{"id":18034,"date":"2022-02-10T10:35:41","date_gmt":"2022-02-10T10:35:41","guid":{"rendered":"https:\/\/laweuro.com\/?p=18034"},"modified":"2022-02-10T10:35:41","modified_gmt":"2022-02-10T10:35:41","slug":"case-of-kononov-and-others-v-ukraine-european-court-of-human-rights-39108-18-and-3-others","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=18034","title":{"rendered":"CASE OF KONONOV AND OTHERS v. UKRAINE (European Court of Human Rights) 39108\/18 and 3 others"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF KONONOV AND OTHERS v. UKRAINE<\/strong>
\n(Applications nos. 39108\/18 and 3 others \u2013 see appended list)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n10 February 2022<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Kononov and Others v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n

L\u0259tif H\u00fcseynov, President,
\nLado Chanturia,
\nArnfinn B\u00e5rdsen, judges,
\nand Viktoriya Maradudina, Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 20 January 2022,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1. The case originated in applications against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.<\/p>\n

2. The Ukrainian Government (\u201cthe\u00a0Government\u201d) were given notice of the applications.<\/p>\n

THE FACTS<\/strong><\/p>\n

3. The list of applicants and the relevant details of the applications are set out in the appended table.<\/p>\n

4. The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. They also raised other complaints under the provisions of the Convention.<\/p>\n

THE LAW<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/p>\n

5. Having regard to the similar subject matter of the applications, the\u00a0Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLES\u00a03 AND\u00a013 OF THE CONVENTION<\/p>\n

6. The applicants complained principally of the inadequate conditions of their detention and that they had no effective remedy in this connection. They\u00a0relied on Articles\u00a03 and\u00a013 of the Convention, which read as follows:<\/p>\n

Article 3<\/p>\n

\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n

Article 13<\/p>\n

\u201cEveryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority …\u201d<\/p>\n

7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants\u2019 detention are indicated in the\u00a0appended table. The Court refers to the principles established in its case\u2011law regarding inadequate conditions of detention (see, for instance, Mur\u0161i\u0107\u00a0v.\u00a0Croatia [GC], no.\u00a07334\/13, \u00a7\u00a7\u00a096\u2011101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a\u00a0factor to be taken into account for the purpose of establishing whether the\u00a0detention conditions described are \u201cdegrading\u201d from the point of view of Article\u00a03 and may disclose a violation, both alone or taken together with other shortcomings (see Mur\u0161i\u0107, cited above, \u00a7\u00a7\u00a0122-41, and Ananyev and Others v. Russia, nos.\u00a042525\/07 and 60800\/08, \u00a7\u00a7\u00a0149\u201159, 10\u00a0January 2012).<\/p>\n

8. In the leading cases of Melnik v. Ukraine (no.\u00a072286\/01, 28\u00a0March\u00a02006) 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\u00a0present case.<\/p>\n

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\u00a0applicants\u2019 conditions of detention were inadequate.<\/p>\n

10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.<\/p>\n

11. These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.<\/p>\n

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/p>\n

12. The applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of\u00a0the\u00a0Court (see appended table). These complaints are not manifestly
\nill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(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 Kharchenko v.\u00a0Ukraine (no. 40107\/02, \u00a7 80, 10 February 2011), Tymoshenko v. Ukraine (no. 49872\/11, \u00a7\u00a7 286-87, 30 April 2013), Kotiy\u00a0v.\u00a0Ukraine (no. 28718\/09, \u00a7\u00a055, 5 March 2015), Ignatov v.\u00a0Ukraine (no.\u00a040583\/15, \u00a7\u00a7 38-42, 15 December 2016) and Nechay v.\u00a0Ukraine (no.\u00a015360\/10, \u00a7\u00a7 67-79, 1 July 2021).<\/p>\n

IV. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n

13. Article\u00a041 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

14. Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Sukachov, cited above, \u00a7\u00a7 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table.<\/p>\n

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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Declares the applications admissible;<\/p>\n

3. Holds that these applications disclose a breach of Articles\u00a03 and 13 of the\u00a0Convention concerning the inadequate conditions of detention and the\u00a0lack of any effective remedy in domestic law;<\/p>\n

4. Holds that there has been a violation of the Convention as regards the\u00a0other complaints raised under well-established case-law of the Court (see\u00a0appended table);<\/p>\n

5. Holds<\/p>\n

(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\u00a0currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a\u00a0rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.<\/p>\n

Done in English, and notified in writing on 10 February 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Viktoriya Maradudina \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 L\u0259tif H\u00fcseynov
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

____________<\/p>\n

APPENDIX<\/strong>
\nList of applications raising complaints under Articles 3 and 13 of the Convention
\n(inadequate conditions of detention and lack of any effective remedy in domestic law)<\/p>\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong><\/p>\n

Date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Year of birth<\/strong><\/p>\n

\u00a0<\/strong><\/td>\n

Representative\u2019s name and location<\/strong><\/td>\nFacility<\/strong><\/p>\n

Start and end date<\/strong><\/p>\n

Duration<\/strong><\/td>\n

Sq. m per inmate<\/strong><\/td>\nSpecific grievances<\/strong><\/td>\nOther complaints under<\/strong><\/p>\n

well-established case-law<\/strong><\/td>\n

Amount awarded for pecuniary and non-pecuniary damage per applicant<\/strong><\/p>\n

