THIRD SECTION

DECISION

Application no. 37321/18 M.A . against Cyprus

The European Court of Human Rights (Third Section), sitting on 2 2 September 2020 as a Committee composed of:

Erik Wennerström , President, Georgios A. Serghides, Lorraine Schembri Orland, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 26 July 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant is a Palestinian national who was born in 1970 and is detained in Nicosia Central Prisons. It was decided to grant the applicant ex officio anonymity under Rule 47 § 4 of the Rules of Court. The applicant was represented before the Court by Mr S. Argyrou , a lawyer practising in Nicosia.

2 . The Cypriot Government (“the Government”) were represented by their Agent, Mr C. Clerides , Attorney General of the Republic of Cyprus.

3 . On 24 January 2020 the Government requested that the Court grant confidentiality of the applicant ’ s medical file, submitted with the Government ’ s observations. On 12 March 2020 the President of the Section decided that the applicant ’ s medical file was to be treated as confidential (Rule 33 § 1 of the Rules of Court).

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

5 . In 1997 the applicant was diagnosed with paranoid schizophrenia and he was prescribed medication which he would have to take for the rest of his life. He also suffers from severe visual impairment.

6 . At some point the applicant stopped taking his medication; his condition worsened and on 13 November 2015 he shot and killed his father, with whom he had been living.

7 . On 21 November 2016 following a guilty plea to, inter alia , manslaughter, the Nicosia Assize Court (criminal case no. 23398/15) sentenced the applicant to a total of eight years ’ imprisonment.

8 . The applicant filed an appeal (no. 230/2016) with the Supreme Court, which was dismissed on 13 January 2018. The court held that the sentence imposed had been appropriate but it emphasised the need to increase the means provided to the criminal courts for the punishment and rehabilitation of offenders suffering from mental illnesses or personality disorders.

9 . On 20 November 2015 the applicant was transferred to Nicosia Central Prisons pursuant to a remand order issued by the Nicosia Assize Court. Upon the applicant ’ s arrival at the prison he was placed in a cell in the reception area.

(a) Block 10

10 . On 25 November 2015 he was transferred to Block 10, which is used as a mental health unit within Nicosia Central Prisons. Block 10 comprises ten single-occupancy cells, each measuring 7.5 sq. m. Prisoners are allowed to be outside their cells from 7 a.m. until 9 p.m. on weekdays and from 7 a.m. until 10 p.m. at weekends. Block 10 has its own outdoor yard.

11 . The applicant was held in Block 10 from 25 November 2015 until 16 January 2017, with only one interruption: on 18 December 2015 he was compulsorily admitted to Athalassa Psychiatric Hospital, until 28 December 2015 following a court order as he had refused treatment in prison.

(b) Block 4

12 . On 16 January 2017 the applicant was transferred to Block 4 of Nicosia Central Prisons, which is not a mental health unit, where he has remained ever since. According to a note of 29 May 2019 prepared by the State Mental Health Services, appended to the Government ’ s observations, the applicant ’ s transfer to Block 4 was made further to a recommendation by the prison psychiatrist in view of the gradual improvement of his symptoms and his cooperation with the prison authorities for his treatment.

13 . Block 4 comprises eleven single-occupancy cells, each cell containing a toilet, washbasin area and a window. Each prisoner has a personal space of 5.7 sq. m. The regime and conditions relating to timetables, entertainment and access to the outdoor yard are the same as in Block 10.

14 . By letter of 17 February 2017 to the Director of Nicosia Central Prisons, the applicant ’ s lawyer requested the applicant ’ s return to Block 10, alleging that his health had been deteriorating ever since his transfer to Block 4. This letter remained unanswered.

15 . By letter of 8 June 2017 to the Attorney General, the applicant ’ s lawyer requested the installation of a special computer so the applicant could follow the classes provided by the prison school.

16 . In his reply of 23 August 2017 the Attorney General informed the applicant ’ s lawyer that the prison authorities had made all necessary arrangements to ensure, as far as possible, the best living conditions for the applicant in prison. These arrangements included the installation of a special computer programme for blind users, while audiobooks and a CD-player were provided to the applicant. In addition, a meeting with the School for the Blind was arranged to assess the applicant ’ s condition.

