FIFTH SECTION

DECISION

Application no. 19848/21 Oleksandr Mykolayovych DVORETSKYY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 June 2022 as a Committee composed of:

Stéphanie Mourou-Vikström, President, Ivana Jelić, Kateřina Šimáčková, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 6 April 2021,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s details are set out in the appended table.

The applicant was represented by Mr S.M. Rybiy, a lawyer practising in the city of Dnipro, Ukraine.

The applicant’s complaints under Articles 3 and 13 of the Convention concerning the inadequate conditions of detention and lack of any effective remedy in domestic law were communicated to the Ukrainian Government (“the Government”).

THE LAW

The applicant, a person under life sentence, complained that the material conditions of his detention in the Vinnytsya Detention Facility No. 1 were contrary to the requirements of Article 3 of the Convention. More specifically, the applicant submitted that he suffered from lack of personal space, infestation of a cell with insects/rodents, lack of fresh air, lack of hygienic facilities, insufficient electric light, insufficient natural light, lack of and poor quality of bedding and bed linen, lack of toiletries, insufficient quantity of food, mouldy and dirty cell, limited access to shower (once per week for 15-20 minutes), passive smoking, poor quality of food, poor quality of potable water, and lack of privacy when using a toilet. He further complained under Article 13 of the Convention that he did not have access to effective remedies in respect of those grievances.

The Government submitted that the applicant was held in the cells measuring 4.2-5.5 m² per inmate, having specified the space of each cell and for how many detainees it had been designed (the applicant did not provide this information). They also noted that the cells were equipped with toilets separated by partitions and curtains for privacy (the respective photos were provided); the detainees were provided with the cleaning supplies to clean the cells themselves; the rat control and the disinfection of the cells had been conducted regularly; each cell had sufficient electric and natural light; the quantity and quality of food and of potable water corresponded to the relevant regulations; the applicant had access to washing facilities once per week for no less than 40 minutes. They also noted that the cells were equipped with air holes and ventilated daily for one hour when the detainees left for a walk; the separate holding of smoking and non-smoking prisoners was not prescribed by the domestic law, nevertheless, in practice it was open to the applicant to request the administration of the facility to be placed in a cell with non-smokers, but he failed to do so. Furthermore, according to the Government, the applicant was provided with bed linens and toiletries; he had never applied to the administration of the facility to be provided with hygienic facilities. Given the above, they concluded that the applicant’s complaints under Articles 3 and 13 of the Convention were manifestly ill-founded and should be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant failed to comment in time on the Government’s observations.

As regards the complaint under Article 3 of the Convention, the Court refers to its well-established standard of proof in conditions-of-detention cases. In this context the Court is particularly mindful of the objective difficulties experienced by applicants in collecting evidence to substantiate their claims about conditions of their detention. Still, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see Golubenko v. Ukraine (dec.), no. 36327/06, 5 November 2013). Once a credible and reasonably detailed description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment, has been made, the burden of proof is shifted to the respondent Government who alone have access to information capable of corroborating or refuting these allegations (see Muršić v. Croatia [GC], no. 7334/13, §§ 127 and 128, ECHR 2016).

The Court notes that in the present case the applicant’s description of allegedly inadequate conditions of his detention was sufficiently detailed and consistent, so it constituted a prima facie case of ill-treatment shifting a burden of proof to the Government. The latter provided their submissions in reply, having refuted the applicant’s complaints of overcrowding, lack of privacy for toilet and other aspects of conditions of his detention, with their submissions having been supported by appropriate evidence. That is why, a burden of proof was again shifted to the applicant, but he, without any appropriate explanation, did not make submissions in due time.

The Court is also mindful of the case file materials according to which in 2020 the Vinnytsya Prosecutor’s Office disclosed certain breaches concerning nutrition of prisoners (in particular, certain grains and fats were substituted by others without taking into consideration their nutritive values) and subsequently four times requested the facility to eliminate the problem. However, the above shortcoming is not enough on its own for the Court to conclude that the applicant’s suffering reached the threshold of severity required by Article 3 of the Convention (see Ustyugov v. Ukraine (dec.), no. 251/04, 1 September 2015).

In view of the afore mentioned, the Court considers that the complaint under Article 3 of the Convention has not been properly substantiated and developed by the applicant. Therefore, it should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court, having found the complaint under Article 3 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention (see Rodić and Others v. Bosnia and Herzegovina , no. 22893/05, § 82, 27 May 2008). The applicant’s complaint under Article 13 of the Convention taken in conjunction with Article 3 of the Convention is thus likewise manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 September 2022.

Viktoriya Maradudina Stéphanie Mourou-Vikström Acting Deputy Registrar President

APPENDIX

Application raising complaints under Articles 3 and 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

Year of birth

Facility

Start and end date

Duration

Sq. m per inmate

Specific grievances

19848/21

06/04/2021

Oleksandr Mykolayovych DVORETSKYY

1973Vinnytsya Detention Facility No. 1

01/02/2002

pending

More than 20 years and 3 months and

5 days

4.2-5.5 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 toiletries, lack or insufficient quantity of food, mouldy or dirty cell, no or restricted access to shower, passive smoking, poor quality of food, poor quality of potable water, lack of privacy for toilet, overcrowding