FOURTH SECTION

CASE OF VOLODYA AVETISYAN v. ARMENIA

(Application no. 39087/15)

JUDGMENT

Art 13 (+ Art 3) • Art 3 (substantive) • Ineffective domestic judicial remedies

for complaints as to inadequate conditions of detention • Cumulative effects
of detention conditions, including inadequate personal space in cells,
amounting to degrading treatment

STRASBOURG

3 May 2022

This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

In the case of Volodya Avetisyan v. Armenia,

The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Yonko Grozev, President,
Tim Eicke,
Armen Harutyunyan,
Gabriele Kucsko-Stadlmayer,
Pere Pastor Vilanova,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 39087/15) against the Republic of Armenia lodged
with the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”) by an
Armenian national, Mr Volodya Avetisyan (“the applicant”), on 31 July
2015;
the decision to give notice of the application to the Armenian Government
(“the Government”);
the parties’ observations;
Having deliberated in private on 29 March 2022,
Delivers the following judgment, which was adopted on that date:

INTRODUCTION
1. The application concerns the conditions of the applicant’s detention in
Nubarashen Remand Prison and the alleged lack of effective remedies in that
respect. It raises issues under Article 3 and Article 13 of the Convention.

THE FACTS
2. The applicant was born in 1963 and was detained in Vardashen
penitentiary when he submitted his application. He was represented by
Mr R. Revazyan, a lawyer practising in Yerevan.
3. The Government were represented by their Agent, Mr Y. Kirakosyan,
Representative of the Republic of Armenia on International Legal Matters.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.

I. CONDITIONS OF THE APPLICANT’S DETENTION IN

NUBARASHEN REMAND PRISON

5. The applicant was held in pre-trial detention in Nubarashen Remand

Prison from 23 September 2013 to 11 March 2015. Between 23 September

1
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

2013 and 16 July 2014 he was detained in cell no. 013. From 17 July 2014
onwards he was detained in cell no. 007.
6. The applicant alleged that the cells in question measured approximately
15-20 sq. m and were overcrowded: in his submission, the number of inmates
in both cells fluctuated, at various periods, between 5 and 8 persons. In his
observations he submitted further details as to the size of the cells, based on
the findings of a local monitoring group (see paragraph 24 below). The
applicant alleged that there was no central ventilation system in the prison,
and the cells were ventilated by windows and fans. In the absence of a heating
system, the cells were heated by electric fires. A foul smell was constantly
present throughout the prison. The applicant spent the entire period of his
detention inside the cells, with the exception of a one-hour daily walk outside
and his participation in investigatory measures. Some of his cellmates
smoked in the cells. Lice, cockroaches and other insects were often spotted
in the communal part of the cells but the prison administration did nothing to
eliminate them.
7. The Government contested the measurements provided by the applicant
and alleged that cells nos. 013 and 007 had measured 35 and 32 sq. m
respectively during the period in question. They further alleged that the
number of inmates in the cells during the periods of the applicant’s detention
had varied from five to eight. In support of their allegation the Government
submitted the relevant prison population register, which contained
information about the number of detainees present in each cell of the prison.
While no complete information was provided for a thirty-six day period of
the applicant’s detention (either the relevant pages of the register are missing
or the number of inmates is not registered, or it is unclear to which period the
relevant information refers) the following information can be extracted from
the said document. During the applicant’s detention in cell no. 013 the
number of his cellmates varied between 7 and 10 and, on several occasions,
it reached up to 12 persons, with the exception of a fifty-five day period when
that number fluctuated between 5 and 6. In cell no. 007 the number of the
applicant’s cellmates varied between 8 and 10, with the exception of a
thirty-seven day period when this number fluctuated between 6 and 7 and, on
one occasion, the applicant shared his cell with 5 cellmates.

