THIRD SECTION

DECISION

Application no. 17523/18 Denis Yuryevich EYA against Russia and 10 other applications

(s ee appended table)

The European Court of Human Rights (Third Section), sitting on 5 November 2020 as 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 deliberated, decides as follows:

FACTS AND PROCEDURE

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

The applicants complained under Article 3 of the Convention about the inadequate conditions of their detention (see the appended table for details). They also argued under Article 13 of the Convention that they did not have an effective remedy to complain about the poor conditions of their detention. In some of the applications, the applicants raised other issues under various provisions of the Convention .

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). Some of them 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.”

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 a (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, including in respect of the standard of evidence employed by the domestic courts (see the 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 ...”

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 ( 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 ( 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 a 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.

Some applicants also raised other complaints under various articles of the Convention.

The Court has examined the application s listed in the appended table 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, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 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 26 November 2020 .

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

Sq. m per inmate

Specific grievances

17523/18

23/03/2018

Denis Yuryevich EYA

1980Prokofyeva Viktoriya Pavlovna

St Petersburg

IK-16 Arkhangelsk Region (strict regime cell)

14/12/2015 to 08/02/2018

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

26 day(s)

0.6 m²

lack of or inadequate hygienic facilities, lack of privacy for toilet, no or restricted access to warm water, poor quality of potable water, inadequate temperature, lack of seasonal clothing, lack of or insufficient natural light, passive smoking, lack of fresh air, lack of or restricted access to leisure or educational activities, sharing cells with inmates infected with contagious disease

24811/18

30/07/2018

Georgiy Konstantinovich TROPAREV

1997IZ-47/4 St Petersburg

16/12/2016 to 27/11/2018

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

12 day(s)

1.5-2 m²

lack of or poor quality of bedding and bed linen, lack of ventilation, mouldy or dirty cell, infestation of cell with insects/rodents, lack of or insufficient natural light, lack of or insufficient electric light, no or restricted access to shower, lack of or restricted access to leisure or educational activities, poor quality of food

35168/18

21/05/2018

Novruz Orudzhiyevich MAMEDOV

1976Belinskaya Marina Aleksandrovna

St Petersburg

IZ-47/4, IZ-47/1 St Petersburg

17/06/2015 to 04/04/2019

3 year(s) and 9 month(s) and

19 day(s)

2 m²

no or restricted access to warm water, no or restricted access to shower, lack of privacy for toilet, lack of fresh air, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of or inadequate hygienic facilities

40515/18

30/10/2018

Roman SOKOLOV

1987Balashova Olga Sergeyevna

Pskov

IZ-60/1 Pskov Region

08/12/2017 to 26/03/2019

1 year(s) and 3 month(s) and

19 day(s)

3 m²

overcrowding, narrow passages in the cell, no or restricted access to running water, poor quality of potable water, poor quality of food, no or restricted access to warm water, infestation of cell with insects/rodents, no or restricted access to shower, lack of or restricted access to leisure or educational activities, insufficient number of sleeping places

23346/19

11/02/2019

Vitaliy Nikolayevich IVANOV

1978SIZO-1 St Petersburg / Leningrad Region

30/06/2017 to 28/05/2020

2 year(s) and 11 month(s) and

28 day(s)

1-3 m²

no or restricted access to shower , overcrowding

25535/19

02/05/2019

Konstantin Georgiyevich SENGEROV

1987IZ-2 Pyatigorsk, Stavropol Region

06/11/2018 to 14/01/2019

2 month(s) and 9 day(s)

IZ-2 Pyatigorsk, Stavropol Region

30/01/2019 to 22/10/2019

8 month(s) and 23 day(s)

1.8 m²

1.8 m²

overcrowding

overcrowding

52000/19

03/09/2019

Yevgeniy Vladimirovich PAVLOV

1984IZ-2 Komi Republic

01/09/2018 to 06/07/2019

10 month(s) and 6 day(s)

IZ-1 Komi Republic

07/07/2019 to 19/03/2020

8 month(s) and 13 day(s)

3 m²

<3 m²

overcrowding, passive smoking, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, lack of or insufficient electric light

overcrowding, lack of fresh air

64072/19

26/02/2020

Sergey Gennadyevich MERKULOV

1995IZ-3 Komi Republic

14/06/2018 to 03/08/2020

2 year(s), 1 month(s) and 19 day(s)

2.75 m²

overcrowding, no or restricted access to shower

14190/20

03/03/2020

Marina Valeryevna SHISHMAREVA

1982IZ-1 Zabaykalskiy Region

01/11/2019 to 19/07/2020

8 month(s) and 19 day(s)

3 m²

lack of fresh air, lack of or inadequate hygienic facilities, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, mouldy or dirty cell, overcrowding

25506/20

20/05/2020

Sergey Valeryevich NAPLAVKOV

1974IZ-1 Saratov Region, IZ-1 Nizhniy Novgorod Region, IZ-1 Yaroslavl Region, IZ-4 Arkhangelsk Region

08/04/2020 to 04/08/2020

3 month(s) and 26 day(s)

1.5 m²

overcrowding, insufficient number of sleeping places, poor quality of food, lack of or inadequate hygienic facilities, mouldy or dirty cell, inadequate temperature, lack of fresh air, lack of or insufficient natural light, lack of or insufficient electric light, lack of or restricted access to leisure or educational activities, no or restricted access to potable water

40548/20

21/08/2020

Ramzan Lechiyevich VISITAYEV

1988IK-5 Kirov Region

02/10/2018 to 08/10/2020

2 year(s) and 7 day(s)

< 2

overcrowding