THIRD SECTION
DECISION
Application no. 65292/16
Sergey Gokiyevich KHADZHIKURBANOV against Russia
and 31 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 17 December 2020 as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Liv Tigerstedt, 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 observations by some of the applicants in reply,
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 were communicated to the Russian Government (“the Government”). In some of the applications, complaints under Article 13 of the Convention about absence of domestic remedies in Russia to complain about poor conditions of detention were also communicated to the Government.
THE LAWJoinder of the applications
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.Complaints under Article 3 of the Convention (inadequate conditions of detention) and under Article 13 of the Convention (lack of an effective remedy for conditions of detention)
In the present applications, the applicants complained of conditions of their post-conviction detention in violation of the national requirements during periods which had already come to an end (for further details see the appended table). They also argued that they did not have an effective domestic remedy to complain about those conditions at the national level. Articles 3 and 13 read:
Article 3
Prohibition of torture
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
Right to an effective remedy
“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 Government submitted their observations, having disputed the violations alleged. On 10 January 2020 the Government submitted additional information about the new Compensation Act and asked to treat it as a new remedy in respect of conditions of detention complaints under Articles 3 and 13 of the Convention.
The applicants maintained their complaints.
In its recent decision of Shmelev and Others v. Russia ((dec.), no. 41743/17 and 16 others, 17 March 2020), the Court has examined similar applications lodged by Russian applicants and declared them inadmissible for non-exhaustion of domestic remedies. In particular, the Court took into account that on 27 January 2020 the new Compensation Act entered into force in Russia. It noted that the Act provides that any detainee who alleges that his or her conditions of detention are in breach of national legislation or international agreements of the Russian Federation can apply to a court. The novelty of the Act is that the (former) detainee can claim, at the same time, a finding of a violation of inadequate detention conditions and financial compensation for such breach.
In that decision, the Court further held as follows:
“122. The Court reiterates that, where the detention is over, a compensatory remedy can suffice to provide the applicants with fair redress for the alleged breach of Article 3 (see case-law cited above in paragraph 87). Accordingly, it is sufficient to examine whether the applicants concerned can be required to exhaust the compensatory remedy.
123. As mentioned above, the Court may examine the effectiveness of a newly introduced domestic remedy even if it was not available at the time of lodging of applications, where such remedy is introduced at a later stage in response to the Court’s finding of a systemic problem (see paragraph 106 above and the case-law cited therein).
124. The Court has concluded that the Compensation Act presents, in principle, an adequate and effective avenue for compensatory redress in cases raising issues of improper conditions of pre-trial detention. It has found that it is directly accessible to the persons concerned, is furnished with the requisite procedural guarantees associated with judicial adversarial proceedings, that there are no reasons to expect that such claims would not be processed within a reasonable time, or that the compensation would not be paid promptly. It also concluded that the system offers reasonable prospects of success to the applicants in terms of the compensation awards.
125. The Compensation Act is equipped with transitional provisions, so that any person whose complaint about inadequate conditions of detention was pending with this Court at the time of the Act’s entry into force can apply within 180 days after that date (see paragraph 63 above). The same would apply to those whose complaints would be declared inadmissible by this Court in view of the Act coming into force.
126. The Court accepts that the domestic courts have not yet been able to establish any practice under the Compensation Act. However, the Court has already found that doubts about the prospects of a remedy, which appears to offer a reasonable possibility of redress, are not a sufficient reason to eschew it (see Shtolts and Others, cited above, § 111).
127. Accordingly, even though the domestic remedy was not available to the applicants at the time when they applied to the Court, the situation justifies a departure from the general rule on exhaustion and requires the applicants in question to seek compensation under the Compensation Act.
128. The Court accepts that the outcome of the applicants’ claims under the new provisions cannot at present be ascertained. However, as the Court has already noted on similar occasions, it would remain open for the applicants to lodge fresh complaints should their claims to the domestic courts prove unsuccessful, for one reason or another. The Court’s ultimate supervisory jurisdiction remains in respect of any complaints lodged by the applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress (see Domján, § 37; and Shtolts and Others, §§ 112-113, both decisions cited above). The Court will remain free to assess the compliance of application of the domestic practice with the pilot judgment and the Convention standards in general, summary of the relevant case-law in paragraph 82 above).
129. Finally, the Court does not lose sight of a number of positive developments related to the situation with pre-trial detention in Russia that will be analysed below.”
Having thus considered that there exists an effective remedy in Russia for cases where applicants complain about a breach of Article 3 in respect of past pre-trial detention, and having dismissed the applications by such applicants for non-exhaustion, the Court declared that it will apply that approach to all similar applications (see Shmelev and Others, (dec.)., cited above, § 130).
