Lexploria

THIRD SECTION

DECISION

Application no. 80380/17 Maksim Sergeyevich BUDKEVICH against Russia and 30 other applications

( s ee appended table)

The European Court of Human Rights (Third Section), sitting on 25 June 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 respondent Government and the observations in reply submitted by 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 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.

The applicants complained of conditions of 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). Many 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.”

The Government submitted their observations. In some cases they 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.

The applicants were asked to submit their comments in reply. In their responses they questioned the effectiveness and availability of the remedies invoked by the Government.

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 meters 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 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 16 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

80380/17

18/09/2017

Maksim Sergeyevich BUDKEVICH

15/05/1981

IK-25 Komi Republic

05/05/2016 to

05/04/2018

1 year(s) and 11 month(s)

and 1 day(s)

2 m²

O vercrowding, no or restricted access to shower, lack of or restricted access to leisure or educational activities, sharing cells with inmates infected with contagious disease .

21827/18

26/04/2018

Aleksandr Vasilyevich GULYAYEV

19/06/1984

IK-1 Arkhangelsk Region

26/06/2010 to

11/11/2019

9 year(s) and 4 month(s) and 17 day(s)

85 inmate(s)

1.7 m²

5 toilet(s)

O vercrowding, lack of or inadequate hygienic facilities, insufficient number of toilets, low pressure in the water supply system, no or restricted access to running water, lack of fresh air, mouldy or dirty cell, poor quality of food .

25329/18

02/07/2018

Andrey Aleksandrovich USHAKOV

15/04/1979

IK-2 Zabaykalskiy Region

01/02/2015 to

09/01/2019

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

150 inmate(s)

1.2 m²

O vercrowding, infestation of cell with insects/rodents, no or restricted access to toilet, narrow passages in the cell, lack of or insufficient electric light, lack of or insufficient natural light, no or restricted access to warm water, poor quality of potable water, no or restricted access to shower, lack of requisite medical assistance, poor quality of food, inadequate temperature, lack of or insufficient physical exercise in fresh air .

29560/18

07/06/2018

Aleksey Valeryevich FOMICHEV

14/02/1972

IK-11 Nizhniy Novgorod Region

18/09/2007 to

25/07/2019

11 year(s) and 10 month(s) and 8 day(s)

140 inmate(s)

2 m²

6 toilet(s)

P oor quality of food, lack of or poor quality of bedding and bed linen, no or restricted access to warm water, overcrowding .

31358/18

17/08/2018

Aleksandr Vladimirovich KATAYEV

24/11/1971

IK-2 Zabaykalskiy Region

28/08/2014 to

12/10/2019

5 year(s) and 1 month(s)

and 15 day(s)

1.7 m²

L ack of or inadequate hygienic facilities, lack of or insufficient electric light, infestation of cell with insects/rodents, overcrowding, poor quality of food, mouldy or dirty cell .

32314/18

27/08/2018

Viktor Ivanovich NEFEDYEV

28/06/1973

IK-2 Zabaykalskiy Region

18/10/2010 to

10/12/2019

9 year(s) and 1 month(s)

and 23 day(s)

1.7 m²

O vercrowding, lack of fresh air, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, inadequate temperature, lack of or insufficient electric light, poor quality of food .

33840/18

17/06/2018

Aleksandr Gennadyevich BASTRIKOV

09/08/1977

IK-2 Zabaykalskiy Region

20/11/2017 to

10/06/2018

6 month(s) and 22 day(s)

1.5 m²

L ack of or insufficient natural light, lack of or insufficient electric light, lack of ventilation, no or restricted access to warm water, no or restricted access to potable water, no or restricted access to shower, lack of or inadequate hygienic facilities, poor quality of food, lack of or restricted access to leisure or educational activities .

33846/18

25/06/2018

Sergey Sergeyevich PERMINOV

19/03/1978

IK-2 Zabaykalskiy Region

25/11/2017 to

17/12/2019

2 year(s) and 23 day(s)

144 inmate(s)

1.7 m²

L ack of or inadequate hygienic facilities, lack of or insufficient natural light, inadequate temperature, mouldy or dirty cell, no or restricted access to warm water, infestation of cell with insects/rodents .

40372/18

31/07/2018

Yaroslav Vitalyevich GRIGORYEV

05/03/1975

IK-24 Komi Republic

01/12/2016 to

01/05/2018

1 year(s) and 5 month(s)

and 1 day(s)

1.6 m²

O vercrowding, mouldy or dirty cell, infestation of cell with insects/rodents, no or restricted access to warm water, lack of privacy for toilet .

