FIFTH SECTION
CASE OF KONONENKO AND OTHERS v. UKRAINE
(Applications nos. 7340/22 and 9 others –
see appended list)
JUDGMENT
STRASBOURG
12 December 2024
This judgment is final but it may be subject to editorial revision.
In the case of Kononenko 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 21 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 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.
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 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. 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.
APPLICATION OF ARTICLE 41 OF THE CONVENTION13. 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 December 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]
7340/22
21/01/2022
Mykola Oleksandrovych KONONENKO
1997
Kulbach Sergiy Oleksandrovych
Limoges
Dnipro Detention Facility No. 4
03/12/2021 to
04/01/2024
2 year(s) and
1 month(s) and 2 day(s)
2.7 m²
overcrowding, lack of fresh air, lack of toiletries, poor quality of potable water, 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, mouldy or dirty cell, lack of or insufficient quantity of food
Art. 5 (3) - excessive length of pre-trial detention - 04/01/2020 - 14/10/2022, fragility of the reasons employed by the court
(see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine, 40583/15, §§ 38-42,
15 December 2016)
6,700
250
10650/22
15/02/2022
Oleksandr Sergiyovych SHCHERBYNA
1975
Logoyda Tatyana Vasilyevna
Dnipro
Dnipro Detention Facility no. 4
29/11/2021 to
08/02/2022
2 month(s) and 11 day(s)
1.3-1.5 m²
overcrowding, lack of fresh air, constant electric light, lack of or insufficient natural light, lack of privacy for toilet, infestation of cell with insects/rodents, lack or inadequate furniture, inadequate temperature, no or restricted access to shower, lack of toiletries, mouldy or dirty cell, lack of or insufficient physical exercise in fresh air, poor quality of potable water, lack of requisite medical assistance
Art. 3 - inadequate conditions of detention during transport in a van from 29/11/2021 to 08/02/2022: transport from Dnipro Penitentiary Facility No. 4 to a court; applicant transported on numerous occasions; inadequate temperature; lack of fresh air; overcrowding; each transfer lasted 1 hour; lack of electric or natural light (see Yakovenko v. Ukraine, no. 15825/06, §§ 105-13, 25 October 2007, Koktysh v. Ukraine, no. 43707/07, §§ 107‑8, 10 December 2009, Yaroshovets and Others v. Ukraine, nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 101-4, 3 December 2015)
1,400
20785/22
11/04/2022
Yaroslav Olegovych GAYEVYY
1985
Dnipro Detention Facility no. 4.
12/02/2018 to
01/03/2024
6 year(s) and
19 day(s)
2.47-3 m²
overcrowding, lack of fresh air, mouldy or dirty cell, inadequate temperature, poor quality of food, infestation of cell with insects/rodents, passive smoking, lack of privacy for toilet, lack of or insufficient physical exercise in fresh air, lack of toiletries, no or restricted access to shower, no or restricted access to warm water
Art. 3 - inadequate conditions of detention during transport in a van: transport from Dnipro Penitentiary Facility No. 4 to the Dnipro Local Court; applicant transported on numerous occasions (over 40 times); inadequate temperature; 0.4 sq. m per person; overcrowding; each transfer lasted 1 hour; lack of fresh air; inadequate temperature; passive smoking; lack of food (see Yakovenko v. Ukraine, no. 15825/06, §§ 105-13, 25 October 2007, Koktysh v. Ukraine, no. 43707/07, §§ 107-8, 10 December 2009,
Yaroshovets and Others v. Ukraine, nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 101-4, 3 December 2015);
Art. 5 (3) - excessive length of pre-trial detention - 01/02/2018 - 01/03/2024, fragility of the reasons employed by the court, use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice, failure to conduct the proceedings with due diligence during the period of detention (see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81,
10 February 2011, Ignatov v. Ukraine, 40583/15,
§§ 38-42, 15 December 2016);
Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - lack of speediness of review of detention: the applicant’s appeal of 07/09/2021 was considered by an appellate court on 18/10/2021 (see Kharchenko v. Ukraine, no. 40107/02, §§ 84-87, 10 February 2011);
Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - no effective right to compensation in domestic legal system for the violations of Art 5 § 3 (see Tymoshenko v. Ukraine, no. 49872/11, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine, no. 28718/09,
§ 55, 5 March 2015)
9,800
20905/22
11/04/2022
Nikolay Olegovich ANENKOV
1988
Dnipro Detention Facility no. 4.
18/02/2018
Pending
More than
6 year(s) and
8 month(s) and 14 day(s)
1.1-3.1 m²
overcrowding, lack of fresh air, mouldy or dirty cell, inadequate temperature, poor quality of food, infestation of cell with insects/rodents, passive smoking, lack of privacy for toilet, lack of or insufficient physical exercise in fresh air, lack of toiletries, no or restricted access to shower, no or restricted access to warm water
Art. 3 - inadequate conditions of detention during transport - transport from Dnipro Penitentiary Facility No. 4 to the Dnipro Local Court; applicant transported on numerous occasions (over 40 times); inadequate temperature; 0.4 sq. m per person; overcrowding; each transfer lasted 1 hour; lack of fresh air; inadequate temperature; passive smoking; lack of food (see Yakovenko
v. Ukraine, no. 15825/06, §§ 105-13, 25 October 2007,
Koktysh
v. Ukraine, no. 43707/07, §§ 107-8, 10 December 2009,
Yaroshovets and Others v. Ukraine,
nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 101-4, 3 December 2015)
Art. 5 (3) - excessive length of pre-trial detention - from 19/01/2018 - pending (see Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine, 40583/15, §§ 38-42,
15 December 2016).
Art. 5 (4) - excessive length of judicial review of detention - excessive length of consideration of the applicant’s appeal against the detention order dated 13/10/2021.
