THIRD SECTION

DECISION

Application no. 41102/16 Aleksey Anatolyevich BELYAYEV against Russia and 29 other applications

( s ee appended table)

The European Court of Human Rights (Third Section), sitting on 9 July 2020 as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Gilberto Felici, 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 parties,

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 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 attached table). They also argued that they did not have an effective domestic remedy to complain about those conditions at the na tional 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, disputing 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 Article s 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. In particular, the Court observes that the majority of the applicants complained about the conditions of their detention in colony IK ‑ 56 in the Sverdlovsk Region. In addition to specific grievances listed in the table attached below, the applicants provided similar description of the general conditions. While not arguing that they lacked personal space as such, the applicants nevertheless complained about degrading treatment relating to the lack of water-supply and sewage systems in IK-56 colony, and the absence of proper sanitary installations in the cells. The treatment they complained of consisted of the necessity to relieve themselves in a bucket, often in the presence of another inmate, and to endure difficulties as a result of the lack of sanitary facilities, such as the unpleasant odour in the cells, poor hygiene and the daily obligation to empty and clean the bucket. Those conditions in IK-56 of the Sverdlovsk Region were already the subject of the Court ’ s criticism, when it held that the lack of access to proper sanitary facilities run counter to the guarantees of Article 3 of the Convention (see Gorbulya v. Russia , no. 31535/09, § 94, 6 March 2014). The Court in this respect does not lose sight of the parties ’ submissions that the Russian authorities decided to close the facility and that by the summer 2018 all inmates were transferred from it. It is clear that the conditions in IK-56 colony ran counter to the domestic legal requirements. It thus follows that the applicants who complained about the conditions of their detention in IK-56 colony in Sverdlovsk Region were in the same position as 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 (see Shmelev and Others , ( dec. )., cited above, § 154).

To sum up, 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 30 July 2020 .

Liv Tigerstedt Alena Poláčková 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

Date 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

41102/16

25/08/2016

Aleksey Anatolyevich BELYAYEV

12/01/1979

IK-56 Sverdlovsk Region

21/02/2010 to 11/11/2017

7 year(s) and 8 month(s) and

22 day(s)

lack of fresh air, lack of or inadequate hygienic facilities, no or restricted access to running water, lack of privacy for toilet, poor quality of food, bad odour in the cell, lack of requisite medical assistance, passive smoking, frequent usage of handcuffs

11374/17

30/01/2017

Vitaliy Sergeyevich BOLSHAKOV

23/07/1992

SIZO-1 Moscow

30/10/2015 to 19/12/2016

1 year(s) and 1 month(s)

and 20 day(s)

IK-11 Nizhny Novgorod Region

19/12/2016 to 30/10/2021

4 year(s) and 10 month(s)

and 12 day(s)

128 inmate(s)

1.5 m²

6 toilet(s)

overcrowding

overcrowding, lack of or inadequate hygienic facilities, poor quality of food, lack or insufficient quantity of food

75859/17

13/10/2017

Dmitriy Vladimirovich GOLUBEV

08/12/1972

IK-56 Sverdlovsk Region

21/02/2010 to 01/12/2017

7 year(s) and 9 month(s)

and 11 day(s)

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, lack of privacy for toilet, no or restricted access to running water, no or restricted access to shower

76271/17

30/01/2018

Oleg Arsentyevich IVANOV

12/07/1974

IK-16 Murmansk Region

19/01/2014 to 27/01/2018

4 year(s) and 9 day(s)

90 inmate(s)

<2 m²

overcrowding, lack of or insufficient natural light, mouldy or dirty cell, inadequate temperature, lack of fresh air, lack of privacy for toilet, no or restricted access to toilet, no or restricted access to running water, poor quality of food, lack or insufficient quantity of food, lack of or restricted access to leisure or educational activities, sharing cells with inmates infected with contagious disease

5453/18

27/12/2017

Petr Nikolayevich CHERKAS

08/10/1986

IK-56 Sverdlovsk Region

26/02/2010 to 18/10/2017

7 year(s) and 7 month(s)

and 23 day(s)

overcrowding, lack of or insufficient natural light, lack of or insufficient electric light, lack of fresh air, no or restricted access to warm water, no or restricted access to running water, no or restricted access to potable water, no or restricted access to toilet, lack of or insufficient physical exercise in fresh air, sharing cells with inmates infected with contagious disease, no or restricted access to shower, poor quality of food

5503/18

29/12/2017

Pavel Vladimirovich SHESTAKOV

21/08/1978

IK-56 Sverdlovsk Region

14/11/2013 to 03/11/2017

3 year(s) and 11 month(s)

and 21 day(s)

no or restricted access to running water, no or restricted access to warm water, no or restricted access to toilet, lack of fresh air, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, no or restricted access to shower

5674/18

13/12/2017

Vladimir Sergeyevich RYZHIKOV

15/02/1990

IK-11 Nizhniy Novgorod Region

10/06/2013 to 11/09/2017

4 year(s) and 3 month(s) and 2 day(s)