17 . On 7 May 2018 the applicant ’ s lawyer complained to the Director of Nicosia Central Prisons, inter alia, that the applicant was isolated in his cell as he had no activities whatsoever; he had not been taught Braille as promised by the authorities; there was no school for him, neither had a video magnifier been made available to him.

18 . In a reply of 10 May 2018 the prison authorities added that, inter alia, special training was being provided to the applicant by the School for the Blind; an additional specialised computer programme had been installed on the school computer further to the recommendation of the School for the Blind; and he could participate in other school activities, with the assistance of the school teachers.

19 . The applicant ’ s medical records kept by the State Mental Health Services ( Υπηρεσίες Ψυχικής Υγείας ) indicate, inter alia , the following.

20 . Upon his arrival at Nicosia Central Prisons in November 2015 the applicant was assessed by a psychiatrist. He was assessed by a psychiatrist on two other occasions. On 25 November 2015 his transfer to Block 10 was recommended.

21 . During his stay in Block 10 the applicant met with the psychiatrist six times in 2015 and nineteen times in 2016.

22 . In Block 4 the applicant consulted the prison psychiatrist eight times in 2017, nine times in 2018 and eight times up to October 2019.

23 . Throughout his imprisonment, the applicant was provided with medication for his mental health; he was consulted about the effects of the medication, which was adjusted at times.

24 . It is evident from the medical records of 18 January 2017 that, with his transfer to Block 4, the applicant encountered certain difficulties: he could not easily move around this Block or the courtyard due to his visual impairment; he was disturbed by the noise in Block 4 caused by the television, which was on even at night, or by other prisoners ’ conversations.

25 . As follows from the medical notes of 15 March 2017, while the applicant was still bothered by noise from other prisoners, the television was then turned off at night and, further to the applicant ’ s request, he was granted a portable CD-player to listen to his own music. Nonetheless, in the absence of other activity, he asked to be provided with audiobooks.

26 . As it appears from the medical notes of 18 August 2017, on an unspecified date the applicant was provided with audiobooks, which – according to his own statements to the psychiatrist - improved his daily life in prison, although he was still bothered by the noise in Block 4. Still, he did not wish to return to Block 10.

27 . On 21 November 2017 the applicant reported to the psychiatrist that he was being bullied by some prisoners in Block 4 who took his water, shampoo and other personal belongings. On the same date the psychiatrist recommended the applicant ’ s transfer to Block 10.

28 . On 5 February 2018 the applicant reported to the psychiatrist that the bullying by other prisoners had stopped after the prison authorities ’ intervention. He reported that he was pleased to remain in Block 4 as he had a radio, a CD-player and audiobooks.

29 . On 20 February 2018 the applicant reported to the psychiatrist that one of the prisoners responsible for providing breakfast was giving him spoilt food, but the prisoner was soon replaced and the problem ceased. The applicant complained of a lack of activities.

The Report of 2018 on the visit to Cyprus by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) from 2 to 9 February 2017

30 . The CPT visited the Nicosia Central Prisons in 2017. It found that Blocks 4 and 10 had been renovated and the material conditions had improved since its last visit.

31 . The CPT further noted an improvement to various aspects of the health-care services - including the system of provision of psychiatric and psycho-social health care, finding the health-care facilities to be well equipped and sufficiently resourced. As regards mental health-care staffing, the CPT noted that the prison employed, inter alia, two full-time psychiatrists, three registered mental-health nurses, three psychologists and two occupational therapists. In addition, there were six registered mental health nurses who worked in Block 10 at the time of the CTP ’ s visit.

32 . With regards to prisoners ’ activities, the CPT noted as regards Block 10 the lack of, inter alia, access to varied and purposeful rehabilitative or therapy based programmes or activities.

COMPLAINTS

33 . The applicant complained under Article 3 of the Convention of the inadequacy of the conditions of his detention at Nicosia Central Prisons in view of his state of health. In particular he complained about his detention in an ordinary prison, the State ’ s inability to deal with offenders with psychological problems and/or mental disorders and the lack of a suitable establishment for their detention. He also complained that in Block 4 he was subjected daily to degrading and humiliating treatment by the other prisoners and that this had a negative impact on his mental and psychological health, leading to a deterioration of his condition.

