FIFTH SECTION

CASE OF FILONENKO AND OTHERS v. UKRAINE

(Application no. 87/21 and 2 others –

see appended list)

JUDGMENT

STRASBOURG

25 May 2023

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

In the case of Filonenko 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 4 May 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 of the absence of an 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 their 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, as described 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 Kharchenko v. Ukraine (no. 40107/02, §§ 77-81, 10 February 2011), Tymoshenko v. Ukraine (no. 49872/11, §§ 286-7, 30 April 2013), Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015), Ignatov v. Ukraine (40583/15, §§ 38-42, 15 February 2016), Strogan v. Ukraine (no. 30198/11, §§ 88-89, 6 October 2016), Grubnyk v. Ukraine (no. 58444/15, §§ 83-85, 17 September 2020), and Nechay v. Ukraine (no. 15360/10, 1 July 2021).

13. In application no. 87/21 the applicant also raised other complaints under Article 3 of the Convention as to the inadequate conditions of his detention prior to 14 May 2020.

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 do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention (see Ananyev and Others , cited above, § 77).

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 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 25 May 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]

87/21

20/11/2020

Sergiy Sergiyovych FILONENKO

1968Vavrenyuk Oleksandr Volodymyrovych

Pyatykhatky

Cherkasy Pre ‑ trial Detention Facility

14/05/2020

pending

More than 2 years and 10 months and 15 days

1.76-2.98 m²

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

Art. 5 (3) - excessive length of pre-trial detention - from 23/12/2019 till 23/04/2021; use of standard reasons for the extension of detention without assessing the applicant’s personal situation; no alternative measures assessed;

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 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 18/08/2016 – pending: before three levels of jurisdiction.

8,500

250

35429/21

25/06/2021

Oleksandr Sergiyovych LOS

1981Leshchenko Andriy Viktorovych

Odesa

Kyiv Pre-Trial Detention Facility

07/08/2018

to

02/12/2021

3 years and 3 months and 26 days

2.5 m²

overcrowding, poor quality of food, lack or inadequate furniture, lack of or insufficient natural light, lack of or insufficient electric light, mouldy or dirty cell, inadequate temperature, lack of fresh air, lack of or insufficient physical exercise in fresh air

Art. 5 (1) - unlawful detention - delay in drawing up of an arrest report (from 29/08/2017 to 30/08/2017) and absence of a legal basis for arrest without prior court decision (from 29/08/2017 to 31/08/2017) ( Strogan v. Ukraine , no. 30198/11, §§ 88 ‑ 89, 6 October 2016, and Grubnyk v. Ukraine , no. 58444/15, §§ 83-85, 17 September 2020),

Art. 5 (3) - excessive length of pre-trial detention - from 31/08/2017 till 02/12/2021, no assessment of the changing situation and the reasons for extended detention by the applicant as the case progressed; no assessment of alternative measures to detention; delays in dealing with the applicant’s case affecting the length of his detention;

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 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),

9,500

250

41014/21

06/08/2021

Vitaliy Vyacheslavovych VARAVA

1985Kulbach Sergiy Oleksandrovych

Limoges

Dnipro Detention Facility no. 4

01/12/2017

to

03/09/2021

3 years and 9 months and 3 days

3.6 m²

lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, 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, overcrowding, passive smoking, poor quality of potable water

Art. 5 (3) - excessive length of pre-trial detention - from 29/11/2017 to 04/06/2021, poor reasoning of the detention orders; lack of diligence on the part of the authorities to expedite the proceedings; standard reasons cited without no alternative measures to detention assessed;

Art. 6 (1) - excessive length of criminal proceedings - from 28/11/2017 to 04/06/2021 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.