FIFTH SECTION

CASE OF KUCHER AND OTHERS v. UKRAINE

(Applications nos. 27486/21 and 3 others – see appended list)

JUDGMENT

STRASBOURG

5 October 2023

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

In the case of Kucher 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 14 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. In application no. 2804/22, the applicant 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 lack 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 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 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. In application no. 2804/22, the applicant also raised other complaints under various Articles of the Convention.

13. The Court has examined those 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.

14. 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.”

15. 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 5 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

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros) [1]

27486/21

21/05/2021

Sergiy Mykhaylovych KUCHER

1963Pustyntsev Andriy Vitaliyovych

Dnipro

Zhytomyr Detention Facility no.8

18/07/2012

pending

More than 10 years and 11 months and

24 days

3.5 m²

overcrowding, lack of fresh air, mouldy or dirty cell, infestation of cell with insects/rodents, lack of privacy for toilet, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower

7,500

56559/21

08/11/2021

Leonid Pylypovych ALEKSYEYEVETS

1971Rybiy Sergiy Mykolayovych

Dnipro

Kryvyy Rig Detention Facility no. 3

05/12/2014

pending

More than 8 years and 7 months and 7 days

4 m²

lack of fresh air, lack or inadequate furniture, lack of privacy for toilet, lack of or inadequate hygienic facilities, no or restricted access to shower, no or restricted access to potable water

7,500

57342/21

09/11/2021

Oleksandr Sergiyovych SKLYAROV

1983Rybiy Sergiy Mykolayovych

Dnipro

Kryvyy Rig Detention Facility no. 3

29/01/2013

pending

More than 10 years and 5 months and 13 days

4 m²

lack of fresh air, passive smoking, lack or inadequate furniture, lack of privacy for toilet, lack of or inadequate hygienic facilities, no or restricted access to shower, no or restricted access to potable water

7,500

2804/22

21/12/2021

Ivan Igorovych ZAVGORODNIY

1984Grytsay Valeriy Oleksandrovych

Dnipro

Dnipro Detention Facility no. 4

07/12/2018 to

03/11/2021

2 years and 10 months and 28 days

2.5 m²

overcrowding, no or restricted access to shower, 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, passive smoking, lack of privacy for toilet, poor quality of food

6,500

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