SECOND SECTION

DECISION

Application no. 22409/18 Virgo RAUDSEPP against Estonia

The European Court of Human Rights (Second Section), sitting on 9 June 2020 as a Chamber composed of:

Jon Fridrik Kjølbro, President, Marko Bošnjak, Valeriu Griţco, Egidijus Kūris, Ivana Jelić, Arnfinn Bårdsen, Peeter Roosma, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 7 May 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Virgo Raudsepp, is an Estonian national who was born in 1973 and is detained in Viru Prison in Jõhvi. He was represented before the Court by Ms N. Tammemäe, a lawyer practising in Tallinn.

2 . The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3 . On 3 September 2018 notice of the applicant ’ s complaint under Article 3 concerning the consecutive enforcement of disciplinary punishments was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4 . On 12 February 2020 the Government informed the Court that the Supreme Court had refused to examine the applicant ’ s appeal on points of law.

5 . The facts of the case, as submitted by the parties, may be summarised as follows.

6 . The applicant is a prisoner in Viru Prison. By a decision of 2 May 2017 he was assigned to cleaning duties from 3 May 2017 onwards. The medical service had previously considered him fit for work.

7 . On 2, 7 and 20 July 2017 the applicant refused to work, claiming to have back pain and psychological problems. He refused to be examined by a nurse, alleging that the latter was not competent, and insisted on being examined by a doctor. The nurse did not exempt him from work duties.

8 . The prison initiated disciplinary proceedings against the applicant and by three separate decisions ( käskkiri ) imposed on him three disciplinary punishments of thirty days, thirty days and twenty-five days of placement in a punishment cell (eighty-five days altogether). In the proceedings, the applicant argued that, because of his psychological problems, he should not be kept in a punishment cell continuously. The prison verified that by 18 August 2017 he had already received twenty-two disciplinary punishments, twenty of which had been for refusing to work in prison.

9 . The first of the three punishments started on 24 August 2017.

10 . It appears from the documents submitted that the applicant did not serve his punishments in a punishment cell, but was instead subjected to a “punishment cell regime” ( kartserirežiim ) in his own cell in the prison accommodation block. The regime required the applicant to stay in his cell twenty-three hours per day. He was allowed to spend one hour per day outside.

11 . On 30 August 2017 the applicant lodged a challenge ( vaie ) with Viru Prison, seeking annulment of the three decisions, suspension of their enforcement and removal from the punishment cell regime until his mental health problems improved.

12 . On 5 September 2017 the prison dismissed the application for interim relief as regards suspension of the enforcement of the decisions. It noted that the consecutive enforcement of such disciplinary punishments, even if at the time of enforcement the person was already being kept in the punishment cell, was in accordance with the law and the case-law of the Supreme Court. The prison stated that the applicant ’ s punishments had accumulated as a result of his own refusal to work. It added that he had not explained how the punishment cell regime had affected his physical or mental health.

13 . On 2 October 2017 the prison dismissed the applicant ’ s challenge.

14 . On 15 September 2017 the applicant lodged an application for interim relief with the Tartu Administrative Court, requesting suspension of the enforcement of the three decisions. He referred to having been diagnosed with moderate depression in 2016 and with “severe stress reactions” in July 2017. He argued that enforcement of the decisions would cause him irreversible health damage. Referring to his previous disciplinary punishments, he noted that during the year in question, he had already spent 229 days under the punishment cell regime.

15 . On 27 September 2017 the Tartu Administrative Court refused to examine the application regarding the decision which had already been enforced (from 24 August to 23 September 2017) and dismissed the application regarding the two others. The court noted that, on the one hand, once the disciplinary punishment of placement in a punishment cell had been enforced, it could not be reversed. The applicant could be given compensation, but it would not render the time spent in the punishment cell inexistent. On the other hand, there was a public interest in maintaining discipline and security in prison, and therefore the prison had to be able to react to disciplinary violations by imposing adequate punishments which would be immediately enforced. If the disciplinary punishment was not enforced within eight months, it became time-barred. The court furthermore noted that there was settled case-law accepting the consecutive enforcement of disciplinary punishments. Although it was possible to go against precedent, the court considered that it should take place in the main proceedings as opposed to interim relief proceedings. It noted that according to the Supreme Court ’ s case-law, courts should avoid pre-emptively deciding the outcome of the main dispute in interim relief proceedings. The court considered it decisive that the applicant had not shown that his mental health had progressively worsened.

16 . On 28 September 2017 a psychiatrist working at the prison diagnosed the applicant with severe stress reactions and severe depression without psychotic symptoms. She recommended that he should be afforded a break from the punishment cell regime and be placed in the medical unit of the prison until 31 October 2017.

