CASE OF VOLODYA AVETISYAN v. ARMENIA
CASE OF VOLODYA AVETISYAN v. ARMENIA
JUDGMENT
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
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.
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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.
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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.
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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.”
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THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
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.”
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
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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.
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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
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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.
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A. Damage
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.
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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;
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