THIRD SECTION

DECISION

Application no. 43249/17 Sergey Aleksandrovich SHMAGIN against Russia and 5 other applications

(see appended table)

The European Court of Human Rights (Third Section), sitting on 16 March 2023 as a Committee composed of:

Peeter Roosma , President , Ioannis Ktistakis, Andreas Zünd , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The list of applicants is set out in the appended table.

The applicants’ complaints under Article 3 of the Convention concerning the inadequate conditions of detention after conviction were communicated to the Russian Government (“the Government”). In some of the applications, complaints based on the same facts were also communicated under other provisions of the Convention.

THE LAW

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

The applicants complained of conditions of their post-conviction detention in violation of the national requirements (for further details see the appended table). Some of the applicants also argued that they did not have an effective domestic remedy to complain about those conditions at the national level. They relied on Articles 3 and 13 of the Convention, which read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that it adopts conclusions after evaluating all the evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, for example, Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 121, 10 January 2012). Even though, the burden of proof may, under certain circumstances, be shifted to the authorities (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Mathew v. the Netherlands , no. 24919/03, § 156, ECHR 2005 IX), an applicant must, nevertheless, provide an elaborate and consistent account of the State’s alleged failure to provide him with the appropriate conditions of detention, mentioning the specific elements which would enable the Court to determine that the complaint is not manifestly ill-founded or inadmissible on any other grounds (see Ananyev and Others , cited above, § 122).

Having examined the materials submitted by the parties and taking into account the cumulative effect of the conditions of the applicants’ detention, the Court does not consider that those conditions reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention.

In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention

In so far as the applicants refer to Article 13 of the Convention, the Court, having regard to its conclusion under Article 3, considers that no separate issue arises under this provision. It finds that this complaint is manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

Mr Akhkubekov (application no. 45976/20) also raised other complaints under Article 8 of the Convention.

Having examined the complaints, the Court 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, they do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention.

It follows that this part of application no. 45976/20 must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 6 April 2023.

Viktoriya Maradudina Peeter Roosma Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 of the Convention

(inadequate conditions of detention after conviction)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Facility

Start and end date

Duration

Inmates per brigade

Sq. m per inmate

Number of toilets per brigade

Specific grievances

43249/17

17/05/2017

Sergey Aleksandrovich SHMAGIN

1981IK-5 Krasnoyarsk

22/10/2015 to 17/08/2018

2 year(s) and 9 month(s) and 27 day(s)

6 inmate(s)

4.6 m²

1 toilet(s)

stench in the cell because of lack of ventilation, lack of fresh air, accommodation with inmates under stricter regime

52133/17

07/06/2017

Sergey Valentinovich MARKELOV

1969IK-5 Krasnoyarsk Region

05/08/2010 to 16/07/2015

4 year(s) and 11 month(s) and 12 day(s)

IK-5 Krasnoyarsk Region

10/09/2015 to 29/05/2019

3 year(s) and 8 month(s) and 20 day(s)

3.6 m²

1 toilet(s)

3.6 m²

1 toilet(s)

poor quality of food

5667/18

22/12/2017

Sergey Mikhaylovich KOSHELEV

1971IK-9 Perm Region (medical sanitary unit no. 59)

21/11/2017 to 17/12/2017

27 day(s)

< 5 m²

insufficient number of sitting places, poor quality of food, lack of or insufficient electric light, lack or inadequate furniture

30839/18

06/06/2018

Andrey Gennadyevich MAKHOTIN

1982IK-5 Krasnoyarsk Region

02/06/2017 to 15/06/2018

1 year(s) and 14 day(s)

3.3 m²

no or restricted access to running water, lack or inadequate furniture

46722/18

04/03/2019

Anatoliy Pavlovich FILSHIN

1988IK-2 Zabaykalskiy Region

01/04/2018 - pending

More than 4 year(s) and 10 month(s) and 3 day(s)

4 inmate(s)

3.5 m²

lack of or restricted access to leisure or educational activities

45976/20

28/09/2020

Azamat Salykhovich AKHKUBEKOV

1973Shukhardin Valeriy Vladimirovich

Moscow

IK-3 Sakha (Yakutia) Republic

28/08/2018 to

08/03/2022

3 year(s) and 6 month(s) and 9 day(s)

6 - 8 m²

infestation of cell with insects/rodents, lack of fresh air