II. THE APPLICANT’S COMPLAINTS ABOUT HIS DETENTION

CONDITIONS

8. On 22 January 2015 the applicant lodged a complaint with the General

Jurisdiction Court of Shengavit District of Yerevan (“the District Court”)
against the penitentiary department of the Ministry of Justice and the prison,
asking the court to acknowledge and put an end to the ongoing violation of
his rights under Article 3 of the Convention resulting from the conditions of

2
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

his detention, and to provide compensation in respect of non-pecuniary

damage.
9. On the same date the District Court examined the applicant’s
application under the rules of civil procedure and declared it inadmissible, on
the grounds that such a claim was not within the competence of the courts of
general jurisdiction but rather fell within the competence of the
Administrative Court, given its public-law nature.
10. On 9 February 2015 the applicant appealed against this decision,
submitting that his application was of a criminal-law nature and thus the rules
of criminal procedure were applicable to it, whereas the District Court had
examined and dismissed it as a civil claim.
11. On 2 March 2015 the Civil Court of Appeal quashed the District
Court’s decision, reasoning that the applicant’s application raised
criminal-law matters which came within the scope of the courts of general
jurisdiction, whereas the District Court had examined it under the rules of
civil procedure.
12. On 29 April 2015 the District Court again declared the applicant’s
application inadmissible under the rules of civil procedure. The court
reasoned that the application was not of a criminal-law nature and held that,
despite the findings of the Court of Appeal, there was no procedure under the
Code of Criminal Procedure whereby such an application could be
entertained.
13. On 18 May 2015 the applicant, relying on Article 13 of the
Convention, appealed against this decision, raising similar arguments as
before. The applicant pointed out that the Court of Appeal had already found
that his application raised criminal-law matters and thereby fell within the
competence of the courts of general jurisdiction, but that the District Court
had again examined it under the rules of civil procedure.
14. On 6 July 2015 the Civil Court of Appeal upheld the contested
decision but supplemented its reasoning. It held that the applicant’s
application, while falling within the competence of the courts of general
jurisdiction, could not be examined under the rules of civil procedure;
however, the District Court had failed to substantiate its conclusions when
refusing to admit the application as not subject to examination by the courts
of general jurisdiction. The Court of Appeal nonetheless declared the
application inadmissible since, given the form, content and subject matter of
the applicant’s claims, it resembled a civil claim, whereas the issues raised
therein related to the execution of a sentence and were not subject to
examination under the rules of civil procedure.
15. On 3 August 2015 the applicant lodged an appeal on points of law.
16. On 26 August 2015 the Court of Cassation declared the applicant’s
appeal on points of law inadmissible for lack of merit.

3
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. RELEVANT DOMESTIC PRACTICE

Decision of the Constitutional Court of 22 January 2019 on the

conformity of Article 41 and the provisions included in Chapter 49
of the Code of Criminal Procedure, entitled “Enforcement of
Judicial Decisions”, with the Constitution, adopted on the basis of
an application lodged by the Criminal Court of Appeal

17. In this decision the Constitutional Court acknowledged that there was
legislative ambiguity as to which courts – the criminal courts of general
jurisdiction or the Administrative Court – had jurisdiction to examine
complaints lodged by convicted persons against actions (omissions) or
decisions by officials of the penitentiary facility, and urged the National
Assembly to resolve this ambiguity by introducing amendments along the
lines suggested in its decision. Until such time as this was done, complaints
concerning actions or omissions by officials of the penitentiary facility were
to be examined by the Administrative Court, unless a specific case, subject
area or issue concerning execution of a sentence explicitly fell within the
competence of the courts of general jurisdiction examining criminal cases.

II. RELEVANT COUNCIL OF EUROPE MATERIALS

A. CPT: Report to the Armenian Government on the visit to Armenia

carried out by the CPT from 10 to 21 May 2010, CPT/Inf(2011)24

18. The relevant parts of this report read as follows:

“61. ... Prison overcrowding was a common feature of all the penitentiary
establishments visited, Nubarashen Prison being the most striking example. The
delegation witnessed the negative impact of overcrowding on many aspects of life in
prison: the inmates taking turns to sleep on available beds; cramped and unhygienic
accommodation; the virtual absence of structural activities and restrictions on the
provision of outdoor exercise ...
81. As regards material conditions, most of the cells were seriously overcrowded, with
a significant proportion of inmates taking turns to sleep on the available beds or on the
floor (e.g. 19 prisoners in a cell of 26 m² containing 12 beds).
The majority of cells (and in-cell toilets) were in a state of dilapidation ... Ventilation
was poor, and running water was available for a maximum of four hours a day (two
hours in the morning and two hours in the evening) ...
Further, the shower facilities were generally in a poor state of repair, and prisoners
had access to them at best once a week, frequently only once every two weeks.
82. The provision of outdoor exercise at Nubarashen Prison has been an ongoing
problem since the CPT’s first visit in 2002. Outdoor exercise was still not organised at

