JOINT PARTLY DISSENTING OPINION OF JUDGES SPANO, LEMMENS AND KJØLBRO

1 . For the reasons explained below, we voted against dismissing the Government ’ s objection (see paragraph 117 of the judgment) to the effect that three of the applicants, Mr Kaziks , Mr Tarasovski and Mr Savva, had failed to exhaust domestic remedies in that they did not lodge all their complaints with the domestic authorities within the statutory limitation prescribed in domestic law, as a consequence of which the domestic courts were unable to examine the complaints subsequently brought before the Court (see paragraphs 140-144 of the judgment). Consequently, we also distance ourselves from the reasoning of the majority in paragraph 172 (concerning the relevant period to be taken into account), paragraph 199 (concerning victim status), paragraphs 208-210 (concerning effective remedies under Article 13) [1] as well as paragraph 231 (concerning the amount of non-pecuniary damage to be granted under Article 41), as these parts of the judgment are intrinsically linked to the question of exhaustion of domestic remedies and thus the scope of the case before the Court.

2 . What may appear to be a rather technical issue, namely compliance with a domestic time-limit for submitting a compensation claim in respect of alleged inadequate conditions of detention, in fact raises important questions concerning the effectiveness of the remedies provided for in domestic law.

3 . As the Court has stated many times, Article 35 § 1 requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law; where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). More specifically, if an applicant, according to the interpretation given by the domestic courts, has failed to comply with the applicable prescription rules, he or she will have failed to meet one of the conditions that should normally be fulfilled in order to meet the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention (ibid., § 80).

4 . The three applicants in question, Mr Kaziks , Mr Tarasovski and Mr Savva, complain about inadequate conditions of detention, and the complaints lodged with the Court were also brought before the domestic authorities, which, however, dismissed parts of the applicants ’ claims as being time-barred. The Government ’ s objection concerns these parts of their applications.

5 . On 30 January 2014 Mr Savva lodged a complaint seeking compensation for allegedly inadequate conditions of detention from 28 February 2007 until 14 July 2011. In the view of the domestic authorities, the claim relating to the period prior to 30 January 2011, that is, three years before he lodged his complaint, was time-barred, and, consequently the domestic authorities only assessed the conditions of detention from 30 January 2011.

6 . On 21 January 2014 Mr Kaziks lodged a complaint seeking compensation for allegedly inadequate conditions of detention from 28 December 2009 until 21 December 2011. In the view of the domestic authorities, the claim relating to the period prior to 21 January 2011, that is, three years before he lodged his complaint, was time-barred, and consequently the domestic authorities only assessed the conditions of detention from 21 January 2011.

7 . On 9 June 2013 Mr Tarasovski lodged a complaint seeking compensation for allegedly inadequate conditions of detention from 24 October 2008 until 7 May 2013. In the view of the domestic authorities, the claim relating to the period prior to 11 June 2010, that is, approximately three years before he lodged his complaint, was time-barred, and consequently the domestic authorities only assessed the conditions of detention from 11 June 2010.

8 . Thus, in the case of all three applicants, the domestic courts, on the basis of an interpretation of the domestic rules on statutes of limitation, namely section 17(3) of the State Liability Act, reached the conclusion that parts of the applicants ’ claims were time-barred, and such a finding by domestic courts should, in general, lead to the conclusion that the applicants have failed to comply with the requirement of exhaustion of domestic remedies (see Vučković and Others , § 80).

9 . In this context, we find it important to reiterate that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Vučković and Others , § 80). To put it differently, the Court cannot call into question the findings of the domestic authorities on alleged errors of domestic law unless they are arbitrary or manifestly unreasonable (see Naït -Liman v. Switzerland [GC], no. 51357/07, § 116, 15 March 2018, and S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018). Similarly, the Court may disregard an applicant ’ s failure to exhaust domestic remedies if the domestic authorities ’ interpretation and application of domestic law is the result of excessive formalism (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 224, ECHR 2014 (extracts)), that is, if the Court is of the view that the applicant has done everything that could reasonably be expected of him or her to exhaust domestic remedies (see Salah v. the Netherlands , no. 8196/02, § 51, ECHR 2006 ‑ IX (extracts), and BaybaÅŸin v. the Netherlands (just satisfaction), no. 13600/02, § 53, 6 July 2006).

10 . The question therefore arises why or on what grounds the majority disregard the domestic courts ’ interpretation and application of domestic rules on statutory limitations in the cases of the applicants Mr Kaziks , Mr Tarasovski and Mr Savva, and dismiss the Government ’ s objection that these applicants have failed to exhaust domestic remedies. The majority rely on two arguments: (1) failure to comply with domestic law and practice, and (2) unreasonably denying the applicants an assessment of their claims. Thus, in the view of the majority, the domestic courts ’ interpretation and application of domestic law was “inconsistent with the clearly established practice of the Supreme Court of Estonia” (see paragraph 141 of the judgment) and imposed “an unreasonable procedural burden” on the applicants (see paragraphs 141 and 142). We respectfully disagree with both these arguments.

