CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 28 novembre 2024

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UKRAINE (Applications nos. 173/22 and 9 others – see appended list)             JUDGMENT   STRASBOURG 28 November 2024   This judgment is final but it may be subject to editorial revision. In the case of Tereshchenkov and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Diana Sârcu , President ,   Kateřina Šimáčková,   Mykola Gnatovskyy , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 7 November 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 during the periods indicated in the appended table and that they had no 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. In particular, the Court observes that, in reply to a prima facie case of inadequate conditions of detention, complained of by the applicants, the Government have failed to provide any primary evidence showing cell floor plans and the actual number of inmates during the specific periods of the applicants’ detention (see Ananyev and Others , cited above, § 123, and, for example, Sparysh and Kutsmand v. Ukraine [Committee], nos. 49709/18 and 49870/18, 12   September 2024). Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during the periods indicated in the appended table 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.   1678/23 and 16459/23, 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 during the periods indicated in the appended table, 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.   1678/23 and 16459/23 inadmissible; Holds that these complaints disclose a breach of Articles   3 and 13 of the Convention concerning the inadequate conditions of detention during the periods indicated in the appended table and the lack of any effective remedy in domestic law in that regard; 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 November 2024, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Viktoriya Maradudina   Diana Sârcu   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]     173/22 06/12/2021 Valeriy Valeriyovych TERESHCHENKOV 1970   Kushnir Valeriy Volodymyrovych Dnipro Kyiv Pre-Trial Detention Facility 02/10/2018 pending More than 6 year(s) and 8 day(s) 2.52 - 3.67 m² overcrowding, no or restricted access to shower, 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, passive smoking, lack of or insufficient physical exercise in fresh air, lack of access to laundry facilities, lack of privacy for toilet Art. 5 (3) - excessive length of pre-trial detention – 07/07/2018 - pending; failure to conduct the proceedings with due diligence during the period of detention; fragility and repetitiveness of the reasoning employed by the courts (see Kharchenko v. Ukraine , no.   40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine , 40583/15, §§ 38-42, 15   December 2016);   Art. 6 (1) - excessive length of criminal proceedings - 06/07/2018 - pending; 1 level of jurisdiction (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021);   Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings – (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021).   9,800 250     1678/23 16/12/2022 Vitaliy Leonidovych TEREKH 1982   Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 28/01/2019 pending More than 5 year(s) and 8 month(s) and 12   day(s) 2.5-2.7 m² lack 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 potable water Art. 5 (3) - excessive length of pre-trial detention - excessive length of pre-trial detention, 25/01/2019 - 16/03/2023, failure to conduct the proceedings with due diligence during the period of detention; fragility and repetitiveness of the reasoning employed by the courts (see Kharchenko v. Ukraine , no.   40107/02, §§ 77-81, 10 February 2011 and Ignatov v. Ukraine , 40583/15, §§ 38-42, 15 December 2016) 9,800 250     2320/23 07/01/2023 Yuriy Viktorovych FILONENKO 1967   Kulbach Sergiy Oleksandrovych Limoges Kharkiv Pre-Trial Detention Facility 26/11/2018 to 09/09/2022 3 year(s) and 9 month(s) and 15   day(s) 2.6-3.1 m² overcrowding, no or restricted access to shower, 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, passive smoking, lack of privacy for toilet Art. 5 (3) - excessive length of pre-trial detention - from 23/11/2018 to 09/09/2022 - failure to conduct the proceedings with due diligence during the period of detention; fragility and repetitiveness of the reasoning employed by the courts (see Kharchenko v.   Ukraine , no. 40107/02, §§ 77-81, 10   February 2011 and Ignatov v. Ukraine , no.   40583/15, §§ 38-42, 15 December 2016)   9,800 250     16459/23 30/03/2023 Vitaliy Anatoliyovych KADNICHANSKYY 1990   Rybiy Sergiy Mykolayovych Dnipro Kharkiv Pre-Trial Detention Facility 01/10/2016 to 30/11/2022 6 year(s) and 2 month(s) 2 - 3 m² overcrowding, lack of fresh air, passive smoking, inadequate temperature, infestation of cell with insects/rodents, lack of requisite medical assistance, mouldy or dirty cell, 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, no or restricted access to shower, poor quality of potable water, no or restricted access to potable water, no or restricted access to warm water, lack of or insufficient physical exercise in fresh air, lack of or insufficient natural light, lack of or insufficient electric light Art. 5 (3) - excessive length of pre-trial detention - from 23/05/2012 to 15/11/2013; from 25/05/2017 to 05/02/2018; from 11/12/2019 – pending; failure to conduct the proceedings with due diligence during the period of detention; fragility and repetitiveness of the reasoning employed by the courts (see Kharchenko v. Ukraine , no. 40107/02, §§ 77-81, 10 February 2011 and Ignatov v. Ukraine , 40583/15, §§ 38-42, 15 December 2016);     Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - (see Tymoshenko v. Ukraine , no. 49872/11, §§ 286-287, 30 April 2013 and Kotiy v.   