4
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

week-ends, mainly due to staff shortages, and most prisoners interviewed indicated that,
in practice, they were allowed outdoor exercise once to three times a week.
Apart from a few prisoners working in general services (e.g. cleaning, maintenance
work, kitchen), the vast majority of inmates were locked up for 23 or even 24 hours a
day in their cells, with no other activities than watching TV, playing board games or
reading books.”

B. CPT: Report to the Armenian Government on the visit to Armenia

carried out by the CPT from 5 to 15 October 2015, CPT/Inf(2016)31

19. The relevant parts of this report read as follows:

“63. Material conditions at Nubarashen Prison had remained basically the same as
those observed during the 2010 periodic visit i.e. they were unacceptable. Despite some
local efforts to redecorate (mostly by inmates themselves and often using their own
resources or the resources of their families), the prison was in a state of advanced
dilapidation. Further, it was severely overcrowded (even taking into account the drop
in population since 2010), with some inmates not having their own bed and sleeping in
shifts. In a number of the standard 12-bed cells seen by the delegation there could be
up to 17 prisoners, and it was not exceptional to see 14 inmates, especially in the units
for remand prisoners (e.g. in cells Nos. 16, 34 and 51).
Many cells (especially on the ground level) were humid, damp, affected by mould,
poorly lit and ventilated, dirty and infested with vermin. There were still serious
problems with water supply (water continued to be available at most 4 hours per day).
The communal bathrooms/showers were dilapidated and access to a shower offered at
most once per week. Most cells had only semi-partitioned sanitary annexes. The kitchen
and laundry were dilapidated too.
Further, outdoor exercise was still not available on weekends and – when offered – it
reportedly did not always last one hour. The bulk of the inmates had to use the same
small and inadequate yards located on the roof of the establishment.
...
65. More generally, the Committee is of the view that the structure and the present
condition of Nubarashen Prison are so inadequate that they warrant a serious reflection
as to the future of the establishment and the advisability of any further investment
(rather than directing the available resources to ensure appropriate conditions of
detention at some other location). In any case, were a decision to be taken to continue
operating Nubarashen Prison on its current premises, a massive and comprehensive
refurbishment would be indispensable, covering issues such as access to natural light,
artificial lighting, ventilation, full partition of sanitary annexes, water supply, state of
communal bathrooms/showers, repainting, disinfestation, hygiene in the cells and the
kitchen.”

5
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION

20. The applicant complained of the inadequate conditions of his

detention in Nubarashen Remand Prison and alleged that he had had no
effective remedy in respect of this complaint. He 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.”

A. The parties’ submissions

21. The Government argued that the applicant had failed to exhaust the
domestic remedies. In their submissions, he had made use of an obviously
futile remedy by submitting a civil claim, whereas it should have become
clear to him from the domestic judicial decisions (see paragraphs 9, 12 and
14 above) that his complaints fell to be examined through either
administrative or criminal proceedings, which were the appropriate and
effective domestic remedies for such complaints, as required by Article 13 of
the Convention. The applicant had not, however, pursued any of those
remedies. In that respect, the Government referred to several cases, all dating
from 2019, in which the Administrative Court examined complaints lodged
by convicted persons against decisions taken by prison authorities concerning
either the imposition of a disciplinary penalty or refusal to apply an amnesty.
Alternatively, the Government argued that the applicant could have applied
to the Constitutional Court and obtained a decision similar to that of
22 January 2019 (see paragraph 17 above), which would have obliged the
Administrative Court to examine his complaint.
22. The Government further submitted that the personal space accorded
to the applicant (see paragraph 7 above) had been in line with the standards
set out in the Muršić case-law, including the requirement of 3 sq. m of
personal space per detainee in a multi-occupancy cell (they referred to Muršić
v. Croatia ([GC], no. 7334/13, § 136, 20 October 2016). They produced a
copy of the prison population register containing information about the
number of detainees present in each cell of the prison and an indication that
the cells had been designed for eight inmates. They further submitted that the

