FIFTH SECTION

CASE OF CHERNYKH AND GRUBYY v. UKRAINE

(Applications nos. 59197/19 and 33320/20)

JUDGMENT

STRASBOURG

28 October 2021

This judgment is final but it may be subject to editorial revision.

In the case of Chernykh and Grubyy 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 7 October 2021,

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. The applicants also raised other complaints under the provisions of the Convention.

THE LAW

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

6. 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, MurÅ¡ić 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 MurÅ¡ić , 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 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.

12. 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, Ignatov v. Ukraine , no. 40583/15, §§ 41-42, 15 December 2016, Tymoshenko v. Ukraine , no. 49872/11, §§ 286-287, 30 April 2013, and Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015.

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,

(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 28 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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]

59197/19

04/11/2019

Mykhaylo Volodymyrovych CHERNYKH

1983Pustyntsev Andriy Vitaliyovych

Dnipro

Dnipro Penitentiary Facility no. 4

30/03/2017

pending

More than 4 years and 5 months and 4 days

3.6 m²

infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of privacy for toilet, mouldy or dirty cell, lack of or insufficient quantity of food, no or restricted access to shower, lack of toiletries, lack of or poor quality of bedding and bed linen, overcrowding

Art. 5 (3) - excessive length of pre-trial detention length of pre-trial detention to be calculated from 28/03/2017, and still pending, detention regularly extended on the basis standard wording; no measures alternative to detention considered;

Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention - the right to compensation is not provided for in the domestic legal system (see Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015, and Tymoshenko v. Ukraine, no. 49872/11, §§ 286 ‑ 287, 30 April 2013).

9,800

250

33320/20

14/07/2020

Dmytro Anatoliyovych GRUBYY

1987Yolkin Andriy Valeriyovych

Kryvyy Rig

Kyiv Pre ‑ Trial Detention Facility

01/04/2015

to

15/01/2020

4 years and 9 months and 15 days

1.85-2.9 m²

overcrowding, inadequate temperature, infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of privacy for toilet, lack of or insufficient natural light, lack of or poor quality of bedding and bed linen, lack of toiletries, mouldy or dirty cell, no or restricted access to shower, no or restricted access to warm water, passive smoking, poor quality of food, poor quality of potable water

Art. 5 (3) - excessive length of pre-trial detention from 26/03/2015 to 15/01/2020, failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint,

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, §§ 286-287, 30 April 2013 and Kotiy v. Ukraine, no. 28718/09, § 55, 5 March 2015).

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.