CASE OF LYUBOVETSKYY v. UKRAINE

FIFTH SECTION

CASE OF LYUBOVETSKYY v. UKRAINE

(Application no. 42171/17)

JUDGMENT
 

STRASBOURG

12 June 2025

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

In the case of Lyubovetskyy v. Ukraine,

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

 Gilberto Felici, President,
 Diana Sârcu,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 42171/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 May 2017 by a Ukrainian national, Mr Igor Vasylyovych Lyubovetskyy (“the applicant”), who was born in 1965, is currently detained in Khmelnytskyi, and was represented by Mr V.N. Zalutskyy, a lawyer practising in Khmelnytskyi;

the decision to give notice of the complaints concerning the applicant’s allegedly unlawful detention owing to the application of less favourable law and the refusal of compensation for his detention to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, from the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 15 May 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s allegedly unlawful detention owing to the application of less favourable law and the refusal of the domestic courts to award him compensation in that regard. The applicant relied on Article 5 §§ 1 (a) and 5 and Article 7 of the Convention.

2.  On 11 September 2006 the Khmelnytskyi Local Court found the applicant guilty of committing several criminal offences, sentenced him to eight years’ imprisonment for fraud and exempted him from punishment for other offences on the grounds that they were time-barred.

3.  On 7 December 2006 the Khmelnytskyi Regional Court of Appeal (“the Court of Appeal”) quashed the judgment of the first-instance court, reclassified the applicant’s actions from fraud to a less serious offence and exempted him from punishment for all the offences committed on the grounds that they were time-barred.

4.  On 26 June 2008 the Criminal Chamber of the Supreme Court quashed the decision of the Court of Appeal and remitted the case to that court for re‑examination.

5.  On 9 September 2008 the Court of Appeal upheld the judgment of 11 September 2006. The same day, the applicant was sent to serve his sentence in a correctional colony.

6.  On 14 May 2009 the Supreme Court rejected a cassation appeal by the applicant.

7.  After his final conviction, the applicant raised before the domestic courts the issue of the application of less favourable law in his case. The offences that he had been found guilty of had taken place between 1994 and 1998 and, at that time, the Criminal Code of 1960 had still been in force. It had been replaced by the new Criminal Code in 2001. The applicant had been convicted under the Criminal Code of 2001, which had imposed a more lenient sentence for fraud, although the Criminal Code of 1960 had imposed shorter statutory limitation periods. He submitted that the offence he had been convicted of had taken place on 23 September 1994 and that the statutory limitation period for criminal prosecution had started running on 18 March 1998 and expired on 18 March 2008. However, the applicant had been convicted of that offence on 9 September 2008, that is to say, more than ten years later, and he should therefore have been exempt from punishment.

8.  On 5 February 2010 the Shepetivskyi Local Court rejected a request by the applicant for release on account of the expiry of the statutory limitation period. The case was examined by courts at three levels of jurisdiction and the Court of Appeal eventually decided in the applicant’s favour on 10 October 2013. The Court of Appeal considered that there had been a serious infringement of criminal law. It found that the applicant had been sentenced under the Criminal Code of 2001, which, in accordance with the transitional provisions thereof, should apply to offences committed prior to its entry into force if such provisions mitigated criminal liability. In the present case, however, the Criminal Code of 2001 imposed longer statutory limitation periods (fifteen years in the case of the applicant) than those imposed by the Criminal Code of 1960 (ten years in the case of the applicant). The Court of Appeal held that the applicant should be released in accordance with the statutory limitation period imposed by the Criminal Code of 1960. It noted, however, that the matter did not concern “shortcomings of the verdict in terms of the classification of the offence and sentencing”. The Court of Appeal thus exempted the applicant from punishment and ordered his immediate release.

9.  In March 2014 the applicant sought compensation in the Khmelnytskyi Local Court in respect of his unlawful detention from 9 September 2008 to 10 October 2013.

10.  On 20 May 2014 the Khmelnytskyi Local Court found in part for the applicant and awarded him 200,000 Ukrainian hryvnias in respect of non-pecuniary damage. That decision was upheld by the Court of Appeal on 24 June 2014. On 22 October 2014 the High Civil and Criminal Court quashed the decisions of the lower courts and remitted the case to the first‑instance court for re-examination. The case was re-examined on several occasions until the High Court ultimately rejected the applicant’s claim on the grounds that the applicant had not been acquitted but rather had been exempted from serving his sentence. Accordingly, the applicant’s release had not entailed his rehabilitation and he had no right to compensation under the Law on the Procedure for Compensation for Damage Caused by Unlawful Actions of Bodies of the Inquiry, Pre-Trial Investigation, Prosecution and Courts (“the Compensation Act”).

