FIFTH SECTION  CASE OF RASPRYAKHIN v. UKRAINE(Application no. 70878/12)    JUDGMENT      STRASBOURG 28 May 2020 This judgment is final but it may be subject to editorial revision.In the case of Raspryakhin v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Mārtiņš Mits, Anja Seibert-Fohr, judges,and Victor Soloveytchik, Deputy Section Registrar,Having regard to:the application 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 Igor Oleksiyovych Raspryakhin (“the applicant”), on 24 October 2012;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the conditions, the lawfulness and the length of the applicant’s pre-trial detention and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 28 April 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTIONThe case concerns the alleged inadequacy of the conditions of the applicant’s pre-trial detention in breach of Article 3 and the alleged unlawfulness and allegedly unreasonable duration of his detention on remand in breach of Article 5 §§ 1 and 3 of the Convention.THE FACTS1. The applicant was born in 1967 and lives in Kropyvnytskyi (Kirovograd at the material time). The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv.2. The Government were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.3. The facts of the case, as submitted by the parties, may be summarised as follows.Criminal proceedings against the applicant and his detention4. On 4 July 2009 the Kirovograd Regional Police Department opened a criminal case against the applicant and another person on suspicion of fraud involving particularly large sums of money. On the same day the applicant was arrested.5. On 7 July 2009 the Leninskyy District Court of Kirovograd (“the Leninskyy Court”) extended the applicant’s detention in police custody to ten days with a view to forming an assessment of his personality. The court noted that the applicant had fully admitted his own guilt.6. Subsequently, the applicant was charged with fraud involving particularly large sums of money, pretending to engage in business activities, founding a criminal organisation, money laundering, bribery and forging documents. The number of persons accused during the criminal investigation in question grew to twenty-two.7. On 14 July 2009 the Leninskyy Court remanded the applicant in pre‑trial detention as a preventive measure (for two months, until 4 September 2009). It noted that he had continued to assert his own guilt at the hearing on that occasion. The judge stated that the seriousness of the charges against the applicant outweighed the fact that he had no criminal record, enjoyed positive character references and was married. The court stated in its ruling, without providing any further details, that the applicant might try to abscond or hinder the investigation if allowed to remain at liberty.8. In the course of the investigation, the domestic courts extended the applicant’s pre-trial detention a number of times (until 4 November 2011). The grounds for those extensions were, in addition to those mentioned in the court’s initial detention order (see paragraph 7 above), the seriousness of the charges, the fact that the investigators still had a lot of work ahead of them and the absence of any reasons for the applicant to be released, since either no new circumstances warranting release had been identified or the circumstances that had led to the decision to place the applicant in pre-trial detention persisted.9. On 28 October 2011 the pre-trial investigation was completed and the case, together with the relevant bill of indictment, was sent to the Kirovskyy District Court of Kirovograd (“the Kirovskyy Court”) for trial.10. On 13 December 2011 that court remitted the case for additional pre-trial investigation on the ground that the right of the applicant (and some of the other accused) to a defence had not been respected, since they had not been able to study the case file in the presence of their lawyers. The court decided to maintain their detention as a preventive measure. On 22 March 2012 that decision was upheld on appeal.11. In the course of the pre-trial investigation, on 1 June 2012 the Kirovograd Regional Court extended the applicant’s pre-trial detention until 5 August 2012.12. On 3 August 2012 the investigation was completed and the case, together with the relevant bill of indictment, was sent for trial to the Kirovskyy Court, which held a preliminary hearing on 3 September 2012. It decided to transfer the case to the Leninskyy Court. By the same ruling, it maintained the preventive measure in respect of the applicant. In the meantime the criminal case was transferred to another court for trial, namely the Kirovograd District Court of Kirovograd (“the Kirovograd Court”).13. On 10 October 2014 the Kirovograd Court granted a request for release by the applicant, citing the length of his pre-trial detention (over five years), his disability, the absence of any criminal record and the fact that he had a minor child and elderly parents to care for. On the same day the applicant was released.Conditions of the applicant’s detention in the Kirovograd SIZO14. During the entire period of his detention from 15 July 2009 to 10 October 2014, the applicant was held in the Kirovograd pre-trial detention centre (“the SIZO”). He described the conditions of his detention as follows.15. The applicant was detained in four different cells – each measuring about 8 sq. m and shared by between four and six people. On two occasions, in May 2012 and October 2014 – each time for about two weeks – he was held in a cell measuring about 20 sq. m and shared by between ten and twelve inmates.16. There was no hot water supply in the SIZO, and cold water was supplied only for short periods. The cell lacked any natural lighting, as its only window was covered by three rows of metal bars.17. The applicant had a daily outdoor walk for thirty minutes. He had access to a shower once a week.RELEVANT international material18. The Report to the Ukrainian Government on the visit to Ukraine carried out by the Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment (CPT) from 9 to 21 September 2009 (CPT/Inf (2011) 29) reads as follows:“74.At the time of the 2009 visit, the total number of prisoners in Ukraine stood at 145,000 (including 36,000 on remand), compared to some 178,000 at the time of the 2005 visit. Thus, the positive trend towards a reduction of the prison population already noted in the report on the 2005 visit continues. That said, overcrowding persists in remand establishments, the ones in Kyiv, Kherson, Crimea, Odessa and Kirovograd being cited as the most problematic. ...”THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION19. The applicant complained that the material conditions of his detention in the Kirovograd SIZO had been poor. