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JUDGMENT
STRASBOURG
24 October 2019
PROCEDURE
1. The case originated in an application (no. 45050/10) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Oleg Nikolayevich Samoylenko (“the applicant”),
on 2 August 2010.
2. The applicant was granted leave to represent himself. The Ukrainian
Government (“the Government”) were represented by their Agent, most
recently Mr I. Lishchyna of the Ministry of Justice.
3. The applicant complained of the authorities’ failure to give relevant
and sufficient reasons to justify his pre-trial detention. He further
complained that the court decisions to extend his detention in April and
June 2010 had been taken in his and his lawyer’s absence and that there had
been no effective procedure available to him to challenge the lawfulness of
his detention.
4. On 9 December 2015 notice of the application was given to the
Government.
5. On 6 October 2017 the applicant died. On 9 November 2017 his wife,
Ms Tatyana Samoylenko, expressed the wish to pursue the proceedings
before the Court.
THE FACTS
THE LAW
17. The Court notes at the outset that the applicant died while the case
was pending before the Court. His wife Ms Tatyana Samoylenko informed
the Court that she wished to pursue his application. In a number of cases in
which an applicant died in the course of the proceedings the Court has taken
into account the statements of the applicant’s heirs or of close family
members expressing the wish to pursue the proceedings (see, for example,
Dimitar Krastev v. Bulgaria, no. 26524/04, § 42, 12 February 2013, with
further references). It sees no reason to reach a different conclusion in the
present case and therefore accepts that Ms Tatyana Samoylenko can pursue
the application initially brought by the applicant.
18. The applicant complained that the domestic courts’ decisions on his
detention were arbitrary and lacked reasoning. He further complained that
the courts’ decisions of 6 April and 7 June 2010 to extend his detention had
been taken without him or his lawyer present, and that there had been no
effective procedure available to him to challenge the lawfulness of his
detention. He relied on Article 5 §§ 1, 3 and 4 of the Convention. Being
master of the characterisation to be given in law to the facts of the case (see
Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114
and 126, 20 March 2018), the Court decides to examine those complaints
under Article 5 §§ 3 and 4 of the Convention.
The relevant provisions of Article 5 §§ 3 and 4 of the Convention read as
follows:
“... 3. Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power, and shall be entitled to trial
within a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
4 SAMOYLENKO v. UKRAINE JUDGMENT
A. Admissibility
B. Merits
5. Holds
(a) that the respondent State is to pay the applicant’s wife, Ms Tatyana
Samoylenko, within three months, EUR 4,000 (four thousand euros), to
be converted into the currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;