FIRST SECTION

CASE OF DAOUKOPOULOS v. GREECE

( Application no. 44711/16 )

JUDGMENT

STRASBOURG

12 July 2018

This judgment is final but it may be subject to editorial revision.

In the case of Daoukopoulos v. Greece ,

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

Kristina Pardalos, President, Ksenija Turković, Pauliine Koskelo, judges, and Abel Campos , Section Registrar ,

Having deliberated in private on 19 June 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 44711/16) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Miltiadis Daoukopoulos (“the applicant”), on 28 July 2016 .

2 . The applicant was represented by Mr C. Lampakis, a lawyer practising in Thessaloniki. The Greek Government (“the Government”) were represented by their Agent ’ s delegates , Mr K. Georgiadis and Mrs K. Karavasili , Senior Advisor and Legal representative respectively at the State Legal Council.

3 . On 8 November 2016 the complaints concerning the conditions of the applicant ’ s detention in Diavata Prison from 9 May 2016 onwards and the lack of a legal remedy in this respect were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

4 . The Government objected to the examination of the application by a Committee. After having considered the Government ’ s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1971 and at the time of introduction of the application to the Court he was detained in Diavata P rison.

6 . The applicant is serving a life sentence for drug dealing. He was initially placed in Diavata P rison from 1 October 2014 until 24 November 2015. On that date he was transferred to Malandrino P rison , from where he was transferred back to Diavata P rison on 9 May 2016. Lastly, o n 20 December 2016 he was transferred back to Malandrino P rison.

A. The applicant ’ s description of the conditions of his detention in Diavata Prison from 9 May 2016 until 20 December 2016

7 . The applicant alleged that he had been detained initially in cell no. B 14 , which had measured 9 sq. m and had held four detainees in total. On 7 August 2016 he had been placed in cell no. GR 2 on the ground floor , which had measured 24 sq. m and had held ten detainees . In both cases, therefore, the living space afforded to him had been less than 3 sq. m. Overcrowding had exposed him to infectious diseases and he had suffered from passive smoking. In addition, detainees had had barely any space to move within their cell and their bunk beds had been low, not allowing them to sit up comfortably.

8 . Apart from the overcrowding, the applicant submitted that the conditions of his detention had been very poor. Access to natural light and ventilation had been inadequate. Sanitary facilities and supplies had been old, broken and insufficient to ensure the detainees ’ well ‑ being and personal hygiene. Heating had been provided only for one hour per day from 9 p.m. to 10 p.m. , while hot water during winter had been provided for two hours per day and had not sufficed for all detainees . They had been forced to wash themselves using buckets of water, as the water pressure in showers had been insufficient. In each ten-person cell there had been five bunk beds, five stools, a small table and five side tables but no lockable space for personal belongings. In the four-person cell there had been two bunk beds and two stools. The mattresses had been old, mouldy and smelly, and sheets and towels had not been provided.

9 . In general, detainees had lacked access to cultural, recreational and sports activities. They had had to rely on visits from friends and famil y in order to obtain any newspapers or magazines, which had intensified their feeling of isolation. The hours that they had been allowed to spend in the corridors had been insufficient, taking into account that they had coincided with the meal times as well as with the times they had been allowed to receive visits or make phone calls. The yard had included a football field but no balls had been provided to the detainees and the yard had not offered any opportunities for spending time creatively. The applicant further complain ed of the quant ity and the quality of the food , claiming that it had been repetitive and lacking any nutriti onal value.

10 . Lastly, the applicant submitted that the conditions of his detention had led him having several cardiac arrests.

B. The Government ’ s description of the conditions of the applicant ’ s detention in Diavata Prison from 9 May 2016 until 20 December 2016

11 . The Government , referring to a document prov ided by the prison authorities, submitted that Diavata Prison had a capacity of 358 detainees on the basis of allocation of 4 sq. m per detainee according to the minimum standards set by the CPT. At the time the applicant had been detained, the prison facility had exceeded its capacity by accommodating 460 to 500 detainees. The applicant had been detained in cell no. 11 on the first floor , which had measured 24 sq. m, including a toilet measuring 2 sq. m. The cell had had a capacity of ten detainees; however, f ollowing a new law in April 2015 aim ed at relieving overcrowding in prisons, many detainees had been released and that had resulted in the ap plicant sharing the cell with four to six detainees. Therefore, the living space afforded to the applicant had ranged from 3.14 to 4.4 sq. m.

12 . As regards the rest of the applicant ’ s complaints, the Government argued that the prison had had a central heating system, in addition to the electric heating devices that h ad been provided to each cell. The cell in which the applicant had been detained had had large windows . D etain ees had had access to hot water and had been provided regularly with personal hygiene products. The cells had been regularly disinfected. As regards prisoners ’ meals, the Go vernment submitted the menu of various random weeks to demonstrate that they had been comprised of a variety of food.

