THIRD SECTION

CASE OF USTIMENKO AND OTHERS v. RUSSIA

( Applications nos. 74612/11 and 2 others –

see appended list )

JUDGMENT

STRASBOURG

14 June 2018

This judgment is final but it may be subject to editorial revision.

In the case of Ustimenko and Others v. Russia ,

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

Alena Poláčková , President, Dmitry Dedov , Jolien Schukking , judges, and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 24 May 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The applications were communicated to the Russian Government (“the Government”).

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

I. JOINDER OF THE APPLICATIONS

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

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION CONCERNING CONDITIONS OF DETENTION IN POST-CONVICTION FACILITIES

6. The applicants complained principally of the inadequate conditions of their detention in post-conviction detention facilities. They relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants ’ detention are indicated in the appended table. The Court refers to the principles established in its case ‑ law regarding inadequate conditions of detention (see, for instance, Kud Å‚a v. Poland [GC], no. 30210/96, §§ 90 ‑ 94, ECHR 2000 ‑ XI, and Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 139 ‑ 165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania , no. 53254/99, §§ 36–40, 7 April 2005).

8. In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case.

9. 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 and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants ’ conditions of detention in the facilities and during periods indicated in the appended table below were inadequate.

10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. In application no. 49085/13, the applicant also submitted a complaint under Article 13 of the Convention (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of Article 13 the Convention in the light of its findings in Sergey Babushkin , cited above, §§ 38-45 .

IV. THE GOVERNMENT ’ S REQUEST TO STRIKE OUT A PART OF THE APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION

12. The applicants further complained under Article 3 of the Convention about the inadequate conditions of their pre-trial detention.

13. The Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issues raised by these complaints.

14. The Government acknowledged the inadequate conditions of detention in pre-trial detention facilities. They offered to pay the applicants the amounts detailed in the appended table and invited the Court to strike the applications out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amounts would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court ’ s decision. In the event of failure to pay these amounts within the above-mentioned three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the cases.

15. The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:

“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

16. Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued (see, in particular, Tahsin Acar v. Turkey (pr eliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

17. The Court has established clear and extensive case-law concerning complaints relating to the inadequate conditions of detention in pre-trial detention facilities (see, for example, Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, 10 January 2012).

18. Noting the admissions contained in the Government ’ s declarations as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications in the part concerning the complaints about poor conditions of detention in pre-trial detention facilities as indicated in the unilater al declarations (Article 37 § 1 (c)).

19. In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications in this part (Article 37 § 1 in fine).

20. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, the applications may be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

21. In view of the above, it is appropriate to strike the cases out of the list as regards the complaints concerning the inadequate conditions of the applicants ’ pre-trial detention, as set out in the unilateral declarations.

V. REMAINING COMPLAINTS

22. In applications nos. 74612/11 and 49085/13 the applicants also raised other complaints under various Articles of the Convention.

23. The Court has examined the applications 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.

24. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention .

VI . APPLICATION OF ARTICLE 41 OF THE CONVENTION

2 5 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

2 6 . Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014, and Mozharov and Others v. Russia, no. 16401/12 and 9 others, 21 March 2017), as well as to the sums which the Government offered to pay to the applicants under the unilateral declarations, the Court considers it reasonable to award the sums indicated in the appended table.

2 7 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2. Takes note of the terms of the respondent Government ’ s declarations, and of the arrangements for ensuring compliance with the undertakings referred to therein and decides to strike the part of the applications concerning the inadequate conditions of pre-trial detention out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

3. Declares the complaints concerning the inadequate conditions of detention in post-conviction facilities and the other complaints under well-established case-law of the Court , as set out in the appended table, admissible, and the remainder of the applications nos. 74612/11 and 49085/13 inadmissible;

4. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention in post-conviction facilities ;

5 . Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

6. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 14 June 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Alena Poláčková

Acting D eputy 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 name

Date of birth

Facility

Start and end date

Duration

Inmates per brigade

Sq. m. per inmate

Number of toilets per brigade

Specific grievances

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]

Amount awarded under a unilateral declaration per application

(in euros) [2]

74612/11

23/01/2012

Andrey Aleksandrovich Ustimenko

03/04/1969

IK-11 Nizhniy Novgorod Region

04/11/2011 to

20/09/2012

10 month(s) and 17 day(s)

140 inmate(s)

2 m²

6 toilet(s)

overcrowding, no or restricted access to shower, no or restricted access to running water

1,500

4,000

49085/13

02/07/2013

Sergey Yevgenyevich Nazarov

27/08/1987

IK-11 Nizhniy Novgorod Region unit 8

29/11/2011 to

29/04/2013

1 year(s) and 5 month(s) and 1 day(s)

IK-11 Nizhniy Novgorod Region unit 8

04/06/2013

pending

More than 4 year(s) and

10 month(s) and 14 day(s)

1.4 m²

1.4 m²

bunk beds, lack of or inadequate hygienic facilities, passive smoking, no or restricted access to shower, not provided with warm seasonal shoes, weekly shower for 60 min. for 138 inmates, 12 shower heads, small and damp walking yard with a 3 m. iron fence

bunk beds, lack of or inadequate hygienic facilities, passive smoking, no or restricted access to shower, not provided with warm seasonal shoes, weekly shower for 60 min. for 138 inmates, 12 shower heads, small and damp walking yard with a 3 m. iron fence

Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention -

18,500

1,000

49192/15

09/11/2015

Aleksandr Sergeyevich Pantyukhin

20/09/1982

FKU IK-46 Nevyansk

09/12/2010

pending

More than 7 year(s) and

4 month(s) and 9 day(s)

150 inmate(s)

1 m²

overcrowding, lack of (sufficient) natural light, lack of fresh air, lack of (adequate) heating, insufficient number of beds in the cell, insufficient number of toilets and washing taps

7,000

5,000

[1] Plus any tax that may be chargeable to the applicants.

[2] Plus any tax that may be chargeable to the applicants.