FIFTH SECTION

CASE OF ATENTYEV AND OTHERS v. UKRAINE

(Applications nos. 38264/20 and 11 others –

see appended list)

JUDGMENT

STRASBOURG

29 September 2022

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

In the case of Atentyev 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 8 September 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. In applications nos. 38264/20 and 38269/20, the applicants also 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, §§ 122-41, 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 during the periods indicated in the appended table 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 applications nos. 38264/20 and 38269/20, the applicants submitted complaints under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings. 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 Nechay v. Ukraine (no. 15360/10, 1 July 2021).

13. In application no. 20911/21 the applicant also raised other complaints under Article 3 of the Convention as to the inadequate conditions of his detention prior to 7 April 2017.

14. The Court has examined these complaints 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, they 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 application 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, 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 29 September 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

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros) [1]

38264/20

25/07/2020

Denys Sergiyovych ATENTYEV

1987Andriy Vitaliyovych Pustyntsev

Dnipro

Dnipro Detention Facility no. 4

14/12/2015

to

09/11/2020

4 years and 10 months and 27 days

2.5 - 2.6 m²

lack of fresh air, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or insufficient natural light, lack of or insufficient electric light, lack or insufficient quantity of food, overcrowding

Art. 6 (1) - excessive length of criminal proceedings - 09/12/2015 – 09/11/2020, one level of jurisdiction

9,800

38269/20

25/07/2020

Tetyana Volodymyrivna SHKERED

1982Andriy Vitaliyovych Pustyntsev

Dnipro

Dnipro Detention Facility no. 4

14/12/2015

to

09/11/2020

4 years and 10 months and 27 days

4.2-4.5 m²

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

Art. 6 (1) - excessive length of criminal proceedings - 09/12/2015 - 9/11/2020, one level of jurisdiction.

9,800

1173/21

20/11/2020

Vadym Ivanovych VERKHODANOV

1980Oleksandr Volodymyrovych Vavrenyuk

Pyatykhatky

Cherkasy Pre-Trial Detention Facility

11/05/2019

pending

More than 3 years and 3 months and 8 days

2.5 m²

overcrowding, lack of or poor quality of bedding and bed linen, lack of toiletries, lack of fresh air

7,300

1678/21

22/12/2020

Oleg Gennadiyovych NOVOSYOLOV

1999Oxana Culbaci

Limoges

Dnipro Penitentiary Facility no. 4

19/05/2020

pending

More than 2 years and 3 months

2.7 m²

overcrowding, no or restricted access to shower, lack of fresh air, lack of or poor quality of bedding and bed linen, lack of toiletries

5,300

6447/21

20/01/2021

Yuriy Volodymyrovych MARTYNOV

1958Andriy Vitaliyovych

Pustyntsev Dnipro

Mykolayiv Pre-Trial Detention Facility

02/03/2018

to

11/01/2021

2 years and 10 months and 10 days

2,4 m²

overcrowding, lack of fresh air, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, no or restricted access to shower, lack of toiletries

6,500

6545/21

20/01/2021

Andriy Mykhaylovych YUZVENKO

1999Vavrenyuk Oleksandr Volodymyrovych

Pyatykhatky

Mykolaiv Pre-Trial Detention Facility

02/09/2017

to

20/01/2021

3 years and 4 months and 19 days

2.6 - 2.8 m²

lack of fresh air, passive smoking, mouldy or dirty cell, overcrowding, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, lack of privacy for toilet, 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

7,400

10307/21

02/02/2021

Volodymyr Yuriyovych KRAYILO

1976Sergiy Mykolayovych Rybiy

Dnipro

Ivano-Frankivsk Detention Facility

27/07/2017

pending

More than 5 years and 23 days

3.85 m²

overcrowding, lack of fresh air, lack of or insufficient electric light, lack of or poor quality of bedding and bed linen, lack or insufficient quantity of food, lack of toiletries, no or restricted access to shower, poor quality of food, lack of privacy for toilet

7,500

10391/21

02/02/2021

Oleksandr Viktorovych KRUGLIK

1982Andriy Valeriyovych Yolkin

Kryvyy Rig

Lutsk Pre-Trial Detention Facility

17/03/2020

to

12/10/2021

1 year and 6 months and 26 days

2.8-3.8 m²

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

4,100

20911/21

06/04/2021

Valeriy Viktorovich VASILENKO

1980Sergiy Mykolayovych Rybiy

Dnipro

Vinnytsya Penitentiary Facility no. 1

07/04/2017

pending

More than 5 years and 4 months and 12 days

3.8 m²

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

7,500

27247/21

21/05/2021

Ivan Ivanovych MILYAN

1986Andriy Vitaliyovych Pustyntsev

Dnipro

Zhytomyr Detention Facility no. 8

29/01/2019

pending

More than 3 years and 6 months and 21 days

3.2 m²

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

7,500

27345/21

21/05/2021

Viktoriya Viktorivna KVASHA

1996Andriy Vitaliyovych Pustyntsev

Dnipro

Zhytomyr Detention Facility

18/05/2016

pending

More than 6 years and 3 months and 1 day

2.5 m²

lack of or poor quality of bedding and bed linen, lack of or inadequate hygienic facilities, no or restricted access to shower, overcrowding

7,500

46043/21

02/08/2021

Dmytro Viktorovych GOLUB

1979Kyiv Pre-Trial Detention Facility

20/05/2019

to

24/03/2021

1 year and 10 months and 5 days

3-4.3 m²

lack of fresh air, lack of or insufficient electric light, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, 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, poor quality of food

4,700

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