13 . The Government submitted the applicant ’ s medical file in order to prove that the applicant had already suffered from cardiac conditions when his incarceration had started. The applicant ’ s medical needs had been fully fulfilled during the time he had spent in Diavata Prison either by visits to the prison doctor or by his transfer to nearby hospitals. Lastly, the applicant had been granted fifteen days of leave in order to take matriculation exams.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14 . The relevant domestic law and practice is described in the decision in the case of Chatzivasiliadis v. Greece (no. 51618/12, §§ 17-21, 26 November 2013).

III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE (CPT)

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

“Diavata Judicial Prison, in Thessaloniki, has a capacity of 250 places, but at the time of the visit held 590 inmates. The establishment has 53 dormitories measuring 24 m² and holding up to 10 inmates each, 10 cells of 11 m² holding on average four inmates each, and three dormitories accommodating 34 female prisoners. The dormitories for female prisoners, located on the ground floor, were separated from the sections accommodating male prisoners. However, like the rest of the inmate accommodation, they offer cramped conditions, with 24 m² of space for five sets of bunk beds. Access to natural light and ventilation was adequate and there were a few stools, but no lockable space for personal belongings. The sanitary annexes contained floor-level toilets and a sink, which also had to be used for washing clothes and dishes; however, on a positive note, the annexes were fully partitioned.”

16 . In its report of 1 March 2016, fo llowing its visit from 14 to 23 April 2015, the CPT found that the situation in Diavata Prison had remained essentially the same since its last visit in 2013; on the day of the visit, it had had a capacity of 370 places but held 588 prisoners ; the official capacity ha d been increased by more than 100 by re-designating rooms of 24 sq. m for six prisoners instead of four.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

17 . The applicant complained that the conditions of his detention in Diavata Prison had violated his right not to be subjected to inhuman or degrading treatment, as provided for in Article 3 of the Convention, which reads as follows:

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

A. Admissibility

18 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

19 . Referring to his description, t he applicant complained of the conditions of his detention, mainly drawing the Court ’ s attention to the problem of overcrowding in Diavata Prison . He argued that the legislative measures that had been taken to diminish the number of detainees in prison had resulted only in temporary relief and, as the relevant Law had entered into force one year prior to his detention in Diavata Prison , it had had no bearing o n the conditions of his detention. Lastly, the applicant submitted that even if the Government ’ s argument that he had been detained with another five or six people in the cell measuring 24 sq. m had been true, he would still have had living space below the 6 sq. m that are mandatory pursuant to the Penal Code.

20 . Referring to their own description, the Government claimed that the conditions of the applicant ’ s detention had been adequate and in any event they had not reached the minimum threshold of severity required to constitute inhuman or degrading treatment. They pointed out that Law no. 4322/2015 , which aimed at relieving overcrowding in prisons , had resulted in diminishing the total number of detainees and thus the applicant had not suffered from overcrowding.

2. The Court ’ s assessment

21 . The applicable general principles are set out in Muršić v. Croatia ( [GC] no. 7334/13, §§ 96-141, 20 October 2016).

22 . The Court notes at the outset that the parties devote a large part of their submissions to the conditions of the applicant ’ s detention in Diavata Prison the first time he was incarcerated there, from 1 October 2014 until 24 November 2 015, and to the conditions of the applicant ’ s detention in Malandrino Prison from 24 November 2015 until 9 May 2016 . The Court notes however that the Government were given notice only of the part of the application referring to the applicant ’ s incarceration in Diavata Prison from 9 May 2016 until 20 December 2016 , as the remainder of the application had been dismissed at the communication stage. Therefore, the parties ’ submissions in respect of the other complaints will not be considered by the Court .

23 . Turning to the applicant ’ s complaints concerning the period from 9 May 2016 until 20 December 2016, the Court notes that the parties provided conflicting descriptions of the conditions of the applicant ’ s detention in Diavata Prison , especially as regards the number of detainees in the cell in which the applicant was held . In particular, the Government adduced a document prepared by the prison authorities asserting that the applicant had been detained with another four of five inmates as a result of Law no. 4322/2015 , which had included measures aim ed at alleviating overcrowding in prisons (see paragraph s 11 and 20 above) . On the contrary, the applicant claimed that he had shared the cell with another nine detainees which had resulted in a living space of 2.2 sq. m per detainee and that he had not benefitted from the provisions of the new law which had entered into force one year prior to his detention in Diavata Prison (see paragraph s 7 and 19 above) .

