CASE OF MOLCHENKO AND PAVLENKO v. UKRAINE (European Court of Human Rights)

FIFTH SECTION
CASE OF MOLCHENKO AND PAVLENKO v. UKRAINE
(Applications nos. 64639/19 and 64649/19)
JUDGMENT
STRASBOURG
25 February 2021

This judgment is final but it may be subject to editorial revision.

In the case of Molchenkoand Pavlenkov. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Ivana Jelić, President,
Ganna Yudkivska,
Arnfinn Bårdsen, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 4 February 2021,

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 applicants were represented by Mr S. Kulbach, a lawyer practising in Limoges. The applicant in the application no. 64639/19 was also represented by Ms Y. Zhukova, practising in Dnipro.

3. The Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

4. The list of applicants and the relevant details of the applications are set out in the appended table.

5. The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law.

THE LAW

I. 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.

II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

7. 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, 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 …”

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, Muršićv. 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).

9. In the leading case of Melnik v. Ukraine (no. 72286/01, 28 March 2006; for more recent case-law see Beketov v. Ukraine [Committee], no. 44436/09, 19 February 2019) the Court already found a violation in respect of issues similar to those in the present case.

10. 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.

11. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.

12. These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. 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.”

14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Melnik, cited above), the Court considers it reasonable to award the sumsindicated in the appended table.

15. 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,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that these applications disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention;

4. 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 25 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt                                             Ivana Jelić
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
Facility
Start and end date
Duration
Sq. m per inmate Specific grievances Amount awardedfor pecuniary and non‑pecuniary damageand costs and expensesper applicant
(in euros)[1]
1. 64639/19
04/12/2019
Oleksandr Stanislavovych MOLCHENKO
1982
Kropyvnytskyy Pre-Trial Detention Facility
09/10/2018
to25/09/2019
11 months and 17 days
3 inmates
2.5 m²
Overcrowding, no or restricted access to shower, lack or insufficient quantity of food, poor quality of food, lack of fresh air, lack of or insufficient electric light, lack of or insufficient natural light, lack of or poor quality of bedding and bed linen, no or restricted access to potable water,
lack of toiletries.
3,100
2. 64649/19
04/12/2019
Igor Igorovych PAVLENKO
1987
Dnipro detention
facility no. 4
21/06/2017
pending
More than 3 years and 6 months and 23 days
2 inmates
3.6 m²
Overcrowding, infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, mouldy or dirty cell, no or restricted access to potable water, poor quality of potable water, no or restricted access to shower, no or restricted access to warm water, passive smoking, poor quality of food.

[1] Plus any tax that may be chargeable to the applicants.

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