27486/21;56559/21;57342/21;2804/22

FIFTH SECTION CASE OF KUCHER AND OTHERS v. UKRAINE (Applications nos. 27486/21 and 3 others – see appended list)         JUDGMENT         STRASBOURG 5 October 2023 This judgment is final but it may be subject to editorial revision. In the case of Kucher and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Carlo Ranzoni, President,  Lado Chanturia,  María Elósegui, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 14 September 2023, 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. In application no. 2804/22, the applicant 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 of the inadequate conditions of their detention and lack of an effective remedy in this connection. They relied on Articles 3 and 13 of the Convention. 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 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 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. REMAINING COMPLAINTS 12.  In application no. 2804/22, the applicant also raised other complaints under various Articles of the Convention. 13.  The Court has examined those 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. 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, Sukachov, cited above, §§ 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints concerning the inadequate conditions of detention and the lack of any effective remedy in domestic law admissible, and the remainder of application no. 2804/22 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; 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 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Carlo Ranzoni  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 Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1]     27486/21 21/05/2021 Sergiy Mykhaylovych KUCHER Pustyntsev Andriy Vitaliyovych Dnipro Zhytomyr Detention Facility no.8 18/07/2012 pending More than 10 years and 11 months and 24 days 3.5 m² overcrowding, lack of fresh air, mouldy or dirty cell, infestation of cell with insects/rodents, lack of privacy for toilet, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower 7,500     56559/21 08/11/2021 Leonid Pylypovych ALEKSYEYEVETS Rybiy Sergiy Mykolayovych Dnipro Kryvyy Rig Detention Facility no. 3 05/12/2014 pending More than 8 years and 7 months and 7 days 4 m² lack of fresh air, lack or inadequate furniture, lack of privacy for toilet, lack of or inadequate hygienic facilities, no or restricted access to shower, no or restricted access to potable water 7,500     57342/21 09/11/2021 Oleksandr Sergiyovych SKLYAROV Rybiy Sergiy Mykolayovych Dnipro Kryvyy Rig Detention Facility no. 3 29/01/2013 pending More than 10 years and 5 months and 13 days     4 m² lack of fresh air, passive smoking, lack or inadequate furniture, lack of privacy for toilet, lack of or inadequate hygienic facilities, no or restricted access to shower, no or restricted access to potable water 7,500     2804/22 21/12/2021 Ivan Igorovych ZAVGORODNIY Grytsay Valeriy Oleksandrovych Dnipro   AND   Sosyedko Maksym Oleksandrovych Kyiv Dnipro Detention Facility no. 4 07/12/2018 to 03/11/2021 2 years and 10 months and 28 days 2.5 m² overcrowding, no or restricted access to shower, mouldy or dirty cell, lack of fresh air, poor quality of potable water, lack of or poor quality of bedding and bed linen, lack of toiletries, lack of or insufficient physical exercise in fresh air, passive smoking, lack of privacy for toilet, poor quality of food 6,500     [1] Plus any tax that may be chargeable to the applicants.