44677/18

29/08/2018

Sergey Valeryevich YEREMENKO

22/03/1978

IK-2 Zabaykalskiy Region

17/01/2015 to

10/03/2020

5 year(s) and 1 month(s)

and 23 day(s)

1.7 m²

N o or restricted access to warm water, inadequate temperature, lack of fresh air, lack of or restricted access to leisure or educational activities, lack of or insufficient electric light, infestation of cell with insects/rodents, stench, mouldy or dirty cell, lack or inadequate furniture .

44910/18

30/08/2018

Viktor Yuryevich SVERKUNOV

14/01/1979

IK-2 Zabaykalskiy Region

24/04/2018 to

23/02/2020

1 year(s) and 10 month(s)

138 inmate(s)

1.58 m²

8 toilet(s)

O vercrowding, lack of or restricted access to leisure or educational activities, no or restricted access to warm water, infestation of cell with insects/rodents, lack of or insufficient electric light .

45589/18

10/09/2018

Sergey Nikolayevich VINOKUROV

20/12/1982

IK-2 Zabaykalskiy Region

30/11/2017 to

01/03/2020

2 year(s) and 3 month(s)

and 2 day(s)

135 inmate(s)

1.3-1.5 m²

O vercrowding, insufficient number of toilets and wash basins, lack of or insufficient electric light, lack of fresh air, mouldy or dirty cell, infestation of cell with insects/rodents .

45657/18

03/09/2018

Vyacheslav Georgiyevich VETROV

23/09/1959

IK-2 Zabaykalskiy Region

12/04/2011 to

25/02/2020

8 year(s) and 10 month(s)

and 14 day(s)

150 inmate(s)

1.6 m²

O vercrowding, narrow passages in the cell, no or restricted access to warm water .

47114/18

19/01/2019

Rustam Rimovich MAVLITOV

22/02/1981

IK-49 Komi Republic

25/12/2013 to

27/11/2019

5 year(s) and 11 month(s)

and 3 day(s)

1.8 m²

O vercrowding, inadequate temperature, mouldy or dirty cell, no or restricted access to potable water, lack of fresh air .

47264/18

16/09/2018

Petr Nikolayevich LOGUNOV

03/06/1962

Shirokov Oleg Valeryevich

Nizhniy Tagil

IK-3 Sverdlovsk Region

29/12/2010 to

19/03/2018

7 year(s) and 2 month(s) and 20 day(s)

50 inmate(s)

2 m²

L ack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of toiletries, no or restricted access to running water, poor quality of food, inadequate temperature .

52999/18

30/10/2018

Aleksandr Aleksandrovich GORBACHENKO

15/05/1986

IK-1 Komi Republic

01/03/2017 to

28/07/2019

2 year(s) and 4 month(s)

and 28 day(s)

71 inmate(s)

1.8 m²

L ack of outfit, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, twin beds, inadequate temperature, lack of ventilation, passive smoking, lack of or insufficient physical exercise in fresh air, lack of or inadequate hygienic facilities, poor quality of food, no or restricted access to shower .

54493/18

08/11/2018

Nikolay Yevgenyevich IKS

02/03/1976

IK-2 Zabaykalskiy Region

11/09/2008 to

29/02/2020

11 year(s) and 5 month(s)

and 19 day(s)

2 m²

L ack of fresh air, infestation of cell with insects/rodents, inadequate temperature, lack of or insufficient physical exercise in fresh air, no or restricted access to toilet, no or restricted access to shower, overcrowding .

59812/18

06/12/2018

Andrey Sergeyevich KLIMOV

01/09/1977

IK-2 Zabaykalskiy Region

15/06/2018 to

17/12/2019

1 year(s) and 6 month(s)

and 3 day(s)

110 inmate(s)

1.7 m²

8 toilet(s)

L ack of fresh air, inadequate temperature, no or restricted access to running water, lack of or inadequate hygienic facilities .

3157/19

17/12/2018

Ivan Aleksandrovich YEFIMOV

06/10/1976

IK-2 Zabaykalskiy Region

01/02/2018 to

21/11/2019

1 year(s) and 9 month(s)

and 21 day(s)

4 inmate(s)

2 m²

1 toilet(s)

L ack of fresh air, overcrowding, no or restricted access to warm water .

3160/19

18/12/2018

Vitaliy Vladimirovich RYZHKOV

27/08/1975

IK-2 Zabaykalskiy Region

11/10/2009 to

21/11/2019

10 year(s) and 1 month(s)

and 11 day(s)

160 inmate(s)

1.45 m²

5 toilet(s)

O vercrowding, no proper toilet facilities until 2014 .

3305/19

10/12/2018

Roman Vitalyevich REMESHEVSKIY

20/04/1983

IK-1 Komi Republic

29/11/2015 to

04/02/2020

4 year(s) and 2 month(s)

and 7 day(s)

50 inmate(s)

2 m²

O vercrowding, mouldy or dirty cell, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, lack of or inadequate hygienic facilities, no or restricted access to running water, sharing cells with inmates infected with contagious disease .

