CONCURRING OPINION OF JUDGE GROZEV

I agree with the present judgment, which raises important structural issues with respect to overcrowding and conditions in the SIZO detention facilities and the available effective domestic remedies in Ukraine, and I voted on all points with the majority. The reason for my separate opinion is the doubts which I have about a statement of principle included in the judgment, regarding the relationship between preventive and compensatory remedies in cases of alleged inhuman conditions of detention. In paragraph 113 of the judgment the majority stated that for the purposes of the exhaustion of domestic remedies under Article 35 of the Convention an applicant is required to exhaust an existing and effective preventive remedy, before being able to seek a monetary award through a compensatory remedy. This statement of principle is not relevant for the specific findings of the present judgment, as no effective preventive remedy exists in Ukraine. It is, however, a new development in the case law of the Court, which follows a somewhat similar obiter dictum in a recent Croatian case (see Ulemek v. Croatia , no. 21613/16, § 86-87, 31 October 2019). As this statement of principle is couched in rather general terms, it does raise some concerns and I prefer to express my doubts as to its validity and future application.

The majority held in paragraph 113, to quote it correctly, that “... where an effective preventive remedy has been established, the applicants in detention, as a rule, cannot be dispensed from the obligation to use it. In other words, before bringing their complaints to the Court, they are first required to use properly the available and effective preventive remedy and then, if appropriate, the relevant compensatory remedy. If the use of an otherwise available and effective preventive remedy is futile in view of the brevity of an applicant’s stay in inadequate conditions of detention, the only viable option would be a compensatory remedy allowing for a possibility to obtain redress for the past placement in such conditions. This period may depend on many factors related to the manner of operation of the domestic system of remedies and the nature of the alleged inadequacy of an applicant’s conditions of detention. In any event, the compensatory remedy in this context should normally be used within six months of the end of the allegedly inadequate conditions of detention.”

I do share the premise, which also appears in the Ulemek judgment, that for a person held in inhuman prison conditions “a remedy capable of rapidly bringing the ongoing violation to an end is of the greatest value” (see paragraph 113). Putting an end to a violation of Article 3, an absolute right, should clearly have priority. However, it is quite a leap from saying that the preventive remedy is extremely important, to making it a mandatory first remedy on which the possibility of seeking compensation depends. Trying to impose on both Governments and applicants a preference for the preventive remedy through our admissibility requirements is not without risks. My concern is that in trying to impose such a preference for the preventive remedy, the Court will confuse its case-law on admissibility and risk creating a procedural labyrinth for both the Governments, in designing the domestic remedies, and for the applicants in exhausting them.

My first concern is that making access to a compensatory remedy dependant on the exhaustion of a preventive remedy, set in the abstract, without the specific elements of an individual case, runs a not insignificant risk of creating confusion. Both time and other factors would be critical for a decision whether the preventive remedy was effective and, in turn, as of when the compensatory remedy would or should have been available. How long it took the applicant to complain, how long it took the authorities to react, whether the inhuman prison conditions are a systemic problem or not and what the available alternatives were for terminating a particular applicant’s detention in inhuman conditions will all be relevant questions. The Court could decide whether, in a given case, waiting one, two or three months, before moving a person detained in inhuman conditions to another facility is acceptable or not. Then it could assess whether the specific domestic system refusing or allowing a claim for compensation, and the point at which the claim is determined, are compatible or incompatible with the Convention. Making such a decision in the abstract, however, is far more problematic.

My second concern is of a more basic character. This new approach on the admissibility of a compensation claim implicitly accepts that the Court is prepared to deny a person detained in inhuman and degrading prison conditions the right to compensation for a certain period of time spent in such conditions. The Court might find that the need to prioritise a preventive remedy justifies limiting the right to compensation of a prisoner held in inhuman conditions. It is rather a difficult balancing exercise, however, particularly where the exercise is conducted in a general, abstract manner.

Finally, this new approach to the admissibility of a compensation claim for inhuman prison conditions also creates tensions with a well-established principle in the Court’s case law, to the effect that if more than one potentially effective remedy is available, the applicant is only required to have used one of them (see Aquilina v. Malta [GC], [GC], no. 25642/94, ECHR 1999, § 39) and that it is for the applicant to select the remedy that is most appropriate in his or her case (see O’Keeffe v. Ireland [GC], no. 35810/09, ECHR 2014 §§ 110-111, and Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, 25 June 2019 § 176). Giving priority to the preventive remedy, and taking the logic of the Court’s case law on exhaustion of domestic remedies into account, would risk creating an unintended result - undermining the domestic compensation remedies. Both in individual cases and particularly in cases of systemic problems with prison conditions, the preventive remedy may not provide relief, even after a certain period of time. The Court having relegated the compensatory remedy to a subsidiary role, the result will be that the compensatory remedy will either be ineffective, as it cannot put a stop to the inhuman conditions, or duplicatory, or both. Thus, the Court will become the “first instance” for claims of inhuman prison conditions. Rather than strengthening the domestic remedies, it might find itself in a position of undermining a working compensation system at the domestic level, in violation of the principle of subsidiarity.

