FIRST SECTION

DECISION

Application no. 73888/16 Aleksander MLADENOV and Panagiotis ANAGNOSTOPOULOS against Greece

The European Court of Human Rights (First Section), sitting on 16 October 2018 as a Committee composed of:

Aleš Pejchal, President, Tim Eicke, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 30 November 2016,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicants, Mr Aleksander Mladenov and Mr Panagiotis Anagnostopoulos, are a Bulgarian and a Greek national respectively, who were both born in 1978 and were detained in Larissa prison at the time that they lodged their application with the Court. They were represented before the Court by Mr K. Tsitselikis and Mr A. Spathis, lawyers practising in Thessaloniki.

2. The Greek Government (“the Government”) were represented by their Agent, Mr M. Apessos, President of the State Legal Council, and by their Agent’s delegates, Mr K. Georgiadis and Ms A. Dimitrakopoulou, Senior Advisors to the State Legal Council. The Bulgarian Government did not make use of their right to intervene (Article 36 § 1 of the Convention).

A. The circumstances of the case

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

4. The first applicant was detained in Larissa prison from 10 May 2012 until an unspecified date and the second applicant was detained in Larissa prison from 25 February 2016 until 7 March 2017, when he was released.

1. The applicants’ description of the conditions of their detention

5. The applicants submitted that the prison was designed to accommodate 450 detainees, but this number had been constantly exceeded during the time that they had been detained. The first applicant had been detained in cell A4 in wing B. The cell had measured 23 sq. m (including a toilet measuring 3 sq. m) and had accommodated ten detainees. The second applicant had been detained in cell TE2, in which the free space had amounted to approximately 100 sq. m and which had accommodated forty detainees. The in-cell toilet area had measured approximately 10 sq. m. The living space for each prisoner had been therefore less than 3 sq. m. In his observations, the applicant submitted that the cell had measured 221 sq. m and that the toilets had measured approximately 15 sq. m. Out of that, beds and other furniture had occupied 60 sq. m; therefore, each detainee had had at his disposal free space amounting to between 3 and 4 sq. m.

6. Cells had been humid, insufficiently ventilated, filthy and overrun with cockroaches. Mattresses had been dirty and full of vermin. Overcrowding, in addition to the filthiness of the premises, had exposed the detainees to various illnesses, both physical and mental; in respect of the latter no medical treatment had been provided. In addition, inmates had not been properly separated on the basis of their state of health or whether they were drug-users or not. They furthermore had had to pay themselves for any medication they needed and for sanitary products, which had resulted in many of them not bathing or not washing their clothes.

7. The heating and hot water available to the detainees had been insufficient. They had not been provided with the necessary sanitary products. The applicants also complained that they had been confined to their cells for sixteen hours per day, in the complete absence of any recreational or educational activities, and that the number of guards had not been sufficient to ensure their protection. Lastly, their meals had been of poor nutritional value and insufficient quantity.

2. The Government’s description of the conditions of the applicants’ detention

8 . The Government did not provide a description of the conditions of the first applicant’s detention.

9. As regards the second applicant, the Government submitted that the applicant had been detained in ward no. 2, which had been reserved for detainees who worked during their incarceration and which had measured approximately 234.6 sq. m. (17 by 13.8 metres). During the applicant’s incarceration, ward no. 2 had accommodated forty detainees on average. However, at times that number had been lower, such as on the day on which the second applicant had been released, when it had accommodated thirty-six detainees. Therefore, according to the Government, the second applicant had had at his disposal sufficient personal space. According to another account submitted by the Government, the ward in which the applicant had been accommodated had measured 197 sq. m and had been shared by forty detainees. According to that calculation, the applicant had had personal space that had varied in area between 4.92 sq. m and 5.4 sq. m.

10. The ward had contained four squat toilets and a sitting toilet (each of which had measured approximately 1.17 sq. m) and four showers (which had also measured 1.17 sq. m each). It had had twenty-eight two-tier bunk beds, each with its own television. There had been plastic tables and stools for most inmates, as well as bedside tables and two fridges. Light and ventilation had been provided by five large windows, each of which had measured 1.55 by 1.65 metres.

