FIFTH SECTION       CASE OF SOSNOVSKIY v. UKRAINE (Application no. 9450/06)       JUDGMENT This version was rectified on 25 April 2017under Rule 81 of the Rules of Court. STRASBOURG 8 December 2016    This judgment is final but it may be subject to editorial revision. In the case of Sosnovskiy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President, Ganna Yudkivska, Síofra O’Leary, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having deliberated in private on 15 November 2016,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 9450/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladislav Osipovich Sosnovskiy (“the applicant”), on 24 February 2006.2. The applicant, who had been granted legal aid, was represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.3. The applicant alleged that the conditions of his detention had been poor, that he had had no effective remedies in this respect, that his pre-trial detention had been unlawful, and that his right of access to a court had been violated.4. On 19 February 2013 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1972 and lives in Kerch.A. Criminal proceedings against the applicant6. At the material time the applicant worked as an investigation officer in the environmental protection prosecutor’s office (природоохоронна прокуратура).7. On 4 October 2005 S. complained to the Prosecutor’s Office of the Autonomous Republic of Crimea (“the ARC”) (прокуратура Автономної республіки Крим) that the applicant and U., a prosecutor’s assistant, had extorted 5,000 United States dollars (USD) from him for the purpose of carrying on a fishing business. Later K. and R. lodged similar complaints.8. On 7 October 2005 at around 3 p.m. the applicant was arrested at his workplace after receiving 2,000 USD from S., and 200 USD and 500 Ukrainian hryvnias (UAH) from R. The applicant’s office was searched and 2,000 USD were found in one of the books on his table. The applicant’s meetings with R. and S. had been taped. On the same day criminal proceedings were instituted against the applicant and U. for bribe-taking.9. On 10 October 2005 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) authorised the applicant’s pre-trial detention. The court held that the applicant was accused of committing a serious crime and might escape, or hinder the investigation, or continue his criminal activity. The applicant appealed.10. On 18 October 2005 the applicant complained to the Kerch Local Court that his arrest on 7 October 2005 had been unlawful since there had been no grounds to arrest him. The court forwarded this complaint to the Kerch Prosecutor’s Office, noting that the court was not competent to consider such complaints while the case was under investigation. The Kerch Prosecutor’s Office transferred the applicant’s complaint to the Prosecutor’s Office of the ARC.11. On 1 December 2005 the Prosecutor’s Office of the ARC informed the applicant that his arrest was justified and lawful.12. On the same day the Court of Appeal of the ARC upheld the decision of 10 October 2005.13. On 5 December 2005 the Tsentralnyy Court extended the applicant’s detention until 7 February 2006 on the same grounds as before. The applicant appealed.14. On 20 December 2005 the Court of Appeal of the ARC upheld the decision of 5 December 2005. It held that there was sufficient evidence that the applicant had committed a serious crime. If at large, the applicant might continue his criminal activity, or hinder the investigation, or abscond.15. On 18 January 2006 the Feodosiya Town Court (“the Feodosiya Court”) accepted the applicant’s case for trial.16. On 6 February 2006, in the committal hearings, the Feodosiya Court maintained the applicant’s detention without giving any reason or setting any time-limit.17. On 21 February 2006 the Feodosiya Court rejected the applicant’s request to change the preventive measure to an undertaking not to abscond, noting that the applicant was accused of having committed a serious crime, and might abscond or hinder the investigation. The applicant appealed.18. On 23 May 2006 the Feodosiya Court found the applicant and U. guilty of several counts of bribe-taking and sentenced them to six and five years’ imprisonment, respectively, with confiscation of half of their property.19. On 14 September 2006 the Court of Appeal of the ARC terminated proceedings in respect of one count of bribery concerning the applicant and upheld the remainder of the judgment.20. On 24 July 2007 the Supreme Court of Ukraine rejected the applicant’s appeal on points of law.B. Conditions of detention21. From 10 October 2005 to 4 February 2006 and from 5 February to 5 September 2006 the applicant was detained in Simferopol Pre-Trial Detention Centre no. 15 (Ізолятор тимчасового тримання № 15 м. Сімферополя) (“the Simferopol SIZO”) and in the Feodosiya Temporary Detention Centre (ізолятор тимчасового тримання м. Феодосія) (“the Feodosiya ITT”) respectively.1. The applicant’s account22. In the Simferopol SIZO the applicant shared cell no. 29, which measured 10 square metres, with four other detainees. There were no chairs in the cell and it was in a poor state of repair. There were cockroaches and other insects. The toilet space was very narrow – around 45-50 centimetres in width – which caused the applicant, who is 1.94 metres tall and weighs 160 kilograms, considerable difficulties. The detainees were able to take a shower only once every seven to ten days.23. In the Feodosiya ITT the applicant was detained in cell no. 27, which measured 4.7 square metres, together with four or more detainees. The cell had no windows and no furniture. The toilet space was very narrow – around 30 centimetres in width. The applicant had not been able to take a shower, and detainees had had to sleep in turns. 