CASE OF YERMOLENKO AND OTHERS v. UKRAINE (European Court of Human Rights) 27231/21 and 2 others

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


FIFTH SECTION
CASE OF YERMOLENKO AND OTHERS v. UKRAINE
(Application no. 27231/21 and 2 others – see appended list)
JUDGMENT
STRASBOURG
10 November 2022

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

In the case of Yermolenko and Others v. Ukraine,

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

Stéphanie Mourou-Vikström, President,
Ivana Jelić,
Kateřina Šimáčková, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 20 October 2022,

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.In application no. 28586/21, the applicant also raised other complaints under the provisions of the Convention.

THE LAW

I. 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.

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

6. The applicants complained principally that the conditions of their detention had been inadequate 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 …”

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, 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, §§ 122-41, 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.

III. REMAINING COMPLAINTS

12. In application no. 28586/21, the applicant also raised other complaints under various Articles of the Convention.

13. 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 application must be rejected in accordance with Article 35 § 4 of the Convention.

IV. 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 sumsindicated in the appended table.

16. The Court further 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 complaints concerning the inadequate conditions of detentionand the lack of any effective remedy in domestic law admissible and the remainder of application no. 28586/21 inadmissible;

3. 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;

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 10 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                     Stéphanie Mourou-Vikström
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]

1. 27231/21

20/05/2021

Igor Vladimirovich YERMOLENKO

1964

Preobrazhenskaya Oksana Vladimirovna

Strasbourg

Zhytomyr Detention Facility no.8

04/02/2021

to

06/08/2021

6 months and 3 days

2.94 m² overcrowding, constant electric light, lack of or insufficient physical exercise in fresh air, no or restricted access to shower, lack of toiletries 2,000
2. 28586/21

20/05/2021

Dmytro Vadymovych TSYSIN

1980

Babchuk Stepan Yaroslavovych

Odesa

Odesa Pre-Trial Detention Facility

02/05/2019

pending

More than 3 years and 4 months and 26 days

2.8 m² overcrowding, lack of privacy for toilet, no or restricted access to warm water, no or restricted access to shower, lack or inadequate furniture, lack of fresh air, inadequate temperature, mouldy or dirty cell 7,400
3. 42435/21

19/08/2021

Pavlo Yevgeniyovych TAMKOV

1976

Kulbach Sergiy Oleksandrovych

Limoges

Zaporizhzhya Pre‑Trial Detention Facility

18/01/2019

pending

More than 3 years and 8 months and 10 days

2.6 m² overcrowding, no or restricted access to shower, lack of toiletries, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities, lack of privacy for toilet 7,500

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

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