CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 25 November 2024   FIFTH SECTION Application no. 5694/19 Volodymyr Volodymyrovych KAGANOVSKYY against Ukraine lodged on 26 December 2018 communicated on 7 November 2024 SUBJECT MATTER OF THE CASE By judgment in the case of Kaganovskyy v.   Ukraine (no.   2809/18, 15   September   2022) the Court found inter alia that the applicant’s confinement in the enhanced supervision unit of the Kyiv Psychoneurological Residential Institution, a State-run social care institution (“the KPRI”) between 27 June and 6 July 2017 had been in breach of Article 5 § 1 (ibid., §§ 98-104). The present application concerns the applicant’s stay at the KPRI immediately before and after his confinement in the enhanced supervision unit. From 2014 the applicant, who had been declared legally incapable due to schizophrenia, voluntarily resided at the KPRI. After unsuccessful attempts to persuade his brother, who had been appointed as his guardian, to take steps to restore his legal capacity, in February 2017 the applicant, assisted by the lawyers from the Ukrainian Helsinki Human Rights Union (“the UHHRU”), initiated the relevant legal proceedings himself. The applicant claimed that his guardian had opposed these proceedings. It is alleged that from around 1 April 2017 the KPRI staff, acting under the instructions of the applicant’s guardian, prohibited the applicant from leaving the institution’s territory in order to obstruct the applicant’s attendance at relevant court hearings. Further directives from the applicant’s brother in his capacity as a guardian in October 2017 resulted in the applicant being forbidden from meeting with other people, including his lawyers, unless in the guardian’s presence. The applicant asserted that he had not been able to attend court hearings, socialise with friends or go to church. On approximately 27 June 2018 the KPRI’s staff informed the applicant that he would be permitted to leave the institution periodically. Relying on Article 5 §§ 1, 4 and 5 of the Convention and Article 2 of Protocol No. 4, the applicant complained about being prohibited from leaving the KPRI territory between 1 April 2017 and 27 June 2018, as well as the inability under domestic law to challenge the lawfulness of his confinement in court and to receive compensation for it. These complaints fall to be examined under Article 5 §§ 1, 4 and 5 of the Convention. On 25 December 2019 the applicant died. Referring to the reluctance of the applicant’s guardian to continue the case and the absence of other relatives willing to take it up, the UHHRU expressed the wish to pursue the case on the applicant’s behalf. It claimed inter alia that its long-term legal representation of the applicant had established a strong link with him. QUESTIONS TO THE PARTIES 1.     Does the Ukrainian Helsinki Human Rights Union have legal standing to pursue the application on the applicant’s behalf?   2.     Did the applicant’s stay in the KPRI between 1 April and 26 June 2017 and between 7 July 2017 and 27 June 2018, constitute a deprivation of liberty (see Stanev v. Bulgaria [GC], no. 36760/06, §§ 115-20, ECHR 2012; Mihailovs v. Latvia , no. 35939/10, §§ 128-40, 22 January 2013)? If   yes, was it compatible with Article 5 § 1 of the Convention?   3.     Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article   5   §   4 of the Convention? Did the applicant have an effective and enforceable right to compensation for the deprivation of liberty in alleged breach of Article   5   §§   1 and 4, as required by Article   5   §   5 of the Convention?