Постановление Европейского суда по правам человека от 01.04.2010 «Дело Павленко (Pavlenko) против России» [англ.]

e presented in paragraphs 64 - 66 above.

A. Admissibility

85. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief (see, among many other authorities, {Kudla}, cited above, § 157). The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law.
86. The Court observes that the applicant's complaints concerning the conditions of his detention between 3 February 2001 and 7 June 2002 were declared inadmissible. Thus, the applicant's claim in this part cannot be considered as "arguable" (see, among others, R.K. and A.K. v. the United Kingdom, No. 38000/05, § 44, 30 September 2008).
87. However, as regards the alleged lack of effective remedies in relation to the conditions of the applicant's detention from 7 to 27 June 2002, the Court concludes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Merits

88. The Court reiterates that after the end of the period of detention complained of the applicant wrote to the regional prosecutor's office about the conditions of his detention in the remand centre. In January 2005 the prosecutor's office examined that complaint, acknowledged that the cell windows in the remand centre had been covered with metal shutters, and rejected the other allegations as untrue. In the Court's view, despite some positive outcome for the applicant, the decisive question in assessing the effectiveness of a remedy concerning a complaint of inhuman and degrading treatment is whether the applicant could have raised that complaint before a prosecutor in order to obtain direct and timely redress, and not merely an indirect protection of the rights guaranteed in Article 3 of the Convention. The remedy can be either preventive or compensatory in nature (see, among other authorities, Koval v. Ukraine, No. 65550/01, § 94, 19 October 2006). The Court notes that the Government did not explain how any findings by a prosecutor could have offered the aforementioned preventive or compensatory redress or both for allegations of the conditions of detention (see, for similar reasoning, Ostrovar v. Moldova (dec.), No. 35207/03, 22 March 2005). It was not convincingly shown that a complaint to a prosecutor was capable of providing redress in respect of the applicant's Convention complaint.
89. The Court has previously held that a complaint to a prosecutor in the Russian legal system did not give the person employing it a personal right to the exercise by the State of its supervisory powers, and that such a complaint did not therefore constitute an effective remedy within the meaning of Article 35 of the Convention (see Aleksandr Makarov, cited above, § 86, and Benediktov v. Russia, No. 106/02, § 29, 10 May 2007).
90. Thus, the foregoing considerations together with the relevant findings in paragraphs 75 and 78 above have led the Court to conclude that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy under domestic law for the applicant to complain about the allegedly insufficient access of natural light and air to the cell of the remand centre in June 2002.

III. Alleged violations of Article 6 of the Convention




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