FIFTH SECTIONCASE OF SHAPKIN AND MAKOVSKYY v. UKRAINE(Applications nos. 13795/20 and 19927/21)       JUDGMENT  STRASBOURG10 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:PROCEDURE1. 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 table2. The Ukrainian Government (“the Government”) were given notice of the applications.THE FACTS3. 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 LAWJOINDER 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.

Outcome for Article 5: violation