The Court also found that applicants who complained about their detention in overcrowded conditions of post-conviction facilities in violation of the national statutory norm of two square metres per person, and where their detention in such conditions was already over, found themselves in a situation similar to that of persons whose past pre-trial detention had been in breach of the applicable national standards. The Court stressed that for them, as well as for other persons in similar situation, the new Compensatory Act presents, in principle, an adequate and effective avenue of obtaining compensatory redress, and offers reasonable prospects of success (see Shmelev and Others, (dec.)., cited above, § 154). It thus also rejected for non-exhaustion of domestic remedies applications where applicants complained about post-conviction detention in violation of the national statutory standard and decided that actual or potential applicants finding themselves in a similar situation – i.e. where the complaint concerns past correctional detention in conditions in breach of the applicable domestic standards – are also expected to first make use of the compensatory remedy introduced in January 2020 (see Shmelev and Others, (dec.), cited above, §§ 155-156).
Turning to the circumstances of the present cases and having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility of these complaints. In particular, the Court observes that one of the applicants complained about the conditions of his detention in colony IK‑56 in the Sverdlovsk Region. In addition to specific grievances listed in the table attached below, the applicant provided similar description of the general conditions. While not arguing that he lacked personal space as such, the applicant nevertheless complained about degrading treatment relating to the lack of water-supply and sewage systems in IK-56 colony, and the absence of proper sanitary installations in the cells. The treatment he complained of consisted of the necessity to relieve himself in a bucket, often in the presence of another inmate, and to endure difficulties as a result of the lack of sanitary facilities, such as the unpleasant odour in the cells, poor hygiene and the daily obligation to empty and clean the bucket. Those conditions in IK-56 of the Sverdlovsk Region were already the subject of the Court’s criticism, when it held that the lack of access to proper sanitary facilities run counter to the guarantees of Article 3 of the Convention (see Gorbulya v. Russia, no. 31535/09, § 94, 6 March 2014). The Court in this respect does not lose sight of the parties’ submissions that the Russian authorities decided to close the facility and that by the summer 2018 all inmates were transferred from it. It is clear that the conditions in IK-56 colony ran counter to the domestic legal requirements. It thus follows that the applicant who complained about the conditions of his detention in IK-56 colony in Sverdlovsk Region was in the same position as applicants who complained about their detention in overcrowded conditions of post-conviction facilities in violation of the national statutory norm of two square metres per person (see Shmelev and Others, (dec.)., cited above, § 154).
To sum up, the Court considers that in so far as the applicants have lodged prima facie well-founded complaints about breach of their rights by improper conditions of their detention, as described in the appended table, the Compensation Act affords them an opportunity to obtain compensatory redress. Accordingly, the applicants should exhaust this remedy before their complaints can be examined by the Court. It follows that their complaints, as listed in the appended table, under Articles 3 and 13 should be declared inadmissible pursuant to Article 35 §§ 1 and 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 21 January 2021.
{signature_p_2}
Liv TigerstedtDarian Pavli
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 3 of the Convention
(inadequate conditions of detention)
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
65292/16
27/10/2016
Sergey Gokiyevich KHADZHIKURBANOV
1967
Vikanov Andrey Mikhaylovich
Torbeyevo
IK-5 Mordovia PKT
14/11/2015 to
19/05/2019
3 year(s) and 6 month(s) and 6 day(s)
2 m²
Inadequate temperature, sharing cells with inmates infected with contagious disease, no warm clothing allowed.
21916/17
06/03/2017
Vadim Anatolyevich KRYUKOV
1970
IK-2 Zabaykalskiy Region
20/12/2014 to
27/12/2017
3 year(s) and 8 day(s)
80 inmate(s)
2 m²
Lack or inadequate furniture, bunk beds, lack of or inadequate hygienic facilities, no or restricted access to toilet, no or restricted access to shower, lack of or restricted access to leisure or educational activities.
69306/17
04/09/2017
Andrey Igorevich KIRILLOVICH
1984
IK-8 Bashkortostan Republic
02/06/2015 to
06/05/2017
1 year(s) and 11 month(s) and 5 day(s)
180 inmate(s)
2 m²
No ventilation, overcrowding of educational room, lack of fresh air, lack of or inadequate hygienic facilities, no or restricted access to warm water, no or restricted access to shower, poor quality of food.
