FIFTH SECTION

DECISION

Application no. 20060/21 Mykola Mykolayovych GOVOROV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 February 2023 as a Committee composed of:

Mārtiņš Mits, President, Mattias Guyomar, Mykola Gnatovskyy , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 28 March 2021,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Mykola Mykolayovych Govorov, was born in 1972. He was represented by Mr S.M. Rybiy. The applicant’s complaints under Articles 3 and 13 of the Convention concerning the inadequate conditions of detention in Vinnytsya Detention Facility No. 1 since 6 December 2001 and the lack of any effective remedy in domestic law were communicated to the Ukrainian Government (“the Government”).

THE LAW

The applicant, a person serving life imprisonment, complained that the material conditions of his detention in Vinnytsya Detention Facility No. 1 were contrary to the requirements of Article 3 of the Convention. In particular, he submitted that he suffered from lack of personal space, infestation of a cell with insects/rodents, lack of fresh air, insufficient electric light, insufficient natural light, poor quality of bedding and bed linen, lack of furniture, lack of toiletries, 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 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 had been serving his sentence in the above facility since 6 December 2001. They further claimed that they were unable to provide any information as to the applicant’s conditions of detention prior to 26 May 2016 due to expiration of the documents’ retention period. Further the Government noted that since 26 May 2016 the applicant had been held in the cells measuring no less than 4.2-4.9 m² per inmate, having specified the space of each cell and how many detainees were kept in it. They also pointed out that the cells were equipped with toilets separated from the living area in the cell by a wall and a door; detainees were provided with cleaning supplies; the rat control and the disinfection of the cells was performed 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 when detainees left for a walk; it was open to the applicant to request the prison administration to place him in a cell with non-smokers, but he had not done it. The applicant was provided with bed linens and toiletries; he did not ask the administration for any other hygienic items. 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 Government supported their submissions with colour photos of the cell, where the applicant had been detained since 15 July 2020. The photos show a recently renovated room with appropriate material conditions. It is clean and well-lit through a large window, has three beds, proper furniture, and a TV. The bathroom is separated from the living area by a wall and a folding door. It is equipped with a lavatory pan, sink, shower; many different hygiene products could be observed on the photos.

The applicant maintained his complaints mainly referring to his allegations mentioned in the application. He noted that the Government had failed to provide any information as to the conditions of detention before 26 May 2016. The applicant also claimed that the Government had not rebutted his complaint of overcrowding. At the same time, while calculating the minimum personal space allocated to a detainee, the applicant deducted space occupied by furniture from the surface area of the cell. He did not address specifically the Government’s remaining arguments.

Assessing the applicant’s 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 MurÅ¡ić 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, refuting the applicant’s complaints of overcrowding, lack of privacy for toilet and other aspects of conditions of his detention. Their submissions were supported by appropriate evidence. The burden of proof was thus again shifted to the applicant. He, however, failed to address the Government’s objections, merely repeating his initial complaints. While citing overcrowding, the applicant argued that the space occupied by the furniture should not be taken into account when assessing the personal space he had had at his disposal. In this regard, the Court reiterates that the calculation of the available surface area in the cell should include space occupied by furniture, but not by the in-cell sanitary facilities (see, Muršić , cited above, § 114).

Having regard to all of the available material and the parties’ arguments, the Court finds that it cannot be established that the applicant suffered from severe overcrowding of the kind that could entail, on its own, a violation of Article 3 (see Muršić, cited above), nor can it be found that the cumulative effect of the other aspects of the detention which the applicant complained about reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 (see Bokor v. Portugal , no. 5227/18, § 34, 10 December 2020). In view of the above, the Court finds that the complaint related to the applicant’s detention in the period after 26 May 2016 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.

In light of the conclusion above, even assuming that before 26 May 2016 the conditions were inadequate, the Court considers that the complaint under Article 3 of the Convention concerning this period has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 77-78, 10 January 2012, and Dolgov and Silayev v. Russia [Committee] , nos. 11215/10 and 55068/12, § 20-21, 4 October 2016).

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 2 March 2023.

Viktoriya Maradudina Mārtiņš Mits Acting Deputy Registrar President