FIFTH SECTION

CASE OF TKACH AND OTHERS v. UKRAINE

(Application no. 13372/20 and 5 others – see appended list)

JUDGMENT

STRASBOURG

22 July 2021

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

In the case of Tkach and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Stéphanie Mourou-Vikström, President, Jovan Ilievski, Mattias Guyomar, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 1 July 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 applicant in application no. 22199/20 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, related to the conditions of detention during the periods indicated in the appended table below. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during those periods 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. In application no. 22199/20, 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 a violation of the Convention in the light of its findings in Merit v. Ukraine (no. 66561/01, 30 March 2004).

13. The applicants in applications nos. 22199/20, 22463/20, 22970/20 and 22972/20 also raised other complaints under various Articles of the Convention.

14. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

15. 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.”

16. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Sukachov v. Ukraine, cited above, §§ 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table.

17. 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 22 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Stéphanie Mourou-Vikström 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 and costs and expenses per applicant

(in euros) [1]

13372/20

03/03/2020

Oleksandr Grygorovych TKACH

1957Rybiy Sergiy Mykolayovych

Dnipro

Bulkach

Sergiy Petrovych

Dnipro

Kulbach

Sergiy

Oleksandrovych

Limoges

Dnipro Penitentiary Facility no.4

29/12/2014

to

14/11/2019

4 years and

10 months and

17 days

3.6 - 7.1m²

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

7,500

22199/20

15/05/2020

Sergiy Borysovych ULYANITSKYY

1989Pustyntsev Andriy Vitaliyovych

Dnipro

Cherkasy Pre-Trial Detention Facility

14/11/2016

to

06/07/2020

3 years and 7 months and

23 days

Cherkasy Pre ‑ Trial Detention Facility

20/10/2020

to

04/11/2020

16 days

Cherkasy Pre-Trial Detention Facility

23/11/2020

to

08/12/2020

16 days

Cherkasy Pre ‑ Trial Detention Facility

23/12/2020

pending

More than 5 months and

26 days

2 m²

2.4 m²

2.9 m²

2.3 m²

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

Art. 6 (1) - excessive length of criminal proceedings - from 09/11/2016 - pending, more than 4 years and 7 months, 1 level of jurisdiction

9,800

22463/20

12/05/2020

Karina Sergiyivna MAKSYMENKO

1998Vavrenyuk Oleksandr Volodymyrovych

Pyatykhatky

Cherkasy

Pre-Trial Detention Facility

15/01/2018

to

19/12/2019

1 year and 11 month and

5 days

Cherkasy Pre ‑ Trial Detention Facility

10/08/2020

pending

More than 10 months and 8 days

5 inmates

2.2 m²

5 inmates

2.2 m²

overcrowding, lack of or inadequate hygienic facilities, lack of toiletries, lack of privacy for toilet, passive smoking, poor quality of food, no or restricted access to shower

overcrowding, lack of or inadequate hygienic facilities, lack of toiletries, lack of privacy for toilet, passive smoking, poor quality of food, no or restricted access to shower

6,400

22970/20

12/05/2020

Armen Anushavanovych TOROSYAN

1992Kulbach Sergiy Oleksandrovych

Limoges

Rybiy Sergiy Mykolayovych

Dnipro

Dnipro Detention Facility no. 4

28/10/2019

to

14/12/2019

1 month and

17 days

2.72 m²

infestation of cell with insects/rodents, lack of fresh air, lack of or insufficient electric light, lack of or insufficient natural light, 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 potable water, no or restricted access to shower, overcrowding, passive smoking, poor quality of food

800

22972/20

12/05/2020

Arman Anushavanovych TOROSYAN

1992Kulbach Sergiy Oleksandrovych

Limoges

Dnipro Detention Facility no. 4

28/10/2019

to

14/12/2019

1 month and

17 days

2.9 m²

overcrowding, lack of fresh air, passive smoking, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack of or inadequate hygienic facilities, lack of toiletries, no or restricted access to potable water, no or restricted access to shower, poor quality of food

800

30777/20

13/06/2020

Dmytro Vasylyovych CHORNYY

1992Yolkin Andriy Valeriyovych

Kryvyy Rig

Kharkiv Pre ‑ trial Detention Facility

25/11/2019

to

21/12/2019

27 days

2.5-3.8 m²

1 toilet

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

600[1] Plus any tax that may be chargeable to the applicants.