FIFTH SECTION

CASE OF DYKUSARENKO v. UKRAINE

( Applications nos. 7218/19 and 17854/19 )

JUDGMENT

STRASBOURG

9 April 2020

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

In the case of Dykusarenko v. Ukraine ,

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

Gabriele Kucsko-Stadlmayer , President, Mārtiņš Mits , Lәtif Hüseynov , judges, and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 19 March 2020 ,

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 applicant was represented by Mr S.M. Rybiy , a lawyer practising in Dnipro.

3 . The Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

4 . The applicant ’ s details and information relevant to the applications are set out in the appended table.

5 . In application no. 17854/19 t he applicant complained under Articles 3 and 13 of the Convention of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law . In application no. 7218/19 h e also raised complaints under Article 5 §§ 3 and 5 and Article 6 § 1 of the Convention.

THE LAW

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

7 . The applicant complained principally 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 ...”

8 . 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, 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 , 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 did not have at his disposal an effective remedy in respect of these complaints.

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

13 . The applicant further submitted complaints under Article 5 §§ 3 and 5 and Article 6 § 1 of the Convention, 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, §§ 70 and 72, 30 March 2004; Tymoshenko v. Ukraine , no. 49872/11, §§ 286-287, 30 April 2013; Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015; and Ignatov v. Ukraine , no. 40583/15, § 52, 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 v. Ukraine, cited above), the Court considers it reasonable to award the sum 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, 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;

(a) 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 9 April 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Gabriele Kucsko-Stadlmayer

             Acting Deputy Registrar President

APPENDIX

List of applications 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

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros) [1]

7218/19

21/01/2019

Oleksiy Mykolayovych DYKUSARENKO

09/02/1985

Dnipro detention facility no. 4

27/10/2014 to

06/07/2019

4 years, 8 months and 10 days

3.65-3.95 m²

lack of or poor quality of bedding and bed linen, lack of toiletries, lack or insufficient quantity of food, lack of or insufficient electric light, no or restricted access to shower, lack of privacy for toilet, poor quality of potable water, mouldy or dirty cell

Art. 5 (3) - excessive length of pre-trial detention:

20/10/2014 to

26/10/2018

4 years and 7 days

Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention:

no effective right to compensation in domestic legal system

Art. 6 (1) - excessive length of criminal proceedings:

20/10/2014 to 31/05/2019

4 years and 7 months

2 levels of jurisdiction

9,800

17854/19

11/03/2019

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