CASE OF NAGABAS AND KARPENKO v. UKRAINE

FIFTH SECTION

CASE OF NAGABAS AND KARPENKO v. UKRAINE

(Applications nos. 42523/16 and 14526/16)

JUDGMENT
 

STRASBOURG

11 April 2024

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

In the case of Nagabas and Karpenko v. Ukraine,

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

 Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the individuals listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Article 5 § 5 of the Convention to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, and to declare inadmissible the remainder of application no. 14526/16;

the parties’ observations;

Having deliberated in private on 21 March 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicants’ complaints that the domestic courts had awarded them an insufficient amount of compensation for unlawful detention, in breach of Article 5 § 5 of the Convention.

2.  On 25 April 2012 the local court released the first applicant from serving a prison sentence that he had been given in a court judgment of 30 September 2009, as the offence of which he had been convicted had been decriminalised. On 2 March 2015 the police arrested the first applicant and placed him in detention with a view to enforcing the judgment of 30 September 2009. On 5 March 2015 he was released from detention.

3.  The first applicant brought proceedings for damages after his release. On 9 October 2015 the Khmelnytskyi Local Court awarded him 5,000 Ukrainian hryvnias (UAH) (approximately 170 euros (EUR) in damages for his unlawful detention from 2 to 5 March 2015. The first applicant appealed against that judgment, seeking an increased amount; his appeal was rejected by the Khmelnytskyi Regional Court of Appeal and the Higher Specialised Civil and Criminal Court on 11 December 2015 and 30 March 2016 respectively.

4.  In 2005 a criminal investigation into fraud was opened in respect of the second applicant. In the course of the investigation she was detained between May 2006 and March 2008. On 7 July 2008 the criminal investigation was terminated owing to the absence of the constituent elements of the crime of which she had been suspected.

5.  Following the end of the criminal investigation, the second applicant brought proceedings for damages in connection with her detention. On 16 April 2015 the Lviv Regional Court of Appeal awarded her UAH 60,000  – approximately EUR 2,600). That award included, inter alia, compensation for her unlawful detention of one year and ten months. The unlawfulness of the second applicant’s detention was presumed because of the discontinuation of the criminal investigation for lack of the constituent elements of the crime (see and compare Lopushanskyy v. Ukraine [Committee], no. 27793/08, § 36, 2 February 2017). The second applicant’s appeals on points of law were rejected by the Higher Specialised Civil and Criminal Court and the Supreme Court on 14 May and 1 September 2015 respectively.

THE COURT’S ASSESSMENT

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

7.  The applicants complained that the amount of compensation they had been awarded in the domestic proceedings in respect of their detention, which was acknowledged to have been unlawful in those proceedings, had been insufficient compared to the Court’s standards in cases of a similar degree of seriousness. The first applicant relied upon Article 5 §§ 1, 4 and 5 of the Convention, and the second applicant relied upon Article 1 of Protocol No. 4 and Article 3 of Protocol No. 7 to the Convention. The Court considers that the above complaints fall to be examined under Article 5 § 5 of the Convention.

8.  The Government submitted that the applicants could no longer claim to be victims of a violation of their rights under Article 5 since their rights had been restored following the payment of the awards made by the domestic courts.

9.  The applicants disagreed with the Government’s submission.

10.  The Court considers that the Government’s objection regarding the loss of victim status, which is closely linked to the merits of the applicants’ complaints, should be joined to the merits (see, for example, Temchenko v. Ukraine, no. 30579/10, § 127, 16 July 2015).

11.  As the Court has held previously, a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for instance, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012; see also, concerning Article 5 of the Convention, Moskovets v. Russia, no. 14370/03, § 50, 23 April 2009). Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism set up by the Convention preclude examination of an application by the Court (see Rooman v. Belgium [GC], no. 18052/11, § 129, 31 January 2019).

12.  The Court furthermore reiterates that the right to compensation under Article 5 § 5 of the Convention arises if a breach of one of its other four paragraphs has been established, directly or in substance, either by the Court or by the domestic courts (see, among many other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012). In the instant case the domestic courts established that the first applicant’s detention from 2 to 5 March 2015 had not had a legal basis (see paragraph 3 above) and that the second applicant’s detention of one year and ten months between May 2006 and March 2008 had been unlawful (see paragraph 5 above). Accordingly, Article 5 § 5 is applicable in the instant case.

