FIFTH SECTION
CASE OF ATENTYEV AND OTHERS v. UKRAINE
(Applications nos. 38264/20 and 11 others –
see appended list)
JUDGMENT
STRASBOURG
29 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Atentyev 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 8 September 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 applications nos. 38264/20 and 38269/20, the applicants also raised other complaints under the provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS5. 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 CONVENTION6. The applicants complained principally 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 ...”
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. 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-LAW12. In applications nos. 38264/20 and 38269/20, the applicants submitted complaints under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings. 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 Nechay v. Ukraine (no. 15360/10, 1 July 2021).
REMAINING COMPLAINTS13. In application no. 20911/21 the applicant also raised other complaints under Article 3 of the Convention as to the inadequate conditions of his detention prior to 7 April 2017.
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, they 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.
APPLICATION OF ARTICLE 41 OF THE CONVENTION15. 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.”
16. 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.
17. 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,
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 to complain about poor conditions of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of application no. 20911/21 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 indication in the appended table 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 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 29 September 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
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage per applicant
(in euros)[1]
38264/20
25/07/2020
Denys Sergiyovych ATENTYEV
1987
Andriy Vitaliyovych Pustyntsev
Dnipro
Dnipro Detention Facility no. 4
14/12/2015
to
09/11/2020
4 years and 10 months and 27 days
2.5 - 2.6 m²
lack of fresh air, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or insufficient natural light, lack of or insufficient electric light, lack or insufficient quantity of food, overcrowding
Art. 6 (1) - excessive length of criminal proceedings - 09/12/2015 – 09/11/2020, one level of jurisdiction
9,800
38269/20
25/07/2020
Tetyana Volodymyrivna SHKERED
1982
Andriy Vitaliyovych Pustyntsev
Dnipro
Dnipro Detention Facility no. 4
14/12/2015
to
09/11/2020
4 years and 10 months and 27 days
4.2-4.5 m²
lack of fresh air, infestation of cell with insects/rodents, passive smoking, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, lack or insufficient quantity of food, no or restricted access to warm water, lack of privacy for toilet, lack of or inadequate hygienic facilities, overcrowding
Art. 6 (1) - excessive length of criminal proceedings - 09/12/2015 - 9/11/2020, one level of jurisdiction.
9,800
1173/21
20/11/2020
Vadym Ivanovych VERKHODANOV
1980
Oleksandr Volodymyrovych Vavrenyuk
Pyatykhatky
Cherkasy Pre-Trial Detention Facility
11/05/2019
pending
More than 3 years and 3 months and 8 days
2.5 m²
overcrowding, lack of or poor quality of bedding and bed linen, lack of toiletries, lack of fresh air
7,300
1678/21
22/12/2020
Oleg Gennadiyovych NOVOSYOLOV
1999
Oxana Culbaci
Limoges
Dnipro Penitentiary Facility no. 4
19/05/2020
pending
More than 2 years and 3 months
2.7 m²
overcrowding, no or restricted access to shower, lack of fresh air, lack of or poor quality of bedding and bed linen, lack of toiletries
5,300
6447/21
20/01/2021
Yuriy Volodymyrovych MARTYNOV
1958
Andriy Vitaliyovych
Pustyntsev Dnipro
Mykolayiv Pre-Trial Detention Facility
02/03/2018
to
11/01/2021
2 years and 10 months and 10 days
2,4 m²
overcrowding, lack of fresh air, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, no or restricted access to shower, lack of toiletries
6,500
6545/21
20/01/2021
Andriy Mykhaylovych YUZVENKO
1999
Vavrenyuk Oleksandr Volodymyrovych
Pyatykhatky
Mykolaiv Pre-Trial Detention Facility
02/09/2017
to
20/01/2021
3 years and 4 months and 19 days
2.6 - 2.8 m²
lack of fresh air, passive smoking, mouldy or dirty cell, overcrowding, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, lack of privacy for toilet, no or restricted access to warm water, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower
7,400
10307/21
02/02/2021
Volodymyr Yuriyovych KRAYILO
1976
Sergiy Mykolayovych Rybiy
Dnipro
Ivano-Frankivsk Detention Facility
27/07/2017
pending
More than 5 years and 23 days
3.85 m²
overcrowding, lack of fresh air, lack of or insufficient electric light, lack of or poor quality of bedding and bed linen, lack or insufficient quantity of food, lack of toiletries, no or restricted access to shower, poor quality of food, lack of privacy for toilet
7,500
10391/21
02/02/2021
Oleksandr Viktorovych KRUGLIK
1982
Andriy Valeriyovych Yolkin
Kryvyy Rig
Lutsk Pre-Trial Detention Facility
17/03/2020
to
12/10/2021
1 year and 6 months and 26 days
2.8-3.8 m²
overcrowding, mouldy or dirty cell, passive smoking, inadequate temperature, lack of or insufficient natural light, no or restricted access to potable water, no or restricted access to warm water, poor quality of potable water, no or restricted access to running water, no or restricted access to shower, lack of or poor quality of bedding and bed linen, lack of or insufficient electric light, lack of toiletries, lack of requisite medical assistance, lack of or inadequate hygienic facilities, lack of fresh air, lack of privacy for toilet, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, poor quality of food
4,100
20911/21
06/04/2021
Valeriy Viktorovich VASILENKO
1980
Sergiy Mykolayovych Rybiy
Dnipro
Vinnytsya Penitentiary Facility no. 1
07/04/2017
pending
More than 5 years and 4 months and 12 days
3.8 m²
overcrowding, lack of fresh air, passive smoking, infestation of cell with insects/rodents, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, stench from the toilet, lack of privacy for toilet, lack of toiletries, poor quality of food, no or restricted access to shower, poor quality of potable water
7,500
27247/21
21/05/2021
Ivan Ivanovych MILYAN
1986
Andriy Vitaliyovych Pustyntsev
Dnipro
Zhytomyr Detention Facility no. 8
29/01/2019
pending
More than 3 years and 6 months and 21 days
3.2 m²
overcrowding, lack of privacy for toilet, lack of fresh air, lack of or poor quality of bedding and bed linen, poor quality of food, lack or insufficient quantity of food, no or restricted access to shower, constant electric light, infestation of cell with insects/rodents, passive smoking, mouldy or dirty cell, lack of toiletries, no or restricted access to warm water
7,500
27345/21
21/05/2021
Viktoriya Viktorivna KVASHA
1996
Andriy Vitaliyovych Pustyntsev
Dnipro
Zhytomyr Detention Facility
18/05/2016
pending
More than 6 years and 3 months and 1 day
2.5 m²
lack of or poor quality of bedding and bed linen, lack of or inadequate hygienic facilities, no or restricted access to shower, overcrowding
7,500
46043/21
02/08/2021
Dmytro Viktorovych GOLUB
1979
Kyiv Pre-Trial Detention Facility
20/05/2019
to
24/03/2021
1 year and 10 months and 5 days
3-4.3 m²
lack of fresh air, lack of or insufficient electric light, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, lack of toiletries, lack or insufficient quantity of food, mouldy or dirty cell, no or restricted access to potable water, no or restricted access to shower, poor quality of food
4,700
[1] Plus any tax that may be chargeable to the applicants.