4494/18
07/12/2017
Andrey Igorevich RESIN
1974
IK-56 Sverdlovsk Region
25/05/2012 to
11/09/2017
5 year(s), 3 month(s) and 17 day(s)
4 inmate(s)
Lack of fresh air, lack of or inadequate hygienic facilities, no sewage system and centralised water heating system, passive smoking, no or restricted access to toilet, no or restricted access to shower, no or restricted access to potable water.
4902/18
26/12/2017
Roman Vladimirovich RAZUMOV
1981
IK-11 Nizhniy Novgorod Region
01/08/2015 to
25/06/2019
3 year(s) and 10 month(s) and 25 day(s)
50 inmate(s)
1.8 m²
Overcrowding, lack of fresh air.
7050/18
16/03/2018
Sergey Nikolayevich KOROBKOV
1988
IK-46 Sverdlovsk Region
20/05/2015 to
13/04/2018
2 year(s) and 10 month(s) and 25 day(s)
102 inmate(s)
1.86 m²
6 toilet(s)
No or restricted access to shower, poor quality of food, overcrowding, lack of or poor quality of bedding and bed linen.
7618/18
22/01/2018
Igor Vladimirovich YELOVOY
1975
IK-2 Zabaykalskiy Region
18/12/2016 to
21/09/2020
3 year(s) and 9 month(s) and 4 day(s)
126 inmate(s)
1.5 m²
Lack of or insufficient natural light, no or restricted access to warm water, no or restricted access to running water, lack of fresh air, poor quality of food.
9624/18
22/12/2017
Aleksey Vladimirovich CHIPIGIN
1973
IK-11 Nizhniy Novgorod Region
21/08/2017 to
05/08/2020
2 year(s) and 11 month(s) and 16 day(s)
1.6 m²
Overcrowding, lack of or inadequate hygienic facilities, no or restricted access to running water, no or restricted access to toilet, lack of privacy for toilet, poor quality of food, lack or insufficient quantity of food, lack of seasonal clothing, lack of fresh air, no or restricted access to shower.
10066/18
12/02/2018
Vitaliy Valeryevich RUDENKO
1983
IK-11 Nizhniy Novgorod Region
20/12/2015 to
12/02/2018
2 year(s) and 1 month(s) and 24 day(s)
135 inmate(s)
1.4 m²
6 toilet(s)
Overcrowding, no or restricted access to toilet, poor quality of food.
10145/18
08/02/2018
Fanil Fyakhitovich KHASANOV
1978
IK-11 Nizhniy Novgorod Region
10/11/2014 to
23/10/2018
3 year(s) and 11 month(s) and 14 day(s)
120 inmate(s)
1.5 m²
Overcrowding, lack or inadequate furniture, poor state of the sewerage and water supply system, lack of fresh air, infestation of cell with insects/rodents, inadequate state of the exercise yard, poor quality of food.
14311/18
12/03/2018
Vladimir Vladimirovich APRYATOV
1983
IK-11 Nizhniy Novgorod Region
01/06/2017 to
23/04/2018
10 month(s) and 23 day(s)
1 m²
Overcrowding, lack or inadequate furniture, lack of or restricted access to leisure or educational activities, lack of or inadequate hygienic facilities, bad odour in dormitory, lack of fresh air, inadequate temperature, no or restricted access to running water, no or restricted access to toilet, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, poor quality of food.
14525/18
12/03/2018
Dmitriy Valeryevich ROGOV
1974
IK-11 Nizhniy Novgorod Region
01/11/2011 to
30/07/2018
6 year(s) and 8 month(s) and 30 day(s)
135 inmate(s)
1.2 m²
6 toilet(s)
Lack of fresh air, infestation of cell with insects/rodents, no or restricted access to toilet.
14765/18
16/03/2018
Aleksandr Arkadyevich IVANOV
1967
IK-11 Nizhniy Novgorod Region
01/04/2014 to
21/11/2017
3 year(s) and 7 month(s) and 21 day(s)
44 inmate(s)
1.8 m²
6 toilet(s)
Overcrowding, no or restricted access to shower, no or restricted access to toilet, infestation of cell with insects/rodents.
17264/18
23/03/2018
Vladimir Borisovich MATSUYEV
1979
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-1 Kostroma Region
10/06/2016 to
08/12/2017
1 year(s) and 5 month(s) and 29 day(s)
100 inmate(s)
0.6 m²
Overcrowding, sharing cells with inmates infected with contagious disease, poor quality of food, infestation of cell with insects/rodents, lack of or insufficient electric light, lack of or inadequate hygienic facilities.
17586/18
28/03/2018
Nikita Mikhaylovich KONNOV
1984
IK-11 Nizhniy Novgorod Region
08/02/2016 to
27/03/2018
2 year(s) and 1 month(s) and 20 day(s)
1.6 m²
Overcrowding, lack of or inadequate hygienic facilities, bunk beds.