Ukraine , no. 28718/09, §   55, 5 March 2015) 9,800 250     20676/23 19/04/2023 Mykhaylo Ivanovych MARTYNENKO 1980   Rybiy Sergiy Mykolayovych Dnipro Kyiv Pre-Trial Detention Facility 04/09/2021 to 19/12/2022 1 year(s) and 3 month(s) and 16 day(s) 3.5-6.9 m² lack of fresh air, passive smoking, inadequate temperature, lack of requisite medical assistance, mouldy or dirty cell, 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, lack of or insufficient quantity of food, no or restricted access to shower, poor quality of potable water, no or restricted access to potable water, lack of or insufficient physical exercise in fresh air, lack of or insufficient electric light, lack of or insufficient natural light   3,700 250     30362/23 20/07/2023 Ruslan Yuriyovych CHEKHUN 1989   Yolkin Andriy Valeriyovych Kryvyy Rig Kyiv Pre-Trial Detention Facility 26/06/2021 to 23/03/2023 1 year(s) and 8 month(s) and 26   day(s)                               Odesa Pre-Trial Detention Facility 24/03/2023 to 11/04/2023 19 day(s) 2.5-2.8 m²                                           4.2 m² overcrowding, mouldy or dirty cell, lack of fresh air, passive smoking, inadequate temperature, no or restricted access to warm water, no or restricted access to shower, infestation of cell with insects/rodents, lack of requisite medical assistance, 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, lack of privacy for toilet, lack of or inadequate hygienic facilities, no or restricted access to running water       mouldy or dirty cell, lack of fresh air, passive smoking, inadequate temperature, no or restricted access to warm water, no or restricted access to shower, infestation of cell with insects/rodents, lack of requisite medical assistance, lack of or insufficient quantity of food, poor quality of food, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet, lack of or inadequate hygienic facilities, no or restricted access to running water Art. 6 (1) - excessive length of criminal proceedings - 15/02/2018 - pending, 3 levels of jurisdiction (see Nechay v. Ukraine, no. 15360/10, §§ 67-79, 1 July 2021)   Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021);   5,900 250     37738/23 04/10/2023 Andriy Volodymyrovych LOGACHOV 1997   Kulbach Sergiy Oleksandrovych Limoges Kyiv Pre-Trial Detention Facility 25/03/2022 pending More than 2 year(s) and 6 month(s) and 15   day(s) 2.5 - 3.65 m² overcrowding, no or restricted access to shower, 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, no or restricted access to warm water, lack of privacy for toilet   5,900 250     38020/23 30/09/2023 Anatoliy Ivanovych PERSHAKOV 1985   Yolkin Andriy Valeriyovych Kryvyy Rig Kyiv Pre-Trial Detention Facility 06/09/2019 to 18/07/2023 3 year(s) and 10   month(s) and 13   day(s) 2.5 - 2.68 m² overcrowding, lack of fresh air, lack of privacy for toilet, no or restricted access to warm water, lack of or poor quality of bedding and bed linen, mouldy or dirty cell, passive smoking, inadequate temperature, lack of or inadequate hygienic facilities, lack of or insufficient natural light, lack of or insufficient electric light, poor quality of potable water, no or restricted access to shower, lack of toiletries, infestation of cell with insects/rodents, poor quality of food, lack of or insufficient physical exercise in fresh air   7,500 250     40984/23 12/10/2023 Oleksandr Mykolayovych DEMENTIY 1983   Kulbach Sergiy Oleksandrovych Limoges Kharkiv Pre-Trial Detention Facility 15/11/2021 pending More than 2 year(s) and 10   month(s) and 25   day(s) 2.5-3.6 m² overcrowding, passive smoking, poor quality of potable water, poor quality of food, no or restricted access to shower, mouldy or dirty cell, lack of toiletries, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, lack of or insufficient quantity of food, lack of fresh air Art. 5 (3) - excessive length of pre-trial detention - 10/11/2021 - pending, fragility and repetitiveness of the reasoning employed by the courts as the case progressed (see Kharchenko v.   Ukraine , no. 40107/02, §§ 77-81, 10   February 2011, Ignatov v. Ukraine , no.   40583/15, §§ 38-42, 15 December 2016) 8,500 250   41467/23 12/10/2023 Oleksandr Olegovych MOISEYENKO 1983   Kulbach Sergiy Oleksandrovych Limoges Kharkiv Pre-Trial Detention Facility 16/11/2021 pending More than 2 year(s) and 10   month(s) and 24   day(s) 2.4-3.75 m² overcrowding, no or restricted access to shower, 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, passive smoking, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of or insufficient quantity of food Art. 5 (3) - excessive length of pre-trial detention - 10/11/2021 - pending, fragility and repetitiveness of the reasoning employed by the courts as the case progressed (see Kharchenko v.   Ukraine , no. 40107/02, §§ 77-81, 10   February 2011, Ignatov v. Ukraine , no.   40583/15, §§   38-42, 15 December 2016) 8,500 250     [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.