FIFTH SECTION

CASE OF KUCHERENKO AND OTHERS v. UKRAINE

(Applications nos. 17411/21 and 3 others –

see appended list)

JUDGMENT

STRASBOURG

6 October 2022

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

In the case of Kucherenko and Others v. Ukraine,

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

Stéphanie Mourou-Vikström, President, Ivana Jelić, Kateřina Šimáčková, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 19 May 2022,

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 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 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, §§ 122-41, 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.

12. 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.”

13. 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.

14. The Court further 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 6 October 2022, 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

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

(in euros) [1]

17411/21

27/03/2021

Oleg Sergiyovych KUCHERENKO

1989Kulbach Sergiy Oleksandrovych

Limoges

Dnipro Penitentiary Facility no.4

08/10/2018

to

08/02/2021

2 years and 4 months and 1 day

2.5 - 3.2 m²

lack of fresh air, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, passive smoking, overcrowding

5,600

18610/21

25/03/2021

Eduard Grygorovych GRIBINCHA

1976Vavrenyuk Oleksandr Volodymyrovych

Pyatykhatky

Cherkasy Pre-Trial Detention Facility

05/02/2014

pending

More than 8 years

2.31 – 2.92 m²

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

7,500

23758/21

30/04/2021

Sergiy Oleksandrovych TSYMBAL

1982Kulbach Sergiy Oleksandrovych

Limoges

Kyiv Pre-Trial Detention facility

06/03/2018

to

31/05/2021

3 years and 2 months and 26 days

2.5-3 m²

overcrowding, no or restricted access to shower, mouldy or dirty cell, lack of fresh air, poor quality of potable water, lack of or poor quality of bedding and bed linen, passive smoking, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities, lack of toiletries, lack of privacy for toilet

7,100

39767/21

10/07/2021

Yevgen Sergiyovych SAGAYDAK

1989Ignatov Oleksandr Anatoliyovych

Dnipro

Zaporizhzhya Pre-Trial Detention Facility

14/03/2020

to

09/02/2021

10 months and 27 days

2,7-2,8 m²

infestation of cell with insects/rodents, 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 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 shower, no or restricted access to warm water, overcrowding, poor quality of food

2,900

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