<2 m²

bunk beds, poor quality of food, no or restricted access to warm water, lack of or inadequate hygienic facilities, no warm clothes

5873/18

20/12/2017

Sergey Viktorovich RUMYANTSEV

02/11/1954

IK-11 Nizhny Novgorod Region

22/12/2008 to 12/02/2020

11 year(s) and 2 month(s)

and 21 day(s)

135 inmate(s)

1.6 m²

8 toilet(s)

no or restricted access to running water, no or restricted access to toilet, overcrowding, lack of fresh air, lack of requisite medical assistance, no or restricted access to shower, lack of or insufficient physical exercise in fresh air

6144/18

25/12/2017

Aleksey Sergeyevich SHATALOV

18/03/1983

IK-56 Sverdlovsk Region

16/08/2013 to 11/11/2017

4 year(s) and 2 month(s)

and 27 day(s)

lack of fresh air, lack of or inadequate hygienic facilities, constant electric light, lack of or insufficient electric light, lack of or insufficient natural light, poor quality of potable water, lack of or insufficient physical exercise in fresh air, no or restricted access to toilet

7305/18

27/12/2017

Aleksey Gennadyevich BERDUTO

02/02/1966

IK-56 Sverdlovsk Region

06/12/2013 to 03/02/2018

4 year(s) and 1 month(s)

and 29 day(s)

lack of or insufficient electric light, lack of or insufficient natural light, no or restricted access to shower, no or restricted access to running water, poor quality of potable water, lack of or inadequate hygienic facilities

7740/18

19/01/2018

Vladimir Viktorovich MIRGOROD

01/11/1979

IK-56 Sverdlovsk Region

27/08/2012 to 11/11/2017

5 year(s) and 2 month(s)

and 16 day(s)

lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, lack of or insufficient natural light

9642/18

08/02/2018

Aleksey Vladimirovich KVASHNIN

30/09/1983

IK-56 Sverdlovsk Region

21/03/2010 to 05/01/2018

7 year(s) and 9 month(s)

and 16 day(s)

lack of plumbing, no sewage system, lack of privacy for toilet, no electrical light in toilet, lack of or insufficient natural light, lack of fresh air, lack of or insufficient electric light, stench in the courtyard, no or restricted access to shower, poor quality of food, lack or insufficient quantity of food

9661/18

11/11/2017

Sergey Anatolyevich KHURTAK

12/08/1985

OIK-40 IK-39 Krasnoyarsk Region

02/05/2017 to 29/12/2017

7 month(s) and 28 day(s)

130 inmate(s)

1.2 m²

overcrowding

9841/18

10/02/2018

Vadim Vladislavovich GORBULYA

05/03/1973

IZ-47/1 St Petersburg

26/02/2017 to 16/08/2017

5 month(s) and 22 day(s)

IK-56 Sverdlovsk Region

26/08/2017 to 01/02/2018

5 month(s) and 7 day(s)

overcrowding

lack of or inadequate hygienic facilities, lack of privacy for toilet, no or restricted access to shower, no or restricted access to toilet

15234/18

12/03/2018

Islam Bekkhanovich YANDIYEV

23/12/1989

IK 56 Sverdlovsk Region

10/02/2015 to 17/12/2017

2 year(s) and 10 month(s)

and 8 day(s)

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

17936/18

26/03/2018

Andrey Valeryevich POLICHEV

29/01/1988

IK-56 Sverdlovsk Region

06/12/2015 to 05/01/2018

2 year(s) and 1 month(s)

lack of sewage and water supply systems, lack of privacy for toilet, lack of or inadequate hygienic facilities, lack of fresh air, lack of or insufficient natural light, lack of or insufficient electric light, unpleasant odour from the waste disposal, inadequate state of the exercise yard, no or restricted access to shower, no or restricted access to running water, poor quality of food, lack or insufficient quantity of food

20900/18

30/04/2018

Viktor Gennadyevich KHARINTSEV

27/09/1983

IK-56 Sverdlovsk Region

14/11/2009 to 18/01/2018

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

lack of or inadequate hygienic facilities, lack of privacy for toilet, lack of fresh air, lack of or insufficient physical exercise in fresh air, no or restricted access to running water, no or restricted access to warm water, no or restricted access to shower, lack of or insufficient natural light

25994/18

14/05/2018

Artur Agasiyevich ZAKHARYAN

26/11/1962

IK-11 Nizhniy Novgorod Region

26/11/2015 to 28/04/2020

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

1.7 m²

lack of or restricted access to leisure or educational activities, lack or inadequate furniture, inadequate temperature, lack of fresh air, no or restricted access to running water, no or restricted access to toilet, infestation of cell with insects/rodents, no or insufficient disinfection of barbering and haircutting tools, small courtyard, lack of requisite medical assistance, overcrowding in the kitchen, poor quality of food

26772/18

23/05/2018

Aleksandr Anatolyevich OSIPOV

19/07/1977

Yesina Tatyana Robertovna

Sevastopol

IK-56 Sverdlovsk Region

19/09/2014 to 01/07/2018

More than 3 year(s) and 9 month(s) and 21 day(s)

no or restricted access to warm water, no or restricted access to toilet, no or restricted access to shower, no or restricted access to running water, no or restricted access to potable water, lack of or insufficient natural light, lack of fresh air, lack of or insufficient physical exercise in fresh air

