FIFTH SECTION
CASE OF SHKURENKO AND OTHERS v. UKRAINE
(Applications nos. 44327/21 and 4 others –
see appended list)
JUDGMENT
STRASBOURG
6 July 2023
This judgment is final but it may be subject to editorial revision.
In the case of Shkurenko and Others 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 15 June 2023,
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.
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 and §§ 84-87, 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, 1 July 2021).
13. As regards the applicant’s complaint under Article 5 § 5 of the Convention in application no. 8349/22, it is suggested that the main legal question raised in the application has been examined under Article 5 § 3 and there is no need to give a separate ruling on the complaint under Article 5 § 5 (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014, and, for example, Minayev and Korzh v. Ukraine, nos. 82724/17 and 40291/18 [Committee], § 11, 16 December 2021).
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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applicants’ complaints under Articles 3 and 13 of the Convention related to the conditions of detention and lack of an effective domestic remedy in that regard, as well as other complaints raised under the well-established case-law of the Court (see appended table), admissible and finds that it is not necessary to examine separately the remainder of application no. 8349/22;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 6 July 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)
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]
44327/21
16/08/2021
Oleksandr Vitaliyovych SHKURENKO
1986
Pustyntsev Andriy Vitaliyovych
Dnipro
Kryvyy Rih Detention Facility no.3
14/03/2018
pending
More than 5 years and 2 months and 13 days
4 m²
lack of fresh air, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower, lack of or insufficient electric light, lack of or insufficient natural light, lack of privacy for toilet, no or restricted access to warm water, passive smoking
Art. 5 (3) - excessive length of pre-trial detention –
from 20/07/2017 to 20/12/2022, standard reasoning employed by the courts to extend the applicant’s detention without looking into the individual situation; no consideration of alternative measures;
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 Article 5 § 3 of the Convention (Tymoshenko v. Ukraine, no. 49872/11, §§ 286-87, 30 April 2013, and Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015),
Art. 6 (1) - excessive length of criminal proceedings –
from 20/07/2017 to 20/12/2022, 1 level of jurisdiction,
Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings
9,800
250
7703/22
28/01/2022
Sergiy Grygorovych KORNITSKYY
1978
Vavrenyuk Oleksandr Volodymyrovych
Pyatykhatky
Chernihiv Pre-Trial Detention Facility
27/08/2019
pending
More than 3 years and 9 months
2.5 m²
overcrowding, lack of fresh air, passive smoking, 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
Art. 5 (3) - excessive length of pre-trial detention –
from 17/08/2019 - 18/11/2021, standard reasoning employed by the courts to extend the applicant’s detention without looking into the individual situation; no consideration of alternative measures;
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 Article 5 § 3 (Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015, and Tymoshenko v. Ukraine, no. 49872/11, §§ 286-87, 30 April 2013)
9,800
250
7713/22
28/01/2022
Oleksandr Oleksiyovych OLAG
1993
Vavrenyuk Oleksandr Volodymyrovych
Pyatykhatky
Chernihiv Pre-Trial Detention Facility
16/11/2018
pending
More than 4 years and 6 months and 11 days
2.5 m²
overcrowding, lack of fresh air, passive smoking, 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, lack of or insufficient electric light, lack of or insufficient natural light
Art. 5 (3) - excessive length of pre-trial detention –
from 07/11/2018 - pending, standard reasoning employed by the courts to extend the applicant’s detention without looking into the individual situation; no consideration of alternative measures;
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 Article 5 § 3 of the Convention (Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015, and Tymoshenko v. Ukraine, no. 49872/11, §§ 286-287, 30 April 2013),
Art. 6 (1) - excessive length of criminal proceedings
from 07/11/2018 - pending,
1 level of jurisdiction,
Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings
9,800
250
8349/22
28/01/2022
Ivan Igorovych KACHALKA
1999
Vavrenyuk Oleksandr Volodymyrovych
Pyatykhatky
Chernihiv Pre-Trial Detention Facility
16/11/2018
pending
More than 4 years and 6 months and 11 days
2.5 m²
overcrowding, lack of fresh air, lack of or poor quality of bedding and bed linen, lack of toiletries
Art. 5 (3) - excessive length of pre-trial detention –
07/11/2018 - pending, standard reasoning employed by the courts to extend the applicant’s detention without looking into the individual situation; no consideration of alternative measures;
Art. 6 (1) - excessive length of criminal proceedings
07/11/2018 – pending, 1 level of jurisdiction
9,800
250
20339/22
13/04/2022
Vadym Volodymyrovych KRYKUNOV
1987
Chuyeva Kateryna Oleksandrivna
Odesa
Kyiv Pre-Trial Detention Facility
24/09/2019
to
25/10/2021
2 years and 1 month and 2 days
1.9-2.2 m²
lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of or insufficient natural light, lack of or insufficient quantity of food, lack of or poor quality of bedding and bed linen, lack of toiletries, no or restricted access to warm water, overcrowding, poor quality of food
Art. 5 (3) - excessive length of pre-trial detention –
09/01/2019 – 24/12/2021 (including a day-and-night house arrest from 25/10/2021 to 24/12/2021) combined with the lack of reasoning in the court decisions,
Art. 5 (4) - excessive length of judicial review of detention - excessive length of consideration of the applicant’s appeals against the detention orders dated 18/09/2019, 24/12/2019, 18/02/2020, 05/06/2020, 18/11/2020 and 28/07/2021. In particular, his appeals of 23/09/2019, 03/01/2020, 24/02/2020, 11/06/2020, 23/11/2020 and 02/08/2021 were considered by an appellate court on 12/11/2019, 01/07/2020, 07/07/2020, 10/11/2020, 29/04/2021 and 13/12/2021 respectively (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 and Article 5 § 4 of the Convention - (see Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015)
6,700
250
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.