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility20. The Government submitted that the applicant had failed to exhaust domestic remedies as he should have lodged his complaints concerning his conditions of detention with the prosecutor’s office and the domestic courts.21. The applicant submitted that the remedy referred to by the Government had already been examined by the Court in other cases against Ukraine and found to be ineffective.22. The Court notes that it has already examined and dismissed similar objections, finding the remedy referred to by the Government ineffective (see, for instance, Buglov v. Ukraine, no. 28825/02, § 74, 10 July 2014). With reference to the above-mentioned case-law and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had an opportunity in practice to obtain an effective remedy for his complaint  that is, a remedy which could have prevented the violations from occurring or continuing, or which could have afforded him appropriate redress. The Court therefore considers that the applicant’s complaint about the conditions of his detention cannot be rejected for failure to exhaust domestic remedies.23. The Court notes that the above complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits24. The applicant reiterated the complaints that he had outlined in his application form, namely as regards the overcrowding in the cells, the lack of water supply, and the lack of access to hygiene facilities, natural light, ventilation and daily walks. He also submitted copies of written statements given by his cellmates confirming the applicant’s description of the conditions of his detention, and photographs of the cell in which he had been detained. The photographs show a toilet facility with no door, a washstand, beds (from four to eight depending on the cell), and laundry hanging on ropes.25. The Government submitted that the conditions of the applicant’s detention in the SIZO had been in compliance with domestic prison rules. During his detention in the SIZO, the applicant had been held in cells of varying sizes (from 7.53 sq. m to 58.1 sq. m) containing varying numbers (from three to twenty) of inmates. They did not comment on the written statements given by the applicant’s cellmates and on the photographs he had submitted.26. The applicable general principles in respect of conditions of detention have been summarised in Muršić v. Croatia ([GC], no. 7334/13, §§ 96‑141, 20 October 2016).27. The Court notes that, in the present case, the applicant provided a detailed description of the conditions in the Kirovograd SIZO during his detention, and provided relevant documentary evidence in support (see paragraphs 15-17 and 24 above).28. The Court notes that, in the present case, the Government acknowledged that during his stay in the Kirovograd SIZO the applicant had had at his disposal less than 3 sq. m of personal space. In particular, as reported by the Government (see paragraph 25 above), the cells in which the applicant had been detained had allowed between approximately 2.5 sq. m and 2.9 sq. m of floor space per inmate, with the average number of inmates per cell varying from three to twenty persons.29. The Court also notes the applicant’s allegations that there were problems with lighting, ventilation, and hygiene conditions (see paragraph 16 above).30. Next, the Court refers to the witnesses’ written statements concerning the conditions of the applicant’s detention, the photographs and the findings of the CPT, which visited the Kirovograd SIZO in September 2009, at the time when the applicant was being held in that facility (see paragraph 18 above).31. The combination of the above-mentioned factors is sufficient to enable the Court to conclude that the conditions of the applicant’s detention in the Kirovograd SIZO amounted to inhuman and degrading treatment contrary to the requirements of Article 3 of the Convention. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention on remand had been unlawful and unjustified.The relevant provisions of Article 5 of the Convention read 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;...3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power, and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ...”Admissibility33. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.MeritsArticle 5 § 1 of the Convention34. The applicant submitted that his detention from 4 November to 13 December 2011 and from 5 August to 3 September 2012 (see paragraphs 8 and 10-12 above) had been arbitrary, as it had not been covered by a court order.35. The Government disagreed and submitted that there had been no breach of the applicant’s Convention rights.36. The Court observes that the basis for the applicant’s detention for the periods of time indicated in paragraph 34 above was that a bill of indictment had been submitted to the relevant trial court. It furthermore observes that the domestic courts did not return to the issue of the applicant’s detention until 13 December 2011 and 3 September 2012 respectively, when the trial court held preliminary hearings in the applicant’s criminal case. In that connection, the Court notes that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the principles of legal certainty and protection from arbitrariness under Article 5 § 1 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 71, 10 February 2011).37. The Court does not see any reason to depart from its findings in the present case.

Outcome for Article 3: violation