34 . The applicant lastly complained under Article 13 that he did not have an effective remedy at his disposal in relation to the above.

THE LAW

35 . The applicant maintained that he had been a victim of a violation of Article 3 of the Convention due to the inadequacy of his conditions of detention in an ordinary prison vis-à-vis his state of health. He relied on Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

(a) The Government

36 . The Government submitted that the complaints should be rejected for non-exhaustion of domestic remedies as the applicant failed to file a complaint with the Prisons Board concerning his conditions of detention.

37 . The Government contended that Block 10 is a specialised health unit under the supervision of the State Mental Health Services. It is supported by mental health nurses and two trained correctional officers, 24 hours a day.

38 . As regards Block 4, the Government submitted that while it is not a mental health unit, it is a high surveillance wing which usually accommodates vulnerable prisoners. They stated that the applicant was transferred to Block 4 when his symptoms diminished, as per a note of 29 May 2019 prepared by the State Mental Health Services, appended to their observations (see paragraph 12 above).

39 . He was the first to receive his meals and medication and was absolved from the duty to clean his cell, wash and tidy his clothes; other prisoners had taken over his duties.

40 . According to the Government, who referred to the State Mental Health Services ’ note of 29 May 2019, the prison authorities had also taken good care of the applicant ’ s health, since he received prompt, individualised and systematic medical assistance by a psychologist, a psychiatrist and an occupational therapist, both in Block 10 and in Block 4. The Government submitted that in addition to his consultations with the psychiatrist, during his detention the applicant had consulted the prison psychologist once in 2015, thirteen times in 2016, twenty-four times in 2017, and four times in 2018. He had also consulted an occupational therapist twice in 2015, six times in 2016 and three times in 2019. All consultations were held in the English language, which the applicant understands.

41 . In addition the Government submitted that the applicant had also been examined by the prison doctor five times, once by an ophthalmologist at the General Hospital and once by an ophthalmologist of his own choosing. The Government furnished the Court with medical certificates from the applicant ’ s visits to other specialised medical practitioners for his visual impairment. They also provided the Court with the medical record of the applicant ’ s treatment by a psychiatrist in prison, containing a detailed account of his consultations.

42 . The Government also contended that special adjustments had been made due to the applicant ’ s visual impairment: on 3 July 2017 the Director of the School for the Blind had visited the applicant in prison to assess his situation; on 19 September 2017 the applicant had been transferred to the School for the Blind for an overall assessment of his condition, while between 25 September 2017 and 28 December 2017 a trainer from the School for the Blind had visited the applicant in prison and taught him how to live and move around with his disability. In addition, the Government submitted that the applicant had been provided with a walking stick and that the glasses he already owned were considered sufficient by the representatives of the School for the Blind. Lastly, the Government stated that from July 2017 until January 2019 four specialised computer programmes, designed exclusively for blind people, were gradually installed on the prison school computer.

43 . In view of the above, the Government requested that the Court declare the application manifestly ill-founded.

(b) The applicant

44 . The applicant challenged the Government ’ s submissions both on the admissibility and merits of the application. He argued that neither Block 10 nor Block 4 were suitable for a person with his health problems, as they were not specialised health units.

45 . As regards Block 10, he contended that it was not staffed by professional personnel; it lacked specially trained guards, while it was only supported by the psychiatrists and psychologists who were responsible for the entire Nicosia Central Prisons. As a result, the applicant submitted that it was impossible for the medical staff to cover all prisoners. He argued that the only reason he was transferred to Block 4 was that Block 10 was full, not due to the remission of his symptoms.

46 . As regards Block 4, he mainly submitted that he had been a victim of bullying by other prisoners who often stole his food, belongings and clothes; that prisoners who were responsible for cleaning his cell and providing him food extorted him; that his health was affected due to excessive noise by other prisoners, or due to the television which was on all the time; that he had become a stooge to other prisoners; and that he had difficulties in moving around outside his cell due to his visual impairment.

