THIRD SECTION

DECISION

Application no. 24737/17 Ivan Yuryevich FOMIN against Russia and 11 other applications

(s ee appended table)

The European Court of Human Rights (Third Section), sitting on 17 December 2020 a s a Committee composed of:

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

and Liv Tigerstedt, Acting Deputy Section Registrar,

Having regard to the above application s lodged on the various dates indicated in the appended table,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The list of applicant s is set out in the appended table.

The applicants ’ complaints under Article 3 of the Convention concerning the inadequate conditions of detention were communicated to the Russian Government (“the Government”). In some of the applications, complaints under Article 13 of the Convention about absence of domestic remedies in Russia to complain about poor conditions of detention were also communicated to the Government.

THE LAW

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

In the present application s , the applicants complained of conditions of their post-conviction detention in violation of the national requirements during periods which had already come to an end (for further details see the appended table). They also argued that they did not have an effective domestic remedy to complain about those conditions at the national level. Articles 3 and 13 read:

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 the Government 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 applicants maintained their complaints.

In its recent decision of Shmelev and Others v. Russia (( dec. ), no. 41743/17 and 16 others, 17 March 2020), the Court has examined similar applications lodged by Russian applicants and declared them inadmissible for non-exhaustion of domestic remedies. In particular, the Court took into account that on 27 January 2020 the new Compensation Act entered into force in Russia. It noted that the Act provides that any detainee who alleges that his or her conditions of detention are in breach of national legislation or international agreements of the Russian Federation can apply to a court. The novelty of the Act is that the (former) detainee can claim, at the same time, a finding of a violation of inadequate detention conditions and financial compensation for such breach.

In that decision, the Court further held as follows:

“122. The Court reiterates that, where the detention is over, a compensatory remedy can suffice to provide the applicants with fair redress for the alleged breach of Article 3 (see case-law cited above in paragraph 87). Accordingly, it is sufficient to examine whether the applicants concerned can be required to exhaust the compensatory remedy.

123. As mentioned above, the Court may examine the effectiveness of a newly introduced domestic remedy even if it was not available at the time of lodging of applications, where such remedy is introduced at a later stage in response to the Court ’ s finding of a systemic problem (see paragraph 106 above and the case-law cited therein).

124. The Court has concluded that the Compensation Act presents, in principle, an adequate and effective avenue for compensatory redress in cases raising issues of improper conditions of pre-trial detention. It has found that it is directly accessible to the persons concerned, is furnished with the requisite procedural guarantees associated with judicial adversarial proceedings, that there are no reasons to expect that such claims would not be processed within a reasonable time, or that the compensation would not be paid promptly. It also concluded that the system offers reasonable prospects of success to the applicants in terms of the compensation awards.

125. 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 (see paragraph 63 above). The same would apply to those whose complaints would be declared inadmissible by this Court in view of the Act coming into force.

126. The Court accepts that the domestic courts have not yet been able to establish any practice under the Compensation Act. However, the Court has already found that doubts about the prospects of a remedy, which appears to offer a reasonable possibility of redress, are not a sufficient reason to eschew it (see Shtolts and Others , cited above, § 111).

127. Accordingly, even though the domestic remedy was not available to the applicants at the time when they applied to the Court, the situation justifies a departure from the general rule on exhaustion and requires the applicants in question to seek compensation under the Compensation Act.

128. The Court accepts that the outcome of the applicants ’ claims under the new provisions cannot at present be ascertained. However, as the Court has already noted on similar occasions, it would remain open for the applicants to lodge fresh complaints should their claims to the domestic courts prove unsuccessful, for one reason or another. The Court ’ s ultimate supervisory jurisdiction remains in respect of any complaints lodged by the applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress (see Domján , § 37; and Shtolts and Others , §§ 112-113, both decisions cited above). The Court will remain free to assess the compliance of application of the domestic practice with the pilot judgment and the Convention standards in general, summary of the relevant case-law in paragraph 82 above).

129. Finally, the Court does not lose sight of a number of positive developments related to the situation with pre-trial detention in Russia that will be analysed below.”

Having thus considered that there exists an effective remedy in Russia for cases where applicants complain about a breach of Article 3 in respect of past pre-trial detention, and having dismissed the applications by such applicants for non-exhaustion, the Court declared that it will apply that approach to all similar applications (see Shmelev and Others , ( dec. ), cited above, § 130).

The Court also found that applicants who complained about their detention in overcrowded conditions of post-conviction facilities in violation of the national statutory norm of two square metres per person, and where their detention in such conditions was already over, found themselves in a situation similar to that of persons whose past pre-trial detention had been in breach of the applicable national standards. The Court stressed that for them, as well as for other persons in similar situation, the new Compensatory Act presents, in principle, an adequate and effective avenue of obtaining compensatory redress, and offers reasonable prospects of success (see Shmelev and Others , ( dec. ), cited above, § 154). It thus also rejected for non-exhaustion of domestic remedies applications where applicants complained about post-conviction detention in violation of the national statutory standard and decided that actual or potential applicants finding themselves in a similar situation – i.e. where the complaint concerns past correctional detention in conditions in breach of the applicable domestic standards – are also expected to first make use of the compensatory remedy introduced in January 2020 (see Shmelev and Others , ( dec. ), cited above, §§ 155-156).