13.  The applicants sought and obtained damages at the domestic level in respect of their wrongful detention. They complained before the Court, however, that the quantum of awarded damages was so small that the very essence of their right under Article 5 § 5 had been impaired.

14.  The Court reiterates that although Article 5 § 5 does not set a particular level of compensation or refer to specific amounts, the Convention in general is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective (see Vasilevskiy and Bogdanov v. Russia, nos. 52241/14 and 74222/14, §§ 21-23, 10 July 2018 and further references therein). The question whether the applicants received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. In determining it, the Court will have regard to its own practice in similar cases (see Lopushanskyy, cited above, §§ 41-46).

15.  The Court notes that the first applicant’s complaint under Article 5 § 5 of the Convention originates from his four days’ detention which was found to have been unlawful at the domestic level – an issue which would normally have been examined by the Court under Article 5 § 1 of the Convention as a case of unauthorised detention.

16.  The Court observes that in the case of Lopushanskyy (cited above) the applicant had received EUR 750 at the domestic level in respect of two days of unlawful detention. The Court did not consider that amount to have been manifestly inadequate and found that the applicant had lost his victim status. Furthermore, in the case of Karapas and Others v. Ukraine ([Committee] nos. 54575/12 and 4 others, 22 October 2020) the Court awarded the applicants EUR 900 and EUR 1,800 in respect of three and six days of unjustified detention respectively.

17.  Noting that in the present case the first applicant was awarded EUR 170 in respect of four days of unlawful detention, the Court finds that the above amount of compensation cannot be considered to have been an appropriate redress for the violation complained of in the light of the standards set by the Court in comparable situations, as mentioned above.

18.  The Court finds that first applicant can therefore still claim to be a “victim” of a violation of Article 5 § 5 of the Convention and that there has accordingly been a breach of that provision.

19.  The Court notes that the second applicant’s complaint under Article 5 § 5 of the Convention originates from her pre-trial detention for one year and ten months which was deemed to have been unlawful as a result of the termination of the criminal investigation against her – an issue which would normally have been examined by the Court under Article 5 § 3 of the Convention as a case of excessive length of pre-trial detention.

20.  It furthermore observes that in the case of Olekseychuk v. Ukraine ([Committee] no. 5765/20, 15 December 2022) it awarded EUR 1,200 in respect of the violations of the applicant’s rights under Article 5 §§ 3 and 5 of the Convention regarding his unjustified and lengthy detention for almost two years and the absence of an enforceable right to compensation. In the case of Zavadskiy and Others v. Ukraine ([Committee] nos. 31173/17 and 4 others, 5 October 2023) the Court awarded the applicant Mr Bogdan Igorovych Kozubal (application no. 5041/20) EUR 1,600 in respect of the violation of his rights under Article 5 § 3 of the Convention for the excessive length of his pre-trial detention, which lasted two years. By the same judgment the Court awarded the applicant Mr Oleg Mykhaylovych Shcherbatuk (application no. 44590/21) EUR 1,100 in respect of the violation of his rights under Article 5 § 3 of the Convention for excessive length of pre-trial detention, which lasted nearly 1 year and nine months.

21.  Having regard to the above-mentioned examples, the Court considers that the domestic award of EUR 2,600 made to the second applicant in respect of her detention for one year and ten months appears to have been reasonable. The second applicant should therefore be considered as having lost her victim status in relation to the above complaint. Her application must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  The first applicant (application no. 42523/16) claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

23.  The Government contested his claim.

24.  The Court finds that in the instant case the first applicant’s right to be compensated for unlawful detention in a practical and effective manner was frustrated on account of the negligible amount awarded to him in the domestic proceedings. In these circumstances, the first applicant’s distress and frustration cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis and taking into account the nature of the right a violation of which it has found, the Court awards the first applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the first applicant, Mr Sergiy Leonidovych Nagabas, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 11 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Carlo Ranzoni
 Deputy Registrar President

APPENDIX

List of cases

No.

Application no.

Case name

Lodged on

Applicant
Year of birth
Place of residence
Nationality

Represented by

1.

42523/16

Nagabas v. Ukraine

07/07/2016

Sergiy Leonidovych NAGABAS
1975
Khmelnytskyi
Ukrainian

Andriy Boleslavovych GOVORETSKYY

2.

14526/16

Karpenko v. Ukraine

24/02/2016

Svitlana Viktorivna KARPENKO
1950
Lviv
Ukrainian

Andriy Anatoliyovych KRISTENKO