FIFTH SECTIONCASE OF MOLCHANOV v. UKRAINE(Application no. 13911/14)    JUDGMENT STRASBOURG20 September 2022   This judgment is final but it may be subject to editorial revision. In the case of Molchanov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lado Chanturia, President, Ganna Yudkivska, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 13911/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 February 2014 by a Ukrainian national, Mr Aleksandr Eduardovich Molchanov, born in 1992 and living in Chubynske (“the applicant”), who was represented before the Court by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv;the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice;the parties’ observations; Having deliberated in private on 10 March 2022,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The case concerns the applicant’s complaints under Article 5 §§ 1, 3 and 5 of the Convention that his detention was arbitrary and unjustified, and that he did not have an effective and enforceable right to compensation for his detention.2. On 12 June 2013 the applicant was charged with having defrauded a minor by obtaining a mobile telephone from him under false pretences.3. On 16 July 2013 the applicant was subjected to a preventive measure in the form of a personal undertaking that he would comply with his procedural duties as a defendant.4. On 12 August 2013 the Solomyanskyy District Court of Kyiv (“the trial court”) held a preparatory hearing in the applicant’s case. The trial court heard the applicant’s and the prosecutor’s submissions as to whether the applicant should be committed for trial. According to the applicant, neither he nor the prosecutor made any applications to change the preventive measure imposed on the applicant, the trial court did not ask for their opinion as to such a possibility and it did not announce that it was considering any change to that measure.5. At the close of the preparatory hearing, the trial court gave a decision committing the applicant for trial and changing the preventive measure imposed on him from the personal undertaking to detention on remand. That decision was not amenable to appeal. The trial court stated that even though the offence of which the applicant was accused was not particularly serious and did not carry the punishment of imprisonment, the applicant had no registered permanent place of residence and the court had doubts as to whether he would attend further hearings. The trial court concluded that the applicant might commit another offence or interfere with the criminal proceedings.6. On 30 September 2013 the trial court convicted the applicant of fraud, sentencing him to restriction of liberty for one year and six months, suspended for three years with probation. The judgment referred to the applicant’s personal details, including a registered permanent place of residence in Kyiv. The applicant was immediately released from detention.THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 5 §§ 1 and 3 OF THE CONVENTION7. The applicant complained that the trial court’s decision of 12 August 2013 to place him in detention and his ensuing detention until 30 September 2013 had been arbitrary and lacked justification. He further asserted that the decision had been given at the trial court’s initiative rather than in response to a request by the prosecutor and that the court had given only formulaic reasons for the applicant’s detention without having proven the existence of risks to justify its decision.8. The Government submitted that the impugned decision of the trial court had been given pursuant to Article 315 § 3 of the Code of Criminal Procedure. The decision had been lawful and in accordance with the requirements of the Convention.9. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. they must therefore be declared admissible.10.

Article of the Convention at issue: Article 5
Outcome: violation