FIFTH SECTION

CASE OF MINAYEV AND KORZH v. UKRAINE

(Applications nos. 82724/17 and 40291/18)

JUDGMENT

STRASBOURG

16 December 2021

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

In the case of Minayev and Korzh 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 25 November 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 applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the lack of relevant and sufficient reasons for detention. The applicant in application no. 82724/17 also raised a complaint under Article 5 § 4 of the Convention in respect of the same set of facts.

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 lack of relevant and sufficient reasons for detention. They relied, expressly or in substance, on Article 5 § 3 of the Convention, which reads as follows:

“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.”

7. The Court reiterates that, according to its established case-law under Article 5 § 3 of the Convention, the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures for ensuring this person’s appearance at trial. The requirement for the judicial officer to give “relevant” and “sufficient” reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see, among other authorities, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87 and 102, 5 July 2016).

8. In the leading case of Korban v. Ukraine , no. 26744/16, §§ 158-81, 4 July 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. Having regard to its case-law on the subject, the Court considers that in the instant cases the domestic courts failed to provide relevant and sufficient reasons for the applicants’ pre-trial detention.

10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 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, Ara Harutyunyan v. Armenia , no. 629/11, § 66, 20 October 2016), the Court considers it reasonable to award the applicant in application no. 40291/18 the sums indicated in the appended table. As concerns the applicant in application no. 82724/17, the Court makes no award since he failed to submit his just satisfaction claims in accordance with Rule 60 of the Rules of Court, even though he had been invited to do so.

14. 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 applicant in application no. 40291/18, 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 16 December 2021, 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 § 3 of the Convention

(lack of relevant and sufficient reasons for detention)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Period of detention, including 24-hour house arrest, where relevant

Court which issued detention order/ examined appeal

Specific defects

Amount awarded for non-pecuniary damage per applicant

(in euros) [1]

Amount awarded

for costs and expenses

per application

(in euros) [2]

82724/17

23/11/2017

Mykola Igorovych MINAYEV

1969Subota Mykhaylo Ivanovych

Uzhgorod

22/05/2017 - 10/07/2018

Uzhgorod Local Court of Zakarpattya Region

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice, use of stereotyped formulae when extending detention

–

–

40291/18

14/08/2018

Yevgen Volodymyrovych KORZH

1979Chudovskyy Igor Vyacheslavovych

Bucha

23/02/2018 - 23/04/2018

Novoaydarskyy Local Court of Lugansk Region

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

2,000

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

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