CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 12 septembre 2024

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UKRAINE (Applications nos. 49709/18 and 49870/18)             JUDGMENT   STRASBOURG 12 September 2024   This judgment is final but it may be subject to editorial revision. In the case of Sparysh and Kutsmand v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Lado Chanturia , President ,   Stéphanie Mourou-Vikström,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having deliberated in private on 11 July 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 parties disagreed on the conditions of the applicants’ detention. 5.     According to the applicants, they were held in overcrowded cells. In particular, in Kharkiv Detention Facility no. 27 the first applicant was held from 10   April to 21 November 2017 in cell no. 536, measuring 18 square metres (sq. m) with six beds, yet housing seven   inmates who took turns sleeping. The second applicant stayed, during the same period of time, in cell no.   651, with an area of 30.75 sq. m and which accommodated twelve people. Later, as of September 2017, he was transferred to cell no. 628, approximately 18   sq.   m in size and designed for six sleeping places, but housing eight inmates who took turns sleeping. In Dnipro Detention Facility no. 4, the applicants were held, from 22 November 2017 to 23   September 2019, in cells nos. 625, 624 and 619, measuring 7.3 sq. m and which were designed for two detainees each. Further, in both facilities the toilets were not separated, located 1 metre from the kitchen area, and 1.5 metres from the sleeping area. Except for mattresses, bedding and towels were not provided. Showering was allowed once a week. The applicants had to wash clothes and bedding in their cells with cold water, leading to increased humidity, mould, and fungus on the walls. Both applicants suffered constant bedbug bites. Lighting was insufficient, with only one 60-watt bulb, and ventilation was poor, with barred windows hindering airflow and natural light. The food provided was poor, consisting of low-quality and often rotten products, cooked in violation of sanitary requirements. These claims were substantiated by photographs of cells nos.   625 and 624 in Dnipro Detention Facility no. 4 and written statements from the applicants’ co-detainees K., S., V. and D. who shared their cells nos.   651, 536, 628 and 619 respectively. 6.     In their observations, the Government referred to a number of certificates issued by the facilities’ officials in December 2023, concerning various aspects of the applicants’ detention. According to these certificates, the applicants’ cells at Kharkiv Detention Facility no. 27 measured 18.2, 15.9, and 30.6 sq. m, originally designated for six, five, and eleven detainees respectively, thereby providing them with 2.7 to 3.2 sq. m of personal space. Regarding Dnipro Detention Facility no. 4, it was mentioned that the applicants’ paper logbooks had been burned on 22   December 2022, following the expiration of the statutory one-year storage period. Consequently, the certificates provided only current data regarding the cells referenced by the applicants, indicating that all cells measured 7.3 sq. m and accommodated two inmates. Apart from overcrowding, the certificates broadly addressed other complaints raised by the applicants, asserting that their conditions of detention had been adequate and compliant with relevant domestic regulations. Specifically, it was stated that periodic cosmetic repairs were carried out in the cells, all prisoners were provided with the necessary set of bed linen, clothes, and shoes, the sanitary facility was separated from the sleeping area by a brick wall and equipped with doors, the temperature never dropped below 18 degrees, all cells had artificial lighting, and the quality of the food was regularly monitored. Additionally, two contracts dated 3   November 2023 on the provision of water and food quality testing and disinfection services were adduced, as well as air and water quality control results and a report for provided disinfection services, all issued in August, November and December 2023. Finally, five photographs were attached, showing a freshly refurbished uninhabited cell with decent conditions, however containing no captions allowing to indicate the cell number or any other pertinence to the applicants. 7.     The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. They also complained of the inadequate conditions of their transportation and the use of metal cages in courtrooms, unlawful arrest without a court order, the lack of relevant and sufficient reasons for detention, excessive length of criminal proceedings and the lack of effective remedies in these regards. THE LAW JOINDER OF THE APPLICATIONS 8.     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 9.     The applicants complained principally of the inadequate conditions of their detention and the absence of any effective remedies in this connection. They relied on Articles 3 and 13 of the Convention. 10.     The general principles concerning inadequate conditions of detention have been summarised in   Muršić v. Croati a [GC] (no. 7334/13, § 96‑101, 20   October 2016), and as regards Ukraine, 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 Muršić judgment also establishes the standard of proof and methods for assessment of evidence in conditions-of ‑ detention cases (ibid. § 127-128). 11.     The Court notes at the outset that a credible and reasonably detailed description of the allegedly degrading conditions of detention has been made by the applicants in their application forms, largely corroborated by the attached photographs, testimonies and the Court’s case-law related to the facilities at issue (see, for example, Gorbatenko v. Ukraine , no. 25209/06, 28   November 2013). It thus constitutes a prima facie case of ill-treatment, shifting the burden of proof to the respondent Government who alone have access to information capable of corroborating or refuting these allegations (see Muršić , cited above, § 128). 12.     The Government, for their part, submitted in evidence a series of certificates, issued by the facilities’ officials in December 2023, showing the cells’ surface area and designed occupancy and broadly addressing other conditions of detention. The certificates were accompanied by two contracts on water and food quality testing and disinfection services, reports on air and water quality control results and a report for provided disinfection services, all issued in the second half of 2023. Finally, five unspecified photographs were attached. 13.     