FIFTH SECTION

CASE OF VYSOTSKYY AND OTHERS v. UKRAINE

( Application no. 59753/19 and 2 others –

see appended list )

JUDGMENT

STRASBOURG

25 February 2021

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

In the case of Vysotskyy and Others v. Ukraine ,

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

Ivana Jelić , President, Ganna Yudkivska , Arnfinn Bårdsen , judges, and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 4 February 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 applicants were represented by Mr A.V. Pustyntsev , 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 list of applicant s and the relevant details of the applications are set out in the appended table.

5 . The applicant s 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

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

7 . The applicant s complained principally of the inadequate conditions of their detention and that they had no effective remedy in this connection. They relied on Article s 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 ...”

8 . The Court notes that the applicant s were 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, 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).

9 . In the leading case of Melnik v. Ukraine ( no. 72286/01, 28 March 2006; for more recent case-law see Beketov v. Ukraine [Committee], no. 44436/09, 19 February 2019), 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 s did not have at their disposal an effective remedy in respect of these complaints.

12 . These complaints are therefore admissible and disclose a breach of Article 3 and Article 13 of the Convention.

13 . 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 Merit v. Ukraine (no. 66561/01, 30 March 2004); Kharchenko v. Ukraine (no. 40107/02, 10 February 2011); Tymoshenko v. Ukraine (no. 49872/11, 30 April 2013); Kotiy v. Ukraine (no. 28718/09, 5 March 2015); and Ignatov v. Ukraine (no. 40583/15, 15 December 2016).

14 . 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, Melnik , cited above), the Court considers it reasonable to award the sum s indicated in the appended table.

16 . 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 applicant s , within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent 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 25 February 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Ivana Jelić

             Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article s 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

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]

59753/19

09/11/2019

Vadym Vadymovych VYSOTSKYY

1998Dnipro detention facility no. 4

20/03/2017

pending

More than 3 years and 8 months and 25 days

2 inmates

3.65 m²

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

Art. 5 (4) - excessive length of judicial review of detention –

on 21/05/2019 the applicant lodged a request for review of his preventive measure. The request was considered by the court on 11/06/2019, i.e. after 21 days.

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention.

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 4 of the Convention.

Art. 5 (3) - excessive length of pre-trial detention - the applicant has been in pre-trial detention since 14/03/2017 and pending. Lack of reasoning of the courts ’ decisions to extend the applicant ’ s pre-trial detention.

9,800

250

60451/19

12/11/2019

Artem Albertovych VALYEYEV

1991Dnipro detention facility no. 4

28/04/2016

pending

More than 4 years and 7 months and 18 days

10 inmates

2.5 m²

Overcrowding, lack of fresh air, passive smoking, mouldy or dirty cell, infestation of cell with insects/rodents, lack of privacy for toilet, no or restricted access to warm water, lack of or inadequate hygienic facilities, 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 - on 26/04/2016 the applicant was arrested on suspicion of commission of a crime, the proceedings are still pending before the first-instance court (more than 4 years and 8 months for 1 level of jurisdiction).

Art. 5 (3) - excessive length of pre-trial detention - t he applicant has been in pre-trial detention since 26/04/2016 and pending. Lack of reasoning of the courts ’ decisions to extend the applicant ’ s pre-trial detention and failure to consider any other preventive measures as an alternative to detention.

Art. 5 (5) - lack of, or inadequate compensation, for the violation

of Article 5 § 3 of the Convention.

9,800

250

60456/19

12/11/2019

Sadyg Magerram ogly IBRAGIMOV

1988Dnipro detention facility no. 4

31/03/2016

pending

More than 4 years and 8 months and 16 days

50 inmates

2.5 m²

O vercrowding, lack of fresh air, passive smoking, mouldy or dirty cell, infestation of cell with insects/rodents, lack of privacy for toilet, lack of or inadequate hygienic facilities, poor quality of food, no or restricted access to shower, lack of or insufficient electric light .

Art. 6 (1) - excessive length of criminal proceedings - t he applicant was arrested on suspicion of commission of a crime on 29/03/2016, the proceedings against the applicant are still pending before the first ‑ instance court (more than 4 years and 9 months for 1 level of jurisdiction),

Art. 5 (3) - excessive length of pre-trial detention - t he applicant has been in pre-trial detention since 29/03/2016 and pending. Lack of reasoning of the courts ’ decisions to extend the applicant ’ s pre-trial detention and failure to consider any other preventive measures as an alternative to detention .

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention.

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.