18345/18
09/09/2017
Leonid Aleksandrovich KARMANNIKOV
1985
OIK-40 KP-39 Krasnoyarsk Region
11/07/2017 to
20/10/2017
3 month(s) and 10 day(s)
85 inmate(s)
1.6 m²
0 toilet(s)
Overcrowding, no or restricted access to toilet, no or restricted access to running water, lack of fresh air, no or restricted access to shower.
18594/18
03/04/2018
Vyacheslav Aleksandrovich KOSHCHEYEV
1983
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-1 Kostroma Region
05/06/2015 to
30/03/2018
2 year(s) and 9 month(s) and 26 day(s)
100 inmate(s)
0.75 m²
12 toilet(s)
Overcrowding, lack of fresh air, infestation of cell with insects/rodents, no or restricted access to shower, lack of or insufficient electric light, poor quality of food, sharing cells with inmates infected with contagious disease.
18694/18
03/04/2018
Oleg Anatolyevich KISELEV
1972
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-1 Kostroma
03/07/2006 to
02/04/2018
11 year(s) and 9 month(s)
0.6 m²
Overcrowding, mouldy or dirty cell, lack of fresh air, infestation of cell with insects/rodents, no or restricted access to toilet, no or restricted access to running water, no or restricted access to shower, lack of or insufficient physical exercise in fresh air, lack of or insufficient electric light, poor quality of food, sharing cells with inmates infected with contagious disease.
18696/18
03/04/2018
Oleg Vladimirovich GUSEV
1987
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-1 Kostroma
15/08/2014 to
02/04/2018
3 year(s) and 7 month(s) and 19 day(s)
0.6 m²
Overcrowding, mouldy or dirty cell, lack of fresh air, infestation of cell with insects/rodents, no or restricted access to toilet, no or restricted access to running water, no or restricted access to shower, lack of or insufficient physical exercise in fresh air, lack of or insufficient electric light, poor quality of food.
18827/18
08/04/2018
Aleksandr Sergeyevich ODRINSKIY
1997
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-2 Kostroma Region
27/09/2016 to
21/03/2018
1 year(s) and 5 month(s) and 23 day(s)
50 inmate(s)
0.6-0.9 m²
Overcrowding, mouldy or dirty cell, lack of fresh air, infestation of cell with insects/rodents, no or restricted access to shower, lack of or inadequate hygienic facilities, no or restricted access to running water, insufficient number of toilets and wash basins, lack of or insufficient physical exercise in fresh air, inadequate state of the exercise yard, lack of or insufficient electric light, poor quality of food, lack or insufficient quantity of food, sharing cells with inmates infected with contagious disease.
18870/18
30/03/2018
Artem Aleksandrovich KOROTKIY
1993
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-2 Kostroma Region
22/05/2014 to
21/11/2017
3 year(s) and 6 month(s)
120 inmate(s)
0.6-0.9 m²
5 toilet(s)
Overcrowding, mouldy or dirty cell, lack of fresh air, infestation of cell with insects/rodents, insufficient number of toilets and wash basins, no or restricted access to shower, lack of or inadequate hygienic facilities, inadequate state of the exercise yard, lack of or insufficient electric light, poor quality of food, lack or insufficient quantity of food, sharing cells with inmates infected with contagious disease, no or restricted access to running water.
18987/18
03/04/2018
Ruslan Vyacheslavovich TUYAKOV
1987
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-1 Kostroma Region
08/09/2015 to
19/01/2018
2 year(s) and 4 month(s) and 12 day(s)
100 inmate(s)
0.6-0.9 m²
5 toilet(s)
Overcrowding, insufficient number of toilets and wash basins, lack of fresh air, mouldy or dirty cell, infestation of cell with insects/rodents, no or restricted access to shower, inadequate state of the exercise yard, lack of or insufficient electric light, poor quality of food, lack or insufficient quantity of food, sharing cells with inmates infected with contagious disease, no or restricted access to running water.
19232/18
02/04/2018
Denis Sergeyevich TEREKHOV
1983
IK-11 Nizhniy Novgorod Region
04/06/2016 to
03/10/2017
1 year(s) and 4 month(s)
131 inmate(s)
1.4 m²
6 toilet(s)
Lack of or insufficient natural light, infestation of cell with insects/rodents, no or restricted access to shower, lack of or poor quality of bedding and bed linen, inadequate temperature, poor labour conditions.