17 . On 11 October 2017 the applicant lodged an appeal concerning the dismissal of his application for interim relief with the Tartu Court of Appeal. Referring to his previous disciplinary punishments, he noted that by 10 October 2017 he had already spent 263 days under the punishment cell regime.

18 . Between 16 and 20 October 2017 the applicant was placed under an ordinary regime in the medical unit of the prison and enforcement of the disciplinary punishment was suspended. On 20 October 2017 he was again placed under the punishment cell regime. According to information in his medical file, he no longer needed to be under intensive supervision in the medical unit.

19 . On 9 November 2017 the Tartu Court of Appeal refused to examine the appeal concerning the second of the three decisions, which by then had already been enforced (between 24 September and 27 October 2017), and terminated the proceedings regarding the remaining decision. As regards the latter, the court reasoned that, taking into account the recommendation of the psychiatrist of 28 September 2017, the application for interim relief had been justified at the time the appeal had been lodged. However, as enforcement of the disciplinary punishment had in the meantime been suspended, and the applicant had been placed in the medical unit, the court decided that the granting of interim relief was no longer necessary. This decision was final and not amenable to appeal.

20 . On 31 October 2017 the applicant lodged an action with the Tartu Administrative Court, asking it to annul the three disciplinary decisions and issue a decision preventing his placement under the punishment cell regime until his mental health problems improved.

21 . The enforcement of the third punishment ended on 21 November 2017.

22 . As by that time the applicant had served the punishments under the three disciplinary decisions, on 9 January 2018 the court invited him to amend his initial requests. On 22 January 2018 he responded, stating that he wished the court to annul the three disciplinary decisions and declare his consecutive placement under the punishment cell regime until 21 November 2017 unlawful ( õigusvastasust tuvastama ) .

23 . On 3 May 2018 the Tartu Administrative Court dismissed the request for annulment, finding that the disciplinary decisions had been lawful and the type and duration of the punishment proportionate. However, the court did allow the request concerning the applicant ’ s consecutive placement under the punishment cell regime, finding that it had been unlawful. The court referred to the case-law of the European Court of Human Rights and noted that the Supreme Court had recently changed its case-law regarding the consecutive enforcement of disciplinary punishments involving placement in a punishment cell (see paragraph 43 below).

24 . Both the applicant and Viru Prison appealed.

25 . On 29 November 2018 the Tartu Court of Appeal dismissed both appeals. The court amended and supplemented the reasoning of the Tartu Administrative Court as follows. The court noted that it could only analyse the lawfulness of the consecutive enforcement of the disciplinary punishments as they had been enforced pursuant to the three decisions challenged by the applicant, leaving out the preceding and following periods. However, it found that the periods of fifty-three days (until 16 October 2017) and thirty-two days (from 21 October to 21 November 2017) under the punishment cell regime had been unlawful. According to the court, the prison had not assessed the impact of the protracted punishment cell regime on the applicant ’ s mental health when enforcing the punishments one after another. The applicant had not been examined by a doctor before the next punishment had been enforced. The court noted that the applicant had already been under the punishment cell regime before the enforcement of the punishments under the three challenged decisions. It further criticised the prison ’ s delay in suspending his placement under the regime in October 2017, even after the psychiatrist had considered it necessary. The court did not consider the short break he had been afforded from 16 to 20 October 2017 – spent in a solitary room in the medical unit – long enough to allow him to recover. Nor did it consider the possibility of having religious or educational reading material and newspapers in the cell or calling and sending letters to family members sufficient to alleviate the severity of the punishment cell regime.

26 . The applicant appealed to the Supreme Court. Viru Prison did not lodge an appeal on points of law.

27 . On 26 June 2019 the Supreme Court refused to examine the applicant ’ s appeal on points of law.

28 . The applicant has not sought compensation from the State for the unlawful enforcement of disciplinary punishments.

(a) Imprisonment Act

29 . Section 63(1)(4) of the Imprisonment Act ( vangistusseadus ) lists possible disciplinary punishments and provides that as one type of punishment, a person may be placed in a punishment cell for up to forty-five twenty-four hour periods.

30 . Section 65(1) of the Imprisonment Act states that, as a rule, disciplinary punishments are to be enforced immediately. Section 65(2) provides that a prison officer may suspend enforcement of a disciplinary punishment or an aspect thereof, on the condition that the prisoner does not commit another disciplinary offence during the specified probationary period.

(b) Code of Administrative Court Procedure

31 . Article 249 of the Code of Administrative Court Procedure ( halduskohtumenetluse seadus ) deals with interim relief ( esialgne õiguskaitse ).

