CASE OF ESKERKHANOV AND OTHERS v. RUSSIA 

1. The case originated in three applications (nos. 18496/16, 61249/16 and 61253/16 ) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Temirlan Dukvakhayevich Eskerkhanov on 21 March 2016, and Mr Anzor Shakhidovich Gubashev and Mr Shadid Shakhidovich Gubashev on 5 October 2016.
2. Mr Eskerkhanov was represented by Ms R. Magomedova, a lawyer practicing in Moscow, Mr Anzor Gubashev and Mr Shadid Gubashev were represented by Mr M. Khadisov, a lawyer practicing in the Moscow Region. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicants complained, in particular, about their conditions of their detention and transfer to and from prison, the length of their pre-trial detention and of excessively long proceedings in the judicial review of their detention.
4. The above - mentioned complaints were communicated to the Government between 30 June and 1 December 2016 and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The three applicants were born in 1980, 1981 and 1983 respectively and are in detention in Moscow.
6. The facts of the cases, as submitted by the parties, may be summarised as follows.
7. The applicant was arrested on 8 March 2015 on suspicion of murder.
8. On 8 March 2015 a court ordered his pre-trial detention, which was further extended on several occasions, in particular on 24 August and 25 November 2015. The applicant appealed against the extension orders on 26 August and 26 November 2015 respectively. The appeals were dismissed on 16 December 2015 and on 8 February 2016.
9. The applicant has been detained in remand prison no. 77/6 in Moscow since 17 March 2015, except for twenty-one days in May 2015 when he was detained in remand prison no. 77/1 in Moscow (hereinafter “IZ-77/6” and “IZ-77/1”). In IZ-77/6 the applicant has around 3 square metres (sq.m) of personal space, the cell is extremely hot in the summer and extremely damp in the winter, it lacks natural light and fresh air, while access to potable water and hot water is restricted. The applicant has not been provided with bedding and can have no more than one ten-minute shower a week. Daily physical exercise in the fresh air is limited to one hour. The applicant has not described the conditions of his detention in IZ-77/1.
10. On 25 November 2015 the applicant was transported between IZ ‑ 77/6 and the Basmanny District Court of Moscow in a prison van. Personal space in the van was limited and there was not enough fresh air; the applicant had no access to a toilet and no food or drinking water was provided. Upon his arrival to the court building and before returning to the remand prison he was detained for about 15 hours in a convoy cell where he disposed of around 0.5 sq. m of personal space and had no access to natural light, fresh air, the toilet or drinking water.
B. Applications nos. 61249/16 and 61253/16
11. The applicants were arrested on 7 March 2015 on suspicion of murder.
12. On 8 March 2015 a court ordered their pre-trial detention, which was further extended on several occasions, in particular on 19 February, 1 March and 12 May 2016. Appeals filed by the applicants were dismissed on 8 April, 21 April and 28 June 2016 respectively.
13. On 12 May 2015 the applicants were transported from remand prison No. 77/2 in Moscow (“IZ-77/2”) to the Moscow City Court and back in a prison van. The conditions of the applicants ’ transfer to and from the court building were identical to those described by the applicant in case no. 18496/16.
II. FRIENDLY SETTLEMENT AND UNILATERAL DECLARATION
14. By a letter of 26 October 2016 the Government asked the Court to strike application no. 18496/16 out of its list and enclosed the text of a unilateral declaration with a view to resolving the issues it raised.
15. On 13 December 2016 the applicant ’ s lawyer disclosed the terms of the Government ’ s declaration to the media stating that the Russian Government and the Court had “entered into an agreement under which Russia [would] pay a compensation” of six thousand euro to the applicant, that “Russia ha[d] acknowledged” the violations and that the applicant was “thinking over the offer but [would] most likely accept it”. The lawyer ’ s statements were published, in particular, on the websites of the Vedomosti and Kommersant newspapers and on the website of the Ria Novosti news agency.
16. On 14 December 2016 the applicant accepted the Government ’ s declaration.
B. Applications nos. 61249/16 and 61253/16
17. By letters of 12 December 2016 the applicants in applications nos. 61249/16 and 61253/16 were informed of the Court ’ s decision to communicate their applications to the Government. The information note in the Russian language attached to the letters included, inter alia, information on the strictly confidential nature of all friendly- settlement negotiations. The Court also provided the parties with declarations prepared by the Registry, aimed at securing a friendly settlement of the cases.
18. On 30 January 2017 the applicants ’ lawyer informed several media outlets that the Court “ had found for the applicants and awarded 6, 500 euros to each [applicant]”. That information was published, in particular, on the websites of the Kommersant, Vedomosti and Izvestiya newspapers.
19. Given that the three applications concern similar complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of Court.
