8908/22;8915/22;26416/22;32265/22;57260/22;57885/22;2327/23;2988/23;3737/23;16496/23;17490/23

FIFTH SECTION CASE OF KOSTYUCHENKO AND OTHERS v. UKRAINE (Application nos. 8908/22 and 10 others – see appended list)             JUDGMENT   STRASBOURG 28 March 2024   This judgment is final but it may be subject to editorial revision. In the case of Kostyuchenko 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 7 March 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. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 6.  The applicants complained principally of the inadequate conditions of their detention and the lack of an 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. 8915/22, 26416/22 and 17490/23, 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.  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. 8915/22, 26416/22 and 17490/23 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 to complain about them; 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 28 March 2024, 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 per applicant (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2]     8908/22 28/01/2022 Andriy Oleksandrovych KOSTYUCHENKO Pustyntsev Andriy Vitaliyovych Dnipro Chernigiv Pre-Trial Detention Facility 08/01/2020 pending More than 4 years and 19 days 3.57 m² overcrowding, lack of fresh air, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or insufficient natural light, no or restricted access to shower, no or restricted access to warm water, lack of privacy for toilet Art. 6 (1) - excessive length of criminal proceedings - 28/12/2019 - pending, 1 level of jurisdiction (see Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021) 9,800     8915/22 28/01/2022 Oleksandr Mykolayovych RAK Pustyntsev Andriy Vitaliyovych Dnipro Chernigiv Pre-Trial Detention Facility 01/11/2019 to 15/06/2022 2 years and 7 months and 15 days 3.6 m² overcrowding, lack of fresh air, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or insufficient natural light, no or restricted access to shower, no or restricted access to warm water, lack of privacy for toilet, lack of toiletries, infestation of cell with insects/rodents, passive smoking, mouldy or dirty cell   6,100     26416/22 10/05/2022 Pavlo Yevgeniyovych BOCHAROV Kulbach Sergiy Oleksandrovych Limoges Dnipro Detention Facility no.4 07/10/2019 to 15/09/2022 2 years and 11 months and 9 days 2.5 m² 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, lack of laundry services, passive smoking, poor quality of food, lack of or insufficient quantity of food, overcrowding, lack of privacy for toilet Art. 5 (3) - excessive length of pre-trial detention - 11/05/2019 - 15/09/2022, failure to conduct the proceedings with due diligence during the period of detention; failure to examine the possibility, as the case progressed, of applying other measures to secure attendance at the trial (see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine, 40583/15, §§ 38-42, 15 December 2016) 8,700     32265/22 21/06/2022 Oksana Ivanivna KOVTUNENKO Chuyeva Kateryna Oleksandrivna Odesa Odesa Pre-Trial Detention Facility 26/05/2021 to 02/03/2022 9 months and 5 days 2.3 m² overcrowding, lack of privacy for toilet, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or insufficient quantity of food, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air Art. 5 (4) - excessive length of judicial review of detention - the applicant’s appeals of 20/09/2021 and 28/12/2021 were examined on 16/11/2021 and 08/02/2022 respectively, i.e. with a delay of 57 and 42 days (see Kharchenko v. Ukraine, no. 40107/02, §§ 86-87, 10 February 2011, Popovych v. Ukraine, no. 44704/11, §§ 41-42, 22 April 2021);   Art. 5 (5) - lack of, or inadequate compensation, for the violation of Art 5 § 4 of the Convention (see Tymoshenko v. Ukraine, no. 49872/11, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015) 3,400     57260/22 25/11/2022 Yuriy Yuriyovych VODYANYTSKYY Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 19/11/2020 pending More than 3 years and 2 months and 8 days 2.5 - 2.9 m² overcrowding, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of or insufficient quantity of food, mouldy or dirty cell, poor quality of potable water, passive smoking, poor quality of food, lack of laundry services     7,100 -     57885/22 06/12/2022 Oleg Viktorovych KAPELYUSHNYY Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 29/07/2020 pending More than 3 years and 5 months and 29 days 2.5-2.7 m² overcrowding, lack of or inadequate hygienic facilities, mouldy or dirty cell, lack of fresh air, poor quality of potable water, lack of or poor quality of bedding and bed linen, passive smoking, lack of or insufficient physical exercise in fresh air, lack of toiletries Art. 5 (3) - excessive length of pre-trial detention - 14/11/2019 - pending, fragility and repetitiveness of the reasoning employed by the courts as the case progressed, 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) 9,800     2327/23 21/12/2022 Oleksandr Igorovych DYOMIN Sosyedko Maksym Oleksandrovych Kyiv Dnipro Detention Facility No. 4 22/07/2020 to 15/09/2022 2 years and 1 months and 25 days 2.7-3.5 m² overcrowding, lack of fresh air, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or insufficient quantity of food, no or restricted access to shower, lack of or insufficient natural light, lack of privacy for toilet, infestation of cell with insects/rodents, lack of toiletries, mouldy or dirty cell, passive smoking, no or restricted access to warm water   5,200 -     2988/23 10/01/2023 Georgiy Ivanovych BOTEZ Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 17/08/2018 pending More than 5 years and 5 months and 10 days 2.7 m² overcrowding, lack of or inadequate hygienic facilities, lack of toiletries Art. 5 (3) - excessive length of pre-trial detention - 15/08/2018 - pending, fragility of the reasons employed by the court (see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011 and Ignatov v. Ukraine, 40583/15, §§ 38-42, 15 December 2016) 9,800     3737/23 19/12/2022 Nazar Oleksandrovych ROPYANYY Kulbach Sergiy Oleksandrovych Limoges Kryviy Rih Detention Facility no. 3 25/10/2022 to 12/01/2023 2 months and 19 days 3.6 m² overcrowding, no or restricted access to shower, mouldy or dirty cell, lack of fresh air, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, passive smoking, lack of laundry services   1,100 -   16496/23 01/04/2023 Oleksiy Anatoliyovych BENYUKH Rybiy Sergiy Mykolayovych Dnipro Vinnytsya Detention Facility no. 1 16/11/2020 pending More than 3 years and 2 months and 11 days 4.3 m² passive smoking, lack of fresh air, inadequate temperature, infestation of cell with insects/rodents, lack of requisite medical assistance, mouldy or dirty cell, lack of privacy for toilet, no or restricted access to running water, no or restricted access to warm water, lack of toiletries, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or insufficient quantity of food, no or restricted access to shower, no or restricted access to potable water, lack of or insufficient physical exercise in fresh air, lack of or insufficient natural light   7,100 -   17490/23 11/04/2023 Mykola Igorovych KISELYOV Kulbach Sergiy Oleksandrovych Limoges Cherkasy Pre-Trial Detention facility 27/04/2022 to 14/07/2023 1 year and 2 months and 18 days     Cherkasy Pre-Trial Detention facility 01/09/2023 pending More than 4 months and 26 days 2.0 - 3.3 m²                 2.7 m² overcrowding, poor quality of potable water, lack of fresh air, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, lack of toiletries, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of or insufficient quantity of food   overcrowding, poor quality of potable water, lack of fresh air, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, lack of toiletries, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of or insufficient quantity of food   4,300 -   [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.