THIRD SECTION

CASE OF SEKRETAREV AND OTHERS v. RUSSIA

(Applications nos. 9678/09 and 8 others – see appended list)

JUDGMENT

STRASBOURG

7 February 2017

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

In the case of Sekretarev and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 17 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in nine applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2.  The applications were communicated to the Russian Government (“the Government”) who were represented before the Court by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
3.  The Government objected to the examination of the applications by a Committee. Having considered the Government’s objection, the Court rejects it.
THE FACTS
4.  The list of applicants and the relevant details of the applications are set out in the Appendix.
5.  The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
THE LAW
Article I.	I.  JOINDER OF THE APPLICATIONS
6.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
Article II.	II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION
7.  The applicants complained that the conditions of their detention had been in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
8.  The Government claimed that there had been no overcrowding in their respective facilities and that other aspects of detention had been in compliance with national law.
9.  The Court reiterates the principles established in its case-law regarding inadequate conditions of detention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012, and Muršić v. Croatia [GC], no. 7334/13, §§ 96-141, 20 October 2016). It recalls that where the personal space available to a detainee is less than 3 sq. m in multi-occupancy accommodation, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is then on the respondent Government which could rebut that presumption by demonstrating that there were all of the following mitigating factors: short, occasional and minor duration of such periods; sufficient freedom of movement outside the cell and adequate out-of-cell activities; and the applicant is confined in an appropriate detention facility and there are no other aggravating aspects of the conditions of his or her detention (see Muršić, cited above, §§ 136-37).
10.  In the leading case Butko v. Russia (no. 32036/10, §§ 54-64, 12 November 2015), the Court already found a violation of Article 3 of the Convention on account of the applicant’s detention in the conditions which were relevantly similar to those obtaining in the present case. Having examined all the material submitted by the parties, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. The Government did not show that an acute lack of personal space, if only during the night, was sufficiently compensated for by any mitigating factors (compare Butko, cited above, § 60). Rather the contrary, in some cases the crammed conditions were exacerbated on account of a shortage of sanitary facilities or, in the case of Mr Romanenko, the absence of a functioning flush toilet which was replaced by a bucket.
11.  Having regard to its case-law on the subject, the Court declares the complaint under Article 3 of the Convention admissible and finds a breach of that provision on account of inhuman and degrading conditions of the applicants’ detention.
Article III.	III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
12.  The applicants Mr Turlupkhanov, Mr Chukhlantsev and Mr Chuev also complained under Article 13 of the Convention that they did not have at their disposal an effective domestic remedy in respect of poor conditions of detention.
13.  The Government submitted that the applicants had not tried to exhaust any domestic remedies.
14.  In Ananyev and Others (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 Court later arrived at the same conclusion in a number of cases (see, for example, Butrin v. Russia, no. 16179/14, §§ 43-45, 22 March 2016). The Government have presented no arguments or evidence to enable the Court to reach a different conclusion in the cases at hand. In the light of the violation found in respect of the applicants’ complaint under Article 3 of the Convention, thus confirming its “arguable” nature, the Court concludes that the complaint under Article 13 is admissible. It further finds that the applicants had no effective domestic remedy at their disposal in respect of their complaint concerning the conditions of detention.
15.  There has accordingly been a violation of Article 13 of the Convention, taken in conjunction with Article 3.
Article IV.	IV.  ALLEGED VIOLATION OF ARTICLE 3 ON ACCOUNT OF LACK OF ADEQUATE MEDICAL TREATMENT IN DETENTION
16.  The applicant Mr Romanenko also complained that he had not been provided with adequate medical treatment in detention.
17.  The Government submitted that the prosecutor’s inspections did not reveal any faults in medical service. The Government also claimed that the applicant’s issue did not relate to a structural problem, he had had to exhaust domestic remedies by lodging complaints with the colony administration, the regional prosecutor’s office, or domestic courts.
18.  The applicant maintained that many requests for dental treatment he had lodged since 25 November 2010 went unheeded by the colony administration.
19.  The Court reiterates that it has already found on several occasions that there existed no effective remedies in the Russian legal system capable of addressing a situation of an ongoing violation such as inadequate medical care (see, among other authorities, Reshetnyak v. Russia, no. 56027/10, §§ 62-80, 8 January 2013).
20.  Accordingly, the Court rejects the Government’s objection alleging non-exhaustion of domestic remedies and declares this complaint admissible.
21.  The Court notes that the applicant provided a detailed description of his requests for dental treatment and showed his readiness to cover all relevant costs. It was not denied that the pain he suffered was of such intensity as to be above the minimum threshold of severity which is required for Article 3 to apply. The Government, for their part, did not advance a cogent explanation for the prison administration’s failure to provide the applicant with dental services for more than a year.
22.  There has accordingly been a violation of Article 3 of the Convention.
Article V.	V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
23.  Lastly, the applicants Mr Sekretarev, Mr Kasarakin, Mr Mitrofanov, Mr Chavelashvili, Mr Turlupkhanov, Mr Tsesar, Mr Chukhlantsev, and Mr Chuev complained of other violations of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Article VI.	VI.  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, cited above, §§ 169-174, and Butko, cited above, § 68), the Court considers it reasonable to award the sums indicated in the appended table.
26.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides to join the applications;