II. GOVERNMENT ’ S PRELIMINARY OBJECTION
20. The Government referred to the confidentiality of the friendly ‑ settlement process and to the fact that a unilateral declaration should be considered as a potential friendly- settlement agreement. The Government therefore argued that “the applications should be declared inadmissible due to the applicant[s ’ ] abuse of their right to individual petition and ask[ed] the Court to strike the present cases out of the list of the cases pending before the Court”.
21. In response to a question from the Court as to whether the Government had withdrawn their unilateral declaration of 26 October 2016 submitted with regard to application no. 18496/16, the Government reaffirmed their views and insisted on not striking the application out of the list of cases pending before the Court on the basis of the unilateral declaration.
22. None of the applicants submitted any comments.
23. The Court notes that according to Article 39 § 2 of the Convention friendly- settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further states that no written or oral communication and no offer or concession made in the framework of an attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. This rule, as stipulated in the Convention and in the Rules of Court, is to be interpreted in the light of the general objective of facilitating friendly settlement and protecting the parties and the Court from any eventual pressure (see Miroļubovs and Others v. Latvia, no. 798/05, § 68, 15 September 2009 ).
24. The Court has stated on multiple occasions that a breach of the confidentiality of friendly-settlement negotiations could, in certain circumstances, justify a conclusion that an application is inadmissible on the grounds of an abuse of the right of petition (see, inter alia, Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; Baucal-Đorđević and Đorđević v. Serbia (dec.), no. 38540/07, 2 July 2013; Gorgadze v. Georgia (dec.), no. 57990/10, 2 September 2014; and Ausad Valimised Mtü v. Estonia (dec.), no. 40631/14, 27 September 2016 ). For a case in which the applicant ’ s lawyer intentionally disclosed the details of friendly-settlement negotiations see Tsonev v. Bulgaria ( (dec.), no. 44885/10, § 26, 8 December 2015, with further references).
25. The Court also observes that Rule 62A § 1 (c) of the Rules of Court sets out that a declaration acknowledging that there has been a violation of the Convention in an applicant ’ s case, together with an undertaking to provide adequate redress and, as appropriate, to take the necessary remedial measures (“unilateral declaration”), must be made in public and adversarial proceedings conducted separately from and with due respect for the confidentiality of any friendly-settlement proceedings.
26. As clearly stated in the above rules, a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly-settlement proceedings and, on the other, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court, even though the material outcome of those procedures may be similar (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 74, ECHR 2003 ‑ VI).
27. It is therefore important to distinguish the procedures launched in the cases in question. In case no. 18496/16, no friendly-settlement negotiations were put in place and the Government made a declaration of its own motion, in accordance with Rule 62A § 2 of the Rules of Court. In cases nos. 61249/16 and 61253/16, Article 39 of the Convention and Rule 62 § 2 of the Rules of Court were explicitly cited and a proper procedure of friendly-settlement negotiations launched. The information note in Russian which was enclosed with the Court ’ s letter of 12 December 2016 to the two applicants in the above - mentioned cases made it clear that all friendly ‑ settlement negotiations were strictly confidential. The applicants and their representative should therefore have complied with that requirement. In any event, they have failed to advance any justification for not doing so. In view of the above, the Court considers that such conduct amounts to an intentional breach of the rule of confidentiality, which must also be considered as an abuse of the right of individual application.
28. The Court therefore declares applications nos. 61249/16 and 61253/16 inadmissible due to an abuse of the right of individual application, in accordance with Article 35 §§ 3 and 4 of the Convention.
29. As to application no. 18496/16, the Court rejects the Government ’ s preliminary objection. The Court observes that the Government, as can be seen from their letters, have withdrawn their unilateral declaration regarding that application. It further finds that the disclosure of the conditions of the unilateral declaration to the public neither amounts to an abuse of the right of individual application by the applicant nor gives any reason to strike the case out of the list of cases pending before the Court. The Court will therefore proceed with the examination of the complaints raised in application no. 18496/16.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
30. The applicant in application no. 18496/16 complained that the conditions of his detention and transport were 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.”
31. The Court observes that the applicant complained about the detention conditions in two facilities in Moscow: IZ-77/6 and IZ-77/1. The Court notes that the applicant failed to give any description whatsoever of the conditions of detention in IZ-77/1. The Court also notes that the period of the applicant ’ s detention in IZ-77/6 was interrupted by his detention in IZ-77/1 for medical treatment for twenty-one days in May 2015 (see Gorbulya v. Russia, no. 31535/09, § 47, 6 March 2014). Therefore, the Court finds it appropriate to declare the complaint about the conditions of detention in IZ-77/1 manifestly ill-founded and the complaint about the conditions of detention in IZ-77/6 between March and May 2015 belated.
32. The Court further notes that the remainder of the complaints under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that is not inadmissible on any other grounds. Thus, it should be declared admissible.