APPENDIX

The list below contains references to final judgments against Ukraine in which a violation of Article 3 of the Convention was found on account of inadequate conditions of the applicants’ detention in SIZOs, along with the SIZO’s name and the period during which the applicant was held in it.

1. Nevmerzhitsky v. Ukraine , no. 54825/00, ECHR 2005 ‑ II (extracts); SIZO no. 1 of the Kyiv Region (2000);

2. Dvoynykh v. Ukraine , no. 72277/01, 12 October 2006; Simferopol SIZO (2000);

3. Koval v. Ukraine , no. 65550/01, 19 October 2006; Kyiv SIZO no. 13 (2000);

4. Malenko v. Ukraine , no. 18660/03, 19 February 2009; Mariupol SIZO (1999-2003);

5. Koktysh v. Ukraine , no. 43707/07, 10 December 2009; Simferopol SIZO (from 2007);

6. Visloguzov v. Ukraine , no. 32362/02, 20 May 2010; Simferopol SIZO (2003-2004);

7. Znaykin v. Ukraine , no. 37538/05, 7 October 2010; Simferopol SIZO (2005-2006);

8. Kharchenko v. Ukraine , no. 40107/02, 10 February 2011; Kyiv SIZO no. 13 (2001-2003);

9. Izzetov v. Ukraine , no. 23136/04, 15 September 2011; Simferopol SIZO (1999-2006);

10. Ustyantsev v. Ukraine , no. 3299/05, 12 January 2012; Odessa SIZO (2001-2006);

11. Iglin v. Ukraine , no. 39908/05, 12 January 2012; Dnipro SIZO (2004-2006);

12. Belyaev and Digtyar v. Ukraine , nos. 16984/04 and 9947/05, 16 February 2012; Sumy SIZO (2001-2004 and 2002-2004);

13. Gavula v. Ukraine , no. 52652/07, 16 May 2013; Kyiv SIZO no. 13 (2003-2010);

14. Samoylovich v. Ukraine , no. 28969/04, 16 May 2013; Simferopol SIZO (1999-2006);

15. Kobernik v. Ukraine , no. 45947/06, 25 July 2013; Lugansk SIZO (2007);

16. Vitkovskiy v. Ukraine , no. 24938/06, 26 September 2013; Dnipro SIZO (2007-2009);

17. Gorbatenko v. Ukraine , no. 25209/06, 28 November 2013; Kharkiv SIZO (2004-2006 and 2011-) and Dnipro SIZO (2006, 2007 and 2011);

18. Andrey Yakovenko v. Ukraine , no. 63727/11, 13 March 2014; Odessa SIZO (2003-2005) and Kyiv SIZO (2005);

19. Zinchenko v. Ukraine , no. 63763/11, 13 March 2014; Odessa SIZO (2003-2005);

20. Buglov v. Ukraine , no. 28825/02, 10 July 2014; Donetsk SIZO (from 2000);

21. Kushnir v. Ukraine , no. 42184/09, 11 December 2014; Kyiv SIZO (2009-2012);

22. Lutsenko v. Ukraine (no. 2) , no. 29334/11, 11 June 2015; Kyiv SIZO (2010-2012);

23. Rodzevillo v. Ukraine , no. 38771/05, 14 January 2016; Dnipro SIZO (2003-2007);

24. Zakshevskiy v. Ukraine , no. 7193/04, 17 March 2016; Kharkiv SIZO (2004);

25. Korneykova and Korneykov v. Ukraine , no. 56660/12, 24 March 2016; Kharkiv SIZO (2012);

26. Kleutin v. Ukraine , no. 5911/05, 23 June 2016; Odessa SIZO (2004 ‑ 2007);

27. Truten v. Ukraine , no. 18041/08, 23 June 2016; Poltava SIZO (2006 ‑ 2010);

28. Savchenko v. Ukraine [CTE], no. 1574/06, 22 September 2016; Kherson, Odessa and Kyiv SIZOs (2005-2012);

29. Yarovenko v. Ukraine [CTE], no. 24710/06, 6 October 2016; Simferopol (2004-2006), Dnipro (2006) and Kyiv SIZOs (2006);

