1907/16;39697/19;22342/20;45580/20;1312/21;10600/21;13494/21;27198/21;27965/21;34015/21;34017/21;34532/21

FIFTH SECTION CASE OF VITKO AND OTHERS v. UKRAINE (Application no. 1907/16 and 11 others – see appended list)           JUDGMENT   STRASBOURG 10 November 2022       This judgment is final but it may be subject to editorial revision.   In the case of Vitko and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Stéphanie Mourou-Vikström, President,  Ivana Jelić,  Kateřina Šimáčková, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 20 October 2022, 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. Some applicants also raised other complaints under the provisions of the Convention. THE LAW 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. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 6.  The applicants complained principally that the conditions of their detention had been inadequate 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, §§ 122-41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑59, 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, including the issue of compliance with the six-month period under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question and concluded that it should be exceptionally considered to have been suspended for three calendar months in total whenever it either started to run or was due to expire at any time between 16 March and 15 June 2020), and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention, as described in the appended table, 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. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.  In some cases the applicants 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 violations of the Convention in the light of its findings in Nechay v. Ukraine, no. 15360/10, 1 July 2021. REMAINING COMPLAINTS 13.  In application no. 45580/20 the applicant also raised other complaints under Article 3 of the Convention as to the inadequate conditions of his detention prior to 27 November 2018. 14.  The Court has examined these complaints 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, they 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. 15.  As to the complaint under Article 13 of the Convention in application no. 22342/20 related to the complaint about excessive length of judicial proceedings, the Court considers that it has examined the main legal questions raised in the application. It thus finds that this complaint is admissible but that there is no need to give a separate ruling on it (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and, for example, Minayev and Korzh v. Ukraine, nos. 82724/17 and 40291/18, § 11, 16 December 2021 [Committee]). APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.  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.” 17.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Sukachov, cited above, §§ 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table. 18.  The Court further 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, Decides to join the applications; Declares the complaints concerning the inadequate conditions of detention during the periods described in the appended table, the lack of an effective remedy in domestic law and the other complaints under well‑established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 45580/20 inadmissible; Holds that these complaints disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention and the lack of any effective remedy in domestic law to complain about poor conditions of detention; 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); Decides that there is no need to examine the merits of the complaint under Article 13 of the Convention raised in application no. 22342/20; 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 10 November 2022, 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 per applicant (in euros)[1]     1907/16 20/11/2015 Vadim Aleksandrovich VITKO     Dnipro Pre-Trial Detention Facility 10/02/2014 to 06/07/2016 2 years and 4 months and 27 days 2.4 - 3.4 m² overcrowding, lack of privacy for toilet, lack of toiletries, lack of or insufficient natural light, lack of or insufficient quantity of food, lack of or poor quality of bedding and bed linen   5,600     39697/19 15/07/2019 Anton Gennadiyovych CHUMAK Bulkach Sergiy Petrovych Dnipro Dnipro Detention Facility no. 4 10/05/2017 pending More than 5 years and 4 months and 6 days 2.6 - 4.6 m² overcrowding, lack