BILOZOR AND OTHERS v. UKRAINE - 9207/09 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) Violation of Article 1...) [2017] ECHR 693 (20 July 2017)

FIFTH SECTION

CASE OF BILOZOR AND OTHERS v. UKRAINE

(Application no. 9207/09 and 5 others -

see appended list)

JUDGMENT

STRASBOURG

20 July 2017

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

In the case of Bilozor and Others v. Ukraine,

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

          Nona Tsotsoria, President,
          Gabriele Kucsko-Stadlmayer,
          Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 29 June 2017,

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 applications were communicated to the Ukrainian Government (“the Government”).

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 applications nos. 65001/09, 29199/13 and 40579/15 the applicants 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 ...”

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 -141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149-159, 10 January 2012).

8. In the leading case of Melnik v. Ukraine, (no. 72286/01, 28 March 2006), 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. 65001/09, the applicant submitted a complaint under Article 5 § 3 of the Convention which also raised issues under the Convention, in accordance with 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, 10 February 2011).

IV. REMAINING COMPLAINTS

13. In applications nos. 65001/09, 29199/13 and 40579/15 the applicants also raised other complaints under various Articles of the Convention.

14. The Court has examined the applications listed in the appended table 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, 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 the applications 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, 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 complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the applications nos. 65001/09, 29199/13 and 40579/15 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 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. The amounts are to be converted into the currency of the respondent State, except for application no. 44670/11, 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 20 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Nona Tsotsoria
Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 and Article 13 of the Convention

(inadequate conditions of detention and lack of any effective remedy in domestic law)

No.	Application no. Date of introduction	Applicant name Date of birth	Representative 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]
1.	9207/09 21/01/2009	Volodymyr Volodymyrovych Bilozor 18/02/1968	Valeriy Grygorovych Belik Mykolayiv	Mykolaiv SIZO 24/07/2007 to 23/12/2010 3 years and 5 months	2.5 m²	lack of personal space aggravated by other factors: restricted access to shower; lack of privacy when using the toilet		7,400
2.	65001/09 02/12/2009	Ilya Panteleyevich Khachik 15/04/1933		Kyiv SIZO no. 13 31/08/2007 to 24/02/2011 3 years, 5 months and 25 days		lack of personal space aggravated by other factors: not enough beds for all the inmates in the cell; lack of privacy when using the toilet; lack of fresh air and ventilation	Art. 5 (3) - excessive length of pre-trial detention	9,800
3.	44670/11 07/06/2011	Aleksandr Vladimirovich Smirnov 07/12/1981	Roman Vladimirovich Saloutin Voronezh	Kharkiv SIZO 02/12/2010 to 18/04/2012 1 year, 4 months and 17 days		lack of personal space aggravated by other factors: not enough beds for all the inmates in the cell; constant cigarette smoke (the applicant is a non-smoker)		3,800
4.	29199/13 22/04/2013	Sergiy Dmytrovych Pavlichenko 07/10/1992	Vasyl Igorovych Bugaychuk Kyiv	Kyiv SIZO no. 13 18/04/2011 to 27/09/2013 2 years, 5 months and 10 days Kyiv SIZO no.13 18/11/2013 to 27/01/2014 2 months and 10 days	2.5 m² 2.5 m²	lack of personal space aggravated by other factors: not enough beds for all the inmates in the cell; constant cigarette smoke (the applicant is a non-smoker); daily walk for merely an hour		6,000
5.	29204/13 22/04/2013	Dmytro Oleksandrovych Pavlichenko 17/12/1963	Vasyl Igorovych Bugaychuk Kyiv	Kyiv SIZO no. 13 18/04/2011 to 27/09/2013 2 years, 5 months and 10 days Kyiv SIZO no.13 18/11/2013 to 27/01/2014 2 months and 10 days	2.5 m² 2.5 m²	lack of personal space aggravated by other factors: lack of or inadequate hygienic facilities; lack of or poor quality of bedding and bed linen; no hot water		6,000
6.	40579/15 25/07/2015	Oleksandr Anatoliyovych Ignatov 29/04/1989		Dnipropetrovsk SIZO no. 3 10/06/2013 to 25/03/2015 1 year, 9 months and 16 days		lack of personal space aggravated by other factors: lack of fresh air, lack of ventilation, smokers in the cell (passive smoking), poor sanitary conditions in the cells (mould on the walls, insects, mice in the cells); broken toilet, toilet not separated from the living area, very close to the table and beds; lack of hot water in the cells, bed linings dirty and were not changed, old matrasses, bad nutrition		4,500

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