32 . The first sentence of Article 249 § 1 provides that the court may, at any stage of the proceedings, on the basis of a reasoned application or of its own motion, issue an interim relief order giving provisional protection of the applicant ’ s rights, if protection of the applicant ’ s rights by the judgment would otherwise be rendered significantly more difficult or impossible.

33 . Article 249 § 2 adds that an application for interim relief may also be made to the administrative court during challenge proceedings ( vaidemenetluse ajal ).

34 . Article 249 § 3 provides that when issuing an interim relief order, the court has regard to the public interest and the rights of the persons affected and assesses the prospects of the main action and the foreseeable consequences of the interim relief order. If interim relief is no longer needed, the court dismisses the application.

35 . Article 249 § 4 states that the rights, obligations and prohibitions arising from an interim relief order, as well as any administrative decisions issued on the basis of the order, are valid until the judgment in the matter becomes final or until a decision to reject the action or terminate the proceedings in the matter becomes final.

36 . Article 252 § 1 provides that the court decides an application for interim relief by a reasoned decision without delay. If it considers it necessary to first hear the parties to the proceedings, it may decide the application at a later date. The presentation of evidence and opinions of the parties to the proceedings may only be required if this is possible without significantly prejudicing the rights and interests to be considered when making the interim relief order.

37 . Article 252 § 3 provides that an interim relief order, including an order refusing to allow the application for interim relief or varying or annulling the order, enters into force upon notification ( jõustub selle teatavakstegemisel ) , unless the court making the order or hearing the appeal lodged against the order decides otherwise.

(c) State Liability Act

38 . Section 7(1) of the State Liability Act ( riigivastutuse seadus ) provides that a person whose rights have been violated by unlawful actions of a public authority in a public-law relationship may claim compensation for damage caused to him or her if the damage could not be prevented or eliminated by the protection or restoration of rights in the manner provided for in sections 3, 4 and 6 of the Act.

39 . Sections 3, 4 and 6 provide that a person has the right to request annulment of an administrative decision which is in violation of his or her rights. He or she may request termination of a violation of his or her rights resulting from a continuing administrative measure if termination is possible without excessive costs. A person also has the right to request that an administrative decision be issued or a measure taken if the public authority is required to issue the administrative decision or take the measure and that decision or measure concerns the rights of that person.

40 . Section 9 sets out the rules concerning compensation for non-pecuniary damage:

“(1) A person may claim financial compensation for non-pecuniary damage resulting from wrongful degradation of dignity, damage to health, deprivation of liberty, violation of the inviolability of the person ’ s home or private life or of the confidentiality of correspondence, or defamation of the person ’ s honour or good name.

(2) Non-pecuniary damage shall be compensated in proportion to the gravity of the violation, taking into account the form and gravity of the fault ( süü vorm ja raskus ).

(3) Fault for causing damage is not taken into consideration if compensation for non-pecuniary damage is claimed on the basis of a decision by the European Court of Human Rights establishing a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or any of its protocols by a public authority.”

41 . Section 17 of the State Liability Act provides procedural rules for lodging a claim for damages. It states that in order to claim compensation for damage, an application may be lodged with the administrative authority which caused the damage or an action may be lodged with an administrative court (section 17(1)). An application or action has to be lodged within three years of the date on which the injured party became aware or should have become aware of the damage and of the physical or legal person who caused it, but no later than ten years after the occurrence of the damage or the event which caused the damage, regardless of whether the injured party became aware of the damage and of the person who caused it (section 17(3)).

(a) Concerning placement in a punishment cell

42 . In judgment no. 3-3-1-79-12 of 21 March 2013 the Supreme Court did not agree with the complainant that when serving the disciplinary punishment of being placed in a punishment cell the prison should have placed him in an ordinary cell for at least one day after forty-five consecutive days in the punishment cell. The court found that the Imprisonment Act did not prevent enforcement of the next disciplinary punishment in circumstances where the person being punished was already in a punishment cell. The court referred to section 65(2) of the Imprisonment Act and held that the enforcement of disciplinary punishments could only be postponed if the prisoner had been given a probationary period (see paragraph 30 above).

43 . The Supreme Court ’ s judgment no. 3-15-3133 of 10 October 2017 concerned an action for annulment of several disciplinary decisions concerning the placement of a prisoner in a punishment cell for refusing to work. In its judgment, the court considered that the imposition of a punishment cell regime in itself had been lawful and proportionate. It did not therefore annul the disciplinary decisions. However, referring to the case-law of the European Court of Human Rights , it considered it necessary to note that although the disciplinary punishments (of being placed in a punishment cell) imposed on the complainant for different violations had been lawful in themselves, their uninterrupted consecutive enforcement might not be acceptable. In the case of the complainant, this would have meant keeping him in a punishment cell for four consecutive months. In that regard, the Supreme Court expressly stated, referring to its earlier judgment no. 3-3-1-79-12, that it was changing its position regarding the possibility of consecutively enforcing punishments involving placement in a punishment cell. The court specified that the reference to “as a rule” in section 65(1) of the Imprisonment Act (see paragraph 30 above) gave the prison authorities some discretion. It stated that, if necessary, prisoners should be afforded a reasonable amount of days under an ordinary prison regime between the enforcement of several disciplinary punishments.