In particular, his appeal of 20/10/2021 was considered by an appellate court on 24/11/2021 (Kharchenko v. Ukraine, no. 40107/02, §§ 84-87, 10 February 2011);
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, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015)
9,800
6566/23
02/02/2023
Vitaliy Mykolayovych KOLESNYK
1973
Kulbach Sergiy Oleksandrovych
Limoges
Dnipro Detention Facility no. 4
09/03/2022
Pending
More than
2 year(s) and
7 month(s) and 23 day(s)
2.5-3.6 m²
overcrowding, mouldy or dirty cell, lack of fresh air, passive smoking, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities, poor quality of food, lack of or insufficient quantity of food, poor quality of potable water, lack of toiletries, lack of privacy for toilet
6,100
16159/23
01/04/2023
Oleg Viktorovych MYTROFANENKO
1970
Rybiy Sergiy Mykolayovych
Dnipro
Dnipro Detention Facility no. 4
13/10/2017
Pending
More than
7 year(s) and
19 day(s)
3.2 m²
overcrowding, lack of fresh air, passive smoking, inadequate temperature, mouldy or dirty cell, infestation of cell with insects/rodents, lack of requisite medical assistance, lack of privacy for toilet, lack of toiletries, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower, no or restricted access to potable water, lack of or insufficient physical exercise in fresh air, no or restricted access to warm water, lack of or insufficient quantity of food, lack of or insufficient natural light
7,500
17211/23
07/04/2023
Ivan Oleksandrovych SOFIYENKO
1994
Dnipro Pre-Trial Detention Facility, Kyiv Pre-Trial Detention Facility
17/02/2022 to
22/12/2022
10 month(s) and 6 day(s)
Solonianska Detention Facility no. 21
22/12/2022
Pending
More than
1 year(s) and
10 month(s) and 10 day(s)
2.5-3.3 m²
lack of fresh air, passive smoking, lack of privacy for toilet, lack of or inadequate hygienic facilities, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, no or restricted access to potable water, overcrowding, poor quality of food, lack of or restricted access to leisure or educational activities, lack of or insufficient physical exercise in fresh air, infestation of cell with insects/rodents, lack of toiletries, no or restricted access to running water, no or restricted access to shower, lack of requisite medical assistance, applicant transported on numerous occasions
Art. 3 - inadequate conditions of detention during transport - on 08/12/2022 the last hearing in the applicant’s case took place. On 13-14/12/2022 the applicant was transported from Kyiv Pre-Trial Detention Facility to Dnipro Pre-Trial Detention Facility. On 22/12/2022 the applicant was transported from Dnipro Pre-Trial Detention Facility to Solonianska Detention Facility no. 21 for serving his sentence. The applicant alleges that conditions of his detention on 08/12/2022 and during transport on 13-14/12/2022 and 22/12/2022 were poor, namely he experienced overcrowding, passive smoking, mouldy and dirty detention area, lack of fresh air, lack of natural light, lack of potable water and food, inadequate temperature, lack of access to toilet (see Yakovenko v. Ukraine, no. 15825/06, 25/10/2007, §§ 103-13; Koktysh v. Ukraine, no. 43707/07, 10/12/2009, §§ 23, 104-8).
8,100
17570/23
30/03/2023
Kostyantyn Sergiyovych NIKITIN
1990
Kulbach Sergiy Oleksandrovych
Limoges
Dnipro Detention Facility no. 4
19/10/2021
Pending
More than
3 year(s) and
13 day(s)
2.7 m²
mouldy or dirty cell, lack of fresh air, poor quality of potable water, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, passive smoking, lack of or insufficient quantity of food, overcrowding
6,800
28625/23
29/05/2023
Volodymyr Oleksandrovych CHERNENKO
1976
Kulbach Sergiy Oleksandrovych
Limoges
Dnipro Detention Facility no. 4
14/01/2022 to
01/02/2023
1 year(s) and
19 day(s)
2.5 m²
overcrowding, lack of privacy for toilet, lack of fresh air, poor quality of potable water, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, lack of toiletries, lack of or insufficient physical exercise in fresh air, lack of laundry services, passive smoking
3,200
32957/23
11/08/2023
Ruslan Sergiyovych TOPCHYY
1995
Rybiy Sergiy Mykolayovych
Dnipro
Dnipro Detention Facility no. 4
20/06/2022 to
15/05/2023
10 month(s) and 26 day(s)
2.4-2.9 m²
overcrowding, lack of fresh air, passive smoking, inadequate temperature, 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, lack of or insufficient quantity of food, no or restricted access to shower, 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
2,900
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.