THIRD SECTION

CASE OF AFANASYEV v. RUSSIA

( Application no. 61531/14 )

JUDGMENT

STRASBOURG

24 November 2016

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

In the case of Afanasyev 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. 61531/14) 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 Vladimir Valeryevich Afanasyev (“the applicant”), on 16 March 2015.

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 of the inadequate conditions of his detention in facility no. IZ-47/1 in St Petersburg. 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 argued that the applicant stayed in facility no. IZ ‑ 47/1 in St Petersburg during two separate periods: from 23 December 2011 to 13 December 2012 and then from 17 April 2013 to 26 January 2015. They further claimed that the applicant ’ s complaints pertaining to the first period of his detention in that facility were inadmissible given that he only lodged his application to the Court on 16 March 2015, that is more than six months after the end of the first period.

A. Detention from 23 December 2011 to 13 December 2012

7. The Court accepts that the applicant ’ s detention in facility no. IZ-47/1 in St Petersburg was divided into two distinct periods by a more than four-month-long detention in another facility with materially different detention conditions, of which the applicant did not complain. Thus, the entire period of his detention in facility no. IZ-47/1 cannot be regarded as a continuous situation for the purpose of calculating the six-month time-limit set forth in Article 35 § 1 of the Convention (see, among many other authorities, by contrast , Gorbulya v. Russia, no. 31535/09, §§ 47-48, 6 March 2014; Guliyev v. Russia, no. 24650/02, §§ 31-33, 19 June 2008; Benediktov v. Russia, no. 106/02, § 31, 10 May 2007).

8. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant. The Court reiterates its established case-law that no remedy was available to the applicant to complain about the conditions of his detention (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08 , § 119, 10 January 2012). It therefore agrees with the Government that the six-month time-limit should be calculated from the date when the first period of the applicant ’ s detention ended, that is from 13 December 2012.

9. The Court further notes that the applicant lodged the application on 16 March 2015, that is more than six months after the end of the first period of detention.

10. The Court therefore considers that the applicant has missed the time-limit for lodging his complaint under Article 3 of the Convention about the first detention period. It must thus be rejecte d in accordance with Article 35 §§ 1 and 4 of the Convention.

B. Detention from 17 April 2013 to 26 January 2015

11. 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 in respect of the second period of his detention in facility no. IZ-47/1 from 17 April 2013 to 26 January 2015. The Government acknowledged the inadequate conditions of detention during that period. 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 above-mentioned 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 cases.

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

13. 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 e xamination of the applications.”

14. 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)).

15. 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).

16. 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 from 17 April 2013 to 26 January 2015 (Article 37 § 1 (c)).

17. 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 ).

18. 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).

19. Accordingly, in so far as the complaint under Article 3 about the conditions of the applicant ’ s detention from 17 April 2013 to 26 January 2015 is concerned, this part of the application should be struck out of the list.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

20. 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 .

21. The Government did not comment on this complaint, having only submitted the unilateral declaration which dealt exclusively with the applicant ’ s complaint under Article 3 (see paragraph 11 above).

22. 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 second period of his detention from 17 April 2013 to 26 January 2015 (see paragraph 11 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.

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

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. 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.”

25. 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 in the period from 17 April 2013 to 26 January 2015;

2. Declares admissible the applicant ’ s complaint about the lack of an effective domestic remedy to complain about the inadequate conditions of detention in the period from 17 April 2013 to 26 January 2015 and the remainder of the application inadmissible ;

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

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

(in euros) [1]

61531/14

16/03/2015

Vladimir Valeryevich AFANASYEV

11/05/1980

IZ-47/1

St Petersburg

23/12/2011 to

13/12/2012

IZ-47/1

St Petersburg

17/04/2013 to

26/01/2015

1 year(s) and

9 month(s) and

9 day(s)

1.5 m²

Lack of ventilation. Impossibility to fully open the only window, cold cells, no hot water, the air heavy with cigarette smoke, dim electric light 24/7, walls covered with mould and dirt, infestation with mice, bedbugs, cockroaches, ticks and lice, toilet without a flushing system was not separated from living area, the person using the toilet was in the view of the guard of the opposite gender observing the inmates through a peep-hole in the door, unfit bedding was provided once for the whole detention period, dirty bed linen, no sanitary cleaning of the cells, no cleaning liquid or other sanitary equipment provided, inadequate food quality, daily walk for less than one hour, walking yard filled with rubbish, covered with mould and having no roof, walking yard not equipped for sitting, weekly shower for 15 minutes, walls in the shower covered with dirt, mould and slime, cells not equipped for sitting, conditions in assembly cells: 0.5 sq.m . per person; toilet, without a flushing system was not separated from the rest of the cell area; no windows; no fresh air; no natural light; no heating; the air heavy with cigarette smoke; lack of equipment for sitting.

Art. 13 - lack of any effective remedy in domestic law -

7,375

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