5285/19

10/01/2019

Pavel Vladimirovich SENYUKOV

10/07/1985

IK-1 Komi Republic

13/08/2017 to

24/05/2020

2 year(s) and 9 month(s)

and 12 day(s)

270 inmate(s)

1.6 m²

O vercrowding, mouldy or dirty cell, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, no or restricted access to warm water, insufficient number of wash basins and toilets, poor quality of potable water, lack of or inadequate hygienic facilities, lack of privacy for toilet, inadequate temperature, lack of fresh air, lack of or insufficient electric light, inadequate space of the exercise yard, unpleasant odour from the nearby plants, poor quality of food, no or restricted access to shower .

8568/19

13/12/2018

Konstantin Telmanovich KAYTUKOV

23/10/1979

IK-8 Komi Republic

22/02/2017 to

16/03/2020

3 year(s) and 24 day(s)

1.5 m²

O vercrowding, no or restricted access to toilet, no or restricted access to warm water, no or restricted access to shower, lack of or insufficient electric light .

13411/19

02/02/2019

Vadim Aleksandrovich SOSNIN

17/10/1986

Andreyev Ashot Aleksandrovich

Syktyvkar

IK-1 Komi Republic

09/10/2015 to

10/08/2018

2 year(s) and 10 month(s)

and 2 day(s)

270 inmate(s)

2 m²

15 toilet(s)

I nfestation of cell with insects/rodents, overcrowding, lack or insufficient quantity of food, no or restricted access to shower .

13504/19

21/02/2019

Sergey Aleksandrovich TERENTYEV

17/07/1978

IK-1 Komi Republic

17/10/2015 to

04/05/2019

3 year(s) and 6 month(s)

and 18 day(s)

100 inmate(s)

2 m²

7 toilet(s)

L ack of or restricted access to leisure or educational activities, no or restricted access to warm water, lack of privacy for toilet, lack of fresh air, poor quality of potable water, no or restricted access to potable water, poor quality of food .

14722/19

04/03/2019

Igor Alekseyevich VALENTSIN

24/10/1986

IK-2 Zabaykalskiy Region

30/10/2017 to

13/01/2020

2 year(s) and 2 month(s)

and 15 day(s)

144 inmate(s)

1.7 m²

8 toilet(s)

O vercrowding, lack of or insufficient natural light, lack of fresh air, inadequate temperature, mouldy or dirty cell, no or restricted access to running water, no or restricted access to warm water, infestation of cell with insects/rodents, no or restricted access to shower .

15629/19

10/03/2019

Damir Arkadyevich FOMINYKH

27/06/1988

Andreyev Ashot Aleksandrovich

Syktyvkar

IK-1 Komi Republic

15/02/2017 to

10/01/2019

1 year(s) and 10 month(s)

and 27 day(s)

1.8 m²

O vercrowding, infestation of cell with insects/rodents, no or restricted access to warm water, lack of or insufficient physical exercise in fresh air .

20618/19

31/03/2019

Sergey Borisovich ASAFOV

08/04/1979

IK-49 Komi Republic

18/10/2016 to

16/12/2019

3 year(s) and 1 month(s)

and 29 day(s)

1.5 m²

L ack of fresh air, inadequate temperature, overcrowding, poor quality of potable water, mouldy or dirty cell .

22390/19

08/04/2019

Dmitriy Mikhaylovich BELOUSOV

26/01/1976

IK-2 Zabaykalskiy Region

13/10/2017 to

13/11/2019

2 year(s) and 1 month(s)

and 1 day(s)

1.61 m²

L ack of privacy for toilet, lack of or restricted access to leisure or educational activities, overcrowding .

22694/19

14/04/2019

Nikolay Nikolayevich PAVLENKO

19/02/1966

IK-49 Komi Republic

15/03/2011 to

28/12/2018

7 year(s) and 9 month(s)

and 14 day(s)

126 inmate(s)

1.5 m²

O vercrowding, lack of cell surface to move freely between furniture items, no or restricted access to toilet, no or restricted access to running water, scarce surface of canteen area, lack or inadequate furniture, no or restricted access to potable water, poor quality of running water .

26886/19

22/04/2019

Aslan Vasilyevich TAYSUMOV

10/09/1987

IK-49 Komi Republic

13/01/2016 to

18/12/2018

2 year(s) and 11 month(s)

and 6 day(s)

50 inmate(s)

2 m²

2 toilet(s)

O vercrowding, lack of fresh air, lack of or insufficient natural light, lack of or insufficient electric light, infestation of cell with insects/rodents, inadequate temperature, poor quality of food .

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BUDKEVICH AND OTHERS v. RUSSIA

BUDKEVICH AND OTHERS v. RUSSIA

LEXI