30 minutes’ outside exercise was possible once every ten to fifteen days in a small yard which measured 4.5 square metres. The applicant submitted undated photos of a cell, in which it is apparent that the toilet (a hole in the floor plugged by a plastic bottle) is separated from the living space by a wall approximately one metre high. Beside the toilet there is a sleeping place (allegedly a mattress on a wooden bench or on the floor).2. The Government’s account24. According to the Government, cell no. 29 in the Simferopol SIZO had been designed for occupancy by three inmates and had had 9.3 square metres of living space, thus allowing some 3.1 square metres per inmate, which had been in compliance with the domestic standards. In accordance with the relevant regulations, the cell had been disinfected on a daily basis and the detainees had had weekly access to bathing facilities. The statutory regulations did not include chair provision for this cell.25. As regards the Feodosiya ITT, the applicant’s cell had 5.7 square metres of living space and had been designed to accommodate two inmates. The cell had been lit by electric light, equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platform, separated toilet and wash-stand. The detainees had been provided with pillows and mattresses. The detention facility had had a shower room with hot and cold water and a small backyard for daily walks.C. Complaints about conditions of detention1. First set of proceedings26. On 6 March 2006 the applicant lodged a complaint with the Feodosiya Court about the conditions of his detention in the ITT (overcrowding, no windows in the cell, no possibility of taking a shower, lack of out-of-cell activities). He requested that the court find the inaction of the Feodosiya ITT authorities in this respect unlawful and to oblige it to remedy the situation.27. On 14 March 2006 the court forwarded the complaint to the Feodosiya Prosecutor’s Office as the appropriate decision-making body.28. On 20 March 2006 the Feodosiya Prosecutor’s Office informed the applicant that some violations of the law by the Feodosiya ITT authorities had been established and that the relevant instructions had been given to remedy the situation, with no further details provided.29. On 23 June 2006 the applicant again lodged his complaint with the Feodosiyskyy Court, having stated that neither his complaint to the Feodosiya ITT authorities nor to the prosecutor’s office had remedied his situation. He requested that the inaction of the Feodosiya ITT authorities be declared unlawful. This complaint was again forwarded by the court to the Feodosiya Prosecutor’s Office.30. On 23 and 28 July 2006 the Feodosiya Prosecutor’s Office sent the applicant a reply similar to that in the letter of 20 March 2006. According to the applicant, he did not receive these letters.31. On 1 July 2006 the applicant complained to the Court of Appeal of the ARC (“Court of Appeal”) about the failure of the Feodosiya Court to consider his complaint on the merits. He requested that the Court of Appeal oblige the latter to consider his complaint against the Feodosiya ITT on the merits and to bring disciplinary measure to bear on the respective judge of the Feodosiya Court.32. On 1 August 2006 the Court of Appeal assigned the applicant’s complaint to the Leninskiy District Court of the ARC (“the Leninskiy District Court”).33. On 2 August 2006 the applicant complained to the Prosecutor’s Office of the ARC about the alleged failure of the Feodosiya Prosecutor’s Office to consider his complaints about conditions of detention.34. On 31 August 2006 the Leninskiy District Court refused to open administrative proceedings concerning the applicant’s complaint as the procedural decisions of a judge in such a case were not subject to appeal under the rules of administrative procedure. Any decision to the contrary would, in the court’s opinion, constitute an unlawful interference with the administration of justice. The court dismissed as unsubstantiated the applicant’s allegations that the failure of the Feodosiya Court to entertain his complaint amounted to a denial of access to a court. It noted in this respect ‒ in accordance with the Criminal Procedure Code and the Prosecutor’s Act (Закон України «Про прокуратуру») ‒ that it was for the prosecutor’s offices to supervise observance of the law in detention centres. The applicant was free to complain to the court about the prosecutor’s inaction, if appropriate, but he had failed to do so.35. The applicant appealed.36. On 12 October 2006 the applicant received a letter from the Prosecutor’s Office of the ARC in which it referred to the responses given earlier to the applicant by the Feodosiya Prosecutor’s Office.37. On 12 December 2006 the Court of Appeal of the ARC upheld the decision of 31 August 2006. It noted in particular that the applicant had submitted to the Feodosiya Court a complaint regarding the poor conditions of detention but not an administrative claim against the Feodosiya ITT for the protection of his rights, as was required by the Code of Administrative Justice. This being so, his complaint had been forwarded to the competent authorities as required by the relevant domestic legislation.38. On 21 April 2009 the Higher Administrative Court of Ukraine rejected the applicant’s appeal on the points of law.2. Second set of proceedings39. On 17 September 2007 the applicant lodged an administrative claim with the Menskiy District Court of the Chernigiv Region (“the Mesnkiy District Court”) against the Feodosiya ITT authorities claiming, inter alia, damages for the harm inflicted by the inhuman and degrading conditions of his detention.40. On 15 October 2007 the Menskiy District Court admitted the applicant’s claim for consideration.41. On 23 November 2007 the