36496/21;36503/21;36505/21;50949/21;60395/21;7317/22;8138/22;53696/22

FIFTH SECTION CASE OF BABKIN AND OTHERS v. UKRAINE (Application no. 36496/21 and 7 others – see appended list)             JUDGMENT   STRASBOURG 30 November 2023   This judgment is final but it may be subject to editorial revision. In the case of Babkin and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Mārtiņš Mits, President,  Kateřina Šimáčková,  Mykola Gnatovskyy, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 9 November 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. 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 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. 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. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.  Some 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 the cases set out in the appended table. REMAINING COMPLAINTS 13.  In applications nos. 50949/21 and 60395/21 the applicants also raised other complaints under various Articles of the Convention. 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, 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. 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, 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, the lack of any effective remedy in domestic law in that regard 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. 50949/21 and 60395/21 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 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); 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 30 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Mārtiņš Mits  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 applicant (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2]     36496/21 08/07/2021 Volodymyr Volodymyrovych BABKIN Kulbach Sergiy Oleksandrovych Limoges Zaporizhzhya Pre-Trial Detention Facility   04/10/2018 to 04/11/2021   3 years and 1 month and 1 day 2.6-2.7 m² overcrowding, no or restricted access to shower, mouldy or dirty cell, lack of fresh air, poor quality of potable water, lack of toiletries, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, lack of access to laundry facilities, lack of or insufficient physical exercise in fresh air, passive smoking, lack of privacy for toilet Art. 5 (3) - excessive length of pre-trial detention - from 14/12/2017 to 04/03/2022, when the detention was changed to the personal commitment; detention based on standard grounds, lack of due diligence in the proceedings (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011);   Art. 6 (1) - excessive length of criminal proceedings - from 14/12/2017 - pending; 1 level of jurisdiction (Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021);    Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings. 9,100     36503/21 08/07/2021 Oleksandr Stanislavovych PAVLENKO Kulbach Sergiy Oleksandrovych Limoges Zaporizhzhya Pre-Trial Detention Facility   04/10/2018 to 21/09/2021   2 years and 11 months and 18 days 2.6-2.7 m² overcrowding, passive smoking, poor quality of potable water, no or restricted access to shower, mouldy or dirty cell, lack of toiletries, lack of privacy for toilet, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities, lack of fresh air, lack of access to laundry facilities Art. 5 (3) - excessive length of pre-trial detention - from 14/12/2017 to 04/03/2022, when the detention was changed to the personal commitment; detention based on standard grounds, lack of due diligence in the proceedings (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011);   Art. 6 (1) - excessive length of criminal proceedings - from 14/12/2017 - pending; 1 level of jurisdiction (Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021);    Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings. 8,700     36505/21 08/07/2021 Stanislav Ivanovych KAPUSTIN Kulbach Sergiy Oleksandrovych Limoges Zaporizhzhya Pre-Trial Detention Facility   04/10/2018 to 21/09/2021   2 years and 11 months and 18 days 2.6-2.7 m² overcrowding, lack of or inadequate hygienic facilities, lack of fresh air, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, mouldy or dirty cell, poor quality of potable water, lack of access to laundry facilities, lack of or insufficient physical exercise in fresh air, passive smoking Art. 5 (3) - excessive length of pre-trial detention - from 14/12/2017 to 04/03/2022, when the detention was changed to the personal commitment; detention based on standard grounds, lack of due diligence in the proceedings (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011);    Art. 6 (1) - excessive length of criminal proceedings - from 14/12/2017 - pending; 1 level of jurisdiction (Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021);    Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings. 8,700     50949/21 01/10/2021 Rodion Volodymyrovych PONOMARYOV Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility   08/01/2010 to 07/09/2023   13 years and 8 months 2.1-2.9 m² overcrowding, lack of or inadequate hygienic facilities, mouldy or dirty cell, poor quality of potable water, lack of fresh air, lack of or poor quality of bedding and bed linen, passive smoking, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of toiletries Art. 6 (1) - excessive length of criminal proceedings - from 31/12/2009 – pending; 1 level of jurisdiction (Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021);    Art. 5 (3) - excessive length of pre-trial detention - from 31/12/2009 to 07/09/2023 (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011);    Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - The applicant complained that he had been deprived of an opportunity to initiate a review of lawfulness of his detention at reasonable intervals or to ask the court to consider any other preventive measures as an alternative to detention because the provisions of the 1960 Code of Criminal Procedure did not provide for it (Kharchenko v. Ukraine, no. 40107/02, 10 February 2011);    Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings. 9,800     60395/21 01/10/2021 Anton Viktorovych IGNATENKO Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility   08/01/2010 to 07/09/2023   13 years and 8 months 2.5-2.9 m² overcrowding, lack of or inadequate hygienic facilities, mouldy or dirty cell, poor quality of potable water, lack of fresh air, lack of or poor quality of bedding and bed linen, passive smoking, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of toiletries Art. 6 (1) - excessive length of criminal proceedings - from 31/12/2009 – pending; 1 level of jurisdiction (Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021);    Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - The applicant complained that he had been deprived of an opportunity to initiate a review of lawfulness of his detention at reasonable intervals or to ask the court to consider any other preventive measures as an alternative to detention because the provisions of the 1960 Code of Criminal Procedure did not provide for it (Kharchenko v. Ukraine, no. 40107/02, 10 February 2011);   Art. 5 (3) - excessive length of pre-trial detention - from 05/01/2010 to 07/09/2023 (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011);    Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings. 9,800     7317/22 14/01/2022 Volodymyr Fedorovych MARCHUK Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility   27/12/2018 to 11/11/2022   3 years and 10 months and 16 days 2.5-2.6 m² lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet, lack of fresh air, lack of or poor quality of bedding and bed linen, lack of toiletries, mouldy or dirty cell, overcrowding, passive smoking, poor quality of potable water Art. 5 (3) - excessive length of pre-trial detention - from 17/11/2018 - pending; detention was based and continuously extended on standard grounds (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011);    Art. 6 (1) - excessive length of criminal proceedings - from 17/11/2018 - pending; 1 level of jurisdiction (Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021);   Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings. 9,800     8138/22 01/02/2022 Kyrylo Oleksandrovych TKACHOV Rybiy Sergiy Mykolayovych Dnipro Dnipro Pre-Trial Detention Facility no. 4   04/05/2017 pending   More than 6 years and 5 months and 10 days 2.95 m² lack of fresh air, lack of toiletries, lack of or poor quality of bedding and bed linen, lack of or inadequate hygienic facilities, no or restricted access to shower, no or restricted access to warm water, no or restricted access to potable water, passive smoking, overcrowding, mouldy or dirty cell, infestation of cell with insects/rodents, lack of privacy for toilet, poor quality of food, poor quality of potable water   7,500     53696/22 16/10/2022 Oleg Yevgenovych LYMAR Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility   14/06/2010 to 21/11/2022   12 years and 5 months and 8 days 2.5-3.6 m² no or restricted access to shower, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, mouldy or dirty cell, overcrowding, passive smoking, poor quality of potable water, lack of laundry service Art. 5 (3) - excessive length of pre-trial detention - from 14/10/2021 to 21/11/2022 (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011);   Art. 6 (1) - excessive length of criminal proceedings - from 14/10/2021 – pending; 1 level of jurisdiction (Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021);   Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 9,800     [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.