detention orders; failure to assess the applicant’s personal situation to decide on measures alternative to detention.

2,600

250

54957/16

04/09/2016

Vadim Semenovich REPKIN

1966Samarets Alina Mykolayivna

Kyiv

25/06/2012 - 26/06/2012

26/10/2012 - 11/02/2013

11/02/2013 - 13/08/2013

16/09/2013 - 08/11/2013

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).

Detention not covered by any judicial order ( Kharchenko v. Ukraine , no. 40107/02,

§§ 70-72, 10 February 2011).

Decision on detention without a time-limit ( Kharchenko v. Ukraine , no. 40107/02, §§ 74-76,

10 February 2011).

Absence of any grounds given by the court in the decision authorising detention ( Ignatov v. Ukraine , no. 40583/15, §§ 36-37, 15 December 2016).

none

none

Dniprovskyy District Court of Kyiv, 11/02/2013

Dniprovskyy District Court of Kyiv, 16/09/2013

Art. 5 (3) - excessive length of pre-trial detention –

25/06/2012 - 05/12/2017,

5 years, 5 months, 12 days; failure to conduct the proceedings with due diligence during the period of detention;

Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention, ( Tymoshenko v. Ukraine , no. 49872/11,

§§ 286-287, 30 April 2013

and Kotiy v. Ukraine ,

no. 28718/09, § 55,

5 March 2015);

Art. 6 (1) - excessive length of criminal proceedings –

25/06/2012 - 19/12/2018,

6 years, 5 months, 26 days,

before three levels of jurisdiction;

Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings.

3,900

250

917/17

12/12/2016

Denis Vladimirovich PURIK

1986Bondarenko Yuriy Yuryevich

Lysychansk

12/07/2016 - 04/08/2016

Delayed release ( Ruslan Yakovenko v. Ukraine , no. 5425/11, §§ 68-70,

ECHR 2015)

none

1,800

250

49607/17

29/06/2017

Aleksandr Yuryevich YURCHENKO

1986Shadrin Oleksandr Sergiyovych

Irpin

16/12/2016 - 17/12/2016

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), 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).

none

Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention, ( Tymoshenko v. Ukraine , no. 49872/11,

§§ 286-287, 30 April 2013 and Kotiy v. Ukraine , no. 28718/09,

§§ 55, 5 March 2015).

1,800

250

51004/17

11/07/2017

Oleksandr Stanislavovych TSYMBAL

1974

30/03/2017 - 20/06/2017

Delayed release ( Yaroshovets and Others v. Ukraine , nos. 74820/10 and 4 others, §§ 143-153,

3 December 2015).

1,800

54147/18

06/11/2018

Ivan Vasylyovych ZHOSAN

1992Leshchenko Andriy Viktorovych

Odesa

18/07/2014 - 26/07/2014

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).

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).

Detention not covered by any judicial order ( Kharchenko v. Ukraine , no. 40107/02,

§§ 70-72, 10 February 2011).

none

Art. 5 (3) - excessive length of pre-trial detention –

18/07/2014 - 17/05/2018, 3 years, 9 months, 21 days, failure to examine the possibility of applying other measures of restraint, fragility of the reasons employed by the courts, use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice.

3,100

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

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