26795/18

18/05/2018

Ramil Gadzhimustafayevich IBRAGIMOV

28/12/1983

IK-56 Sverdlovsk Region

04/06/2010 to 19/02/2018

7 year(s) and 8 month(s)

and 16 day(s)

no or restricted access to toilet, no or restricted access to potable water, no or restricted access to running water, no or restricted access to shower, lack of or inadequate hygienic facilities, lack of fresh air, inadequate temperature, no or restricted access to warm water, lack of or insufficient natural light, lack of or insufficient electric light, poor quality of food, poor quality of potable water

27846/18

21/05/2018

Aslan Bashirovich KUCHMENOV

19/02/1980

IK-56 Sverdlovsk Region

12/04/2016 to 19/01/2018

1 year(s) and 9 month(s) and 8 day(s)

lack of water supply, lack of or insufficient electric light, no or restricted access to toilet, lack of ventilation, lack of or insufficient natural light, sharing cells with inmates infected with contagious disease, poor conditions of walk courtyard, lack of or inadequate hygienic facilities, lack or inadequate furniture, lack of sanitation

30552/18

13/06/2018

Zufar Zakiyevich KULMUKHAMETOV

11/05/1983

IK-56 Sverdlovsk Region

14/02/2017 to 02/03/2018

1 year(s) and 17 day(s)

no or restricted access to toilet, no or restricted access to shower, no or restricted access to warm water, no or restricted access to running water, no or restricted access to potable water, mouldy or dirty cell, lack of fresh air, lack of privacy for toilet, poor quality of potable water

31346/18

20/06/2018

Eduard Vilovich MIRONOV

03/08/1974

IK-56 Sverdlovsk Region

16/04/2016 to 10/02/2018

1 year(s) and 9 month(s)

and 26 day(s)

no sewage system in the detention facility, no running water, the same facility as in the case of Gorbulya v. Russia (no. 31535/09, 6 March 2014)

32116/18

26/06/2018

Aleksandr Borisovich GORSHKOV

12/06/1986

Vinogradov Aleksandr Vladimirovich

Kostroma

IK-1 Kostroma Region

08/12/2017 to 05/06/2018

5 month(s) and 29 day(s)

100 inmate(s)

0.8 m²

overcrowding, mouldy or dirty cell, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, poor quality of food, sharing cells with inmates infected with contagious disease

32359/18

22/06/2018

Ruslan Vladimirovich FEDOROV

26/08/1983

IK-56 Sverdlovsk Region

26/07/2017 to 03/03/2018

7 month(s) and 6 day(s)

lack of fresh air, passive smoking, constant electric light, no or restricted access to potable water, no or restricted access to warm water, lack of or inadequate hygienic facilities, lack of privacy for toilet, cuffs, no or restricted access to shower, poor quality of food, no or restricted access to running water

33945/18

04/07/2018

Vadim Fedorovich POSTONOGOV

22/05/1988

IK-56 Sverdlovsk Region

13/07/2010 to 11/02/2018

7 year(s) and 6 month(s)

and 30 day(s)

no or restricted access to toilet, no or restricted access to potable water, no or restricted access to running water, lack of privacy for toilet, lack of fresh air, lack of or insufficient natural light, sharing cells with inmates infected with contagious disease, poor quality of food

34233/18

06/07/2018

Vasiliy Valentinovich SATINOV

12/02/1979

IK-56 Sverdlovsk Region

04/04/2017 to 11/02/2018

10 month(s) and 8 day(s)

no or restricted access to toilet, no or restricted access to running water, lack of or insufficient physical exercise in fresh air, lack of fresh air, lack of or insufficient natural light, sharing cells with inmates infected with contagious disease

34458/18

09/07/2018

Yuriy Mykhaylovych PASKAL

18/03/1966

IK-56 Sverdlovsk Region

26/11/2017 to 03/02/2018

2 month(s) and 9 day(s)

no or restricted access to toilet, poor quality of potable water, lack of fresh air, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, no or restricted access to shower

34479/18

13/07/2018

Vasiliy Ivanovich KHOKHLOV

13/03/1969

IK-56 Sverdlovsk Region

04/06/2010 to 03/02/2018

7 year(s) and 8 month(s)

no or restricted access to warm water, no or restricted access to toilet, no or restricted access to running water, no or restricted access to potable water, no or restricted access to shower, lack of privacy for toilet, lack of fresh air, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air

57957/18

30/11/2018

Issa Lokhanovich KHASHAGULGOV

11/01/1968

IK-56 Sverdlovsk Region

24/11/2014 to 06/07/2018

3 year(s) and 7 month(s)

and 13 day(s)

no or restricted access to toilet, no or restricted access to running water, small courtyard, lack of fresh air, lack of or insufficient natural light, lack of or insufficient electric light, no or restricted access to shower, sharing cells with inmates infected with contagious disease