50634/21;14644/23;26751/23;26903/23;40026/23;40031/23;40674/23;41101/23

FIFTH SECTION CASE OF YERMAKOV AND OTHERS v. UKRAINE (Applications nos. 50634/21 and 7 others – see appended list)           JUDGMENT   STRASBOURG 14 November 2024       This judgment is final but it may be subject to editorial revision.   In the case of Yermakov and Othres v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Kateřina Šimáčková, President,  Mykola Gnatovskyy,  Artūrs Kučs, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 17 October 2024, 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. THE LOCUS STANDI OF MRs Yevgeniya Volodymyrivna Yermakova in application no. 50634/21 6.  The Court notes that the applicant in application no. 50634/21 died on 16 January 2023, while the case was pending before it. The applicant’s widow, Mrs Yevgeniya Volodymyrivna Yermakova, has asked to pursue the application on her late husband’s behalf. The Court considers that Mrs Yermakova has a legitimate interest in pursuing the application on the behalf of her late husband and that respect for human rights as defined in the Convention and the Protocols thereto requires a continuation of the examination of the case (see, among other authorities, Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005, and Benyaminson v. Ukraine, no. 31585/02, § 83, 26 July 2007). However, reference will still be made to the applicant throughout the present text. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 7.  The applicants complained principally of the inadequate conditions of their detention and that they had had no effective remedy in this connection. They relied on Articles 3 and 13 of the Convention. 8.  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). 9.  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. 10.  The Court further observes in the present case that, in reply to a prima facie complaint of inadequate conditions of detention, no primary evidence showing cell floor plans and the actual number of inmates during the entire period of the applicants’ detention have been provided (see Ananyev and Others, cited above, § 123, and Sparysh and Kutsmand v. Ukraine [Committee], nos. 49709/18 and 49870/18, 12 September 2024). Moreover, on numerous occasions, the Court has found violations in regard of overcrowding in Kyiv Pre-Trial Detention Facility (see, for example, Chupryna and Others v. Ukraine [Committee], no. 22896/22 and 4 others, 25 April 2024; and Brygynets and Others v. Ukraine [Committee], no. 17492/23 and 2 others, 16 May 2024). As regards application no. 14644/23, the Court also considers the applicant’s particular vulnerability in the view of his mental illness (see Rooman v. Belgium [GC], no. 18052/11, § 145, 31 January 2019, with further references). 11.  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 during the periods indicated in the appended table were inadequate. 12.  The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 13.  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 14.   In applications nos. 50634/21 and 26903/23, the applicants submitted other complaints which also raised issues under Article 5 of 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 15.  In applications nos. 14644/23, 26751/23 and 41101/23, the applicants also raised other complaints under various Articles of the Convention. 16.  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 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Decides that in application no. 50634/21 Mrs Y. V. Yermakova, the widow of the applicant, has locus standi in the proceedings; Declares the complaints concerning the inadequate conditions of detention during the periods indicated in the appended table, and about 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. 14644/23, 26751/23 and 41101/23 inadmissible; Holds that these complaints disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention during the periods indicated in the appended table 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 14 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Kateřina Šimáčková  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 non-pecuniary damage and costs and expenses per applicant (in euros)[1]     50634/21 01/10/2021 Mykhaylo Viktorovych YERMAKOV Died in 2023   Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 09/06/2020 to 06/06/2022 1 year(s) and 11 month(s) and 29 day(s) 2.5 - 3.1 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 poor quality of bedding and bed linen, 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 - 06/05/2020 - 06/06/2022; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; fragility of the reasons employed by the courts (see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine, 40583/15, §§ 38-42, 15 December 2016) 6,550, to be paid to the applicant’s heir, Mrs Y. V. Yermakova     14644/23 15/03/2023 Pavlo Valeriyovych KOVALCHUK   Grabynskyy Andriy Volodymyrovych Kyiv Kyiv Pre-Trial Detention Facility 10/12/2022 to 28/12/2022 19 day(s) 2.3-2.4 m² overcrowding       26751/23 13/06/2023 Anton Volodymyrovych KOVALENKO   Kushnir Valeriy Volodymyrovych Dnipro Kyiv Pre-Trial Detention Facility 26/02/2021 pending More than 3 year(s) and 6 month(s) and 5 day(s) 2.5-3 m² 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 poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, passive smoking, overcrowding, lack of privacy for toilet, lack of laundry services   7,500     26903/23 11/06/2023 Mykola Vladyslavovych OLIYNYK   Kushnir Valeriy Volodymyrovych Dnipro Kyiv Pre-Trial Detention Facility 13/01/2021 pending More than 3 year(s) and 7 month(s) and 17 day(s) 2.5-2.9 m² 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 poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, passive smoking, overcrowding, lack of privacy for toilet, lack of laundry services Art. 5 (3) - excessive length of pre-trial detention - 09/01/2021 - pending, failure to conduct the proceedings diligently leading to excessive length of detention on remand, (see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine, 40583/15, §§ 38-42, 15 December 2016) 10,000     40026/23 23/10/2023 Dmytro Viktorovych VLASENKO   Kulbach Sergiy Oleksandrovych Limoges Kyiv-Pre-Trial Detention Facility 04/06/2022 to 29/08/2023 1 year(s) and 2 month(s) and 26 day(s) 2.5 – 2.7 m² overcrowding, 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, lack of fresh air, poor quality of potable water, no or restricted access to shower, no or restricted access to potable water, lack of or insufficient quantity of food   3,500     40031/23 23/10/2023 Oleg Anatoliyovych CHIBISOV   Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 14/02/2023 to 22/08/2023 6 month(s) and 9 day(s) 2.5 m² overcrowding, mouldy or dirty cell, lack of fresh air, poor quality of potable water, 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, no or restricted access to shower, no or restricted access to potable water, lack of or insufficient quantity of food   2,000     40674/23 01/11/2023 Igor Mykhaylovych BONDARENKO   Yolkin Andriy Valeriyovych Kryvyy Rig Kyiv Pre-Trial Detention Facility 04/08/2020 to 06/02/2024 3 year(s) and 6 month(s) and 3 day(s) 2.5-3.4 m² overcrowding, mouldy or dirty cell, inadequate temperature, lack of fresh air, passive smoking, lack of or insufficient electric light, lack of or insufficient natural light, no or restricted access to running water, poor quality of potable water, no or restricted access to warm water, no or restricted access to shower, lack of toiletries, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, lack of requisite medical assistance, poor quality of food, lack of or insufficient quantity of food, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet   7,500     41101/23 06/11/2023 Yuriy Yuriyovych CHERNYAVSKYY   Yolkin Andriy Valeriyovych Kryvyy Rig Kyiv Pre-Trial Detention Facility 15/06/2021 to 24/07/2023 2 year(s) and 1 month(s) and 10 day(s) 2.5-2.9 m² overcrowding, lack of fresh air, lack of privacy for toilet, no or restricted access to warm water, lack of or poor quality of bedding and bed linen, mouldy or dirty cell, lack of or inadequate hygienic facilities, passive smoking, inadequate temperature, lack of or insufficient electric light, lack of or insufficient natural light, no or restricted access to potable water, no or restricted access to shower, lack of toiletries, infestation of cell with insects/rodents, lack of requisite medical assistance, poor quality of food, lack of or insufficient quantity of food, lack of or insufficient physical exercise in fresh air   5,200   Heir(s) in application no. 50634/21 Decedent Heir Mykhaylo Viktorovych YERMAKOV Died in 2023 Yevgeniya Volodymyrivna YERMAKOVA Born in 1986       [1] Plus any tax that may be chargeable to the applicants.