THIRD SECTION

DECISION

Application no. 5633/18 Anzor Shakhidovich GUBASHEV against Russia

The European Court of Human Rights (Third Section), sitting on 8 April 2021 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov , Peeter Roosma , judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 30 December 2017,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant ’ s details are set out in the appended table.

The applicant was represented by Ms R. Magomedova , a lawyer practising in Moscow.

The applicant ’ s complaints under Articles 3 and 13 of the Convention concerning the inadequate conditions of detention were communicated to the Russian Government (“the Government”) .

THE LAW

The applicant complained that the conditions of his detention pending investigation and trial were in contravention of Article 3 of the Convention. Relying on Article 13 of the Convention, he further argued that he had not had an effective domestic remedy in that respect. Articles 3 and 13 read as follows:

Article 3

Prohibition of torture

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

Right to an effective remedy

“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.”

The Government submitted their observations, having disputed the violations alleged. On 10 January 2020 they submitted additional information about the new Compensation Act and asked to treat it as a new remedy in respect of conditions of detention complaints under Articles 3 and 13 of the Convention.

The applicant maintained his complaints.

The Court reiterates that in its recent decision of Shmelev and Others v. Russia ((dec.), no. 41743/17 and 16 others, 17 March 2020), it has accepted that the new Compensation Act which entered into force in Russia on 27 January 2020 constituted an effective remedy for the complaints about breaches of Articles 3 and 13 of the Convention in respect of past pre-trial detention and, having dismissed the applications by such applicants for non-exhaustion, it has declared that it will apply that approach to all similar applications (ibid., §§ 121-30). The Court has also taken into account that the Compensation Act is equipped with transitional provisions, so that any person whose complaint about inadequate conditions of detention was pending with this Court at the time of the Act ’ s entry into force can apply within 180 days after that date (ibid., § 63).

Turning to the circumstances of the present cases and 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 of these complaints. It therefore considers that, in so far as the applicant has lodged prima facie well-founded complaints, the Compensation Act affords him an opportunity to obtain compensatory redress. Accordingly, the applicant should exhaust this remedy before his complaints can be examined by the Court. It follows that these complaints under Articles 3 and 13 should be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 April 2021 .

             {signature_p_2}

Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 3 of the Convention

( inadequate conditions of detention )

Application no.

Date of introduction

Applicant ’ s name

Year of birth

Representative ’ s name and location

Facility

Start and end date

Duration

Specific grievances

5633/18

30/12/2017

Anzor Shakhidovich GUBASHEV

1981Magomedova Roza Saidovna

Moscow

IZ-2 Lefortovo Moscow

08/03/2015 to 19/12/2017

2 year(s) and 9 month(s) and 12 day(s)

Lack of privacy for toilet, inadequate temperature, lack of fresh air, lack of or insufficient natural light, no or restricted access to potable water, no or restricted access to warm water