FIFTH SECTION
CASE OF DIKHTYAR AND OTHERS v. UKRAINE
(Applications nos. 42470/20 and 2 others
– see appended table)
JUDGMENT
STRASBOURG
18 November 2021
This judgment is final but it may be subject to editorial revision.
In the case of Dikhtyar and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lətif Hüseynov, President,
Lado Chanturia,
Arnfinn Bårdsen, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 21 October 2021,
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.
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 as described in the table appended below 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.
REMAINING COMPLAINTS12. In application no. 42470/20 the applicant also raised other complaints under Article 3 of the Convention as to the inadequate conditions of his detention prior to 20 June 2017.
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, 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 application must be rejected in accordance with Article 35 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION14. 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 sums indicated in the appended table.
16. 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 as regards the periods set out in the appended table, and the lack of any effective remedy in domestic law admissible and the remainder of application no. 42470/20 inadmissible;Holds that these complaints disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention for the periods indicated in the table below and the lack of any effective remedy in domestic law;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 18 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Lətif Hüseynov
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]
42470/20
15/09/2020
Roman Viktorovych DIKHTYAR
1992
Ignatov Oleksandr Anatoliyovych
Dnipro
Zaporizhzhya Pre-Trial Detention Facility
20/06/2017
to
23/04/2020
2 years and 10 months and 4 days
2.5 - 3.7 m²
lack of fresh air, mouldy or dirty cell, 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 toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower
6,500
6495/21
20/01/2021
Andriy Stepanovych GORBACH
1979
Vavrenyuk Oleksandr Volodymyrovych
Pyatykhatky
Mykolaiv Pre-Trial Detention Facility
27/06/2019
pending
More than 2 years and 3 months and 5 days
2.6-2.9 m²
lack of fresh air, passive smoking, overcrowding, mouldy or dirty cell, 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
5,500
9452/21
27/01/2021
Oleksandr Ivanovych SELIVESTROV
1984
Vavrenyuk Oleksandr Volodymyrovych
Pyatykhatky
Vinnytsya Pre-Trial Detention Facility
18/06/2018
pending
More than 3 years and 3 months and 14 days
2.6 m²
overcrowding, lack of fresh air, mouldy or dirty cell, passive smoking, no or restricted access to shower, no or restricted access to toilet, lack of toiletries, lack of privacy for toilet, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, lack of or insufficient quantity of food
7,300
[1] Plus any tax that may be chargeable to the applicants.