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. The Court considers that in so far as the applicants have lodged prima facie well-founded complaints about breach of their rights by improper conditions of their detention, as described in the appended table, the Compensation Act affords them an opportunity to obtain compensatory redress. Accordingly, the applicants should exhaust this remedy before their complaints can be examined by the Court. It follows that their complaints, as listed in the appended table, 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,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 21 January 2021 .

Liv Tigerstedt Darian Pavli Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 of the Convention

( inadequate conditions of detention )

No.

Application no.

Date of introduction

Applicant ’ s name

Year of birth

Representative ’ s name and location

Facility

Start and end date

Duration

Inmates per brigade

Sq. m per inmate

Number of toilets per brigade

Specific grievances

24737/17

15/03/2017

Ivan Yuryevich FOMIN

1980IK-11 Nizhniy Novgorod Region

19/09/2011 to

11/05/2017

5 year(s) and 7 month(s) and 23 day(s)

140 inmate(s)

1.3 m²

no or restricted access to warm water, lack or insufficient quantity of food, poor quality of food, lack of or inadequate hygienic facilities, no or restricted access to toilet, no or restricted access to running water

70870/17

20/08/2017

Sergey Anatolyevich FROLOV

1956IK-29 Kemerovo

21/04/2010 to

20/05/2017

7 year(s) and 1 month(s)

< 2 m²

lack of or insufficient electric light, lack of or insufficient natural light, lack of fresh air, lack of privacy for toilet, lack of or inadequate hygienic facilities, mouldy or dirty cell, no or restricted access to shower, overcrowding, passive smoking, poor quality of food, sharing cells with inmates infected with contagious disease

4898/18

27/12/2017

Aleksandr Sergeyevich PETUKHOV

1978IK-11 Nizhniy Novgorod Region

13/04/2015 to

14/02/2020

4 year(s) and 10 month(s) and 2 day(s)

70 inmate(s)

1.6 m²

8 toilet(s)

overcrowding

5724/18

15/01/2018

Andrey Mikhaylovich KOSAREV

1986IK-11 Nizhniy Novgorod

01/09/2014 to

08/05/2018

3 year(s) and 8 month(s) and 8 day(s)

120 inmate(s)

1.5 m²

overcrowding, lack or inadequate furniture, lack of fresh air, infestation of cell with insects/rodents, poor quality of food, poor state of sewage system, inadequate maintenance of the exercise yard

9276/18

02/02/2018

Aleksey Borisovich POTAPENKO

1982IK-11 Nizhniy Novgorod Region

29/12/2014 to

14/06/2018

3 year(s) and 5 month(s) and 17 day(s)

140 inmate(s)

1.2 m²

infestation of cell with insects/rodents, no or restricted access to toilet, no or restricted access to running water, poor quality of food

13506/18

27/02/2018

Ivan Vasilyevich LETYAGO

1975IK-11 Nizhniy Novgorod Region

18/09/2017 to

18/02/2018

5 month(s) and 1 day(s)

1.3 m²

lack of fresh air, no or restricted access to toilet, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, poor quality of food

17138/18

19/03/2018

Dmitriy Aleksandrovich MATSILETSKIY

1982Shirokov Oleg Valeryevich

Nizhniy Tagil

IK-3 Sverdlovsk Region

07/09/2015 to

07/03/2018

2 year(s) and 6 month(s) and 1 day(s)

170 inmate(s)

<2 m²

4 toilet(s)

overcrowding, no or restricted access to toilet, no or restricted access to running water, lack of or insufficient natural light, inadequate temperature, poor quality of food, lack or insufficient quantity of food, lack or inadequate furniture

17209/18

27/03/2018

Igor Anatolyevich LESNIKOV

1971Bayanova Olga Sergeyevna

Severouralsk

IK-3 Sverdlovsk Region

26/08/2004 to

30/10/2020

16 year(s) and 2 month(s) and 5 day(s)

1 m²

inadequate temperature, infestation of cell with insects/rodents, lack of fresh air, lack of or inadequate hygienic facilities, lack or insufficient quantity of food, mouldy or dirty cell, overcrowding, poor quality of food

23399/18

08/05/2018

Nikita Andreyevich BORISOV

1992IK-11 Nizhniy Novgorod Region

08/02/2016 to

24/01/2020

3 year(s) and 11 month(s) and 17 day(s)

<2 m²

lack of or restricted access to leisure or educational activities, lack of fresh air, overcrowding, no or restricted access to warm water, mouldy or dirty cell, infestation of cell with insects/rodents, inadequate temperature, passive smoking

28186/18

21/05/2018

Nikolay Ivanovich SHCHERBAK

1957IK-11 Nizhniy Novgorod Region

31/01/2013 to

27/12/2018

5 year(s) and 10 month(s) and 28 day(s)

140 inmate(s)

<2 m²

6 toilet(s)

no or restricted access to warm water, poor quality of food, inadequate clothing

35071/18

05/07/2018

Vladimir Andreyevich FATKIN

1982IK-11 Nizhniy Novgorod Region

06/08/2012 to

29/10/2020

8 year(s) and 2 month(s) and 24 day(s)

1.9 m²

overcrowding, lack of fresh air, poor quality of food

35601/18

17/07/2018

Gennadiy Petrovich FILIPYEV

1957IK-5 Kirov Region

27/09/2016 to

04/09/2018

1 year(s) and 11 month(s) and 9 day(s)

60 inmate(s)

4 toilet(s)

inadequate temperature, poor quality of food, insufficient number of working toilets