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

11.  The applicant submitted that his detention had been unlawful owing to the application of less favourable law and complained about the refusal to award him compensation for the detention. He relied on Article 5 §§ 1 (a) and 5 and Article 7 of the Convention.

12.  The Court notes that the case hinges on the initial application of less favourable criminal law to the applicant’s situation by the domestic court in a manner inconsistent with the principles enshrined in Article 7 of the Convention. Nevertheless, the applicant was ultimately exempted from punishment by virtue of the application of a shorter statutory limitation period for the offence that he had been convicted of, in accordance with the requirements of Article 7. However, the applicant’s exemption from punishment was granted only after a long delay during which he had served more than half of his original sentence (five years out of eight). Indeed, had the more favourable criminal law been applied at the outset, the applicant would not have served any time in prison. The core issue is therefore whether in the light of the above, the applicant’s detention was compatible with the requirements of the Convention, in particular with those of Article 5 § 1 (a), and if not, whether the applicant was entitled to compensation for his detention under Article 5 § 5 of the Convention. Accordingly, the Court, being master of the characterisation to be given in law to the facts of the case, finds it appropriate to examine the present application under Article 5 of the Convention only (see, mutatis mutandis, Shulgin v. Ukraine, no. 29912/05, § 36, 8 December 2011).

13.  The Government contended that the application was inadmissible on the grounds that it had been submitted too late. They took the view that the domestic courts had ultimately concluded that the applicant’s claim for compensation fell outside the scope of the Compensation Act, that it must have been obvious from the outset that no remedy was available to him and that he should therefore have lodged his complaints with the Court within six months following his release.

14.  The applicant did not comment in that regard.

15.  The Court notes that the compensatory remedies used by the applicant cannot be regarded as obviously futile given that the applicant was awarded compensation by the domestic courts on several occasions, even though such compensation was not awarded by a final judgment (see paragraph 10 above). The applicant cannot therefore be reproached for using a remedy that the domestic courts themselves did not consider to be manifestly inappropriate.

16.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

17.  In his application, the applicant complained that his right to liberty had been infringed given that he had been convicted after the expiry of the shorter statutory limitation period, as had ultimately been acknowledged by the domestic courts (see paragraph 8 above). Nevertheless, he had not been compensated for the period of more than five years which he had spent in detention owing to the incorrect application of domestic law.

18.  The Government contended that the judgment of 10 October 2013 had not rendered the applicant’s earlier detention unlawful, in so far as he had been found guilty and sentenced in accordance with the law and there had been no decision finding his sentence to have been unlawful. In their opinion, there had been no violation of Article 5 § 1 (a) of the Convention and the applicant therefore had no right to compensation under Article 5 § 5 of the Convention.

19.  The Court reiterates that 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 but also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely, to protect the individual from arbitrariness. Where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail (see Medvedyev and Others v. France [GC], no. 3394/03, §§ 79-80, ECHR 2010, with further references).

20.  The Court notes that the decision on the applicant’s release was taken in order to apply the more favourable law existing between the time when the offence had been committed and the date on which the applicant’s final sentence was imposed (see paragraph 8 above). In the absence of any indication that the relevant provisions of domestic law had meanwhile been amended, it is logical to conclude that the judgment of 9 September 2008 was inconsistent with the domestic law and with the principles of lawfulness and legal certainty enshrined in the Convention. That being so, the applicant was detained for more than five years owing to the fact that in its judgment of 9 September 2008 the domestic court did not apply the more favourable law and did not exempt him from punishment.

21.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s detention between 9 September 2008 and 10 October 2013 was unforeseeable and arbitrary and thus in violation of Article 5 § 1 (a) of the Convention.

22.  Given that the Court has found violations of Article 5 § 1 (see paragraphs 20 and 21 above), it follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether the applicant has an enforceable right to compensation under Ukrainian law on the basis of the finding of violations of Article 5 by the Court. In that regard, the Court notes that it has examined this issue in numerous other Ukrainian cases. It has found that a right to compensation under Article 5 § 5 of the Convention is not secured in the domestic legal system where the Court establishes a violation of any of the preceding paragraphs of that Article and where there has been no domestic judicial decision establishing the unlawfulness of the detention (see, for example, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, §§ 233‑34, 21 April 2011; Taran v. Ukraine, no. 31898/06, §§ 89-90, 17 October 2013; and Sinkova v. Ukraine, no. 39496/11, §§ 82-84, 27 February 2018). The Court finds no reason to reach a different conclusion in the present case. There has therefore also been a violation of Article 5 § 5 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 12 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Gilberto Felici
 Deputy Registrar President