2.  Declares the complaints concerning the conditions of detention, the lack of effective remedies in that regard, and inadequacy of medical care in Mr Romanenko’s case admissible and the remainder inadmissible;

3.  Holds that there has been a violation of Article 3 of the Convention on account of the conditions of detention;

4.  Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 3, in respect of the applicants Mr Turlupkhanov, Mr Chukhlantsev and Mr Chuev;

5.  Holds that there has been a violation of Article 3 of the Convention on account of inadequate medical assistance for the applicant Mr Romanenko;

6.  Holds
(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the Appendix, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President

APPENDIX

Application number	Lodged on	Applicant
Date of birth
Place of residence	Facility
Start and end date
	The applicant’s description of the conditions of his detention	The applicant’s complaints	The Court’s award	
9678/09	26 December 2008	Aleksandr Vladimirovich
SEKRETAREV
28/03/1980
Tolikovo 	IK-9 Republic of Chuvashiya
12 July 2008 to 1 March 2010
	1.6-1.8 sq. m
6 sinks instead of the normative 9	Article 3 	7,000	
42122/09	30 June 2009	David Napoleonovich CHAVELASHVILI
11/02/1965
Bataysk	IK-15 Rostov Region
2 December 2006 to 23 December 2010		2.1 sq. m
no ventilation	Article 3	15,000	
13886/10	2 February 2010	Islam Lechayevich TURPULKHANOV
14/09/1980
 Arkhangelsk Region 	IK-22 Arkhangelsk Region
6 March 2006 to 29 January 2009	2.85 sq. m, poor state of sanitary facilities	Articles 3 and 13	10,750	
19115/10	2 March 2010	Aleksey Borisovich
TSESAR
30/03/1971
Rybolovo	IK-4 Tomsk Region 
26 January 2008 to 3 March 2010	1.9 sq. m
6 toilets and 14 sinks for 124 inmates	Article 3 	8,500	
73499/10	28 May 2010	Igor Aleksandrovich CHUKHLANTSEV
02/11/1976
Svetlograd 	IK-13 Sverdlovskiy Region
16 January 2009 to 1 December 2009	1.7-1.9 sq. m	Articles 3 and 13	5,000	
8797/11	13 January 2011	Igor Anatolyevich
CHUYEV
01/10/1968
 Moscow	IK-10 Tver Region
18 March 2009 to 15 January 2011	2.1-2.7 sq. m	Articles 3 and 13	7,500	
34310/12	14 March 2012	Yuriy Viktorovich ROMANENKO
07/02/1966
Tulun	IK-56 Sverdlovskiy Region
25 September 2010 to 8 August 2012	3.5 sq. m
a bucket instead of a lavatory which the applicant had to carry out and empty into a cesspool outside the building while wearing handcuffs	Article 3 on account of conditions of detention and inadequate dental care	15,500	
63933/12	24 September 2008	Aleksandr Vasilyevich KASARAKIN
17/05/1970
Ulan-Ude	Prison YuU-323/ST-2 Lipetsk Region
20 August 2004 to 31 August 2010	2.5 sq. m	Article 3	15,000	
63951/12	5 March 2010	Andrey Yevgenyevich MITROFANOV
25/02/1964
St Petersburg 	IK-9 Republic of Karelia
27 July 2008 to 25 October 2009	1.8 sq. m
5 sinks and 5 toilets for 100 inmates
	Article 3	5,750