FIFTH SECTION
CASE OF SHCHERBAK v. UKRAINE
(Application no. 81646/17)
JUDGMENT
STRASBOURG
20 December 2018
This judgment is final but it may be subject to editorial revision.
In the case of Shcherbak v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 29 November 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application 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 date indicated in the appended table.
2. The applicant was represented by Mr O.A. Ignatov, a lawyer practising in the village of Nyzhni Sirogozy, Ukraine.
3. Notice of the application was given to the Ukrainian Government (“the Government”).
THE FACTS
4. The relevant details of the application 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 in this respect.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
6. The applicant complained of the inadequate conditions of his detention and that he had no effective remedy in this connection. He 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 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 ‑141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑159, 10 January 2012).
8. In the leading case of Melnik v. Ukraine, (no. 72286/01, 28 March 2006), 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 applicant’s conditions of detention were inadequate.
10. The Court further notes that the applicant did not have at his 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. 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.”
13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Melnik v. Ukraine, no. 72286/01, 28 March 2006), the Court considers it reasonable to award the sum indicated in the appended table.
14. 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,
1. Declares the application admissible;
2. Holds that this application discloses a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention;
3. 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 20 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtSíofra O’Leary
Acting Deputy RegistrarPresident
APPENDIX
Application raising complaints under Article 3 and Article 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
Date of birth
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]
81646/17
24/11/2017
Oleksandr Dmytrovych Shcherbak
08/09/1986
Zaporizhzhya SIZO no. 10
31/12/2015 to 25/02/2018
2 years, 1 month and 26 days
3.3 m²
1 toilet
lack of fresh air, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of toiletries, lack or insufficient quantity of food, mouldy or dirty cell, no or restricted access to shower, no or restricted access to toilet, overcrowding, poor quality of food, infestation of cell with insects/rodents, passive smoking
5,100
[1]. Plus any tax that may be chargeable to the applicant.
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