30. Sosnovskiy v. Ukraine [CTE], no. 9450/06, 8 December 2016; Simferopol SIZO (2006);

31. Komarov v. Ukraine [CTE], no. 4772/06, 19 January 2017; Zaporizhzhya SIZO (2003-2006 and 2008-2009);

32. Kulik v. Ukraine [CTE], no. 34515/04, 2 February 2017; Kyiv SIZO (2003-2005);

33. Kiyashko v. Ukraine [CTE], no. 37240/07, 23 February 2017; Poltava SIZO (2004-2007);

34. Malchenko and Others v. Ukraine [CTE], no. 3001/06 and 6 other applications, 6 April 2017; Kharkiv SIZO no. 27 (2002-2007, 2010-2013), Poltava SIZO (2006-2010, 2011, Ivano-Frankivsk SIZO no. 12 (2011 ‑ 2013), Kyiv (2010-2013, 2013-2014) and Odessa SIZOs (2011-);

35. Bilozor and Others v. Ukraine [CTE], no. 9207/09 and 5 other applications, 20 July 2017; Mykolayiv (2007-2010), Kyiv (2007-2011, 2011-2013, 2013-2014), Kharkiv (2010-2012) and Dnipro SIZOs (2013-2015);

36. D.S. v. Ukraine [CTE], no. 24107/13, 9 November 2017; Kharkiv SIZO (2012-2015);

37. Urzhanov v. Ukraine [CTE], no. 24392/06, 14 December 2017; Odessa SIZO (2002-2008);

38. Starenkiy and Rudoy v. Ukraine [CTE], nos. 44807/10 and 15752/14, 11 January 2018; Kyiv SIZO (2010-2014);

39. Yeremenko and Kochetov v. Ukraine [CTE], nos. 68183/10 and 62963/13, 14 June 2018; Lviv (2009-2010) and Simferopol SIZOs (2010 ‑ 2014);

40. Maystrenko v. Ukraine [CTE], no. 45811/16, 28 June 2018; Dnipro SIZO (2012-2016);

41. Garmash v. Ukraine [CTE], no. 74163/13, 8 November 2018; Mariupol SIZO (2012-2013);

42. Grabovskiy v. Ukraine [CTE], no. 4442/07, 29 November 2018; Kharkiv SIZO (2005-2006);

43. Shcherbak v. Ukraine [CTE], no. 81646/17, 20 December 2018; Zaporizhzhya SIZO no. 10 (2015-2018);

44. Beketov v. Ukraine [CTE], no. 44436/09, 19 February 2019; Kyiv SIZO (from 2008);

45. Syenin v. Ukraine [CTE], no. 19585/18, 21 February 2019; Dnipro SIZO (2014-2018);

46. Korol and Others v. Ukraine [CTE], no. 54503/08 and 7 other applications, 7 March 2019; Mariupol SIZO (2009-2011);

47. Malyy v. Ukraine [CTE], no. 14486/07, 11 April 2019; Dnipro SIZO (2005-2007);

48. Radyukin v. Ukraine [CTE], no. 27805/18, 11 July 2019; Dnipro SIZO (2015-2018);

49. Petrov and Korostylyov v. Ukraine [CTE], nos. 19591/18 and 19596/18, 11 July 2019; Dnipro SIZO (2014-2018 and 2013-);

50. Lysenko v. Ukraine [CTE], no. 38092/18, 19 September 2019; Dnipro SIZO (2016-2018);

51. Tsukur and Others v. Ukraine [CTE], nos. 53132/18, 53181/18 and 59802/18, 17 October 2019; Kyiv SIZO (2016-2018 and 2015-2018) and Dnipro SIZO (2014-2018);

52. Petruk and Others v. Ukraine [CTE], no. 1343/19 and 5 others, 14 November 2019; Kyiv SIZO (various periods between 2012 and 2018);

53. Onyshchenko and Others v. Ukraine [CTE], no. 54434/18 and 4 others, 14 November 2019; Dnipro SIZO (various periods between 2012 and 2019);

54. Smilyanskaya v. Ukraine [CTE], no. 46196/11, 21 November 2019; Kharkiv SIZO (2011);

55. Tsatsenko v. Ukraine [CTE], no. 17853/19, 5 December 2019; Dnipro SIZO (2017-2019).