Menskiy District Court rejected the claim as having been lodged outside the one-year time-limit set by the law, since the applicant had been transferred from the Feodosiya ITT on 5 September 2006.42. The Court of Appeal and the Higher Administrative Court upheld the above decisions on 1 April 2008 and 21 December 2010 respectively.II. RELEVANT DOMESTIC LAW43. The provisions concerning the application of preventive measures and the types thereof, the time-limits for pre-trial detention, and the grounds and procedure for the imposition of detention by an enquiry body, can be found in the Molodorych v. Ukraine judgment, no. 2161/02, §§ 56-58, 28 October 2010.THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION44. The applicant complained that the conditions of his detention in the Simferopol SIZO and the Feodosiya ITT had been degrading. He referred to Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility45. The Government offered no comments on the admissibility of this complaint.46. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits47. The applicant, referring to his account of the facts, insisted that the physical conditions of his detention in the Simferopol SIZO and the Feodosiya ITT had been unsatisfactory.48. The Government maintained that the physical conditions of the applicant’s detention in those facilities had been adequate. They relied on their account of the facts (see paragraphs 24-25 above).49. Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).50. The Court reiterates 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” within the meaning of Article 3 of the Convention and may disclose a violation, both alone or taken together with other shortcomings. When the personal space available to a detainee falls below 3 square metres of floor space in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39‑40, 7 April 2005, Ananyev and others v. Russia, nos. 42525/07 and 60800/08, §§ 145-147 and 149, 10 January 2012, and Muršić v. Croatia [GC], no. 7334/13, §§ 136-139, 20 October 2016).51. Of the other elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners could take it. The Court has found a violation of Article 3 because the lack or short duration of outdoor exercise was a factor that further exacerbated the situation of the applicant, who was confined to his cell for all or the rest of the time (see Ananyev and others, cited above, §§ 149-151 and the case-law cited therein).52. The Court notes that in the present case the applicant has provided details concerning the size of the particular cells in which he stayed in the detention facilities, the number of inmates accommodated therein or other arrangements in the cell. The Government alleged that the applicant’s suffering had not attained the minimum level of severity. They provided a description of the conditions in which the applicant had been detained, including the size of the cells, without however stating how many inmates occupied these cells.53. On the basis of the available evidence and given the fact that the Government did not contest the applicant’s statements concerning the number of inmates with whom he had shared his cells, the Court concludes that during his stay in the Feodosiya ITT and the Simferopol SIZO the applicant lacked personal space.54. The Court further observes from the material in the case file that in both facilities the applicant had no freedom of movement and was confined to his cell for most of the day. It further notes that the issues concerning lack of access to daylight and fresh air with respect to the Feodosiya ITT are even more aggravated by the fact that the cell in that facility had no windows, as admitted by the Government.55. Finally, the Court notes that in a number of cases against Ukraine it has already found the conditions of detention in the Feodosiya ITT and the Simferopol SIZO ‒ for various periods of time between 1999 and 2006 ‒ degrading (see Dvoynykh v. Ukraine, no. 72277/01, 12 October 2006; Visloguzov v. Ukraine, no. 32362/02, 20 May 2010; Znaykin v. Ukraine, no. 37538/05, 7 October 2010; Izzetov v. Ukraine, no. 23136/04, 15 September 2011; Mustafayev v. Ukraine, no. 36433/05, 13 October 2011; and Veniosov v. Ukraine, no. 30634/05, 15 December 2011).56. In view of the factors mentioned above and in the light of its case‑law, the Court finds that the conditions of the applicant’s detention in the Simferopol SIZO, which lasted for some four months, and in the Feodosiya ITT for seven months, amounted to degrading treatment. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION57. The applicant further complained under Article 13 of the Convention that there had been no effective domestic remedies for his complaints under Article 3 of the Convention. The relevant provision reads as follows:“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”A. Admissibility58. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. This complaint must therefore be declared admissible.B. Merits1. The parties’ submissions59. The applicant stated that he had lodged a number of complaints with different state authorities requesting provision of proper conditions of detention in the Feodosiya ITT, but to no avail. He also referred to the structural nature of the problems at hand.60. The Government submitted that the applicant had had at his disposal two effective domestic remedies in respect of his complaints concerning the conditions of detention – application to the prosecutor’s office or to the court – and he had used both of them.61. As regards the applicant’s complaints to the prosecutor’s office, the Government noted that Feodosiya Prosecutor’s Office had conducted the relevant investigation and had instructed the Feodosiya ITT authorities to remedy the situation. They could not, however, provide any detailed information in this respect because the time-limit for keeping the relevant documents had expired and they had been destroyed.62. As to the applicant’s complaints before the domestic court, the Government submitted that it had been the applicant’s own fault that his complaint had eventually been rejected by the administrative court. They noted in this respect that if the applicant had not missed the deadline for lodging his claim, hearings on the merits would have taken place within which the administrative court would have had all the necessary powers to remedy the applicant’s situation, either by ordering particular measures to be taken or by awarding the relevant compensation.2. The Court’s assessment63. