European Court of Human Rights

 

 

FIFTH SECTION

CASE OF SHAPKIN AND MAKOVSKYY v. UKRAINE

(Applications nos. 13795/20 and 19927/21)

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

10 November 2022

 

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

In the case of Shapkin and Makovskyy 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 20 October 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 deficiencies in proceedings for review of the lawfulness of their detention.

THE LAW

I.        JOINDER OF THE APPLICATIONS

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

II.     ALLEGED VIOLATION OF ARTICLE 5 § 4 of the Convention

6.  The applicants complained of the deficiencies in proceedings for review of the lawfulness of their detention. They relied, expressly or in substance, on Article 5 § 4 of the Convention, which reads as follows:

Article 5 § 4

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful...”

 

8.  In the leading case of Kharchenko v. Ukraine (no. 40107/02, §§ 84-87, 10 February 2011), 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.

10.  The Court therefore concludes that there has been a breach of Article 5 § 4 of the Convention in the instant case.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

11.  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.  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,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that these applications disclose a breach of Article 5 § 4 of the Convention concerning the deficiencies in proceedings for review of the lawfulness of detention;

4.      Holds

(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 10 November 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 § 4 of the Convention

(deficiencies in proceedings for review of the lawfulness of detention)