OMELCHENKO AND OTHERS v. UKRAINE - 43764/19 (Judgment : Prohibition of torture : Fifth Section Committee) [2021] ECHR 319 (15 April 2021)

JUDGMENT STRASBOURG 15 April 2021 This judgment is final but it may be subject to editorial revision. In the case of Omelchenko and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Ivana Jelić, President, Ganna Yudkivska, Arnfinn Bårdsen, judges, and Liv Tigerstedt, Deputy Section Registrar, Having deliberated in private on 25 March 2021, 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 applicant s complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law . In application no. 43764/19 , the applicant also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 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, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...” 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. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. In application no. 43764/19 , the applicant also submitted a complaint which raised issues under Article 5 § 4 the Convention, given the relevant well-established case-law of the Court (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Kharchenko v. Ukraine (no. 40107/02 , §§ 84‑87, 10 February 2011). IV. REMAINING COMPLAINTS 13. In application no. 43764/19 , the applicant raised further complaints under Article 3 of the Convention. 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. 43764/19 must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 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, Melnik, cited above), the Court considers it reasonable to award the sums indicated in the appended table. 17. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT , UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the inadequate conditions of detention, the lack of any effective remedy in domestic law and the other complaint under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 43764/19 inadmissible; 3. Holds that these complaints disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention ; 4. Holds that there has been a violation of the Convention as regards the other complaint raised under well-established case-law of the Court (see appended table); 5. Holds (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 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Ivana Jelić 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 and costs and expenses per applicant (in euros) [1] 43764/19 07/07/2019 Oleksandr Sergiyovych OMELCHENKO Zakharova Maryna Volodymyrivna Kryvyy Rig Kryvyy Rig Pre‑Trial Detention Facility no. 2 06/03/2019 to 07/03/2019 2 days Kryvyy Rig Detention Facility no. 3 07/03/2019 to 04/06/2019 2 months and 29 days 1 inmate 12 m² 2,2-2,9 m² constant electric light, lack of fresh air, no or restricted access to potable water, no or restricted access to toilet, no or restricted access to shower, lack or insufficient quantity of food, inadequate temperature lack of fresh air, lack of or insufficient natural light, insufficient number of sleeping places, constant electric light, lack of or inadequate hygienic facilities, lack of privacy for toilet, lack of toiletries, no or restricted access to running water, poor quality of food, overcrowding, no or restricted access to shower, lack or insufficient quantity of food, no or restricted access to warm water, no or restricted access to potable water Art. 5 (4) 1,400 64173/19 29/11/2019 Oleksandr Volodymyrovych BASAN Pustyntsev Andriy Vitaliyovych Dnipro Dnipro Detention Facility no. 4 16/01/2016 pending More than 5 years and 1 month and 15 days 2 inmates 3,7 m² infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack of toiletries, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack or insufficient quantity of food, mouldy or dirty cell, no or restricted access to shower, passive smoking, poor quality of food, no or restricted access to warm water 7,500 25013/20 26/05/2020 Maksym Grygorovych DONETS Pustyntsev Andriy Vitaliyovych Dnipro Cherkasy Pre‑Trial Detention Facility 02/04/2018 pending More than 2 years and 10 months and 24 days 12 inmates 2 m² overcrowding, lack of fresh air, passive smoking, mouldy or dirty cell, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, lack of privacy for toilet, no or restricted access to warm water, lack of toiletries, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower 6,500 [1] Plus any tax that may be chargeable to the applicants. 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