European Court of Human Rights

 

 

FIFTH SECTION

CASE OF TKACH AND OTHERS v. UKRAINE

(Application no. 13372/20 and 5 others - see appended list)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

22 July 2021

 

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

In the case of Tkach and Others v. Ukraine,

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

          Stéphanie Mourou-Vikström, President,
          Jovan Ilievski,
          Mattias Guyomar, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 1 July 2021,

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

PROCEDURE

1.  The case originated in applications 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 various dates indicated in the appended table.

2.  The Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. The applicant in application no. 22199/20 raised other complaints under the provisions of the Convention.

THE LAW

I.         JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

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

6.  The applicants complained principally of the inadequate conditions of their detention and that they had no effective remedy in this connection. They 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 ...”

7.  The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ 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 cases of Melnik v. Ukraine, no. 72286/01, 28 March 2006 and Sukachov v. Ukraine, no. 14057/17, 30 January 2020, 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, related to the conditions of detention during the periods indicated in the appended table below. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during those periods were inadequate.

10.  The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.

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

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

12.  In application no. 22199/20, the applicant submitted other complaints which also 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 a violation of the Convention in the light of its findings in Merit v. Ukraine (no. 66561/01, 30 March 2004).

IV.   REMAINING COMPLAINTS

13.  The applicants in applications nos. 22199/20, 22463/20, 22970/20 and 22972/20 also raised other complaints under various Articles of the Convention.

14.  The Court has examined the applications listed in the appended table 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 applications must be rejected in accordance with Article 35 § 4 of the Convention.

V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

15.  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.”

16.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Sukachov v. Ukraine, cited above, §§ 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table.

17.  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.      Decides to join the applications;

2.    Declares the complaints concerning the inadequate conditions of detention during the periods indicated in the appended table below, the lack of any effective remedy in domestic law to complain about poor conditions and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible and the remainder of applications nos. 22199/20, 22463/20, 22970/20 and 22972/20 inadmissible;

3.      Holds that these complaints disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention and lack of an effective domestic remedy in that regard;

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

5.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts 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 22 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                                               Stéphanie Mourou-Vikström
Acting Deputy Registrar                                                            President

 

APPENDIX

List of applications raising complaints under Articles 3 and 13 of the Convention

(inadequate conditions of detention and lack of any effective remedy in domestic law)

No.	Application no. Date of introduction	Applicant’s name Year of birth	Representative’s name and location	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]
	13372/20 03/03/2020	Oleksandr Grygorovych TKACH 1957	Rybiy Sergiy Mykolayovych Dnipro   Bulkach Sergiy Petrovych Dnipro   Kulbach Sergiy Oleksandrovych Limoges	Dnipro Penitentiary Facility no.4   29/12/2014 to 14/11/2019   4 years and 10 months and 17 days	3.6 - 7.1m²	lack of fresh air, lack of or insufficient electric light, lack of or poor quality of bedding and bed linen, lack of toiletries, poor quality of food, no or restricted access to shower, no or restricted access to potable water, passive smoking, mouldy or dirty cell, infestation of cell with insects/rodents, lack of privacy for toilet, lack of or inadequate hygienic facilities		7,500
	22199/20 15/05/2020	Sergiy Borysovych ULYANITSKYY 1989	Pustyntsev Andriy Vitaliyovych Dnipro	Cherkasy Pre-Trial Detention Facility 14/11/2016 to 06/07/2020 3 years and 7 months and 23 days   Cherkasy Pre‑Trial Detention Facility 20/10/2020 to 04/11/2020 16 days   Cherkasy Pre-Trial Detention Facility 23/11/2020 to 08/12/2020 16 days   Cherkasy Pre‑Trial Detention Facility 23/12/2020 pending More than 5 months and 26 days	2 m²                 2.4 m²             2.9 m²             2.3 m²	overcrowding, lack of fresh air, passive smoking, infestation of cell with insects/rodents, mouldy or dirty cell, lack of or inadequate hygienic facilities, lack of privacy for toilet, lack of toiletries, no or restricted access to warm water, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower	Art. 6 (1) - excessive length of criminal proceedings - from 09/11/2016 - pending, more than 4 years and 7 months, 1 level of jurisdiction	9,800
	22463/20 12/05/2020	Karina Sergiyivna MAKSYMENKO 1998	Vavrenyuk Oleksandr Volodymyrovych Pyatykhatky	Cherkasy Pre-Trial Detention Facility   15/01/2018 to 19/12/2019   1 year and 11 month and 5 days   Cherkasy Pre‑Trial Detention Facility   10/08/2020 pending   More than 10 months and 8 days	5 inmates 2.2 m²                   5 inmates 2.2 m²	overcrowding, lack of or inadequate hygienic facilities, lack of toiletries, lack of privacy for toilet, passive smoking, poor quality of food, no or restricted access to shower           overcrowding, lack of or inadequate hygienic facilities, lack of toiletries, lack of privacy for toilet, passive smoking, poor quality of food, no or restricted access to shower		6,400
	22970/20 12/05/2020	Armen Anushavanovych TOROSYAN 1992	Kulbach Sergiy Oleksandrovych Limoges   Rybiy Sergiy Mykolayovych Dnipro	Dnipro Detention Facility no. 4   28/10/2019 to 14/12/2019   1 month and 17 days	2.72 m²	infestation of cell with insects/rodents, lack of fresh air, lack of or insufficient electric light, lack of or insufficient natural light, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, lack or insufficient quantity of food, mouldy or dirty cell, no or restricted access to potable water, no or restricted access to shower, overcrowding, passive smoking, poor quality of food		800
	22972/20 12/05/2020	Arman Anushavanovych TOROSYAN 1992	Kulbach Sergiy Oleksandrovych Limoges	Dnipro Detention Facility no. 4   28/10/2019 to 14/12/2019   1 month and 17 days	2.9 m²	overcrowding, lack of fresh air, passive smoking, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of or inadequate hygienic facilities, lack of toiletries, no or restricted access to potable water, no or restricted access to shower, poor quality of food		800
	30777/20 13/06/2020	Dmytro Vasylyovych CHORNYY 1992	Yolkin Andriy Valeriyovych Kryvyy Rig	Kharkiv Pre‑trial Detention Facility   25/11/2019 to 21/12/2019   27 days	2.5-3.8 m² 1 toilet	passive smoking, lack of fresh air, mouldy or dirty cell, overcrowding, inadequate temperature, no or restricted access to shower, lack of or inadequate hygienic facilities, lack of toiletries, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, lack of requisite medical assistance, lack or inadequate furniture, poor quality of food, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet, lack or insufficient quantity of food, no or restricted access to warm water		600