FIFTH SECTION

CASE OF GILYOV AND OTHERS v. UKRAINE

(Applications nos. 17869/21 and 4 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 Gilyov 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 applicants were represented by Mr S.O. Kulbach, a lawyer practising in Limoges.

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

THE FACTS

4. The list of applicants and the relevant details of the applications are set out in the appended table.

5. The applicants 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 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 ...”

8. 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).

9. 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.

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 applicants’ conditions of detention were inadequate.

11. The Court further notes that the applicants 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 Articles 3 and 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 Ignatov v. Ukraine , no. 40583/15, §§ 38-42, 15 December 2016 and Nechay v. Ukraine , no. 15360/10, 1 July 2021.

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, Sukachov, cited above, §§ 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table.

16. 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

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]

17869/21

26/03/2021

Oleksiy Sergiyovych GILYOV

1993Dnipro Penitentiary Facility no. 4

08/04/2019

to

01/10/2020

1 year and 5 months and 24 days

2.9-3 m²

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

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

06/03/2019 - 01/10/2020,

fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; 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

5,200

250

18621/21

02/04/2021

Bogdan Yuriyovych PARCHEVSKYY

2001Kyiv Pre-Trial Detention Facility

24/12/2019

pending

More than 2 years and 4 months

2.6 m²

lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, mouldy or dirty cell, overcrowding, passive smoking, poor quality of potable water

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

24/12/2019 - pending;

fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; 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

7,300

250

19982/21

19/03/2021

Maksym Igorovych LUKOMETS

1997Dnipro Detention Facility no. 4

09/12/2019

to

06/10/2021

1 year and 9 months and 28 days

2.7 m²

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

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

05/12/2019 - 06/12/2021

fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; 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

5,900

250

26301/21

02/05/2021

Anatoliy Mykhaylovych OVSIY

1983Kyiv Pre-Trial Detention Facility

24/02/2018

to

07/11/2021

3 years and 8 months and 15 days

2.5-4.3 m²

overcrowding, no or restricted access to shower, 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, mouldy or dirty cell

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

22/02/2018 - 07/11/2021,

based on standard grounds without analysis of risks or alternative measures;

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

22/02/2018 - pending

1 level of jurisdiction,

Art. 13 - lack of any effective remedy in domestic law in respect of the length of criminal proceedings

9,800

250

28758/21

01/06/2021

Mykhaylo Vasylyovych GAYDAMAKA

1977Kyiv Pre-Trial Detention Facility

29/12/2018

to

07/04/2021

2 years and 3 months and 10 days

2.7 m²

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

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

29/12/2018 - 07/04/2021;

fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; 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

7,100

250[1] Plus any tax that may be chargeable to the applicants.

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