FIFTH SECTION

CASE OF BILYY v. UKRAINE

(Applications nos. 11356/17 and 45420/19)

JUDGMENT

STRASBOURG

13 January 2022

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

In the case of Bilyy 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 9 December 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two 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 applicant’s details and information relevant to the applications are set out in the appended table.

4. The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. He 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 applicant complained principally of the inadequate conditions of his detention and that he had no effective remedy in this connection. He 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 applicant was kept in detention in poor conditions. The details of the applicant’s 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, Muršić 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 Muršić , 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 applicant’s conditions of detention were inadequate.

10. The Court further notes that the applicant did not have at his 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 applicant 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, §§ 84-87, 10 February 2011), Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015), G.B. and Others v. Turkey (no. 4633/15, § 176, 17 October 2019), and Ignatov v. Ukraine (no. 40583/15, §§ 40-47, 15 December 2016).

13. In application no. 11356/17, the applicant also raised other complaints under Article 5 § 4 of the Convention.

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 sum indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicant in application no. 11356/17.

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 applicant, within three months, the amount 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 amount 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 13 January 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)

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 and costs and expenses

(in euros) [1]

11356/17

17/03/2016

Ivan Ivanovych BILYY

1984Ignatov Oleksandr Anatoliyovych

Dnipro

Kyiv pre-trial detention facility

08/10/2018 to

08/03/2019

5 months and 1 day

2.6 m²

lack of fresh air, insufficient number of sleeping places, infestation of cell with insects/rodents, 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 warm water, no or restricted access to shower, overcrowding, passive smoking, poor quality of food

Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - failure by the courts to address the applicant’s arguments raised in his applications for alternative preventive measures ( Kharchenko v. Ukraine, no. 40107/02, § 85, 10 February 2011 and G.B. and Others v. Turkey , no. 4633/15, § 176, 17 October 2019);

Art. 5 (4) - excessive length of judicial review of detention - the applicant’s requests for an alternative preventive measure of 18/03/2015 and 30/11/2015 were examined with delays of 20 and 24 days on 08/04/2015 and 23/12/2015 respectively,

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 4 of the Convention;

Art. 5 (5) - lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention;

Art. 5 (3) - excessive length of pre-trial detention - from 16/03/2014 to 07/07/2016, 2 years and 3 months and 21 days, based on standard grounds without analysis of risks or alternative measures

2,200

45420/19

15/08/2019

Bila Oleksandra Vitaliyivna

Pidgorodne

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