6
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

cells in question had since been refurbished and that the measurements
provided by the applicant, referring to the monitoring group’s findings (see
paragraph 24 below), corresponded to the current size of the cells, which were
now smaller. In this respect, they produced a statement, issued by the official
of the State Penitentiary Service in 2019, indicating the former and current
cell sizes. They did not comment on other aspects of the applicant’s detention
conditions.
23. The applicant argued that in fact he had sought to have his claim
examined under the rules of criminal procedure, but that, for no good reason,
it had been dismissed under the rules of civil procedure. The Administrative
Court’s practice referred to by the Government was quite recent, dating from
2019, and none of the cases in question was similar to his. In any event, even
assuming that the Administrative Court were to examine his claim, it would
not be able to provide adequate redress, namely: acknowledgement of a
violation of his rights under Article 3 of the Convention; putting an end to
that violation; and awarding compensation in respect of non-pecuniary
damage. Moreover, he submitted that given the ongoing nature of the
violation, such claims ought to be examined speedily, whereas examination
of claims before the Administrative Court could take years. This was also true
with regard to the Constitutional Court, to which he could apply only after
having exhausted the relevant judicial remedies at three levels of jurisdiction;
then, were the Constitutional Court to allow his application, he would have
to lodge a request for reopening with the lower courts. By suggesting this
remedy, the Government were in essence acknowledging the lack of clear
rules for examination of his claims and proposing that the applicant seek
legislative change.
24. With regard to the conditions of his detention and in support of his
allegations regarding the size of the cells (see paragraph 6 above), the
applicant referred to the findings of a local monitoring group, which had
inspected the prison on an unspecified date and noted that cell no. 013
measured 21.6 sq. m, including the surface area of the sanitary facilities
(3 sq. m) and cell no. 007 measured 24.6 sq. m, including the sanitary
facilities (2.7 sq. m). The applicant alleged that the cells had generally housed
eight inmates and, on account of overcrowding, the inmates had even had to
sleep in turns. The applicant argued that his situation should be distinguished
from that in the Muršić case since, unlike the applicant in that case, he had
been confined in a pest-ridden and poorly ventilated cell (which was
particularly stuffy during the summer period), and had been exposed to
round-the-clock secondary smoking, except for a one-hour daily walk and
without any other out-of-cell activities.

7
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

B. The Court’s assessment

1. Admissibility
25. The Court takes note of the Government’s objection as to
non-exhaustion of domestic remedies (see paragraph 21 above). It considers
that this issue is closely linked to the merits of the applicant’s complaint that
he did not have at his disposal an effective remedy for his complaint under
Article 3 of the Convention regarding the alleged inadequate conditions of
his detention. The Court therefore finds it necessary to join the Government’s
objection to the merits of the complaint under Article 13 of the Convention
(see Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, § 163,
27 January 2015, and Ter-Petrosyan v. Armenia, no. 36469/08, § 52, 25 April
2019).
26. The Court notes that these complaints are neither manifestly
ill-founded nor inadmissible on any other grounds listed in Article 35 of the
Convention. The application must therefore be declared admissible.