In response, the applicants contested the Government’s observations. They argued that the certificates issued by the facility officials lacked support from primary evidence and could thus not be considered as reliable and impartial sources of information. The applicants further noted that a significant number of the documents provided did not pertain to the period of their detention, and the photographs provided by the Government did not correspond to the cells in which they had been detained. 14.     The Court observes that the Government did not submit any primary evidence showing cell floor plans and the actual number of inmates during the specific periods of the applicants’ detention in Kharkiv Detention Facility no.   27, nor did they provide an account for the absence of such documents. The destruction of relevant records following the expiry of the one-year storage time-limit, as occurred in the present case regarding Dnipro Detention Facility no. 4, cannot in itself be regarded as a satisfactory explanation. The Court notes that this timeframe is shorter than the statute of limitations for compensation claims under the domestic law, should such a remedy become effective in Ukraine (see Petukhov v. Ukraine , no. 43374/02, §   78, 21 October 2010), and does not align with the country’s efforts to address the long-term structural problems arising from conditions of detention (see Melnik , cited above, §   70, 28 March 2006). Moreover, the reliance on paper records and their destruction by burning upon expiration overlooks the demands of the digital age. This latter point also extends to evidence such as photographs or video footage of the premises, which the Government has not used effectively, despite the significant role such evidence plays in conditions-of-detention cases (see, for instance, Alimov v. Turkey , no.   14344/13, §   76, 06 September 2016; Sukachov, cited above, §   90; İlerde and Others v. Türkiye , nos. 35614/19 and 10   others, §   48 and 97, 05 December 2023; and, for example, Govorov v. Ukraine (dec.), no. 20060/21, 2 February 2023). Finally, the Court agrees with the applicants’ argument that the documents related to air, food, and water quality control, pest control, precise temperature, or luminosity measurements, as well as bathing facilities and laundry services, either have not been provided or pertained to periods well after the applicants’ detention. 15.     In such circumstances, the Government’s failure to submit relevant, reliable, and convincing information without a satisfactory explanation gives rise to the drawing of inferences as to the well-foundedness of the applicants’ allegations (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §   123, 10 January 2012). Accordingly, having examined all the material submitted to it, the Court considers that in the instant case the applicants’ conditions of detention were inadequate. 16.     The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 17.     These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention. OTHER ALLEGED VIOLATIONS OF THE CONVENTION UNDER THE WELL-ESTABLISHED CASE-LAW 18.     The applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). The Court considers that 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 well-established case law set out in the appended table. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19.     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 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 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 12 September 2024, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Martina Keller   Lado Chanturia   Deputy Registrar   President   APPENDIX List of applicants and the relevant details of the applications: 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]     49709/18 12/10/2018 Anton Dmytrovych SPARYSH 1984 Cartier Anna Paris Kharkiv Detention Facility no.   27 10/04/2017 to 21/11/2017 7 months and 13 days   Dnipro Detention Facility no.   4 22/11/2017 to 23/09/2019 1 year and 10   months and 2 days 2.3 – 3 m²                 3,7 m² Overcrowding, lack of privacy for toilet, lack of or poor quality bedding and bed linen, restricted access to shower, lack of laundry services, mouldy cells, insect-infested cells, insufficient electric light, lack of fresh air, poor quality food Art. 3 - use of metal cages in courtrooms - the applicants were held in a cage during the hearings at the Pavlograd Local Court of Dnipropetrovsk Region from 28/11/2017 onwards ( Svinarenko and Slyadnev v. Russia [GC], nos.   32541/08 and 43441/08, § 138, ECHR 2014 (extracts)),   Art. 3 - inadequate conditions of detention during transport - on 11 occasions between November 2017 and October 2018 the applicants were transported 97 km from the Dnipro Detention Facility No. 4 to the Pavlograd Local Court for hearings. Both the transit rooms and the vans were overcrowded, lacked drinkable water, adequate ventilation and temperature conditions ( Yaroshovets and Others v. Ukraine , nos. 74820/10 and 4 others, §§   101-04, 3   December 2015),   Art. 5 (1) - unlawful arrest without a judicial order - on 06/04/2017 the applicants were arrested without a court order in the context of a criminal investigation into abuse of power and robbery that took place in April and May 2016. The relevant reports however stated, without providing any details, that the applicants’ arrest was carried out immediately after the commission of a crime, and that there were unnamed witnesses or evidence pointing to them as the perpetrators ( Strogan v.   Ukraine , no. 30198/11, §§   88-89, 6   October 2016, and Grubnyk v. Ukraine , no. 58444/15, §§   83-85, 17   September 2020),   Art. 5 (3) - excessive length of pre-trial detention - from 06/04/2017 to 23/09/2019. The detention orders were couched in general terms, containing repetitive phrases with abstract assumptions of the risks of absconding or obstructing justice ( Kharchenko v.   Ukraine , no.   40107/02, 10 February 2011 and Ignatov v. Ukraine , no.   40583/15, 15 December 2016),   Art. 5 (5) - lack of compensation for unlawful arrest or detention - ( Kotiy v.   Ukraine , no. 28718/09, § 55, 5   March 2015, and Tymoshenko v.   Ukraine , no. 49872/11, §§ 286-287, 30 April 2013),   Art. 6 (1) - excessive length of criminal proceedings - from 06/04/2017 to 21/12/2023, three levels of jurisdiction ( Nechay v.   Ukraine , no.   15360/10, 1 July 2021),   Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings ( Nechay v. Ukraine , no.   15360/10, §§   77-79, 1 July 2021) 7,500 250     49870/18 12/10/2018 Andriy Yevgenovych KUTSMAND 1977 7,500 250   [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.