FIFTH SECTION
CASE OF PSHIK AND SHYSHENKO v. UKRAINE
(Applications nos. 33688/17 and 42118/17)
JUDGMENT
STRASBOURG
5 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Pshik and Shyshenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Lado Chanturia,
María Elósegui, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 14 September 2023,
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 detention.
THE LAW
JOINDER OF THE APPLICATIONS5. 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 § 4 of the Convention6. The applicants complained of the deficiencies in the proceedings for review of the lawfulness of detention. They relied, expressly or in substance, on Article 5 § 4 of the Convention.
7. The Court reiterates that under Article 5 § 4 of the Convention arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty (see Lietzow v. Germany, no. 24479/94, § 44, ECHR 2001-I). It is true that the provision in question does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Fodale v. Italy, no. 70148/01, § 39, ECHR 2006-VII).
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.
APPLICATION OF ARTICLE 41 OF THE CONVENTION11. 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.”
12. Regard being had to the documents in its possession and to its case‑law (see, in particular, Oravec v. Croatia, no. 51249/11, §§ 78-80, 11 July 2017), the Court considers it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applications admissible;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; 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 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Carlo Ranzoni
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)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Name of the first-instance court
Date of detention order
Other relevant dates
Appellate court or court examining request for release
Date of decision
Procedural deficiencies
Amount awarded for non‑pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
33688/17
28/04/2017
Roman Mikhaylovich PSHIK
1991
Doroshenko Kostyantyn Kostyantynovych
Kyiv
Pecherskyy District Court of Kyiv,
01/09/2016
Date of lodging appeal, 06/09/2016
Kyiv Court of Appeal, 28/10/2016
Lack of speediness of review of detention (Kharchenko v. Ukraine, no. 40107/02, §§ 86-87, 10 February 2011)
500
250
42118/17
04/06/2017
Maryna Yuriyivna SHYSHENKO
1981
Nykyforov Dmytro Oleksandrovych
Oleshky
Kyiv Shevchenkivskyy District Court, 13/04/2017
Date of lodging appeal, 18/04/2017
Kyiv City Court of Appeal, 20/06/2017
Lack of speediness of review of detention (Kharchenko v. Ukraine, no. 40107/02, §§ 86-87, 10 February 2011)
500
250
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.