2. Merits
(a) Exhaustion of domestic remedies and alleged violation of Article 13 of the
Convention in conjunction with Article 3 of the Convention
27. The general principles regarding exhaustion of domestic remedies
have been summarised in Vučković and Others v. Serbia ((preliminary
objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).
28. The rule of exhaustion of domestic remedies in Article 35 § 1 of the
Convention requires those seeking to bring their case against the State before
the Court to first use the remedies provided by the national legal system.
Consequently, the High Contracting Parties are dispensed from answering for
their acts or omissions in proceedings before the Court before they have had
an opportunity to put matters right through their own legal system. The rule
is based on the assumption, reflected in Article 13 of the Convention, with
which it has close affinity, that the domestic legal system provides an
effective remedy which can deal with the substance of an arguable complaint
under the Convention and grant appropriate relief. In this way, it is an
important aspect of the principle that the machinery of protection established
by the Convention is subsidiary to the national systems safeguarding human
rights (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 93,
10 January 2012, and Neshkov and Others, cited above, § 177).
29. The scope of the Contracting States’ obligations under Article 13
varies depending on the nature of the applicant’s complaint. With respect to
complaints under Article 3 of inhuman or degrading conditions of detention,
two types of relief are possible: improvement in these conditions and
compensation for any damage sustained as a result of them. Therefore, for a
person held in such conditions, a remedy capable of rapidly bringing the

8
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

ongoing violation to an end is of the greatest value and, indeed, indispensable

in view of the special importance attached to the right under Article 3.
However, once the impugned situation has come to an end because this person
has been released or placed in conditions that meet the requirements of
Article 3, he or she should have an enforceable right to compensation for any
breach that has already taken place. In other words, in this domain preventive
and compensatory remedies have to be complementary to be considered
effective (see ibid., §§ 180-191; Ulemek v. Croatia, no. 21613/16, § 71,
31 October 2019; and, most recently, Shmelev and Others v. Russia (dec.),
nos. 41743/17 and others, §§ 85-104, 17 March 2020).
30. The Court notes at the outset that it has previously rejected objections
of non-exhaustion raised by the Armenian Government in cases concerning
inadequate conditions of detention (see Kirakosyan v. Armenia, no. 31237/03,
§§ 55-58, 2 December 2008, and Gaspari v. Armenia, no. 44769/08, § 46,
20 September 2018). In the present case, the Government raised a new ground
for its objection of non-exhaustion, based mainly on the argument that, by
submitting a civil claim instead of instituting administrative or criminal
proceedings, the applicant had made use of a clearly futile remedy. The Court
notes, however, that although they argued that the applicant should have
pursued administrative or criminal remedies, the Government failed to submit
any argument or evidence regarding the effectiveness of those remedies in
respect of the applicant’s particular complaints.
31. First of all, it is not clear what result could have been achieved in the
applicant’s situation by applying to a judicial authority, whether
administrative or criminal, against the penitentiary service and the prison
authority, considering that the issues raised by the applicant were apparently
of a structural nature (see the relevant CPT reports in paragraphs 18 and 19
above; and compare Kirakosyan, cited above, § 58, and Ananyev and Others,
cited above, § 111). The Government failed to explain the scope of such
potential judicial review and the kind of redress the applicant could have
obtained had he pursued any of those remedies, in particular, any preventive
and compensatory measures that the Administrative Court or the criminal
courts of general jurisdiction could have ordered were a well-founded claim
to be made before them (contrast Domjan v. Hungary (dec.), no. 5433/17,
§§ 21-30, 14 November 2017; Atanasov and Apostolov v. Bulgaria (dec.),
no. 65540/16 and 22368/17, §§ 48-67, 27 June 2017; Draniceru v. the
Republic of Moldova (dec.), no. 31975/15, §§ 32-41, 12 February 2019; and
Shmelev and Others, cited above, §§ 107-119). They neither referred to any
specific domestic rules nor provided any examples of domestic judicial
decisions taken in similar cases. All of the examples produced by the
Government concern appeals by convicted persons against specific decisions
by the prison authorities, such as the imposition of a disciplinary penalty or
refusal to apply an amnesty (see paragraph 21 above), as opposed to any