11 . Radiators had been available for use throughout the prison and they had been used, depending on weather conditions, for periods of up to seven hours a day. Light and ventilation had been provided by five large windows. As regards the provision of hot water, this had been secured within the ward by two large water heaters, and hot water had been available from 08:00 until 12:00 and from 16:00 until 21:00 every day.

12. Personal hygiene products had been distributed by the prison administration’s social service – at least to detainees that had not been able to afford them. As regards the inmates’ healthcare, there had been two visiting general doctors, one dentist and eight nurses, and each year these medical professionals had between them paid on average 4,600 to 5,000 visits to the prison. In cases in which it had not been possible to treat the inmates within the prison, they had been transferred to the city’s hospitals. Medication had been provided free of charge. There had been two psychologists at the prison who could be consulted at either the doctors’ initiative or the detainees’ request. The record submitted by the Government showed that the applicant had met with the prison psychologist eight times, with the general doctor seven times and with the dentist five times.

13 . As regards hygiene on the premises, this had been mostly the responsibility of the detainees, who had not always followed the relevant guidelines. The cells and yards had been cleaned on a daily basis and rubbish had been collected from the wings three times a day. The prison had been regularly disinfected and all detainees had had access to laundry machines in order to be able to wash their bed sheets with detergent provided by the prison. Meals had been designed with the assistance of the prison doctor, and special dietary needs had been accommodated. To demonstrate this point, the Government submitted examples of weekly menus from the period of the applicant’s incarceration. In addition, the inmates had had at their disposal numerous cultural and sports activities for their entertainment, such as an equipped gym, ping-pong tables and a lending library. As regards the prison staff, the Government acknowledged that their number had fallen but claimed that the remaining staff had done their best to ensure safety in the prison.

14 . The Government pointed out that the applicant had not referred to or adduced any evidence showing that he had lodged any request with the prison authorities concerning his complaints before the Court. Lastly, the applicant had never applied to be granted leave to exit the prison and he had gained from a beneficial calculation of the days he had served, owing to the service he had provided in prison and to his disability.

B. Relevant domestic law and practice

15. The relevant domestic law and practice is described in the Court’s judgments in the cases of Kanakis v. Greece (no. 2) (no. 40146/11, §§ 62 ‑ 68, 12 December 2013), and Adamantidis v. Greece (no. 10587/10, §§ 11-17, 17 April 2014).

C. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

16 . In its report of 16 October 2014, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), following its visit to Greece from 4 until 16 April 2013, noted the following as regards Larissa Prison:

“Larissa Prison started operating in 1984, and consisted of five wings with an official capacity of 600 places. At the time of the visit, it was holding 892 inmates. Overcrowding was apparent across the establishment. Wings A, B and C accommodated between 220 and 270 prisoners each in cells on three floors. Standard cells measured some 23 m² and were equipped with five bunk beds, a table and some chairs. In wing A, the delegation came across several cells holding up to 12 persons; consequently, some inmates had to sleep on mattresses placed on the floor or two to a bed. Further, a number of cells were humid and in need of repair (paint falling off the walls, broken windows), and several cells required major refurbishment. That said, the inmates in each cell did benefit from a completely partitioned sanitary annex, measuring some 5 m², with a toilet, a shower and a sink.

Wing D, a former warehouse, accommodated about 135 working and/or elderly prisoners in two separate dormitories. Both dormitories were equipped with rows of bunk beds, affording each prisoner some 3 m² of living space. Next to each bunk bed were a table and two stools. The adjacent sanitary room included six showers (five were operational) and six toilets, as well as four sinks.

...

109. In all prisons visited, the delegation noted that wing areas were infested with insects and bugs, and that there was a serious lack of hygiene. The presence of cockroaches, lice, fleas and bedbugs was wide-spread. In Komotini Prison, inmates complained about staff sprinkling insecticide into the cells without taking any precautions, causing some prisoners to feel unwell, but still without being able to prevent the presence of cockroaches. The CPT recommends that more effective steps are taken to deal with the infestations.

Further, most prisoners met, notably at Korydallos Men’s Prison, Ioannina and Larissa Prisons, complained about dirty mattresses and blankets and that they were not provided with bedding. The delegation observed for itself these shortcomings, which compounded the negative impact on overall levels of hygiene resulting from the overcrowded conditions.