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła, cited above, § 157). The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law.64. Turning to the facts of the present case, the Court notes the Government have not proved that the applicant had an opportunity in practice to secure effective remedies for his complaints in respect of the conditions of his detention in the Feodosiya ITT – that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.65. The Court further notes that it has already found a violation of Article 13 in a number of cases against Ukraine on account of the ineffectiveness of the remedies suggested by the Government, having also noted the structural nature of such problems in the domestic penal system (see, for example, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Yakovenko v. Ukraine, no. 15825/06, §§ 75-76, 25 October 2007; Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009; and Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010). Having regard to the circumstances of the present case, the Court does not see any reason to depart from its previous approach in the present case. The Government failed to submit examples of domestic judicial practice whereby applicants, in similar situations, had successfully challenged their conditions of detention before administrative courts and received appropriate redress.66. There has been, accordingly, a violation of Article 13 of the Convention on account of the absence of effective domestic remedies for the applicant’s complaints concerning poor conditions of his detention in the Feodosiya ITT and the Simferopol SIZO.III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION67. The applicant complained that his detention from 7 February 2006 to the date of his conviction by the first-instance court had been unlawful. He relied on Article 5 § 1 of the Convention, which reads in its relevant part as follows:“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”A. Admissibility68. The Government provided no comments on the admissibility of this complaint.69. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits70. The applicant contended that his detention in the period at issue had been unlawful.71. The Government maintained that the applicant’s detention had been in compliance with applicable domestic law. They noted in this respect that the applicant’s detention within the referred period was based on valid court decisions.72. The Court observes that by virtue of the decision of the Tsentralnyy Court of 5 December 2005 the applicant’s detention had been authorised until 7 February 2006.73. On 6 February 2006 the Feodosiya Court, when committing the applicant for trial, upheld the preventive measure with respect to the applicant. In so doing, it did not set a time-limit for his continued detention and did not give any reasons for its decision, thus leaving the applicant in a state of uncertainty as to the grounds for his detention. The applicant had been detained under this ruling until 21 February 2006 when the Feodosiya Court dismissed his request to replace the detention by an undertaking not to abscond. In doing so, the court again set no time-limit for the applicant’s continued detention. Until the conviction on 23 May 2006 the applicant’s detention had been covered by the mentioned ruling.74. The Court has previously examined similar situations in a number of other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention, having taken into account the fact that Ukrainian legislation at the material time did not contain any requirement for a domestic court ‒ even when committing a person for trial ‒ to give reasons for changing the preventive measure or for continuing the detention of an accused, or to set any time-limit when maintaining the detention (see, among others, Solovey and Zozulya, nos. 40774/02 and 4048/03 cited above, §§ 74-76, and Kharchenko v. Ukraine, no. 40107/02, § 74, 10 February 2011). There are no arguments in this case capable of persuading the Court to reach a different conclusion. It therefore considers that the decisions of the Feodosiya Court of 6 and 21 February 2006 did not afford the applicant adequate protection from arbitrariness, which is an essential element of the “lawfulness” of detention within the meaning of Article 5 § 1 of the Convention.75. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION76. The applicant further complained about the lack of access to a court in the proceedings against the Feodosiya ITT (first set of proceedings).77. Even assuming that this complaint is admissible, the Court considers, having regard to the finding relating to Article 13 of the Convention above, that it is not necessary to examine whether, in the applicant’s case, there was a violation of Article 6 of the Convention, given that the essence of his complaint under this head was his inability to remedy, through the court, the situation concerning poor conditions of his detention.V. APPLICATION OF ARTICLE 41 OF THE CONVENTION78.

Article of the Convention at issue: Article 5
Outcome: violation