European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2018/922.html
Cite as: CE:ECHR:2018:1108JUD007416313, ECLI:CE:ECHR:2018:1108JUD007416313, [2018] ECHR 922

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FIFTH SECTION

CASE OF GARMASH v. UKRAINE

(Application no. 74163/13 )

JUDGMENT

STRASBOURG

8 November 2018

This judgment is final but it may be subject to editorial revision.

In the case of Garmash v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 11 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

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 12 November 2013.

2. The application was communicated to the Ukrainian Government ("the Government").

THE FACTS

3. The relevant details of the application are set out in the appended table.

4. The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. He also raised other complaints under the provisions of the Convention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

5. The applicant complained principally of the inadequate conditions of his detention and that he had no effective remedy in this connection. He relied on Articles 3 and 13 of the Convention, which read as follows:

Article 3

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 13

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ..."

6. The Court notes that the applicant was kept in detention in poor conditions. The details of his 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. 42525/07and 60800/08, §§ 149-�159, 10 January 2012).

7. 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.

8. 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.

9. The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.

10. These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.

II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. The applicant also submitted other complaints which raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Ignatov v. Ukraine, (no. 40583/15, 15 December 2016), Kharchenko v. Ukraine , (no. 40107/02, 10 February 2011) and Merit v. Ukraine (no. 66561/01, 30 March 2004).

III. REMAINING COMPLAINTS

12. The applicant further raised other complaints under Articles 3 and 13 of the Convention concerning the conditions of his detention in the Mariupol SIZO between 17 April 2012 and 25 September 2012 as well as in the Donetsk SIZO.

13. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. 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."

15. Regard being had to the documents in its possession and to its case-�law (see, in particular, Melnik v. Ukraine, cited above), the Court considers it reasonable to award the sums indicated in the appended table.

16. 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 complaints concerning the inadequate conditions of detention as from 13 December 2012, the lack of any effective remedy in domestic law in this regard and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the application inadmissible;

2. Holds that these complaints disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention;

3. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

4. Holds

(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 amount 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 8 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Yonko Grozev
Acting Deputy Registrar President

APPENDIX

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)

Application no. Date of introduction	Applicant's name Date of birth	Facility Start and end date Duration	Sq. m. per inmate	Specific grievances	Other complaints under well-established case-law	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]
74163/13 12/11/2013	Aleksey Alekseyevich Garmash 08/11/1951	Mariupol Pre-Trial Detention Centre of Donetsk Region 03/12/2012 to 25/02/2013 2 months and 23 days Mariupol Pre-Trial Detention Centre of Donetsk Region 15/03/2013 to 15/05/2013 2 months and 1 day	4 inmates 1.9 m² 4 inmates 1.9 m²	lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of or insufficient quantity of food, poor quality of food, overcrowding, lack of toiletries	Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis: insufficient grounds for the applicant's detention under the decision of the Marianka Local Court of Donetsk Region of 12/04/2012; Art. 5 (3) - excessive length of pre-trial detention: detention between 12/02/2012 and 12/11/2013 1 year, 7 months; Art. 6 (1) - excessive length of criminal proceedings: 27/02/2009 - pending, more than 9 years, 5 months and 20 days 2 levels of jurisdiction.	5,900

Application no.

Date of introduction

Applicant's name

Date of birth

Facility

Start and end date

Duration

Sq. m. per inmate

Specific grievances

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]

74163/13

12/11/2013

Aleksey Alekseyevich Garmash

08/11/1951

Mariupol Pre-Trial Detention Centre of Donetsk Region

03/12/2012 to

25/02/2013

2 months and 23 days

Mariupol Pre-Trial Detention Centre of Donetsk Region

15/03/2013 to

15/05/2013

2 months and 1 day

4 inmates

1.9 m²

4 inmates

1.9 m²

lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of or insufficient quantity of food, poor quality of food, overcrowding, lack of toiletries

Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis:

insufficient grounds for the applicant's detention under the decision of the Marianka Local Court of Donetsk Region of 12/04/2012;

Art. 5 (3) - excessive length of pre-trial detention:

detention between 12/02/2012 and 12/11/2013

1 year, 7 months;

Art. 6 (1) - excessive length of criminal proceedings:

27/02/2009 - pending,

more than 9 years, 5 months and 20 days

2 levels of jurisdiction.

5,900

[1] . Plus any tax that may be chargeable to the applicant.