of fresh air, lack of or insufficient quantity of food, no or restricted access to shower, no or restricted access to potable water, passive smoking, lack of privacy for toilet Art. 6 (1) - excessive length of criminal proceedings - the proceedings are pending around 5 years and 7 months before one level of jurisdiction 9,800     22342/20 25/08/2020 Karen Aleksandrovich LITVIN Atamanchuk Valentyn Ivanovych Odesa Odesa Pre-Trial Detention Facility 20/06/2019 to 21/09/2020 1 year and 3 months and 2 days 2 m²   overcrowding, constant electric light, lack of or insufficient natural light, lack of fresh air, no or restricted access to warm water, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, no or restricted access to shower, poor quality of food, lack or insufficient quantity of food, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack or inadequate furniture Art. 6 (1) - excessive length of criminal proceedings - 23/02/2016 – pending, 3 levels of jurisdiction. 4,800     45580/20 25/09/2020 Roman Viktorovych NIKIFOROV Makhinich Ruslan Viktorovych Kyiv Kyiv Pre-Trial Detention Facility 27/11/2018 to 28/12/2019 1 year and 1 month and 2 days 1.4 - 2.8 m² overcrowding, lack of fresh air, mouldy or dirty cell, lack of toiletries, lack of privacy for toilet, no or restricted access to warm water, no or restricted access to shower, no or restricted access to potable water, lack or insufficient quantity of food, lack of or poor quality of bedding and bed linen   3,400     1312/21 20/12/2020 Mykola Oleksandrovych DUDKO Culbaci Oxana Limoges Dnipro Detention Facility no. 4 06/09/2019 to 22/05/2021 1 year and 8 months and 17 days 2.7 m² overcrowding, lack of or inadequate hygienic facilities, no or restricted access to shower, lack of or poor quality of bedding and bed linen   4,400     10600/21 10/02/2021 Oleksandr Vitaliyovych VASHCHENKO Pustyntsev Andriy Vitaliyovych Dnipro Mykolaiv Pre-Trial Detention Facility 25/05/2017 to 22/01/2021 3 years and 7 months and 29 days 2.7 m² overcrowding, lack of fresh air, mouldy or dirty cell, lack of toiletries, lack of or poor quality of bedding and bed linen, no or restricted access to shower   7,500     13494/21 18/02/2021 Oleksiy Anatoliyovych BENYUKH Rybiy Sergiy Mykolayovych Dnipro Zaporizhzhya Pre-Trial Detention Facility 04/10/2019 to 10/11/2020 1 year and 1 month and 7 days <3 m² overcrowding, no or restricted access to potable water, no or restricted access to shower, lack or insufficient quantity of food, lack of toiletries, lack of or insufficient natural light, lack of or insufficient electric light   3,400     27198/21 19/05/2021 Pavlo Georgiyovych OBOLONCHYK Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 06/11/2020 pending More than 1 year and 10 months and 10 days 2.3 m² overcrowding, lack of fresh air, lack of or inadequate hygienic facilities, no or restricted access to shower, poor quality of potable water, mouldy or dirty cell, lack of toiletries, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, passive smoking, lack of privacy for toilet   4,700     27965/21 21/05/2021 Sergiy Vasylyovych ZAKHARCHUK Pustyntsev Andriy Vitaliyovych Dnipro Zhytomyr Detention Facility no. 8 15/03/2018 pending More than 4 years and 6 months and 1 day 3.5 m² overcrowding, lack of fresh air, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, infestation of cell with insects/rodents, mouldy or dirty cell, poor quality of food, passive smoking, no or restricted access to shower   7,500   34015/21 23/06/2021 Sergiy Mykolayovych KUCHER Pustyntsev Andriy Vitaliyovych Dnipro Cherkasy Pre-Trial Detention Facility 19/08/2019 pending More than 3 years and 28 days 2.7 m² overcrowding, lack of toiletries, lack or inadequate furniture, lack of fresh air, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen   6,800   34017/21 23/06/2021 Mykola Ivanovych KOMYSHNYY Pustyntsev Andriy Vitaliyovych Dnipro Cherkasy Pre-Trial Detention Facility 11/11/2019 to 30/05/2021 1 year and 6 months and 20 days 3.3 m² overcrowding, lack of fresh air, poor quality of food, lack or insufficient quantity of food   4,100   34532/21 30/06/2021 Bogdan Andriyovych SLOBODYANYUK Kulbach Sergiy Oleksandrovych Limoges Dnipro Detention Facility no. 4 13/10/2020 pending More than 1 year and 11 months and 3 days 2.5 m² overcrowding, no or restricted access to shower, poor quality of potable water, lack of or insufficient physical exercise in fresh air   4,900   [1] Plus any tax that may be chargeable to the applicants.