19901/18
12/04/2018
Maksim Vladimirovich BOLSHAKOV
1975
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-1 Kostroma Region
03/04/2016 to
06/04/2018
2 year(s) and 4 day(s)
100 inmate(s)
0.6-0.9 m²
5 toilet(s)
Overcrowding, mouldy or dirty cell, infestation of cell with insects/rodents, insufficient number of toilets and wash basins, no or restricted access to shower, insufficient space and inadequate state of the exercise yard, lack of or insufficient electric light, lack of fresh air, poor quality of food, sharing cells with inmates infected with contagious disease, no or restricted access to running water.
20301/18
10/04/2018
Aleksandr Aleksandrovich MARKELOV
1998
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-2 Kostroma Region
21/02/2017 to
07/03/2018
1 year(s) and 15 day(s)
120 inmate(s)
1 m²
5 toilet(s)
Mouldy or dirty cell, lack of fresh air, infestation of cell with insects/rodents, no or restricted access to shower, lack of or insufficient physical exercise in fresh air, lack of or insufficient electric light, poor quality of food, sharing cells with inmates infected with contagious disease, lack of or inadequate hygienic facilities.
20500/18
05/04/2018
Ilya Andreyevich SOLOKHIN
1996
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-2 Kostroma Region
06/10/2014 to
24/03/2018
3 year(s) and 5 month(s) and 19 day(s)
30 inmate(s)
0.8 m²
Overcrowding, poor quality of food, infestation of cell with insects/rodents, lack of or insufficient electric light, lack of or inadequate hygienic facilities.
20793/18
19/04/2018
Dmitriy Viktorovich BELAY
1972
IK-11 Nizhniy Novgorod
25/04/2012 to
27/08/2018
6 year(s) and 4 month(s) and 3 day(s)
130 inmate(s)
1.5 m²
6 toilet(s)
Overcrowding, infestation of cell with insects/rodents, no or restricted access to warm water, lack of or inadequate hygienic facilities, mouldy or dirty cell, insufficient number of toilets and wash basins, lack or inadequate furniture, lack of or insufficient electric light, lack of or insufficient natural light, lack of fresh air, inadequate space of the exercise yard, prohibition of physical exercise in the exercise yard, passive smoking, poor quality of food, lack or insufficient quantity of food, no or restricted access to shower, failure to provide warm clothes and footwear for winter, lack of or poor quality of bedding and bed linen.
21080/18
06/06/2018
Dmitriy Aleksandrovich BOGDANOV
1986
IK-2 Zabaykalskiy Region
13/03/2016 to
28/09/2020
4 year(s) and 6 month(s) and 16 day(s)
1.5 m²
Overcrowding, mouldy or dirty cell, infestation of cell with insects/rodents, lack of or insufficient natural light, inadequate temperature, lack of or inadequate hygienic facilities.
23782/18
07/05/2018
Leonid Konstantinovich ZAIKA
1978
IK-11 Nizhniy Novgorod Region
31/10/2011 to
19/06/2019
7 year(s) and 7 month(s) and 20 day(s)
150 inmate(s)
1.5 m²
8 toilet(s)
Lack of fresh air, lack of or insufficient natural light, lack of or insufficient electric light, poor quality of food, no or restricted access to shower, lack of or insufficient physical exercise in fresh air.
31673/18
13/06/2018
Aleksandr Nikolayevich KIRILLOV
1976
IK-11 Nizhniy Novgorod Region
13/03/2017 to
26/01/2020
2 year(s) and 10 month(s) and 14 day(s)
130 inmate(s)
1.5 m²
4 toilet(s)
Overcrowding, narrow passages in the cell, lack of fresh air, inadequate temperature, lack of or insufficient electric light, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, no or restricted access to toilet, no or restricted access to running water, no or restricted access to shower, poor quality of food, lack of or insufficient physical exercise in fresh air, passive smoking, sharing cells with inmates infected with contagious disease.
41872/18
02/11/2018
Leonid Vasilyevich ABRAMOV
1984
IK-2 Zabaykalskiy Region
09/11/2017 to
03/08/2020
2 year(s) and 8 month(s) and 26 day(s)
1.6 m²
Overcrowding, no or restricted access to warm water, lack of fresh air, lack of or insufficient natural light.
23988/19
22/04/2019
Oleg Vladimirovich MERKUL
1974
IK-1 Komi Republic
03/05/2017 to
26/09/2020
3 year(s) and 4 month(s) and 24 day(s)
80 inmate(s)
1.8 m²
Lack of privacy for toilet, overcrowding, no or restricted access to running water, infestation of cell with insects/rodents, poor quality of food.
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