The CPT’s delegation also noted in all prisons that hygiene articles were either not provided at all or only in extremely limited quantities. Prisoners are obliged to purchase such products in prison shops or rely on supplies from friends or relatives visiting them. This situation impacts even more those prisoners without any relatives or friends to supply them with money or hygiene articles, which is more often the case with non-Greek prisoners.

...

Lack of hot water seems to be a widespread problem in the Greek prison system...

In many prisons, the delegation was also informed that heating during the winter months was either completely absent, such as in Korydallos Men’s Prison, or only available for very short periods of time and largely insufficient, as was the case, for example, in Larissa prison. To keep warm, prisoners often slept in their winter clothes, leading to a further decline in levels of hygiene and health.”

COMPLAINTS

17. The applicants complained, under Article 3 of the Convention, about the conditions of detention in Larissa Prison and under Article 13 of the Convention of the lack of an effective domestic remedy in respect of their complaints regarding the conditions of detention.

THE LAW

18. Invoking Articles 3 and 13 of the Convention, the applicants complained of the conditions of their detention in Larissa prison and the lack of an effective remedy therefor. These Articles 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 first applicant

19. On 31 May 2017 the Court received friendly-settlement declarations signed by the Government and the first applicant. Under these declarations, the first applicant agreed to waive any further claims against the Hellenic Republic in respect of the facts giving rise to this application against an undertaking by the Government to pay 8,000 euros (EUR) to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, plus any tax that might be chargeable to the applicant. This amount would be payable within three months of the date of the notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points. The payment would constitute the final resolution of the case in respect of the first applicant.

20. Accordingly, the Court takes note of the friendly settlement reached between the parties and is satisfied that the settlement is based on respect for human rights, as defined in the Convention and its protocols. The Court finds no reasons to justify the continued examination of this part of the application (Article 37 § 1 in fine of the Convention).

21. In view of the above, it is appropriate to strike the application out of the list of cases in respect of the first applicant, in accordance with Article 39 of the Convention.

B. The second applicant

1. The parties’ arguments

22. Referring to their description of the facts, the Government maintained that the level of severity required to constitute a violation of Article 3 of the Convention could not be regarded as having been attained in the instant case. They furthermore maintained that the CPT report had been drafted following a visit in 2013 – that is to say long before the applicant had been detained there. Since then, Law no. 4322/2015, which provided for exceptional measures to relieve overcrowding in prisons, had been enacted.

23. In respect of the applicant’s complaint regarding the lack of an effective remedy, the Government submitted that he did not have an arguable claim for the purposes of Article 13. In any event, they considered that Article 6 of the Penitentiary Code and Article 572 of the Code of Criminal Procedure constituted effective remedies in the circumstances of the present case.

24. Referring to his description of facts, to the CPT report, and to the Court’s judgment in the case of Ali Cheema and Others v. Greece (no. 7059/14, 7 April 2016), the applicant complained that the conditions of detention in Larissa prison had violated his right not to be subjected to inhuman or degrading treatment, as provided in Article 3 of the Convention. He argued in particular that he had shared a ward measuring 221 sq. m with another forty inmates but that the ward’s common space had been filled with furniture occupying 60 sq. m and that he had therefore been forced to share a space of approximately 135 sq. m with his co-inmates – meaning that he had had personal space amounting to 3.3 sq. m. That personal space – coupled with other factors such as hygiene problems, the lack of permanent medical staff in the prison and a shortage of staff – had amounted to inhuman or degrading treatment. Lastly, the applicant stressed that the capacity of the prison had constantly been exceeded as it had housed about 620 detainees instead of 500 and that that factor alone should have been sufficient for the finding of a violation of Article 3.

25. Relying on Article 13 of the Convention and relying on the Court’s case-law in Ahmade v. Greece (no. 50520/09, 25 September 2012), the applicant also complained of a violation of his right to an effective domestic remedy in respect of his complaints under Article 3. He maintained that in view of the specific nature of his complaints under Article 3, Article 6 of the Penitentiary Code and Article 572 of the Code of Criminal Procedure could not be regarded as effective remedies.

2. The Court’s assessment

26. The general applicable principles have been set out in Muršić v. Croatia [GC], no. 7334/13, §§ 96-141, ECHR 2016).

27. Turning to the circumstances of the present case, the Court notes that the parties provided conflicting descriptions of the conditions of the second applicant’s detention in Larissa prison.