(b) Concerning the granting of interim relief

44 . In judgment no. 3-3-1-59-14 of 22 September 2014 the Supreme Court emphasised that the courts should avoid deciding the outcome of the main dispute during interim relief proceedings. However, this principle did not constitute an absolute ban on granting interim relief. Rather, it had to be viewed together with other circumstances. If there was an overriding need to apply interim relief and the creation of irreversible legal or factual consequences did not result in significant damage to the public interest or third parties, the granting of interim relief was not necessarily ruled out.

45 . In judgment no. 3-3-1-19-17 of 27 June 2017 the Supreme Court explained that interim relief was a provisional measure applied by the courts for the duration of the judicial proceedings and with the aim of protecting the rights of a person before the judicial dispute in the main proceedings was concluded. In order for interim relief to be granted, a person had to be threatened by a consequence which could not be eliminated by the subsequent judgment to be made in the main proceedings or its elimination would be unreasonably difficult. Moreover, the main action itself could not be clearly without prospects of success. However, at the time of deciding an application for interim relief, the factual and legal circumstances could still be unclear. When granting interim relief under Article 249 §§ 1 and 3 of the Code of Administrative Court Procedure, the courts had to take into account the prospects of success of the main action and the consequences of the different solutions for the person, public interest and third parties.

46 . By decision no. 3-17-1789 of 6 September 2017 the Tartu Administrative Court granted interim relief and ordered a prison to suspend the applicant ’ s confinement in a punishment cell for five days after the court decision was served. In the given case, the applicant had already spent a considerable amount of time in a punishment cell and the latest punishment – the one against which he had sought interim relief – had not yet started but was due to start soon.

47 . By decision no. 3-18-53 of 12 January 2018 the Tartu Administrative Court granted the interim relief sought by Mr Raudsepp, the applicant in the present case. In the given case, the events of which go beyond the scope of the case before the Court, the applicant had asked that enforcement of a disciplinary decision of 18 December 2017, providing for his placement under a punishment cell regime, be suspended. The court ordered that enforcement of the punishment be suspended for four days.

(c) Concerning claims for compensation

48 . In judgment no. 3-3-1-71-09 of 16 December 2009 the Supreme Court explained the options available to prisoners wishing to lodge a compensation claim. According to the court, a prisoner had two ways of seeking compensation for damage caused by the prison. A prisoner could first lodge an action with the administrative court to establish the unlawfulness of an administrative decision or measure. If the court reached a finding of unlawfulness, it was possible to lodge a claim for damages with the prison pursuant to the procedure laid down in the State Liability Act. If the prison dismissed the claim, the prisoner could lodge an action with the administrative court within thirty days. Another option was to immediately lodge a claim for damages with the prison. If the prison dismissed the claim, the prisoner could lodge an action with the administrative court. In such cases, a separate finding of unlawfulness was unnecessary, since the claim for damages also included a request to establish unlawfulness.

49 . In judgment no. 3-3-1-87-16 of 16 December 2016 the Supreme Court explained, albeit in the field of construction law, that the fact of not having been granted interim relief did not mean that the complainant ’ s rights remained unprotected. The complainant could still lodge an action for damages if he proved that the respondent – in the given case the local municipality – had caused him damage.

50 . In judgment no. 3-17-1748 of 12 December 2017 the Tartu Administrative Court awarded the complainant non-pecuniary damages for the unlawful enforcement of solitary confinement as a disciplinary punishment. In the given case, the prison had started enforcing a new disciplinary punishment before the end of the previous punishment. This had enabled it to effectively avoid the statutory limitation period for enforcement of the latter punishment. The court held that placement in a punishment cell constituted such an intense interference with fundamental rights that, in the event that it had been declared unlawful, a mere declaration of unlawfulness would not normally constitute sufficient redress.

