38092/18

FIFTH SECTION   CASE OF LYSENKO v. UKRAINE (Application no. 38092/18)           JUDGMENT   STRASBOURG 19 September 2019     This judgment is final but it may be subject to editorial revision.   In the case of Lysenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Yonko Grozev, President,  Ganna Yudkivska,  André Potocki, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 29 August 2019, 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 21 July 2018. 2.  Notice of the application was given to the Ukrainian Government (“the Government”). THE FACTS 3.  The applicant’s details and information relevant to 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. THE LAW ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 5.  The applicant complained 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 the applicant’s 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). 7.  In the leading case of Melnik v. Ukraine (no. 72286/01, 28 March 2006; for more recent case-law see Beketov v. Ukraine, no. 44436/09, 19 February 2019), 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION 11.  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.” 12.  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 sum indicated in the appended table. 13.  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, Declares the application admissible; Holds that it discloses a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention; 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 19 September 2019, 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 Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 38092/18 21/07/2018 Vadym Oleksandrovych Lysenko 16/06/1986 Dniprovska correctional facility No. 4   15/08/2016 to 11/04/2018   1 year, 7 months and 28 days less than 2.5 m² overcrowding, lack of privacy for toilet, lack of or inadequate hygienic facilities, mouldy or dirty cell, lack of fresh air 4,200     [1]  Plus any tax that may be chargeable to the applicant.