FIFTH SECTION
CASE OF KHIMCHAK AND BILYK v. UKRAINE
(Applications nos. 4565/14 and 42209/15)
JUDGMENT
STRASBOURG
10 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Khimchak and Bilyk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Jovan Ilievski,
Mattias Guyomar, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 20 May 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 unlawful detention. They also raised other complaints under the provisions of the Convention.
THE LAWJOINDER 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.ALLEGED VIOLATION OF ARTICLE 5 § 1 of the Convention
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 case of Ruslan Yakovenko v. Ukraine, (no. 5425/11, §§ 68-70, 4 June 2015) 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 these complaints are admissible and disclose a violation of Article 5 § 1 of the Convention.OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
12. The applicants submitted other complaints under Article 5 §§ 3 and 4 of the Convention 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 v. Ukraine (no. 40107/02, § 86, 10 February 2011) and Korban v. Ukraine (no. 26744/16, §§ 158-81, 4 July 2019).REMAINING COMPLAINTS
13. In application no. 42209/15, the applicant also raised other complaints under Article 5 § 1 of the Convention (as regards the period from 1 April 2014 to 26 February 2015), Article 5 § 3 of the Convention and Article 13 of the Convention.
14. The Court 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, these complaints 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 application no. 42209/15 must be rejected in accordance with Article 35 § 4 of the Convention.APPLICATION OF ARTICLE 41 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 and rejects any additional claims for just satisfaction raised by the applicants.
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,Decides to join the applications;Declares the complaints concerning the unlawful detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 42209/15 inadmissible;Holds that these complaints disclose a breach of Article 5 § 1 of the Convention concerning the unlawful detention;Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 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;Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya MaradudinaStéphanie Mourou-Vikström
Acting Deputy RegistrarPresident
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 pecuniary and non-pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
4565/14
19/12/2013
Igor Stepanovych KHIMCHAK
1968
Mykhaylo Oleksandrovych Tarakhkalo
Kyiv
Mytsyk
Oleg Volodymyrovych
Lviv
from 4/12/2013 to 5/12/2013
delayed release (Ruslan Yakovenko v. Ukraine, no. 5425/11, §§ 68-70, ECHR 2015)
none
Art. 5 (3) - lack of relevant and sufficient reasons for detention – detention on remand from 6/06/2013 to 4/12/2013, fragility of the reasons employed by the courts.
2,600
250
42209/15
21/08/2015
Oleg Mykolayovych BILYK
1981
Oleg Viktorovych Gurich
Kyiv
from 27/02/2015 to 02/03/2015
delayed release (Ruslan Yakovenko v. Ukraine, no. 5425/11, §§ 68-70, ECHR 2015)
none
Art. 5 (4) - excessive length of judicial review of detention - the applicant’s appeals against detention orders of 22/09/2014, 19/11/2014 and 03/02/2015 were considered only on 31/10/2014, 13/01/2015 and 27/02/2015 respectively, that is from 24 days to almost two months per the appeal review and thus excessive.
2,340
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.
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