THIRD SECTION

DECISION

Application no. 39410/11 Ramazan Akhmedovich AKHMEDNABIYEV against Russia

The European Court of Human Rights (Third Section), sitting on 23 March 2021 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov , Peeter Roosma , judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 20 May 2011,

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 Ramazan Akhmedovich Akhmednabiyev , is a Russian national who was born in 1967 and is detained in Kharp , Yamalo ‑ Nenetskiy Region.

2 . The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

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

4 . On 3 January 1991 the Stavropol Regional Court convicted the applicant of rape of a minor, murder and possession of weapons, and sentenced him to death. By a presidential decree of 4 November 1993 the sentence of capital punishment was commuted to life imprisonment.

5 . Between 20 September 1994 and 7 July 2012 the applicant was held in correctional colony no. IK-5 (“IK-5”) in the village of Ognennyy , Volodga Region.

6 . On 7 July 2012 he was transferred to correctional colony no. IK-18 (“IK-18”).

7 . In March 1996 and in 2005 the applicant committed acts of self ‑ mutilation; in particular, he swallowed a nail.

8 . On 12 March 2003 he was put under surveillance as someone who was at risk of absconding.

9 . On 19 July 2005 he was diagnosed with mixed personality disorder. Following his diagnosis he received medical treatment and was examined regularly by a psychiatrist.

10 . In April 2006 the applicant violated disciplinary rules by knocking on the door of his cell and threatening the wardens and their families.

11 . On 15 October 2007 he was placed under surveillance as a suicide risk.

12 . From January 2011 to 7 July 2012 the applicant ’ s hands were cuffed behind his back every time he left his cell, even though he was accompanied by prison officers.

13 . On 21 July 2011 the Belozerskiy District Court of the Vologda Region held that the routine handcuffing of the applicant had been lawful and justified. Among other things, the court took into account that the applicant had committed acts of self-mutilation, had been diagnosed with mixed personality disorder and had been under supervision of a psychiatrist, and had been found to be a suicide risk.

14 . The applicant did not lodge an appeal.

15 . The applicant ’ s cell in IK-5 was not equipped with a proper toilet or sewage system; the applicant had to use a bucket. There was no ventilation or water supply system, the applicant was allowed to wash himself only once every ten days, and the quality of the food was poor.

16 . The applicant contacted the prosecutor asking for the situation to be remedied in respect of the degrading conditions of detention. The prosecutor admitted that the conditions of detention in IK-5 did not comply with the standard established by Russian law. The prosecutor then brought a claim before the District Court, asking the court to order the authorities to improve the conditions of detention in IK-5.

17 . On 24 August 2011 the District Court allowed the prosecutor ’ s claim.

18 . The authorities completed the renovation work in the prison in 2014 ‑ 15.

19 . Under Article 86 of the Code of Execution of Criminal Sentences of 8 January 1997, measures of restraint may be applied to prisoners who put up physical resistance to prison officers; refuse to follow the lawful orders of staff; engage in aggressive behaviour, mass unrest, hostage-taking, assaults or other dangerous activity; or try to escape or harm themselves or others.

20 . Section 30 of the Penal Institutions Act (Federal Law no. 5473-1 of 21 July 1993) provides that handcuffs may be used to suppress mass unrest or group violations of public order by detainees, as well as to apprehend offenders who persistently disobey or resist officers. They may also be used when moving and escorting prisoners whose behaviour indicates that they could abscond or harm themselves or others.

21 . Paragraph 41 of the Internal Rules of Penal Facilities, approved by Order of the Ministry of Justice no. 205 on 3 November 2005, provides that if the behaviour of persons serving a life sentence indicates that they could abscond or cause harm to themselves or others, their hands must be cuffed behind their backs when they leave their cells.

COMPLAINTS

22 . The applicant complained under Articles 3 and 13 of the Convention about routine handcuffing, the conditions of detention in IK-5, and the alleged lack of effective domestic remedies.

THE LAW

23 . The applicant complained that he had been routinely subjected to handcuffing from January 2011 to 7 July 2012, had been detained in poor conditions in IK-5, and did not have effective remedies to complain about the above-mentioned violations. He relied on Articles 3 and 13 of the Convention, which 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.”

24 . The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaints and that his handcuffing had been justified.

25 . The applicant maintained his complaints.

26 . The Court reiterates that an applicant is normally required to have recourse only to those remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 94, 10 January 2012).

28 . In this connection, the Court reiterates that where the applicant ’ s complaint stems from an alleged specific act or omission by the authorities, the applicant must be required, as a rule, to exhaust domestic remedies in respect of it.

30 . The Court has recently held that applicants are required to make use of the newly introduced compensatory remedy in respect of improper conditions of past correctional detention in breach of domestic standards (see Shmelev and Others v. Russia ( dec. ), no. 41743/17, §§ 153-57, 17 March 2020). In the present case, the applicant complained about the conditions of his detention in IK-5, where he was detained till 7 July 2012 (see paragraph 5 above). The domestic authorities acknowledged that the conditions of detention in IK-5 were below the national standard provided for by Russian law (see paragraphs 16 - 17 above). Therefore, there are no circumstances which could justify the applicant ’ s failure to have recourse to the new compensatory remedy.

31 . It follows that the complaints under Articles 3 of the Convention must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

32 . In so far as the applicant refers to Article 13 of the Convention, the Court, having regard to its conclusion concerning Article 3, finds that no separate issue arises under this provision. It finds that this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 April 2021 .

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Olga Chernishova Darian Pavli Deputy Registrar President