1. With regard to the conditions of the applicant ’ s detention in remand prison IZ-77/6
33. In view of the above (see paragraph 31 above), the Court will take into consideration the period of the applicant ’ s detention in IZ-77/6 since the end of May 2015.
34. The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 136- 40, ECHR 2016; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012; and Butko v. Russia, no. 32036/10, 12 November 2015).
35. In the present case the applicant has around 3 sq.m of personal space. The space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light and air, the adequacy of the cell ’ s temperature, the possibility to use the toilet in private, access to bedding and compliance with basic sanitary and hygienic requirements (see Muršić, cited above, § 139).
36. Having regard to its case-law on the subject, the Court considers that the applicant ’ s conditions of detention in the IZ-77/6 facility since the end of May 2015 have been inadequate.
37. This complaint therefore discloses a breach of Article 3 of the Convention.
2. With regard to the conditions of the applicant ’ s transport
38. The applicant complained about the conditions of his transport between IZ-77/6 and the Basmanny District Court of Moscow on 25 November 2015.
39. The Court reiterates that it has examined the issue of inhuman and degrading conditions of transport in many cases against Russia (see Idalov v. Russia [GC], no. 5826/03, §§ 103-108, 22 May 2012; Khudoyorov v. Russia, no. 6847/02, §§ 117- 19, ECHR 2005 ‑ X (extracts); Guliyev v. Russia, no. 24650/02, §§ 61- 70, 19 June 2008; and Starokadomskiy v. Russia, no. 42239/02, §§ 55-60, 31 July 2008). It established in particular that transporting detainees in cramped prison vans was impermissible, irrespective of the duration, and that a lack of appropriate food on the days of transport was an aggravating factor (see Khudoyorov, cited above, § 118, and Starokadomskiy, cited above, §§ 55, 58). The Government did not provide any information to permit the Court to distinguish the present case from those cited above.
40. The applicant ’ s complaint about the conditions of his transport therefore also discloses a breach of Article 3 of the Convention.
3. With regard to the conditions of the applicant ’ s detention in the convoy cell at the Basmanny District Court of Moscow
41. The Court notes that the applicant was kept in the convoy cell at the Basmanny District Court of Moscow on 25 November 2015 in poor conditions. Although his detention in the convoy premises was not continuous, the Court cannot overlook the fact that it alternated with his detention in the remand prison and his transport in conditions which it has already found to have been inhuman and degrading. In those circumstances, the cumulative effect of the applicant ’ s detention in the extremely small convoy cell at the Basmanny District Court of Moscow without ventilation, food, drink or free access to a toilet must have been of such intensity as to induce physical suffering and mental weariness (see Moiseyev v. Russia, no. 62936/00, § 142, 9 October 2008).
42. The Court therefore also establishes a breach of Article 3 of the Convention on account of the conditions of the applicant ’ s detention in the convoy cell.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
43. The applicant complained that his appeals against the detention orders of 24 August and 25 November 2015 had not been examined speedily. He relied on Article 5 § 4 of the Convention which reads as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
44. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and that it must therefore be declared admissible.
45. The Court reiterates that it has already found a violation of Article 5 § 4 of the Convention in a number of cases against Russia, where, for instance, the proceedings by which the lawfulness of an applicant ’ s detention was decided lasted twenty-seven days (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), sixty days (see Topekhin v. Russia, no. 78774/13, § 115, 10 May 2016 ) or one hundred days (see Pelevin v. Russia, no. 38726/05, §§ 64-67, 10 February 2011 ).
46. In the present case it took the courts a hundred and eleven days to examine the applicant ’ s appeal against the extension order of 24 August 2015 and seventy-three days to examine the appeal against the order issued on 25 November 2015.
47. The Court notes that nothing in the case suggests that the applicant in any way caused delays in the appeals proceedings.
48. In the light of its consistent case-law, the Court finds that the significant delays in the examination of the applicant ’ s appeals cannot be considered compatible with the “speediness” requirement of Article 5 § 4.
49. There has accordingly been a breach of Article 5 § 4.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
50. 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.”
51. The applicant was not asked by the Court to submit a claim for just satisfaction during the communication stage of the proceedings. The Court notes, however, that on 14 December 2016 the applicant sent a letter to the Court by which he accepted the terms of the Government ’ s unilateral declaration : the Government had offered to “pay the applicant a sum of EUR 6,000 as just satisfaction [ ... ] which is to cover any pecuniary and non ‑ pecuniary damage as well as costs and expenses ”.
52. The Court considers that by accepting the sum of compensation indicated in the Government ’ s unilateral declaration the applicant unequivocally expressed his appreciation of the overall amount of just satisfaction for the violations of his rights.
53. With regard to the above and to the principle of ne ultra petitum (“not beyond the request”), the Court awards the applicant EUR 6,000 as just satisfaction, plus any tax that may be chargeable to him on that amount.
54. 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.
1. Decides, unanimously, to join the applications;