9
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

complaints about inadequate detention conditions, and are thus irrelevant to

this case (see Petrescu v. Portugal, no. 23190/17, § 82, 3 December 2019).
32. Furthermore, there appears to have been a confusion in domestic law
and practice at the material time as to which procedure – administrative or
criminal – was to be pursued when lodging complaints against the
penitentiary authorities. There was an obvious disagreement on this matter
between, on the one hand, the District Court, which insisted that the
applicant’s complaint fell within the jurisdiction of the Administrative Court
(see paragraphs 9 and 12 above) and, on the other, the Court of Appeal, which
considered that such applications raised criminal-law matters falling within
the competence of the courts of general jurisdiction (see paragraphs 11 and
14 above). The Government also referred to both remedies without, however,
clarifying which of the two was applicable in the applicant’s case. This
ambiguity was explicitly acknowledged in 2019 by the Constitutional Court,
which called for legislative amendments in order to resolve the issue and,
pending such changes, assigned all such cases, with some exceptions, to the
Administrative Court (see paragraph 17 above). Thus, the remedies referred
to by the Government, in addition, lacked the requisite clarity at the material
time.
33. Lastly, the Court cannot accept the Government’s argument that the
applicant was supposed to apply to the Constitutional Court in order to have
his claim subsequently examined by the Administrative Court. The Court has
previously held that the constitutional remedy is generally not considered as
a domestic remedy to be exhausted due to the specificities of the judicial role
of the Armenian Constitutional Court (see Gevorgyan and Others v. Armenia
(dec.), no. 66535/10, § 36, 14 January 2020), and it sees no reasons to depart
from that conclusion in the present case. The grounds suggested by the
Government are not persuasive in this respect.
34. For these reasons, the Court is not convinced that any of the judicial
review proceedings indicated by the Government provided an effective
domestic remedy for the applicant’s complaints regarding the allegedly
inadequate conditions of his detention, were available both in theory and in
practice, and were capable of preventing the continuation of the alleged
violation and, if necessary, providing compensation for the damage sustained,
as required by Article 13 of the Convention.
35. In view of the above considerations, the Court dismisses the
Government’s objection as to the non‑exhaustion of domestic remedies and
finds that the applicant did not have at his disposal an effective domestic
remedy for his grievances under Article 3, in breach of Article 13 of the
Convention in conjunction with Article 3 of the Convention.

(b) Alleged violation of Article 3 of the Convention

36 The general principles governing the application of Article 3 of the
Convention to conditions of detention and prison overcrowding, as well as

10
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

the well-established standard of proof in such cases have been summarised in

Muršić (cited above, §§ 99-101 and 122-141).
37. In the present case, the applicant alleged that the conditions of his
detention at Nubarashen Remand Prison between 23 September 2013 and
11 March 2015 had fallen short of the requirements of Article 3 (see
paragraphs 6 and 24). The Court reiterates that once a credible and reasonably
detailed description of the allegedly degrading conditions of detention,
constituting a prima facie case of ill-treatment, has been made, the burden of
proof is shifted to the respondent Government who alone have access to
information capable of corroborating or refuting these allegations (ibid.,
§ 128). The Court observes that the applicant’s submissions in this respect
are sufficiently detailed and largely corroborated by the CPT reports
concerning Nubarashen Remand Prison and relating to the period at issue (see
paragraphs 18 and 19 above). The Government, for their part, while
contesting the applicant’s submissions regarding the size of the cells (see
paragraph 22 above), failed to submit any convincing evidence in that respect,
such as a floor plan of the cells in question or similar document. The prison
population register produced by the Government, while indicating the daily
number of inmates and noting that the cells in question were designed for
eight people, contains no information about the actual size of those cells and
is not sufficiently detailed to draw conclusions on that point. Nor did they
submit any proof regarding the alleged refurbishment of the prison, including
the alleged reduction in the size of cells nos. 007 and 013 following the period
of the applicant’s detention. The statement by an official of the State
Penitentiary Service, concerning the current and previous measurements of
the cells, was made several years after the events in question. The Court has
repeatedly declined to accept the validity of similar statements on the grounds
that they cannot be viewed as sufficiently reliable, given the lapse of time
involved and the absence of any supporting documentary evidence (see,
mutatis mutandis, Dudchenko v. Russia, no. 37717/05, § 119, 7 November
2017, with further references). The Government have thus failed to submit
information capable of refuting the applicant’s allegations that he was held in
cells measuring 18.6 and 21.9 sq. m, not including the sanitary facilities (see
paragraph 24 above, and, as regards the methodology of the calculation of
minimum personal space, Muršić, cited above, § 114).
38. The Court observes that, according to the above-mentioned register
(see paragraph 7 above), for a considerable period of the applicant’s
detention, namely, a little more than 1 year and 1 month, the number of
inmates in cell no. 007 (which measured 21.9 sq. m) varied between 8 and
10, while in cell no. 013 (which measured 18.6 sq. m) between 7 and 10, at
times even reaching up to 12 persons, which means that the applicant had a
personal space of less than 3 sq. m – at worst 1.5 sq. m and at best 2.7 sq. m.
Furthermore, there is no complete information in the said document about a
thirty-six day period of the applicant’s detention. Since the Government