47 . The applicant further argued that the medical treatment he received was insufficient and that for one and a half months, between December 2017 and January 2018, he had no consultation with the prison psychiatrist. He reiterated the need for a forensic psychiatric establishment in Cyprus. In support of his arguments the applicant provided the Court with various newspaper articles concerning instances of violent behaviour by prisoners and suicides which had taken place in Nicosia Central Prisons in general.

48 . As regard the prison authorities ’ response to his visual impairment, he acknowledged that he had been assessed by the School for the Blind and did not refute that he had been given a walking stick. He asserted, however, that the School ’ s recommendation that he be provided with special glasses had never been implemented. Also, he submitted that he had only been provided with audiobooks in March 2018 and he had only been informed of the installation of special programmes on the school computer through the Government ’ s observations to the Court. As a result, he had no activities in prison and remained in his cell constantly.

49 . The Court does not consider it necessary to determine whether the applicant has exhausted domestic remedies in respect of his complaint under Article 3, since this complaint is in any event inadmissible for the reasons set out below.

50 . The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society, prohibiting in absolute terms torture or inhuman or degrading treatment or punishment. However, in order to come within the scope of Article 3, the ill-treatment must reach a minimum level of severity. The assessment of this minimum is a relative one and depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, Blokhin v. Russia [GC], no. 47152/06, § 135, 23 March 2016, with further references).

51 . In deciding on the compatibility of an applicant ’ s health with his stay in detention, the Court considers at least three relevant elements: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant (see, inter alia , Sławomir Musiał v. Poland , no. 28300/06, §§ 87-88, 20 January 2009 and Goginashvili v. Georgia , no. 47729/08, § 70, 4 October 2011).

52 . The Court is mindful of the fact that the adequacy of medical assistance is always the most difficult element to determine. In this respect, it is incumbent upon the relevant domestic authorities to ensure, in particular, that the diagnosis and care have been prompt and accurate, and that supervision by proficient medical personnel has been regular and systematic, and involved a comprehensive therapeutic strategy aimed at adequately treating the detainee ’ s health problems or preventing their aggravation (see Yunusova and Yunusov v. Azerbaijan , no. 59620/14, § 142, 2 June 2016).

53 . Turning to the circumstances of the present case, the Court first observes that, according to the CPT ’ s report, both Block 4 and Block 10 have been renovated and the material conditions have significantly improved (see paragraph 30 above).

54 . As regards the conditions of detention in Block 10, the Court notes that the applicant ’ s complaints are rather general. The Court observes in this regard that the applicant did not make any comments to the authorities, either via letters sent by his lawyer or via the prison psychiatrist, about the conditions of detention in Block 10. The Court also takes into consideration the fact that by letter of 17 February 2017 to the Director of Nicosia Central Prisons, the applicant ’ s lawyer requested the applicant ’ s return to Block 10, alleging that the applicant ’ s health had started to deteriorate since his transfer to Block 4.

55 . As regards the applicant ’ s complaint about the conditions of his detention in Block 4, the Court reiterates that he was moved there on 16 January 2017 and placed in a single-occupancy cell, with access to the prison yard (see paragraphs 12 and 13 above). The applicant therefore had sufficient personal space at his disposal. It is not disputed by the parties that, due to his visual impairment, the applicant ’ s movement around Block 4, as mentioned in the applicant ’ s medical file, must have been difficult and his activities must unavoidably have been limited (see paragraph 24 above).

56 . Nonetheless, it is apparent from the applicant ’ s medical records that the authorities duly responded to his requests concerning the aforementioned issues and the difficulties he had been facing were gradually remedied. As stated by the Government and not contested by the applicant, the applicant ’ s condition was assessed by the School for the Blind, and in 2017 the applicant was trained in how to live and move around with his disability (see paragraphs 16 , 42 and 48 above). In addition, in March 2017 he was granted a portable CD-player to listen to music and in August 2017 audiobooks were also provided to him (see paragraphs 25 and 26 above). Also, contrary to the applicant ’ s submissions that he was only informed of the availability of special computer programmes on the school computer by his lawyers through the Government ’ s observations to this Court (see paragraph 48 above), it follows from the file that the applicant had been informed of these developments by letters of 23 August 2017 and 10 May 2018 (see paragraphs 16 and 18 above).

