46053/21;48458/21;54840/21;56267/21;56952/21;56953/21;56955/21

FIFTH SECTION CASE OF GULCHUK AND OTHERS v. UKRAINE (Applications nos. 46053/21 and 6 others – see appended list)             JUDGMEN   STRASBOURG 8 June 2023   This judgment is final but it may be subject to editorial revision. In the case of Gulchuk 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 17 May 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. 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 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.  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.” 13.  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 applications admissible; Holds that these applications 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 8 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Carlo Ranzon  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]     46053/21 02/08/2021 Borys Pavlovych GULCHUK Rybiy Sergiy Mykolayovych Dnipro Kyiv Pre-Trial Detention Facility 15/01/2019 to 15/02/2021 2 years and 1 month and 1 day 2.5 m², occasionally in the cells with up to 7.9 m² of personal space overcrowding, lack of fresh air, lack of or insufficient electric light, lack of or insufficient natural light, 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, lack or insufficient quantity of food, mouldy or dirty cell, no or restricted access to potable water, no or restricted access to shower, poor quality of food 5,200     48458/21 17/09/2021 Dmytro Yuriyovych AVRAMENKO     Dnipro Detention Facility no. 4 09/10/2019 to 08/07/2021 1 year and 9 months <2.8 m² overcrowding, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of fresh air, no or restricted access to shower, lack of privacy for toilet 4,400     54840/21 04/11/2021 Sergiy Grygorovych POPOV Kulbach Sergiy Oleksandrovych Limoges Dnipro Detention Facility no. 4 16/02/2021 to 06/06/2022 1 year and 3 months and 22 days 3.2-3.6 m² lack of or inadequate hygienic facilities, mouldy or dirty cell, lack of fresh air, no or restricted access to potable water, no or restricted access to toilet, overcrowding, passive smoking, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet 3,700     56267/21 05/11/2021 Andriy Oleksiyovych PANCHENKO Rybiy Sergiy Mykolayovych Dnipro Kryvyy Rig Detention Facility no. 3 24/06/2015 to 05/12/2021 6 years and 5 months and 12 days 3-4 m² overcrowding, lack of fresh air, passive smoking, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, mouldy or dirty cell, lack of or inadequate hygienic facilities, poor quality of food, no or restricted access to shower, poor quality of potable water, lack of or insufficient electric light 7,500     56952/21 10/11/2021 Volodymyr Olegovych YASHNIKOV Rybiy Sergiy Mykolayovych Dnipro Selydove Detention Facility no. 82 25/07/2017 to 16/04/2022 4 years and 8 months and 23 days 4 m² infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of or insufficient natural light, lack of or insufficient quantity of food, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, mouldy or dirty cell, no or restricted access to potable water, no or restricted access to shower, overcrowding, passive smoking, poor quality of food 7,500     56953/21 10/11/2021 Oleksandr Yuriyovych NILEVSKYY Rybiy Sergiy Mykolayovych Dnipro Dnipro Detention Facility no. 4 09/01/2019 to 24/12/2021 2 years and 11 months and 16 days 3.6-3.7 m² infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of or insufficient natural light, lack of or insufficient quantity of food, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, mouldy or dirty cell, no or restricted access to potable water, no or restricted access to shower, overcrowding, passive smoking, poor quality of food 6,700     56955/21 10/11/2021 Valentyn Sergiyovych KANIVETS Rybiy Sergiy Mykolayovych Dnipro Dnipro Detention Facility no. 4 01/10/2019 pending More than 3 years and 6 months and 24 days 3.6-3.7 m² infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of or insufficient natural light, lack of or insufficient quantity of food, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, mouldy or dirty cell, no or restricted access to potable water, no or restricted access to shower, overcrowding, passive smoking, poor quality of food 7,500   [1] Plus any tax that may be chargeable to the applicants.