28. As regards the applicant’s complaint relating to overcrowding, the Court firstly notes that the Government provided two conflicting descriptions of the dimensions of the ward in which the applicant had been accommodated – namely that it had measured 197 sq. m. and that it had been 17 metres long and 13.8 metres wide (that is to say it had measured 234.60 sq. m). As the latter coincides with the description provided by the applicant in his observations, the Court accepts that the applicant was placed in a cell measuring 234.60 sq. m which accommodated forty detainees on average during the applicant’s incarceration. Having regard to its methodology for the calculation of the minimum personal space allocated to a detainee (ibid., § 114), the Court notes that the applicant had at his disposal approximately 5.5 sq. m. This version of facts was not contested by the applicant, who acknowledged that he had been in a ward of those dimensions with another forty detainees, but argued that the space occupied by the furniture should not be taken into account when assessing the personal space he had had at his disposal. In this regard, the Court reiterates that the calculation of the available surface area in the cell should include space occupied by furniture, but not by the in-cell sanitary facilities (ibid.). According to the Court’s case-law, the allocation of an area of more than 4 sq. m of personal space in multi-occupancy accommodation in prison cannot in itself constitute a violation of Article 3 of the Convention (see GC v. Italy , no. 73869/10, § 81, 22 April 2014; Kalamiotis and Others v. Greece , no. 53098/13, § 39, 29 October 2015; and Muršić , cited above, § 140).

29. Noting that the applicant was detained in a spacious cell and that he did not claim that the overall surface of the cell had not allowed him to move freely between the furniture items (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 147-148, 10 January 2012), the Court will consider the general conditions of detention in his cell.

30. In so far as the applicant complained that the medical care available had been insufficient (especially as regards mental illness), that inmates had not been properly separated, that meals had been poor and that the number of guards had not been enough, the Court notes that the applicant did not specify how he had been personally affected by those problems. The same applies in respect of his complaints regarding the insufficiency of heating and hot water. The mere reference to an earlier judgment of the Court concerning Larissa prison and the CPT’s report (see paragraph 16 above) is not sufficient to refute the Government’s specific assertions concerning the various aspects of the applicant’s detention (see paragraphs 8 - 14 above).

31. Turning to the applicant’s allegations that the cell had been humid and insufficiently lit and ventilated, the Court finds that the applicant did not provide any evidence to contest the Government’s assertion that ventilation and light had been provided by five large windows. As regards the cleanliness of the premises, the Court takes issue with the Government’s assertion that the inmates had been responsible for cleaning their cells and had not always followed the relevant guidelines. However, it notes that the ward was disinfected and cleaned on a daily basis and that the Government provided invoices from a private company in order to prove that disinfection had taken place regularly. It additionally observes that the applicant had sufficient access to the showers which were available to him for approximately nine hours per day (see paragraphs 11 and 13 above).

32. Having regard to the preceding paragraphs, while the Court is concerned about some issues, such as the cleanliness and the heating of the premises, it is not convinced in the present case that the overall conditions of the applicant’s detention subjected him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

33. In the light of the foregoing, the Court concludes that the second applicant’s complaint under Article 3 of the Convention must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

34. As regards the applicant’s complaint under Article 13 of the Convention, the Court reiterates that Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Powell and Rayner v. the United Kingdom , 21 February 1990, § 31, Series A no. 172). The criteria for considering a claim to be “arguable” cannot be construed differently from the criteria applied when declaring claims to be “manifestly ill-founded” (see Kienast v. Austria , no. 23379/94, § 54, 23 January 2003, and Powell and Rayner , cited above, § 33). At the same time, notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another provision of the Convention (a “substantive” provision) is not a prerequisite for the application of Article 13 (see Klass and Others v. Germany , 6 September 1978, § 64, Series A no. 28, and Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131).

35. Turning to the instant case, the Court considers that, having regard to the reasoning and conclusions set out above as regards the applicant’s complaint (which has been declared inadmissible as being manifestly ill ‑ founded) concerning the conditions of his detention in Larissa prison, it cannot be regarded as “arguable” for the purposes of Article 13. Therefore, that complaint should also be declared manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and rejected under Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in respect of the first applicant, in accordance with Article 39 of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 8 November 2018.

Renata Degener Aleš Pejchal Deputy Registrar President