61073/21;8903/22

FIFTH SECTION CASE OF TITARCHUK v. UKRAINE (Applications nos. 61073/21 and 8903/22 – see appended list)             JUDGMENT   STRASBOURG 16 November 2023   This judgment is final but it may be subject to editorial revision. In the case of Titarchuk 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 12 October 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in two 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 applicant was represented by Mr S. M. Rybiy, a lawyer practising in Dnipro, Ukraine. 3.  The Ukrainian Government (“the Government”) were given notice of the applications. THE FACTS 4.  The applicant’s details and information relevant to the applications are set out in the appended table. 5.  The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. THE LAW JOINDER OF THE APPLICATIONS 6.  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 OKSANA MYKHAYLIVNA MALEVYCH 7.  The Court notes that the applicant died on 5 December 2022, while the case was pending before the Court. The applicant’s wife, Mrs Oksana Mykhaylivna Malevych, has requested to pursue the application on her husband’s behalf. The Court considers that Ms Malevych has a legitimate interest in pursuing the applications 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 8.  The applicant complained of the inadequate conditions of his detention and of the lack of an effective remedy in this connection. He relied on Articles 3 and 13 of the Convention. 9.  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, §§ 122-41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑59, 10 January 2012). 10.  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. 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 applicant’s conditions of detention were inadequate. 12.  The Court further notes that the applicant did not have at his 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. 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 sum indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Decides that Ms O. M. Malevych, the widow of the applicant, has locus standi in the proceedings; 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 Ms O.M. Malevych, the applicant’s widow and heir, 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 16 November 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) Application no. Date of introduction Applicant’s name Year 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 (in euros)[1] 61073/21 10/12/2021   AND   8903/22 01/02/2022 Sergiy Viktorovych TITARCHUK The applicant died on 05/12/2022.   HEIR  Oksana Mykhaylivna MALEVYCH Kyiv Pre-Trial Detention Facility   18/01/2019 to 05/12/2022    3 years and 10 months and 18 days 3.6-4.5 m² lack of fresh air, lack or inadequate furniture, lack of privacy for toilet, lack of or inadequate hygienic facilities, passive smoking, no or restricted access to shower, lack of or poor quality of bedding and bed linen, overcrowding 7,500     [1] Plus any tax that may be chargeable to the applicant.