51 . In judgment no. 3-17-356 of 28 March 2018 the Tartu Court of Appeal declared the consecutive enforcement of the disciplinary punishments against the applicant unlawful in so far as they exceeded the duration of forty-five days at a time. The court found, referring to the case-law of the Supreme Court (judgment no. 3-3-1-93-09 of 15 March 2010) , that placement in a punishment cell constituted an additional restriction on a person ’ s liberty and interfered with the right to liberty in such an intense manner that it could be interpreted as a deprivation of liberty. The damage caused could thus be compensated under section 9(1) of the State Liability Act. The court further explained that the fact that the long period which the person had spent in a punishment cell had been declared unlawful did not in itself mean that the person should be awarded monetary compensation. The awarding of compensation was an individual decision which was always taken based on the particular circumstances of the case (for example the length of time spent in the punishment cell, the application of measures which alleviated the solitary confinement, the form and severity of the person ’ s fault, and so on) and thus a declaration of unlawfulness could in some instances be a sufficient measure of redress.

52 . In judgment no. 3-15-2943 of 4 June 2018 the Supreme Court quashed the judgments of the lower-instance courts which had dismissed the complainant ’ s claim for compensation for the protracted period he had spent in a punishment cell. It explained that the applicant had had valid reasons to believe that the disciplinary punishments would be enforced consecutively and that, in the given case, he had not had to wait until all of them had been enforced before lodging the compensation claim.

The court also reasoned that the applicant could not be reproached for not having used the preliminary legal remedies ( esmased õiguskaitsevahendid ), as – based on the prison ’ s submissions in the case – there was no doubt that the potential application for suspension of the enforcement of the punishments ( taotlus täitmisele pööramise peatamiseks ) would not have been successful. Nor had the applicant been obliged to use a prohibition action ( keelamiskaebus ), as under domestic law, using such an action was not a prerequisite for lodging a compensation claim.

The court explained that in order to assess whether the consecutive enforcement of disciplinary punishments was permissible, it was important to consider the length of time to be spent in a punishment cell as well as its individual impact on the person ’ s health or social situation. For these reasons it was also relevant to assess how long should be spent under an ordinary regime to compensate for the harmful effect of the punishment cell regime. The court added that even with respect to persons in good mental and physical health, the punishment cell regime was presumed to be disproportionate if it lasted considerably longer than the forty-five days referred to in the Imprisonment Act. As the Supreme Court was prevented by law from establishing facts relevant for the adjudication of the compensation claim, it remitted the case to the first-instance court.

53 . An extract from the section “Solitary confinement of prisoners” in the 21st General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), published in 2011 (CPT/Inf(2011)28-part2), explains what is meant by the notion of “solitary confinement”:

“The CPT understands the term “solitary confinement” as meaning whenever a prisoner is ordered to be held separately from other prisoners, for example, as a result of a court decision, as a disciplinary sanction imposed within the prison system, as a preventative administrative measure or for the protection of the prisoner concerned. A prisoner subject to such a measure will usually be held on his/her own; however, in some States he/she may be accommodated together with one or two other prisoners, and this section applies equally to such situations.”

COMPLAINT

54 . The applicant complained about the consecutive enforcement of the three disciplinary punishments against him, which had not taken into account his mental state and had resulted in a protracted period of solitary confinement.

THE LAW

Alleged violation of Article 3

55 . The applicant complained about the consecutive enforcement of the three disciplinary punishments. 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.”

(a) The Government

56 . The Government argued, firstly, that the applicant had abused the right of application as in his application he had only notified the Court of the interim relief proceedings. At the same time, he had not informed the Court of the main domestic proceedings, which had focused not only on the annulment of the three disciplinary decisions, but also on the unlawfulness of the applicant ’ s consecutive placement under a punishment cell regime. In the main proceedings, the Tartu Administrative Court had given a judgment on 3 May 2018. Even if the applicant had not been served with this judgment before lodging his application with the Court, he had definitely been aware of the subject matter of those proceedings. The Government pointed out that based on the questions put by the Court to the parties, it could be discerned that the Court had not been aware that the applicant ’ s domestic proceedings had also concerned the unlawfulness of the enforcement of the disciplinary punishments. Notably, the Court had asked:

“In view of the ongoing main proceedings concerning the annulment of the decisions imposing disciplinary punishment, has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, can the action for annulment of the decisions imposing disciplinary punishments be considered an effective remedy given that the applicant ’ s complaint to the Court does not focus on the disciplinary punishment as such but on the impact of consecutive enforcement of disciplinary punishments?”

57 . Secondly, the Government asserted that, in the light of how the main domestic proceedings had developed, the applicant could no longer be considered a victim. The domestic courts had acknowledged the unlawfulness of the consecutive enforcement of the three disciplinary punishments. As to possible redress, the Government further noted that although the applicant had been free under domestic law to lodge a claim for damages with his other claims, he had chosen not to do so. In fact, it was still open to him to lodge such a claim. Thus, in so far as the domestic courts had been offered the possibility to do so, they had redressed the breach of the applicant ’ s rights by the declaratory judgment.