11
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

failed to provide full information in that respect, the Court sees no reason to
doubt the applicant’s submission that the cells in question generally housed
eight inmates, thereby leaving him with a personal space of less than 3 sq. m
throughout those thirty-six days. Thus, a strong presumption of a violation of
Article 3 arises for the above-described periods (see Muršić, cited above,
§§ 136-37). As the Government have not shown that those were only short,
occasional and minor reductions in the required personal space (ibid.,
§§ 151-53), this presumption has not been rebutted.
39. As regards the remaining period of ninety-two days, depending on the
number of the applicant’s cellmates the personal space accorded to him
fluctuated between 3.1 and 3.7 sq. m, with the exception of one day when it
was around 4.4 sq. m. The space factor, therefore, remains a weighty element
in the Court’s assessment of the adequacy of the conditions of detention
during that period (ibid., § 139). Turning to the other aspects of the
applicant’s detention conditions, the Court notes that the Government did not
contest the applicant’s allegations in that respect, which, moreover, largely
coincide with the description of the overall conditions in Nubarashen Remand
Prison contained in the relevant CPT reports (see paragraphs 18 and 19
above). Thus, the applicant’s situation was further aggravated by the fact that
he was confined in a poorly ventilated cell which was infested with pests, was
exposed to secondary smoking and was allowed only a one-hour outdoor
walk per day (compare Vasilescu v. Belgium, no. 64682/12, § 104,
25 November 2014; Sukachov v. Ukraine, no. 14057/17, § 94, 30 January
2020; and contrast Nikitin and Others v. Estonia, nos. 23226/16 and 6 others,
§ 193, 29 January 2019). Having regard to the cumulative effects of these
conditions, the Court finds that they amounted to degrading treatment within
the meaning of Article 3. Moreover, the fact that, for one day, the applicant
had a personal space of slightly more than 4 sq. m does not detract from this
finding, given the brevity of this period and the negligible improvement in
question.
40 In the light of the above considerations, the Court concludes that there
has been a breach of Article 3 of the Convention on account of the applicant’s
detention conditions in Nubarashen Remand Prison.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41. 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.”

12
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

A. Damage

42. The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary

damage.
43. The Government argued that the amount claimed was excessive.
44. The Court finds that the suffering caused to a person detained in
conditions that are so poor as to amount to inhuman or degrading treatment
within the meaning of Article 3 of the Convention cannot be made good by a
mere finding of a violation; it calls for an award of compensation. The amount
of time spent by the person concerned in these conditions is the most
important factor for assessing the extent of this damage (see Neshkov and
Others, cited above, § 299). By contrast, the finding of a violation may in
itself constitute sufficient just satisfaction for a breach of Article 13 of the
Convention flowing from the lack of effective domestic remedies in respect
of such conditions (ibid.). Making its assessment on an equitable basis, and
taking in particular account of the amount of time spent by the applicant in
poor conditions, the Court awards him EUR 3,900, plus any tax that may be
chargeable.

B. Costs and expenses

45. The applicant did not claim any costs and expenses.

C. Default interest

46. 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. Joins the Government’s objection of non-exhaustion to the merits of the

applicant’s complaint under Article 13 of the Convention in conjunction
with Article 3 and dismisses it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 3 of the Convention;

4. Holds that there has been a violation of Article 13 of the Convention in

conjunction with Article 3 of the Convention;

13
 VOLODYA AVETISYAN v. ARMENIA JUDGMENT

5. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,900 (three thousand nine
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, 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 amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

6. Dismisses, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 May 2022, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth Yonko Grozev

Deputy Registrar President

14