FIFTH SECTION

CASE OF KOZAK AND OTHERS v. UKRAINE

(Applications nos. 38260/21 and 4 others –

see appended list)

JUDGMENT

STRASBOURG

19 October 2023

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

In the case of Kozak and Others v. Ukraine,

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

Carlo Ranzoni , President , Lado Chanturia, María Elósegui , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 28 September 2023,

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.

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, 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 applicants’ conditions of detention during the periods indicated in the appended table below 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 the cases set out in the appended table.

13. In application no. 38260/21, the applicant also raised other complaints under Article 3 of the Convention as to the inadequate conditions of his detention prior to 17 May 2019.

14. The Court 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, these complaints 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 application no. 38260/21 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 sums indicated in the appended table.

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 19 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Carlo Ranzoni

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]

38260/21

07/07/2021

Mykola Mykolayovych KOZAK

1985Kulbach Sergiy Oleksandrovych

Limoges

Kyiv Pre-Trial Detention Facility

17/05/2019 to

19/02/2021

1 year and 9 months and

3 days

2.7 m²

overcrowding, lack of or insufficient natural light, no or restricted access to shower, 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 – detention from 16/05/2018 to 19/02/2021, followed by full-time house arrest from 19/02/2021 to 15/04/2022; standard repetitive reasons cited by the domestic courts for extending the detention and full-time house arrest; no proper assessment of the possibility to apply less restrictive measures of restrain; no assessment of the applicant’s personal situation warranting his release (see Kharchenko v. Ukraine , no. 40107/02,

§§ 77-81, 10 February 2011, Ignatov v. Ukraine , 40583/15, §§ 38-42, 15 February 2016),

Art. 6 (1) - excessive length of criminal proceedings - 16/05/2018 - pending,

1 level of jurisdiction (see Nechay v. Ukraine , no. 15360/10,

§§ 67-79, 1 July 2021)

5,900

250

42555/21

17/08/2021

Oleg Mykolayovych GERASYMOV

1978Kulbach Sergiy Oleksandrovych

Limoges

Zaporizhzhya Pre-Trial Detention Facility

27/11/2018 to

20/11/2021

2 years and

11 months and 25 days

2.5-2.6 m²

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

Art. 5 (3) - excessive length of pre-trial detention - 23/11/2018 - 11/06/2021 (conviction); fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint (see Kharchenko v. Ukraine , no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine 40583/15, §§ 38-42, 15 February 2016)

8,700

250

44220/21

25/08/2021

Mykhaylo Mykhaylovych GORDIYENKO

1991Pustyntsev Andriy Vitaliyovych

Dnipro

Kryvyy Rig Detention Facility no.3

14/03/2018

pending

More than 5 years and 5 months and 12 days

2.5-2.9 m²

overcrowding, passive smoking, lack of fresh air, lack of privacy for toilet, lack of or inadequate hygienic facilities, lack of or insufficient quantity of food, lack of or poor quality of bedding and bed linen, lack of toiletries, no or restricted access to shower, no or restricted access to warm water, poor quality of food

Art. 5 (3) - excessive length of pre-trial detention - 20/07/2017 - 20/12/2022 based on standard grounds without analysis of risks, collective detention orders (see Kharchenko v. Ukraine , no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine , 40583/15, §§ 38-42, 15 February 2016),

Art. 6 (1) - excessive length of criminal proceedings - 20/07/2017 - 20/12/2022,

2 levels of jurisdiction (see Nechay v. Ukraine , no. 15360/10,

§§ 67-79, 1 July 2021),

Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings - (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021),

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 Art 5 § 3 (see Tymoshenko v. Ukraine , no. 49872/11, §§ 286-87, 30 April 2013 and Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015)

9,800

250

44263/21

25/08/2021

Oleksandr Oleksandrovych KUNAKH

1985Pustyntsev Andriy Vitaliyovych

Dnipro

Kryvyy Rig Detention Facility no. 3

14/03/2018

pending

More than 5 years and 5 months and 12 days

2.5-2.7 m²

lack of fresh air, lack of or insufficient quantity of food, 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 shower, poor quality of food, passive smoking, overcrowding, lack of or inadequate hygienic facilities, no or restricted access to warm water

Art. 5 (3) - excessive length of pre-trial detention - 20/07/2017 - 20/12/2022 - based on standard grounds without analysis of risks, collective detention orders (see Kharchenko v. Ukraine , no. 40107/02, §§ 77-81, 10 February 2011, Ignatov v. Ukraine , 40583/15, §§ 38-42, 15 February 2016),

Art. 6 (1) - excessive length of criminal proceedings - 20/07/2017 - 20/12/2022,

2 level of jurisdiction (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021),

Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings - (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021),

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 Art 5 § 3 (see Kotiy v. Ukraine , no. 28718/09, § 55, 5 March 2015, and Tymoshenko v. Ukraine , no. 49872/11, §§ 286-87, 30 April 2013)

9,800

250

44982/21

02/09/2021

Dmytro Anatoliyovych SKAPYUK

1981Kulbach Sergiy Oleksandrovych

Limoges

Zaporizhzhya Pre-Trial Detention Facility

04/10/2018 to

22/12/2021

3 years and 2 months and 19 days

2.5-2.7 m²

overcrowding, no or restricted access to shower, lack of or inadequate hygienic facilities, 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, lack of or insufficient physical exercise in fresh air, lack of access to laundry facilities, passive smoking, lack of privacy for toilet

Art. 5 (3) - excessive length of pre-trial detention - 14/12/2017 – 21/12/2021 (detention); 21/12/2021 -04/03/2022 (full-time house arrest); detention based on standard grounds, lack of due diligence in the proceedings (see Kharchenko v. Ukraine , no. 40107/02,

§§ 77-81, 10 February 2011, Ignatov v. Ukraine , 40583/15, §§ 38-42, 15 February 2016),

Art. 6 (1) - excessive length of criminal proceedings - 14/12/2017 – pending,

2 levels of jurisdiction (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021),

Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings - (see Nechay v. Ukraine , no. 15360/10, §§ 67-79, 1 July 2021)

9,300

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

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