FIFTH SECTIONCASE OF BABICH v. UKRAINE(Application no. 54014/13)    JUDGMENT This version was rectified on 17 October 2022under Rule 81 of the Rules of Court. STRASBOURG 20 September 2022    This judgment is final but it may be subject to editorial revision. In the case of Babich 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. 54014/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 August 2013 by a Ukrainian national, Mr Dmitriy Vasilyevich Babich, born in 1974 and detained in Lysychansk (“the applicant”), who was represented before the Court by Mr S.S. Medvedev, a lawyer practising in Lysychansk;the decision to give notice of the complaints under Article 5 §§ 1 and 4 of the Convention to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice, and to declare the remainder of the application inadmissible;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 alleged arbitrariness of a court order of 10 July 2013 to remand the applicant in custody, in breach of Article 5 § 1 of the Convention, and the unavailability of an effective procedure whereby he could obtain a review of the lawfulness of his detention, in breach of Article 5 § 4.2. On 20 September 2012 the applicant was arrested on suspicion of having engaged in a number of fraudulent real-estate transactions in association with several other individuals.3. On 21 September 2012 the Leninskiy District Court of Luhansk remanded the applicant in custody, referring to the gravity of the offences with which he had been charged and noting that, if at liberty, he could obstruct the investigation into his case or abscond. The court had particular regard to the fact that he was officially employed outside Lysychansk, whereas Lysychansk was the town in which he was registered as a resident.4. On 5 October 2012 the Luhansk Regional Court of Appeal allowed an appeal by the applicant against that decision and released him after he had given an undertaking not to abscond. It noted, in particular, that the applicant’s detention was unwarranted considering that his permanent residence was in Lysychansk; he had a family to support, including two minor children and his elderly mother; he was officially employed; he had provided positive character references; and he had no criminal record. The court also noted that the applicant’s alleged role in the offences with which he had been charged (involving other individuals) was minor.5. On 18 November 2012 the applicant was committed to stand trial before the Lysychansk City Court (“the Lysychansk Court”).6. On 10 July 2013 the prosecutor asked the court to remand the applicant in custody, referring to the gravity of the offences with which he had been charged and the fact that, if convicted, he could face a prison term exceeding three years. The prosecutor also submitted, without providing any details, that, while at liberty, the applicant was obstructing the investigation into his case and influencing witnesses to either refuse to testify or to give false testimonies.7. The Lysychansk Court granted the request on the same day that it was submitted, referring to the gravity of the offences with which the applicant had been charged and to the need to prevent him from absconding, obstructing the investigation and engaging in further criminal activity. The court also made reference to the need to secure procedural efficiency. In accordance with the applicable law, that decision was not subject to appeal.8. While in detention, the applicant lodged complaints with the Lysychansk Court and the Lugansk Regional Court of Appeal requesting his release from detention, but to no avail. On 11 July 2014 the applicant was released from detention following a judgment given by the trial court on 8 July 2014 finding him guilty as charged but releasing him from serving the sentence.THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION9. The applicant submitted that the Leninskiy District Court’s decision of 21 September 2012 to remand him in custody, which had referred to the same grounds for his detention as in the Lysychansk Court’s decision of 10 July 2013, had already been quashed as unsubstantiated. After his release from detention in 2012, he had dutifully reported to the investigating authorities and attended court hearings when summoned, and there was no evidence that he had put witnesses under any pressure, tampered with evidence in any way or obstructed the investigation into his case. The Government contested the applicant’s assertion, arguing that the decision of the trial court to detain him had been lawful, necessary and justified.10. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.11. The applicable case-law is summarised in, for example, Assanidze v. Georgia ([GC], no. 71503/01, § 171, ECHR 2004‑II), Winterwerp v. the Netherlands (24 October 1979, § 45, Series A no. 33), Nešťák v. Slovakia (no. 65559/01, § 74, 27 February 2007) and Khayredinov v. Ukraine (no. 38717/04, §§ 27-28, 14 October 2010).12. In the present case, the Lysychansk Court decided on 10 July 2013 to change the preventive measure imposed on the applicant from an undertaking not to abscond to remand in custody, in view of the seriousness and the nature of the criminal offences at issue. Neither the Government’s observations nor the available material suggest that the Lysychansk Court made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances. While referring to the existence of the risk of the applicant’s absconding, influencing witnesses or hindering the investigation, the Lysychansk Court did not provide any further substantiation of its decision. Furthermore, it remains unexplained by the Lysychansk Court whether the applicant had breached his undertaking not to abscond during the pre-trial investigation and the trial, that is, from 5 October 2012 to 10 July 2013.13. In the light of the foregoing, the Court considers that the Lysychansk Court’s decision of 10 July 2013 did not afford the applicant the adequate protection from arbitrariness which is an essential element of the lawfulness of detention within the meaning of Article 5 § 1 of the Convention. Therefore, the applicant’s detention based on the decision of 10 July 2013 was in breach of that provision.OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW14. The applicant also complained under Article 13 of the Convention that he had not had at his disposal an effective procedure by which he could challenge the lawfulness of his detention. Being covered by the well‑established case-law of the Court, this complaint falls to be examined under Article 5 § 4 of the Convention. The complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds.

Outcome for Article 5: violation