58 . Thirdly, the Government argued that the complaint was inadmissible for non-exhaustion of effective domestic remedies, as the possibility of lodging a claim for damages remained open to the applicant. There was domestic case-law attesting to the effectiveness of such claims (see paragraphs 50 - 52 above). The application for interim relief and the court proceedings related thereto could not be viewed as exhaustion of domestic remedies within the meaning of Article 35 of the Convention.

(b) The applicant

59 . The applicant disagreed with the Government ’ s pleas of inadmissibility. He considered that it was precisely the interim relief proceedings, in which the final decision had been delivered on 9 November 2017, that were relevant to his case. However, interim relief had not been granted and his punishment cell regime had not been suspended. The subsequent declaration of unlawfulness of the consecutive enforcement of the disciplinary punishments could not be considered sufficient to rectify the violation of his rights, as this had not rendered the protracted period spent under the punishment cell regime and the damage it had caused to his mental health inexistent. He had therefore not lost his victim status.

60 . The applicant stated that there was no domestic case-law to date on awarding compensation for protracted periods under a punishment cell regime as a result of the consecutive enforcement of disciplinary punishments. He referred to a case in which a domestic court had found that a declaration of unlawfulness could constitute sufficient redress (see paragraph 51 above).

61 . In the light of the above, and given that he had applied for interim relief, the applicant considered that he had exhausted the relevant effective domestic remedies. He also submitted that he had not received the judgment of the Tartu Court of Appeal dated 3 May 2018 until 8 May 2018 and could not therefore inform the Court of it when lodging his application. He could not therefore be considered to have abused the right of application.

62 . The Court notes that the Government have raised preliminary objections to the admissibility of the applicant ’ s complaint, referring to the abuse of the right of application, the applicant ’ s victim status and the non-exhaustion of domestic remedies.

63 . The Court finds that it is not necessary to examine all of the preliminary objections raised by the Government since the applicant ’ s complaint is any event inadmissible due to non-exhaustion of domestic remedies. In that connection, the Court will also explain its decision to give notice of the complaint before the end of the main proceedings before the domestic courts.

(a) General principles

64 . The rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires those seeking to bring their case against the State before the Court to first use the remedies provided by the national legal system. Consequently, the High Contracting Parties are dispensed from answering for their acts or omissions in proceedings before the Court before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that the domestic legal system provides an effective remedy which can deal with the substance of an arguable complaint under the Convention and grant appropriate relief. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 93, 10 January 2012, and Neshkov and Others v. Bulgaria , nos. 36925/10 and 5 others, § 177, 27 January 2015 ). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vu č kovi ć and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 77 and 84, 25 March 2014).

65 . The Court reiterates that where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others , cited above, § 98, and Nikitin and Others v. Estonia , nos. 23226/16 and 6 others , § 129, 29 January 2019). In contrast to cases concerning the length of judicial proceedings or non-enforcement of judgments, where the Court has accepted in principle that a compensatory remedy alone may suffice (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 187, ECHR 2006 ‑ V, and Burdov v. Russia (no. 2), no. 33509/04, § 99, ECHR 2009), the existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. The special importance attached by the Convention to that provision requires, in the Court ’ s view, that the States Parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Otherwise, the prospect of future compensation would legitimise particularly severe suffering in breach of this core provision of the Convention and unacceptably weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements (see Varga and Others v. Hungary , nos. 14097/12 and 5 others, § 49, 10 March 2015) .

66 . The Court has recently clarified the relationship between preventive and compensatory remedies with respect to the duty of exhausting domestic remedies in the case of Ulemek v. Croatia (no. 21613/16, 31 October 2019; this case concerned inadequate conditions of detention generally, not the consecutive enforcement of disciplinary punishments resulting in protracted solitary confinement).

67 . In Ulemek , the Court also noted that there may be instances in which the use of an otherwise effective preventive remedy would be futile in view of the brevity of an applicant ’ s stay in inadequate conditions of detention and that therefore the only viable option would be a compensatory remedy allowing for a possibility to obtain redress for the past placement in such conditions. This period may depend on many factors related to the manner of operation of the domestic system of remedies and the nature of the alleged inadequacy of an applicant ’ s conditions of detention (see Ulemek , cited above, § 88).

68 . The issue of whether domestic remedies have been exhausted is normally determined by reference to the date on which the application was lodged with the Court (see Baumann v. France , no. 33592/96, § 47, ECHR 2001-V (extracts)).

