THIRD SECTION

DECISION

Application no. 74772/10 Maksim Olegovich GLAVATSKIKH 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 the observations in reply submitted by some of the applicants,

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 and under Article 13 of the Convention about absence of domestic remedies in Russia to complain about poor conditions of detention were communicated to the Russian Government (“the Government”) . In application no. 76831/17 the applicant made another complaint stemming from the same facts.

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 applications, the applicants complained of conditions of their 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 ( 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. It thus 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.

In application no. 76831/17, the applicant also raised another complaint under the Convention about frequent transfer between cells.

The Court has examined this complaint and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the applicant failed to show that he had exhausted domestic remedies and, in any event, he did not provide any details to substantiate this complaint.

It follows that this part of application no. 76831/17 must be rejected in accordance with Article 35 §§ 1, 3 (a) 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

Facility

Start and end date

Duration

Sq. m per inmate

Specific grievances

74772/10

28/11/2010

Maksim Olegovich GLAVATSKIKH

1989IZ-47/1 St Petersburg

01/12/2009 to

01/09/2012

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

4 inmate(s)

1.9 m²

overcrowding, no or restricted access to warm water, lack of fresh air, inadequate temperature

47383/16

03/08/2016

Yevgeniy Sergeyevich KRASIKOV

1964IZ-47/1 St Petersburg

25/06/2014 to

07/06/2016

1 year(s) and 11 month(s) and 14 day(s)

4 inmate(s)

2 m²

1 toilet(s)

inadequate temperature, bunk beds, lack of privacy for toilet, no or restricted access to warm water, lack of fresh air, poor quality of food

25654/17

20/03/2017

Murat Aspanovich KHURATOV

1983IZ-2 Adygeya Republic

12/12/2014 to

25/12/2016

2 year(s) and 14 day(s)

2 m²

1 toilet(s)

overcrowding, poor quality of food, sharing cells with inmates infected with contagious disease, infestation of cell with insects/rodents

37729/17

10/05/2017

Aleksandr Sergeyevich POSTNIKOV

1982IZ-63/1 Samara

16/04/2016 to

10/02/2017

9 month(s) and 26 day(s)

2.9 m²

overcrowding, passive smoking, inadequate temperature, lack of fresh air, infestation of cell with insects/rodents, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, poor quality of food

54774/17

05/10/2017

Vladimir Grigoryevich MALYARCHUK

1966IZ-47/4, IVS St Petersburg

09/11/2016 to

01/08/2017

8 month(s) and 24 day(s)

1.75-2.7 m²

passive smoking, lack of or insufficient electric light, lack of or insufficient natural light, lack of fresh air, lack of privacy for toilet, no or restricted access to warm water, sharing cells with inmates infected with contagious disease, inadequate temperature, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of or poor quality of bedding and bed linen

67361/17

27/08/2017

Aleksey Borisovich CHULKOV

1980IZ-1 Stavropol Region

06/10/2016 to

03/12/2016

1 month(s) and 28 day(s)

IZ-2 Stavropol Region

04/12/2016 to

08/12/2016

5 day(s)

IZ-5 Rostov Region

09/12/2016 to

14/12/2016

6 day(s)

IZ-1 Voronezh Region

18/12/2016 to

22/12/2016

5 day(s)

IZ-1 Voronezh Region

17/01/2017 to

23/01/2017

7 day(s)

IZ-5 Rostov Region

27/01/2017 to

03/02/2017

8 day(s)

IZ-1 Stavropol Region

10/02/2017 to

16/02/2017

7 day(s)

IZ-2 Stavropol Region

17/02/2017 to

26/02/2017

10 day(s)

IZ-5 Rostov Region

27/02/2017 to

02/03/2017

4 day(s)

IK-18 Republic of Mordoviya

12/03/2017 to

17/03/2017

6 day(s)

2.4 m²

2.5 m²

2.1 m²

2.7 m²

2.5 m²

2.3 m²

2.8 m²

1.7 m²

1.6 m²

1.9 m²

overcrowding, insufficient number of sleeping places, no or restricted access to warm water, no or restricted access to shower, mouldy or dirty cell, infestation of cell with insects/rodents

overcrowding, inadequate temperature, lack of or poor quality of bedding and bed linen

overcrowding, insufficient number of sleeping places, lack of or poor quality of bedding and bed linen

overcrowding, lack of or poor quality of bedding and bed linen

overcrowding, lack of privacy for toilet, no or restricted access to warm water, unsanitary conditions in the cell

overcrowding, insufficient number of sleeping places

overcrowding, no or restricted access to warm water, no or restricted access to shower, mouldy or dirty cell, infestation of cell with insects/rodents

overcrowding, insufficient number of sleeping places, inadequate temperature, lack of or poor quality of bedding and bed linen, no or restricted access to warm water

overcrowding, insufficient number of sleeping places

overcrowding

68892/17

28/08/2017

Makhach Guseynaliyevich DZHAMALUTDINOV

1979IZ-47/1 St Petersburg

03/06/2015 to

22/04/2017

1 year(s) and 10 month(s) and 20 day(s)

1.7 m²

overcrowding, mouldy or dirty cell, passive smoking, lack of or insufficient electric light, lack or inadequate furniture, lack of fresh air, lack of or insufficient physical exercise in fresh air, poor quality of food, no or insufficient disinfection of barbering and haircutting tools

71560/17

24/09/2017

Radzha Alekseyevich KALMYKOV

1990IZ-72/1 Tyumen Region

17/09/2016 to

01/04/2017

6 month(s) and 16 day(s)

0.8-2 m²

insufficient number of sleeping places, lack of fresh air, constant electric light, lack of or insufficient electric light, lack of or insufficient natural light, lack of privacy for toilet, lack of or inadequate hygienic facilities, no or restricted access to potable water, no or restricted access to shower, poor quality of food, passive smoking

75998/17

20/04/2018

Boris Alekseyevich IVANOV

1980IZ-47/4 St Petersburg

22/08/2016 to

16/11/2017

1 year(s) and 2 month(s) and 26 day(s)

2.5 m²

lack of fresh air, lack of or insufficient electric light, overcrowding, lack of privacy for toilet, mouldy or dirty cell, passive smoking

76831/17

22/11/2017

Aleksandr Yuryevich TSMOKALO

1989IZ-47/4 St Petersburg

29/08/2016 to

19/09/2018

2 year(s) and 22 day(s)

2.3-3.3 m²

accommodation with inmates under stricter regime, no or restricted access to running water, shower once a week, lack of fresh air, lack of privacy for toilet, passive smoking, lack of or insufficient electric light, inadequate temperature, poor quality of food

606/18

04/12/2017

Andrey Mikhaylovich KULCHINSKIY

1975IK-11 cell-type facility Nizhny Novgorod Region

01/07/2015 to

20/11/2019

4 year(s) and 4 month(s) and 20 day(s)

<2 m²

overcrowding, no or restricted access to toilet, no or restricted access to running water, lack of fresh air, lack of or insufficient natural light, passive smoking

6002/18

08/01/2018

Ignatiy Aleksandrovich LAVRENTYEV

1992IZ-1 Rostov Region

18/02/2016 to

12/07/2017

1 year(s) and 4 month(s) and 25 day(s)

lack of or insufficient natural light, lack of fresh air, mouldy or dirty cell, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, poor quality of food, lack or inadequate furniture, no or restricted access to shower