FIFTH SECTION
CASE OF NEZDYMOVSKYY v. UKRAINE
(Applications nos. 56163/21 and 879/22)
JUDGMENT
STRASBOURG
5 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Nezdymovskyy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Lado Chanturia,
María Elósegui, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 14 September 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two 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 applicant was represented by Mr V.V. Kushnir, a lawyer practising in the city of Dnipro, Ukraine.
3. The Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
4. The applicant’s details and information relevant to the applications are set out in the appended table.
5. The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. He also raised other complaints under the provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS6. 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 CONVENTION7. The applicant complained principally of the inadequate conditions of his detention and of the lack of an effective remedy in this connection. He relied on Articles 3 and 13 of the Convention.
8. The Court notes that the applicant was kept in detention in poor conditions. The details of the applicant’s 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).
9. 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.
10. 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 applicant’s conditions of detention were inadequate.
11. The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.
12. These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW13. The applicant 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 case set out in the appended table.
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 sum indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applications admissible;Holds that there has been 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 applicant, within three months, the amount 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 amount 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 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Carlo Ranzoni
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)
Application no.
Date of introduction
Applicant’s name
Year of birth
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 and costs and expenses per applicant
(in euros)[1]
56163/21
06/11/2021
Pavlo Leonidovych NEZDYMOVSKYY
1983
Kyiv Pre-Trial Detention Facility
20/02/2015
Pending
More than 8 years and 4 months and 23 days
2.5-2.9 m²
Lack of fresh air, overcrowding, lack of privacy for toilet, lack of or poor quality of bedding and bed linen, passive smoking, lack of toiletries, lack of or inadequate hygienic facilities, mouldy or dirty cell, no or restricted access to warm water, no or restricted access to shower
Art. 6 (1) - excessive length of criminal proceedings - from 19/02/2015 till 22/02/2022 before 2 levels of jurisdiction;
Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings
(Nechay v. Ukraine, no. 15360/10, 1 July 2021)
9,800
879/22
18/12/2021
[1] Plus any tax that may be chargeable to the applicant.