(in euros)[i]<\/a><\/strong><\/td>\n

Amount awarded for costs and expenses per application<\/strong><\/p>\n

(in euros)[ii]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n

1.<\/td>\n39108\/18<\/p>\n

09\/08\/2018<\/td>\n

Rostyslav Mykolayovych KONONOV<\/strong><\/p>\n

1976<\/td>\n

Zhukova Yevgeniya Borysivna<\/p>\n

Dnipro<\/td>\n

Dnipro Penitentiary Facility no.4<\/p>\n

18\/08\/2014<\/p>\n

to<\/p>\n

23\/05\/2019<\/p>\n

4 years and 9\u00a0months and<\/p>\n

6 days<\/td>\n

3.25-3.8 m\u00b2<\/td>\novercrowding, lack of fresh air, passive smoking, mouldy or dirty cell, infestation of cell with insects\/rodents, lack of privacy for toilet, no or restricted access to warm water, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower, poor quality of potable water<\/td>\nArt. 5 (3) – excessive length of pre-trial detention – from 27\/09\/2017 to 23\/05\/2019 (1 year and 7\u00a0months) – detention based on standard grounds without analysis of risks,<\/p>\n

Art. 5 (5) – lack of, or inadequate compensation, for the violation of Article 5 \u00a7 3 of the Convention<\/p>\n

(see, Tymoshenko v.\u00a0Ukraine<\/em>, no. 49872\/11, \u00a7\u00a7\u00a0286-87, 30\u00a0April 2013 and Kotiy\u00a0v.\u00a0Ukraine<\/em>, no.\u00a028718\/09, \u00a7 55, 5\u00a0March\u00a02015)<\/td>\n

9,800<\/td>\n250<\/td>\n<\/tr>\n
2.<\/td>\n20679\/21<\/p>\n

14\/04\/2021<\/td>\n

Roman Igorovych MISHENIN<\/strong><\/p>\n

1984<\/td>\n

Kulbach Sergiy Oleksandrovych<\/p>\n

Limoges<\/td>\n

Kyiv Pre-Trial Detention Facility<\/p>\n

29\/07\/2017<\/p>\n

pending<\/p>\n

More than 4\u00a0years and 5\u00a0months and 19 days<\/td>\n

2.3-2.6 m\u00b2<\/td>\nlack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, mouldy or dirty cell, no or restricted access to shower, overcrowding, passive smoking, poor quality of food, poor quality of potable water<\/td>\nArt. 5 (3) – excessive length of pre-trial detention – since 08\/04\/2017 – pending, detention based on standard grounds without analysis of pertinent risks,<\/p>\n

Art. 6 (1) – excessive length of criminal proceedings – since 08\/04\/2017 pending before one level of jurisdiction,<\/p>\n

Art. 13 – lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings<\/td>\n

9,800<\/td>\n250<\/td>\n<\/tr>\n
3.<\/td>\n21732\/21<\/p>\n

14\/04\/2021<\/td>\n

Vasyl Valentynovych ZAVOROT<\/strong><\/p>\n

1988<\/td>\n

Kulbach Sergiy Oleksandrovych<\/p>\n

Limoges<\/td>\n

Kyiv Pre-Trial Detention Facility<\/p>\n

31\/03\/2015<\/p>\n

to<\/p>\n

22\/02\/2021<\/p>\n

5 years and<\/p>\n

10 months and 23 days<\/td>\n

2.5-3.6 m\u00b2<\/td>\nlack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, mouldy or dirty cell, no or restricted access to shower, overcrowding,<\/p>\n

passive smoking, poor quality of potable water<\/td>\n

Art. 5 (3) – excessive length of pre-trial detention \u2013<\/p>\n

from 23\/03\/2015 to 07\/04\/2021,<\/p>\n

including 24-hour house arrest (22\/02\/2021 – 07\/04\/2021),<\/p>\n

Art. 6 (1) – excessive length of criminal proceedings – since 23\/03\/2015<\/p>\n

pending before one level of jurisdiction,<\/p>\n

Art. 13 – lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings<\/td>\n

9,800<\/td>\n250<\/td>\n<\/tr>\n
4.<\/td>\n26518\/21<\/p>\n

02\/05\/2021<\/td>\n

Andriy Oleksandrovych NAGORODNIY<\/strong><\/p>\n

1996<\/td>\n

Kulbach Sergiy Oleksandrovych<\/p>\n

Limoges<\/td>\n

Kyiv Pre-Trial Detention Facility<\/p>\n

23\/02\/2018<\/p>\n

pending<\/p>\n

More than 3\u00a0years and 9\u00a0months and 25 days<\/td>\n

2.6 m\u00b2<\/td>\nlack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, mouldy or dirty cell, no or restricted access to warm water, overcrowding, passive smoking, poor quality of potable water<\/td>\nArt. 5 (3) – excessive length of pre-trial detention – from 22\/02\/2018 \u2013 pending, more than 3 years and 9 months, use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice, failure to examine the possibility of applying other measures of restraint,<\/p>\n

Art. 6 (1) – excessive length of criminal proceedings \u2013<\/p>\n

from 22\/02\/2018 \u2013 pending,<\/p>\n

more than 3 years and 11\u00a0months,<\/p>\n

one level of jurisdiction,<\/p>\n

Art. 13 – lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings<\/td>\n

9,800<\/td>\n250<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[i]<\/a> Plus any tax that may be chargeable to the applicants.
\n[ii]<\/a> Plus any tax that may be chargeable to the applicants.<\/p>\n