THIRD SECTION

CASE OF CHERNYKH v. RUSSIA

( Application no. 32719/09 )

JUDGMENT

STRASBOURG

24 November 2016

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

In the case of Chernykh v. Russia ,

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

Helena Jäderblom , President, Dmitry Dedov , Branko Lubarda , judges , and Hasan Bakırcı Deputy Section Registrar ,

Having deliberated in private on 3 November 2016 ,

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

PROCEDURE

1. The case originated in an application (no. 32719/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Vladimirovich Chernykh (“the applicant”), on 6 April 2009.

2. The application was communicated to the Russian Government (“the Government”).

THE FACTS

3. The relevant details of the application are set out in the appended table.

4. The applicant complained of the inadequate conditions of his detention . He also raised a complaint under Article 13 of the Convention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

5. The applicant complained principally of the inadequate conditions of his detention. He relied on Article 3 of the Convention, which reads as follows:

Article 3

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

6. The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant ’ s complaint under Article 3. The Government acknowledged the inadequate conditions of detention. They offered to pay the applicant the amount detailed in the appended table and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount 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 judgment. In the event of failure to pay the amount within the abovementioned three-month period, the Government undertook to pay simple interest on it, 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 case insofar as it concerned the complaint about the poor conditions of detention.

7. The Court has not received any response from the applicant which accepts the terms of the unilateral declaration.

8. 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 applications”.

9. 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 the principles emerging from the Court ’ s case-law, and in particular the Tahsin Acar v. Turkey (preliminary objections) ([GC], no. 26307/95, §§ 75-77, ECHR 2003-VI)).

10. The Court has established clear and extensive case-law concerning complaints relating to the inadequate conditions of detention (see, for example, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012 and Butko v. Russia, no. 32036/10, §§ 54-64, 12 November 2015).

11. Noting the admission contained in the Government ’ s declaration 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 application insofar as it concerned the applicant ’ s complaint about the poor conditions of his detention (Article 37 § 1 (c)).

12. 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 this part of the application (Article 37 § 1 in fine ).

13. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application in this part 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).

14. Accordingly, in so far as the complaint under Article 3 about the conditions of the applicant ’ s detention is concerned, this part of the application should be struck out of the list.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

15. The applicant also argued under Article 13 of the Convention that he did not have at his disposal an effective domestic remedy to complain about the poor conditions of detention.

16. The Government did not comment, having only submitted the unilateral declaration which dealt exclusively with the applicant ’ s complaint under Article 3 (see paragraph 6 above).

17. In Ananyev and Others case (cited above, § 119), the Court has already found that the Russian legal system did not provide an effective remedy that could be used to prevent the alleged violation or its continuation and provide applicants with adequate and sufficient redress in connection with a complaint about inadequate conditions of detention. The Government presented no arguments or evidence to enable the Court to reach a different conclusion in the case at hand. In the light of the Government ’ s acknowledgement in respect of the applicant ’ s complaint under Article 3 of the Convention pertaining to the conditions of his detention (see paragraph 6 above), thus confirming its “arguable” nature, the Court concludes that the complaint under Article 13 is admissible. It further finds that the applicant had no effective domestic remedy at his disposal in respect of his complaint concerning the conditions of detention.

18. There has accordingly been a violation of Article 13 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

19. 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.”

20. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012 and Butko v. Russia, no. 32036/10, § 68, 12 November 2015), and the Government ’ s undertaking laid down in their unilateral declaration, the Court considers that the finding of a violation under Article 13 of the Convention constitutes sufficient just satisfaction in the present case.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides , having regard to the terms of the Government ’ s declaration, and the arrangement for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint under Article 3 of the Convention about the inadequate conditions of the applicant ’ s detention;

2. Declares admissible the applicant ’ s complaint about the lack of an effective domestic remedy to complain about the inadequate conditions of detention;

3. Holds that there was a breach of Article 13 of the Convention;

4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant in view of the breach of Article 13 of the Convention.

Done in English, and notified in writing on 24 November 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Helena Jäderblom Deputy Registrar President

APPENDIX

Application raising complaints under Article 3 of the Convention

( inadequate conditions of detention )

No.

Application no. Date of introduction

Applicant name

Date of birth

Representative name and location

Facility

Start and end date

Duration

Sq. m. per inmate

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]

32719/09

06/04/2009

Sergey Vladimirovich CHERNYKH

02/10/1979

Belokopytov Vladimir Vasilyevich

Novorossiysk

IZ-23/3 Novorossiysk

15/10/2007 to

19/01/2009

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

2.6 m²

The applicant was not provided with an individual sleeping place and had to share one with inmates, electric light on 24/7, lack of ventilation, the air heavy with cigarette smoke, toilet not separated from living area.

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

5,875

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