Information Note on the Court’s case-law 239

April 2020

Shmelev and Others v. Russia (dec.) - 41743/17, 60185/17, 66806/17 et al.

Decision 17.3.2020 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to exhaust newly introduced compensatory remedy in respect of improper conditions of past pre-trial and correctional detention in breach of domestic st andards: inadmissible

Facts – All applicants were detained in various Russian detention facilities, before or after their conviction in criminal proceedings. When their complaints about breaches of Articles 3 and 13 due to the material conditions of detent ion were communicated to the respondent Government, the detention of some of the applicants had ended, while it continued for others.

On 27 January 2020, the Federal Law no. 494–FZ (hereinafter, the Compensation Act), adopted on 27 December 2019, entered i nto force. It provides that any detainee who alleges that his or her conditions of detention are in breach of the national legislation or international agreements of the Russian Federation can apply to a court. The detainee can seek a judicial finding of t he violation in question and financial compensation for any such violations. The courts can consider complaints that raise various problems of detention, including overcrowding, and award compensation without the prerequisite of establishing any official’s guilt or unlawful conduct. The claim should be lodged while the detention in question is ongoing or within three months of its termination. Persons whose detention has ended and had complaints pending before the European Court on the date when the Compens ation Act entered into force, or whose complaints were dismissed for reasons of non-exhaustion, have 180 days to lodge their complaints.

A number of other developments occurred in the domestic legislation and practice since the Court's pilot judgment in Ananyev and Others and its Sergey Babushkin judgment.

Law – Article 35 § 1: The Court was satisfied that the procedural requirements of access to the compensatory scheme were simple and accessible and did not excessively burden claimants either procedurally or in terms of cost. The Court was also satisfied that the procedure w as equipped with the requisite procedural guarantees associated with adversarial judicial proceedings, such as independence and impartiality and the right to legal assistance. There were safety measures to take into account the special situation of detaine es. The courts were equipped with the ability to apply preliminary measures, such as ordering a detainee’s transfer to other premises or a medical examination. Furthermore, the courts were reminded of the need to treat any motion for withdrawal of a compla int by a detainee with caution. The adjudication of administrative complaints was based on shifting the burden of proof to the administration. The courts were instructed to bear in mind the difficulties faced by detainees in collecting evidence and were en couraged to play an active role in identifying and obtaining evidence. A complaint had to be considered within a month or processed immediately, if there were special circumstances calling for urgency. There was thus no reason to assume that the claims wou ld not be processed within a reasonable time, or that the compensation would not be paid promptly. The Court was also satisfied that the domestic authorities and competent courts had been sufficiently apprised of the Court’s own practice and the criteria t hat needed to be taken into account when making a compensation award.

Where the detention is over, a compensatory remedy can suffice to provide applicants with fair redress for alleged breaches of Article 3. Therefore, in situations where the pre-trial or correctional detention was over, the new Compensation Act presented, i n principle, an adequate and effective avenue for obtaining compensatory redress and offered reasonable prospects of success to applicants.

The applicable provisions of the Russian legislation set different standards of personal space for pre-trial detenti on (four square metres per detained person) and correctional detention for male convicts in colonies or prisons (two and two-and-a-half square metres). However, the Court’s consistent practice has been to regard three square metres of floor surface per per son as the relevant minimum standard under Article 3 (see Muršić v. Croatia ). Therefore, the Court distinguished between cases where the applicants’ conditions of detention had fallen below the nati onal standards and those cases where the minimal available space was in line with the national standards but would still raise a prima facie issue under Article 3.

Accordingly, whenever a complaint was made about past breaches of Article 3 by inadequate co nditions of pre-trial or correctional detention falling below domestic standards, actual or potential applicants were expected to exhaust the newly introduced compensatory remedy before lodging their complaints with the Court. Even though the domestic reme dy had not been available to the applicants at the time when they had applied to the Court, the situation justified a departure from the general rule on exhaustion and required the applicants in question to seek compensation under the Compensation Act. The Court was prepared to change its approach as to the effectiveness of the remedy in question, should the practice of the domestic courts show, in the long run, that complaints were being refused on formalistic grounds, that compensation proceedings were ex cessively long, that compensation awards were insufficient or were not paid promptly, or that domestic case-law was not in compliance with the requirements of the Convention and the Court’s case-law.

Conclusion : inadmissible (non-exhaustion of domestic re medies).

The Court invited the parties to submit further observations in order to clarify the effectiveness of the preventive remedies in respect of the pending pre-trial and correctional detention in conditions incompatible with Article 3, as well as the effectiveness of the newly introduced compensatory remedy in respect of past correctional detention in conditions complying with domestic standard, but falling below minimal Article 3 standard.

Pending its examination of the questions as outlined above, an d the adoption by the domestic authorities, subject to supervision by the Committee of Ministers, of the necessary measures at national level, the Court decided not to deal with any applications of which the Government had not yet been given notice where t he sole or main complaint concerned overcrowding and other aspects of poor material detention conditions in pre-trial and post-conviction detention facilities in Russia. The Court might nevertheless decide at any moment to declare any such case inadmissibl e or to strike it out, for example in the event of a friendly settlement between the parties or the resolution of the matter by other means, in accordance with Articles 37 or 39 of the Convention. However, the Court might continue its examination of applic ations of which notice had already been given to the respondent Government.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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