CASE OF D.S. v. UKRAINE
(Application no. 24107/13)
9 November 2017
This judgment is final but it may be subject to editorial revision.
In the case of D.S. v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 19 October 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application 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 date indicated in the appended table.
2. The applicant was represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv.
3. The application was communicated to the Ukrainian Government (“the Government”).
4. The relevant details of the application are set out in the appended table.
5. The applicant complained of the inadequate conditions of detention and of the lack of any effective remedy in domestic law.
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
6. The applicant complained of the inadequate conditions of detention and lack of any effective remedy in this connection. The applicant relied on Articles 3 and 13 of the Convention, which read as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”
7. The Court notes that the applicant was kept in detention in poor conditions. The details of the applicant’s detention are indicated in the appended table. The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96-101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 -141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149-159, 10 January 2012).
8. In the leading case of Melnik v. Ukraine, (no. 72286/01, 28 March 2006), 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. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate.
10. The Court further notes that no effective remedy in respect of these complaints was available to the applicant.
11. These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
13. Regard being had to the documents in its possession and to its case-law (see, in particular, Melnik v. Ukraine, no. 72286/01, 28 March 2006), the Court considers it reasonable to award the sum indicated in the appended table.
14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that it discloses a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention;
(a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 9 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Nona Tsotsoria
Acting Deputy Registrar President
Application raising complaints under Article 3 and Article 13 of the Convention
(inadequate conditions of detention and lack of any effective remedy in domestic law)
Start and end date
Sq. m. per inmate
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
Kharkiv SIZO no. 27
3 years, 6 months and 12 days
Applicant’s major complaints as to conditions of detention in Kharkiv SIZO no. 27:
- severely overcrowded cell (17.4 sq.m with 9-15 inmates);
- inadequate ventilation and inappropriate source of fresh air,
- narrow windows (2 m. wide - 16 cm high) shut with metal plates containing small holes;
- insanitary environment (cooking, bathing, washing and drying of the bed linen in the same cell, resulting in heavy smell and high humidity);
- no hot water;
- only a bowl for cooking, washing and cleaning;
- no place to dry clothes and bed linen;
- inappropriate place to sleep (because of the overcrowding the applicant shared a bed with other prisoners on a shift basis);
- insufficient bedding (mattress), no bed linen;
- no natural light source caused the applicant’s eyesight to worsen;
- cell infested with pests (bugs, cockroaches);
- insufficient quantity and quality of food (bread and sugar were the only appropriate food provided, other food was spoiled and with pests, this nourishment made the applicant’s health to worsen (gastric problems and vitamin deficiency)).
 Plus any tax that may be chargeable to the applicant.