FIFTH SECTION

CASE OF PUKHYR AND OTHERS v. UKRAINE

(Applications nos. 10791/20 and 6 others –

see appended list)

JUDGMENT

STRASBOURG

24 February 2022

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

In the case of Pukhyr and Others v. Ukraine,

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

Lətif Hüseynov, President, Lado Chanturia, Arnfinn Bårdsen, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 3 February 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. They 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, as described 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. 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 Kharchenko v. Ukraine (no. 40107/02, §§ 77-81 and 84-87, 10 February 2011), Tymoshenko v. Ukraine (no. 49872/11, §§ 286-87, 30 April 2013), Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015), Ignatov v. Ukraine (40583/15, §§ 38-42, 15 February 2016) and Nechay v. Ukraine (no. 15360/10, §§ 67-79, 1 July 2021).

13. In application no. 86/21 the applicant also raised other complaints under Article 3 of the Convention as to the inadequate conditions of his detention prior to 2 September 2019.

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 finds 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 24 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Lətif Hüseynov

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]

Amount awarded for costs and expenses per application

(in euros) [2]

10791/20

12/02/2020

Yuriy Sergiyovych PUKHYR

1990Yolkin Andriy Valeriyovych

Kryvyy Rig

Kyiv Pre-Trial Detention Facility

28/05/2012 to

14/08/2019

7 years and 2 months and 18 days

1.5 - 2 m²

overcrowding, mouldy or dirty cell, lack of fresh air, 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 shower, lack of or inadequate hygienic facilities, lack of toiletries, lack of or poor quality of bedding and bed linen, inadequate temperature, poor quality of food, lack of or insufficient quantity of food, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet

Art. 5 (3) - excessive length of pre-trial detention - from 24/05/2012 to 20/11/2014 and from 19/02/2015 to 14/08/2019 - lengthy and unreasonable detention based on standard grounds and no analysis of risks or possibility of alternative preventive measures,

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - no effective remedy exists in the domestic legislation as regards the complaints of violation of Article 5 § 3 of the Convention (see Tymoshenko v. Ukraine , no. 49872/11, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015),

Art. 5 (4) - excessive length of judicial review of detention - lack of examination of the applicant’s motion for release of 28/07/2015

9,800

250

54851/20

08/12/2020

Valentyn Petrovych TUNITOVSKYY

1986Kulbach Sergiy Oleksandrovych

Limoges

Kyiv Pre-Trial Detention Facility

31/03/2015 to

22/02/2021

5 years and 10 months and 23 days

2.5 - 2.7 m²

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

Art. 5 (3) - excessive length of pre-trial detention - from 25/03/2015 - 07/04/2021, lengthy and unreasonable detention based on standard grounds and no proper analysis of risks or possibility of alternative preventive measures,

Art. 6 (1) - excessive length of criminal proceedings - from 23/03/2015 - pending, for more than 6 years before one level of jurisdiction,

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

9,800

250

55595/20

30/11/2020

Andriy Valeriyovych ZAKHARCHENKO

1981Pustyntsev Andriy Vitaliyovych

Dnipro

Cherkasy Pre-Trial Detention Facility

14/04/2017 to

11/03/2021

3 years and 10 months and 26 days

2.04 - 2.98 m²

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

Art. 5 (3) - excessive length of pre-trial detention - from 10/04/2017 to 11/03/2021, when it was changed to a house arrest; based on standard grounds without analysis of risks or alternative measures,

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - the right to compensation for breaches of Article 5 § 3 of the Convention is not provided for in the domestic legal system (see Tymoshenko v. Ukraine , no 49872/11, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015),

Art. 6 (1) - excessive length of criminal proceedings - from 10/04/2017 - pending, for more than 4 years and 9 months before one level of jurisdiction,

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

9,800

250

86/21

20/11/2020

Yevgeniy Anatoliyovych NEMCHENKO

1962Vavrenyuk Oleksandr Volodymyrovych

Pyatykhatky

Cherkasy Pre-Trial Detention Facility

02/09/2019

pending

More than 2 years and 4 months and 13 days

2.5-6.1 m²

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

Art. 5 (3) - excessive length of pre-trial detention - 09/09/2017-pending, more than 4 years and 4 months;

Specific defects: use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice,

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - the right to compensation for breaches of Article 5 § 3 of the Convention is not provided for in the domestic legal system (see Tymoshenko v. Ukraine , no. 49872/11, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015),

Art. 6 (1) - excessive length of criminal proceedings - 07/09/2017 - pending, more than 4 years 4 months,

1 level of jurisdiction,

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

7,300

250

2200/21

18/12/2020

Igor Mykolayovych PODUSHKIN

1978Pustyntsev Andriy Vitaliyovych

Dnipro

Cherkasy Pre-Trial Detention Facility

03/12/2018

pending

More than 3 years and 1 month and 12 days

2.27 – 4.26 m²

infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of toiletries, lack of or insufficient quantity of food, mouldy or dirty cell, no or restricted access to shower, overcrowding, passive smoking, lack of privacy for toilet

Art. 5 (3) - excessive length of pre-trial detention - from 29/11/2018 - pending, more than 3 years;

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

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention - no effective right to compensation in domestic legal system for the violations of Article 5 § 3 of the Convention (see Tymoshenko v. Ukraine , no. 49872/11, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015)

9,100

250

8067/21

20/01/2021

Yanush Valeriyovych KONDRASHOV

1990Kulbach Sergiy Oleksandrovych

Limoges

Dnipro Penitentiary Facility no. 4

02/04/2018

pending

More than 3 years and 9 months and 13 days

3.6 - 3.65 m²

overcrowding, infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, no or restricted access to shower, poor quality of potable water, mouldy or dirty cell, lack of toiletries, poor quality of food, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen

Art. 6 (1) - excessive length of criminal proceedings - from 28/03/2018 - pending,

1 level of jurisdiction,

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

Art. 5 (3) - excessive length of pre-trial detention - from 28/03/2018 - pending, more than 3 years and 9 months; lengthy detention based on standard grounds and no analysis of risks and alternatives

9,800

250

27754/21

19/05/2021

Sergiy Petrovych RAULETS

1996Kulbach Sergiy Oleksandrovych

Limoges

Kyiv Pre-Trial Detention Facility

23/02/2018

pending

More than 3 years and 10 months and 23 days

2.4 – 2.9 m²

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

Art. 5 (3) - excessive length of pre-trial detention - from 22/02/2018 - pending, more than 3 years and 11 months; detention based on standard grounds without analysis of risks or alternative measures,

Art. 6 (1) - excessive length of criminal proceedings - from 22/02/2018 - pending, for more than 3 years and 11 months before one level of jurisdiction,

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

9,800

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

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