11 . As to the alleged inconsistency with the guidelines given by the Supreme Court of Estonia, we find it questionable whether such an inconsistency exists at all, and, in any event, the domestic courts ’ interpretation and application of domestic law does not, in our view, reach the threshold of being “arbitrary or manifestly unreasonable”, which is the relevant Convention standard to be applied under the Court ’ s case-law.

12 . Estonian law provides for a compensatory remedy by which compensation may be granted for periods of detention in conditions incompatible with Article 3 of the Convention. Pursuant to section 17(3) of the State Liability Act, a claim for compensation is to be lodged “within three years of the date on which the injured party became aware or should have become aware of the damage”. Article 46 § 4 of the Code of Administrative Court Procedure contains a similar time-limit.

13 . In cases concerning conditions of detention, the Supreme Court of Estonia has stated that in the event of a continuous situation, the time-limit usually starts to run after the situation has ended, but that, in exceptional circumstances, it may start to run before the end of the continuous action (see paragraph 103 of the judgment). Furthermore, it has stated that the more the period of detention in inadequate conditions of detention exceeds the 3-year time-limit, the weightier the arguments must be as to why the applicant could not and should not have become aware of the damage before the end of the continuous situation, otherwise the time-limit would become illusory and considerable accumulation of damage may occur as a result of delay in lodging the claim (see paragraph 105).

14 . In other words, under domestic law the determination of the point at which the claimant “became aware or should have become aware of the damage” caused by the inadequate conditions of detention depends on an assessment of the specific circumstances of each case, and the longer the period in question, the stronger the arguments will have to be in order to justify why the claimant could not and should not have become aware of the basis for lodging a claim.

15 . In the case of the applicants Mr Kaziks , Mr Tarasovski and Mr Savva, this is exactly what was done by the domestic courts, in particular the Court of Appeal. In all three cases, the applicants claimed compensation for inadequate conditions of detention going back more than three years before the claims were lodged: in the case of Mr Kaziks going back more than 4 years, in the case of Mr Tarasovski going back more than 4.5 years, and in the case of Mr Savva going back almost 7 years. In all three cases the Court of Appeal explained why the applicants became or should have become aware of the inadequate conditions of detention years before they filed their claims (see paragraphs 53, 63 and 72 of the judgment).

16 . We find it problematic to label the Court of Appeal ’ s interpretation and application of the domestic time-limit as “arbitrary or manifestly unreasonable”. In this context we cannot but note that the Supreme Court of Estonia dismissed all three applicants ’ appeals on points of law (see paragraphs 55, 65 and 74) which in itself would have been surprising had the Court of Appeal ’ s assessment been clearly inconsistent with the Supreme Court ’ s guidelines, as argued by the majority.

17 . As to the alleged unreasonable procedural burden imposed on the applicants, there is, in our view, nothing in the Court of Appeal ’ s interpretation and application of the domestic time-limit that made it impossible in practice for the applicants to lodge claims for compensation for inadequate conditions of detention. In fact, the applicants had three years to lodge their claims from the moment when they became aware or should have become aware of the alleged inadequate conditions of detention, a time-limit which gave the applicants sufficient time to submit their claims. The domestic three-year time-limit leaves sufficient time for a detainee who is detained in the same cell, or in different cells in more or less the same conditions, for a period exceeding that time-limit to assess the situation and to submit a complaint about the alleged inadequate conditions of detention.

18 . The majority ’ s approach also runs counter to one of the purposes of the domestic time-limit which, as explained in the case-law of the Supreme Court of Estonia, is to avoid significant sums being accumulated in damages as a result of delays in lodging the claim (see paragraph 105 of the judgment). The majority ’ s applicant-friendly interpretation of the domestic time-limit for lodging a claim for compensation for alleged inadequate conditions of detention, in practice disregarding the three year time-limit in cases of a continuous situation, will or may have significant financial implications for Estonia, as it will allow detainees to bring claims for periods of detention that, depending on the specific circumstances of the case, may be significantly longer than three years.

19 . As the Government ’ s objection to the admissibility of part of the complaints by Mr Kaziks , Mr Tarasovski and Mr Savva should, in our view, have been upheld for failure to comply with the domestic time-limit and thus for failure to exhaust domestic remedies, we consequently also disagree with the majority ’ s reasoning resulting from their dismissal of the objection, namely the conclusions in paragraph 172 (on the relevant period to be taken into account), paragraph 199 (concerning victim status), paragraphs 208-210 (concerning effective remedies under Article 13) and paragraph 231 (concerning the amount of non-pecuniary damage to be awarded under Article 41).