57 . The Court acknowledges that an aspect which might appear problematic in the applicant ’ s complaints is that of bullying by other prisoners. It appears from the applicant ’ s medical file that he reported these issues to his psychiatrist for the first time at a session in November 2017 (see paragraph 27 above).

58 . Nonetheless, the Court observes that the prison authorities again responded to the applicant ’ s complaint made to his psychiatrist and that the applicant reported in February 2018 that, after the authorities ’ intervention, the bullying had ceased and he was pleased to remain in Block 4 (see paragraph 26 above).

59 . Assessing the above elements as a whole, the Court notes that while the lack of activities for some time and the bullying incidents by other prisoners must inevitably have affected the applicant, it has not been conclusively established that the applicant was subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

60 . Moreover, as regards the applicant ’ s conditions of detention vis-à-vis his state of health, having regard to the applicant ’ s detailed medical file, the Court finds that he received adequate medical psychiatric and psychological supervision both in Block 10 and in Block 4.

61 . The Court observes in this regard that according to the CPT ’ s report, the Nicosia Central Prisons offer general healthcare to all persons detained therein and also provide a system of psychiatric and psycho-social healthcare (see paragraph 31 above). Specifically as regards Block 10, the CPT observed that the team had sufficient resources to carry out its tasks. While no such observations exist concerning Block 4, it appears from the applicant ’ s medical file that his medical treatment did not change with his transfer to Block 4.

62 . The Court notes in this connection that by submitting a copy of the medical file of the applicant ’ s treatment by the prison psychiatrist as well as medical certificates from periodic examinations by other doctors, the Government have discharged their burden of proof concerning the applicant ’ s medical treatment and duly assisted the Court in its task of factual determination.

63 . There is no indication in the case file that the applicant was denied treatment or that his treatment was inappropriately delayed. With the exception of the absence of a consultation with the prison psychiatrist between December 2017 and January 2018, the applicant had frequent contact with the prison psychiatrist, at least once a month (see paragraphs 21 and 22 above). According to the medical certificates provided by the Government, as well as the note of the State Mental Health Services of 29 May 2019 (see paragraphs 40 and 41 above), the applicant was examined by various other doctors outside the prison.

64 . The Court further notes that, in the present case, there is no proof of a deterioration of the applicant ’ s mental health, and the living conditions at Nicosia Central Prisons and especially Block 4 do not seem to have had such serious effects on his mental health as to bring them within the scope of Article 3. On the contrary, during his contact with the prison psychiatrist the applicant had been able to express his feelings and concerns, discuss his conditions and his medication (see paragraph 23 above) and raise requests to improve his life in prison. The psychiatrist ’ s medical notes provide a detailed description of the applicant ’ s conditions and the monitoring of his illness, while his medication was adjusted and he was consulted about the effects of the medication he took (see, conversely, Dybeku v. Albania , no. 41153/06, § 46, 18 December 2007 ).

65 . The Court is mindful of the Supreme Court ’ s observations as regards the need to increase the means provided to the criminal courts for the punishment and rehabilitation of offenders suffering from mental illnesses or personality disorders (see para 8 above). Nonetheless, in the circumstances of the present case as described above, having also perused the medical documents in the file and in particular the notes of the numerous consultations the applicant has had, the Court is not persuaded that the applicant ’ s condition is incompatible with deprivation of liberty.

66 . Accordingly, the Court finds that it has not been conclusively established that the applicant suffered treatment that could be classified as inhuman or degrading. Therefore his complaints under Article 3 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

67 . As to the applicant ’ s complaint under Article 13 concerning the alleged lack of effective remedies, the Court, having declared the relevant issues under Article 3 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purpose of Article 13 of the Convention (see Visloguzov v. Ukraine , no. 32362/02, §§ 74-75, 20 May 2010).

68 . It follows that this complaint should also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 October 2020 .

Olga Chernishova Erik Wennerström Deputy Registrar President