FIFTH SECTION
CASE OF KONONOV AND OTHERS v. UKRAINE
(Applications nos. 39108/18 and 3 others –
see appended list)
JUDGMENT
STRASBOURG
10 February 2022
This judgment is final but it may be subject to editorial revision.
In the case of Kononov 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 20 January 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. They 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 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. 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). 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 Kharchenko v. Ukraine (no. 40107/02, § 80, 10 February 2011), Tymoshenko v. Ukraine (no. 49872/11, §§ 286-87, 30 April 2013), Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015), Ignatov v. Ukraine (no. 40583/15, §§ 38-42, 15 December 2016) and Nechay v. Ukraine (no. 15360/10, §§ 67-79, 1 July 2021).
13. 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.”
14. 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.
15. 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 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 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 10 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
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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
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]
39108/18
09/08/2018
Rostyslav Mykolayovych KONONOV
1976
Zhukova Yevgeniya Borysivna
Dnipro
Dnipro Penitentiary Facility no.4
18/08/2014
to
23/05/2019
4 years and 9 months and
6 days
3.25-3.8 m²
overcrowding, lack of fresh air, passive smoking, mouldy or dirty cell, infestation of cell with insects/rodents, 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, poor quality of potable water
Art. 5 (3) - excessive length of pre-trial detention - from 27/09/2017 to 23/05/2019 (1 year and 7 months) - detention based on standard grounds without analysis of risks,
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
250
20679/21
14/04/2021
Roman Igorovych MISHENIN
1984
Kulbach Sergiy Oleksandrovych
Limoges
Kyiv Pre-Trial Detention Facility
29/07/2017
pending
More than 4 years and 5 months and 19 days
2.3-2.6 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 food, poor quality of potable water
Art. 5 (3) - excessive length of pre-trial detention - since 08/04/2017 - pending, detention based on standard grounds without analysis of pertinent risks,
Art. 6 (1) - excessive length of criminal proceedings - since 08/04/2017 pending before one level of jurisdiction,
Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings
9,800
250
21732/21
14/04/2021
Vasyl Valentynovych ZAVOROT
1988
Kulbach Sergiy Oleksandrovych
Limoges
Kyiv Pre-Trial Detention Facility
31/03/2015
to
22/02/2021
5 years and
10 months and 23 days
2.5-3.6 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 –
from 23/03/2015 to 07/04/2021,
including 24-hour house arrest (22/02/2021 - 07/04/2021),
Art. 6 (1) - excessive length of criminal proceedings - since 23/03/2015
pending before one level of jurisdiction,
Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings
9,800
250
26518/21
02/05/2021
Andriy Oleksandrovych NAGORODNIY
1996
Kulbach Sergiy Oleksandrovych
Limoges
Kyiv Pre-Trial Detention Facility
23/02/2018
pending
More than 3 years and 9 months and 25 days
2.6 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 warm water, overcrowding, passive smoking, poor quality of potable water
Art. 5 (3) - excessive length of pre-trial detention - from 22/02/2018 – pending, more than 3 years and 9 months, use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice, failure to examine the possibility of applying other measures of restraint,
Art. 6 (1) - excessive length of criminal proceedings –
from 22/02/2018 – pending,
more than 3 years and 11 months,
one level of jurisdiction,
Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings
9,800
250
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.