(b) Application of the above principles in the present case

(i) Decision to give notice of the case

69 . Turning to the facts of the present case, the Court notes that as a result of the enforcement of the three disciplinary punishments (none of which was longer than thirty days), the applicant was subjected to a punishment cell regime from 24 August to 21 November 2017, save for a four-day break in October 2017. On 30 August 2017, after the prison had started enforcing the first of the three disciplinary punishments, the applicant lodged a challenge with the prison, requesting, inter alia , suspension of the enforcement of the punishments. As the prison dismissed this request, he subsequently lodged a request for an interim relief with the Tartu Administrative Court on 15 September 2017 and a further appeal on that matter with the Tartu Court of Appeal on 11 October 2017. Under domestic law, an application for interim relief could be lodged with the administrative court while challenge proceedings before the prison authorities were still ongoing (see paragraph 33 above). The Tartu Administrative Court and the Tartu Court of Appeal gave their decisions while the applicant was still serving his punishments, on 27 September and 9 November 2017 respectively. The decision of the Tartu Court of Appeal was final. Although both the first-instance and second-instance courts refused to grant the requested interim relief, the Tartu Court of Appeal noted that suspension of the enforcement of the punishments would have been warranted at the time that the appeal had been lodged, but – owing to the break granted to the applicant on medical grounds – such interim relief was no longer necessary. The applicant lodged his main action with the Tartu Administrative Court on 31 October 2017. Although his request for annulment of the three disciplinary decisions remained the same throughout the proceedings, he amended his initial additional request on 22 January 2018, asking the court to declare his consecutive placement under the punishment cell regime unlawful (see paragraphs 20 and 22 above).

70 . The applicant lodged his application with the Court on 7 May 2018, within six months of the decision of the Tartu Court of Appeal (as well as of the date on which the last of the three disciplinary punishments ended), but before the final decision in the main proceedings, which was given on 26 June 2019. It appeared from the documents attached to his application that the applicant had initiated domestic proceedings in the prison seeking annulment of the disciplinary decisions, and had asked for suspension of their enforcement as an interim measure.

71 . The Court notes that up until the events in the present case, the domestic case-law considered the consecutive enforcement of disciplinary punishments involving placement in a punishment cell acceptable (see paragraph 42 above). It was on 10 October 2017, at the time the applicant was serving his disciplinary punishments, that the Supreme Court indicated that it was changing its case-law concerning uninterrupted enforcement of the punishment cell regime (see paragraph 43 above). It is to be noted that by that judgment, the Supreme Court did not annul the disciplinary decisions themselves, considering that the imposition of a punishment cell regime in the case at hand had been lawful and proportionate (ibid.).

72 . Given that the complaint related to Article 3 of the Convention, and it was uncertain if and what effective remedies would have been available to the applicant, in view of the fact that he was already subjected to the punishment cell regime at the time the Supreme Court changed its approach, the Court decided to give the respondent Government notice of the application on 3 September 2018.

(ii) As to the interim relief proceedings

73 . In the light of developments after notice of the application was given, and given the parties ’ arguments, the Court is now called upon to examine whether the applicant, by requesting to be granted interim relief, exhausted the available and effective domestic remedies to the effect that his complaint to the Court could be declared admissible. In doing so, the Court bears in mind that, under domestic law, applying for interim relief does not constitute a separate and self-standing remedy. Rather, it is a measure that the domestic courts can apply, either of their own motion or at the request of an applicant, pending the outcome of the main proceedings (see paragraphs 32 and 35 above). It is not a measure that domestic law, as it currently stands, obliges potential applicants to use as a prerequisite to lodging other claims under the State Liability Act.

74 . The Court observes that by changing its earlier case-law, the Supreme Court stated in its judgment dated 10 October 2017 that prisoners should be given a reasonable number of days under an ordinary prison regime between the enforcement of several disciplinary punishments (see paragraph 43 above). Against that background, it appears from the domestic legislation and case-law that an application for interim relief seems to offer prisoners the ability to obtain a (temporary) suspension of the punishment cell regime. The application to be granted interim relief may already be made to the administrative court during challenge proceedings, the domestic courts must decide the matter without delay, and the order granting interim relief, as a rule, enters into force immediately (see paragraphs 33 , 36 , 37 above). The Government presented examples of domestic case-law where the speed of the domestic proceedings allowed for such interim relief to be granted while the person concerned was still serving specific punishments (see paragraphs 46 and 47 above).

75 . The Court understands that, depending on the circumstances (for example, the duration of the particular disciplinary punishment(s) and when an application for interim relief is lodged) it may also occur that the challenged punishment is served before the domestic courts ’ decision regarding interim relief enters into force or becomes final (noting that under domestic law, although a first-instance court ’ s decision on the interim relief is subject to appeal, it generally enters into force immediately upon notification, see paragraph 37 above). For example, in the present case, although the decision not to grant the applicant interim relief was rendered and entered into force while he was still subjected to the punishment cell regime, by that time he had actually already served part of the punishments given to him (paragraphs 15 and 19 above). It ought to be noted, however, that the applicant applied for interim relief on 15 September 2017, that is to say approximately three weeks into the enforcement of his first disciplinary punishment.

