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
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 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...”
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.
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,
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 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)
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
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]
13795/20
05/03/2020
Oleg Anatoliyovych SHAPKIN
1964
Avramenko Gennadiy Mykolayovych
Chernigiv
Pecherskiy Local
Court of Kyiv,
13/09/2019
Kyiv Court
of Appeal, 12/02/2020
lack of speediness of review of detention (Kharchenko v. Ukraine, no. 40107/02,
§§ 86-87, 10 February 2011)
500
250
19927/21
06/04/2021
Maryan Oleksiyovych MAKOVSKYY
1977
Kushnirenko Valeriy Isayevych
Kyiv
Svyatoshynskiy Local Court of Kyiv, 14/11/2020
Kyiv Court
of Appeal, 27/01/2021
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.