76 . The Court is also mindful of the fact that a decision whether or not to grant interim relief is taken in a subset of proceedings pending the outcome of the main dispute. The domestic courts may have to take such a decision under considerable time constraints and in a situation where the factual and legal circumstances have not yet been fully elucidated (see paragraphs 36 and 45 above). In such a context, the domestic courts must assess the prospects of success of the action in the main dispute and consider the wider impact of the interim relief order (see paragraphs 34 and 45 above). Moreover, according to the Supreme Court ’ s case-law, the domestic courts should, in so far as possible, avoid effectively deciding the outcome of the main dispute in interim relief proceedings (see paragraph 44 above).

77 . It should also be noted that a decision not to grant interim relief does not determine the outcome of the main proceedings. The Court notes in that regard that the domestic courts may find the consecutive enforcement of punishments to be or to have been (depending on when the judgment is made) unlawful even if they initially refused to grant interim relief. This was also the outcome in the case at hand.

78 . Against the above background, the Court accepts that an application for interim relief, if granted, can prevent the consecutive enforcement of disciplinary punishments or alleviate its effects by affording breaks from the punishment cell regime. The Court has no intention of discouraging persons in situations similar to that of the applicant in the case at hand from applying for interim relief. It notes that in the present case, the applicant was refused interim relief not because such a remedy was considered inapplicable or inappropriate in the given situation, but because he had been given a break from the punishment cell regime on medical grounds before the Tartu Court of Appeal gave its decision.

79 . However, given the nature of interim relief proceedings, their role as (a non-compulsory) part of the main proceedings and the inevitable time constraints, the Court does not consider these proceedings to constitute such a (preventive) remedy which, if unsuccessful, would give potential applicants immediate access to the Court without awaiting the outcome of the main proceedings (compare and contrast Ulemek , cited above, §§ 81-88 and, in particular, § 115). Finding otherwise could in practice mean that the Court conducts its proceedings in parallel to the domestic courts and before the latter have had an opportunity to decide the applicants ’ claims in the main proceedings.

(iii) As to the main proceedings and possible claim for compensation

80 . The domestic main proceedings in the case at hand concerned the annulment of the disciplinary decisions and the lawfulness of their consecutive enforcement.

81 . The applicant lodged his complaint with the Court after the three disciplinary punishments had ended, but before the domestic courts had decided his claim (as specified on 22 January 2018) concerning the unlawfulness of the consecutive enforcement of the punishments. The Court reiterates that in cases where adverse conditions of detention have already ended, the use of a compensatory remedy, such as an action for damages, is normally an effective remedy for the purposes of Article 35 of the Convention (see, for example, Bizjak v. Slovenia (dec.), no. 25516/12 , ECHR 8 July 2014).

82 . In the light of the foregoing, the Court notes that by the current application the applicant is not seeking to put an end to a continuing violation of his right not to be subjected to inhuman or degrading treatment in Viru Prison, but to obtain a subsequent ruling on the alleged past violation of Article 3 and receive just satisfaction for non-pecuniary damage.

83 . In that connection, the Court observes that the domestic courts, by declaring the consecutive enforcement of the three disciplinary punishments unlawful, have already acknowledged , at least in substance, the breach of the applicant ’ s right not to be subjected to treatment contrary to Article 3 of the Convention. The judgment of the Tartu Court of Appeal to that effect became final on 26 June 2019, when the Supreme Court refused to examine the applicant ’ s appeal on points of law. Although the applicant could have immediately lodged a claim for damages with the domestic courts, without first obtaining the declaration of unlawfulness, it was his choice to opt for a declaratory remedy. The domestic law does not prevent him from claiming damages based on the judgment declaring the consecutive enforcement of the disciplinary punishments unlawful (see paragraph 48 above; see, mutatis mutandis , Svetina v. Slovenia , no. 38059/13, § 60, 22 May 2018 ). It appears that, under domestic law, it is still possible for the applicant to lodge a compensation claim (see paragraph 41 above).

84 . The Court also observes that although the domestic case-law on awarding damages for the unlawful enforcement of disciplinary punishments resulting in protracted solitary confinement is in the process of being developed, there is nothing to indicate that a claim to that effect under the State Liability Act would be futile (see paragraphs 50 - 52 above).

85 . In the light of the above reasoning, taking into account the fact that domestic courts have already found the applicant ’ s treatment to have been unlawful and that it is still open for him to lodge a claim for damages under domestic law, the Court finds that the applicant ’ s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 July 2020 .

Stanley Naismith Jon Fridrik Kjølbro Registrar President