24 . In this regard, the Court reiterates that is particularly mindful of the objective difficulties experienced by applicants in collecting evidence to substantiate their claims about conditions of their detention. Still, in such cases applicants must provide a detailed and consistent account of the facts complained of (see Muršić , cited above , § 127, and Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 122, 10 January 2012 ). 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. They are required, in particular, to collect and produce relevant documents and provide a detailed account of an applicant ’ s conditions of detention. Relevant information from other international bodies, such as the CPT, on the conditions of detention, as well as the competent national authorities and institutions, should also inform the Court ’ s decision on the matter (see further Ananyev and Others , cited above, §§ 122-25 ).

25 . Turning to the circumstances of the present case , the Court observes that the applicant argued that he had had at his disposal personal space of 2.2 sq. m as he had shared a cell measuring 22 sq. m (excluding the sanitary facilities ) with another nine inmates. The Government initially stated that the applicant had had at his disposal pers onal space ranging from 3.14 to 3.66 sq. m, as he had shared the cell with another five or six detainees. They later slightly changed that figure, submitting that the applicant had had at his disposal personal space ranging from 3.14 to 4.4. sq. m, as he had shared the cell with four to six detainees. They further provided the Court with a document stating that the total number of detainees during the applicant ’ s seven-month stay in Diavata Prison varied between 460 and 500 detainees , a lower figure than at the time of the CPT report, thanks to measures taken in accordance with L aw no. 4322/2015. In view of the total number of detainees at the material time , wh ich had exceeded by at least 100 inmates the capacity of Diavata Prison ( capacity of 358 detainees on the basis of allocation of 4 sq. m per detainee ), the Court notes that the applicant could not possibly have had more than 4 sq. m at his disposal. It further notes that the applicant ’ s allegations are corroborated by the CPT , which had visited Diavata Prison a year prior to the applicant ’ s entry in to it. In view, however, of the Government ’ s argument that in the meantime measures aim ed at alleviating prison overcrowding had been taken and had resulted in more than 3 sq. m being put at the disposal of each detainee , the Court will turn to the examination of the rest of the conditions of the applicant ’ s detention.

26 . The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purposes of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 of the Convention, and may disclose a violation, either alone or taken together with other shortcomings. In particular, in cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court ’ s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements ( see Muršić , cited above, §§ 106 and 139).

27 . The Court notes that neither of the parties specified how much time the applicant had spent locked up in his cell each day. At the same time, the Government failed to rebut other well-detailed and precise elements relevant for the assessment of the conditions of the applicant ’ s detention , such as for example the lack of sufficient heating and the cleanliness of the premises. In this regard, the Court notes that the Government ’ s observations in that connection were particularly vague, arguing that the prison had had a central heating system and that the cells had been regularly disinfected, without providing any arguments to rebut the applicant ’ s allegations that the central heating system had operate d only an hour per day, that the hot water had been insufficient and that the sanitary facilities had been dilapidated . The Court therefore accepts the applicant ’ s description of the relevant facts.

28 . In view of these findings and in the light of the test set out in the above-mentioned Muršić judgment (see paragraph 26 a bove), the Court concludes that, even assuming that the applicant had 3 to 4 s q. m of personal space at his disposal as suggested by the Government, there were other aggravating elements of his confinement that, coupled with the personal space available to him, went beyond the unavoidable level of hardship inherent in detention and reached a threshold of severity contrary to Article 3 of the Convention.

29 . Accordingly, there has been a violation of Article 3 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

30 . Relying on Article 13 of the Convention, the applicant complained of a violation of his right to an effective domestic remedy in respect of his complaint under Article 3.

31 . The Gov ernment contested that the applicant had had a n arguable claim for the purposes of Article 13. In addition, they argued that the applicant could have availed himself of the remedies provided for in domestic legislation, specifically lodging a complaint with the public prosecutor under Article 572 of the Code of Criminal Procedure, or with the Prison Board under Article 6 of the Penal Code, which would have allowed the competent authorities to assess the applicant ’ s conditions of detention and, if necessary, order his transfer to a different cell or a different prison. In fact, the applicant had made use of the remedy involving the public prosecutor and by his petitions dated 11 October 2016, 3 November 2016 and 10 November 2016 had requested a hearing i n order to be transferred to Malandrino Prison . His requests were granted and he was transferred on 20 December 2016.

A. Admissibility

32 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

33 . Regarding conditions of detention, the Court has ruled in some cases ( see Vaden v. Greece , no. 35115/03, §§ 30-33, 29 March 2007, and Tsivis v. Greece , no. 11553/05, §§ 18-20, 6 December 2007) that the applicants had not exhausted domestic remedies owing to a failure to make use of the remedies provided by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code (Law No. 2776/1999). In those cases, the applicants complained of particular circumstances which had affected them personally as individuals and to which the prison authorities could put an end by taking the appropriate measures. On the other hand, the Court has ruled on many occasions that when applicants claim to have been personally affected by the conditions prevailing in a prison, the remedies provided by Article 572 of the Code of Criminal Procedure and by Article 6 of the Penal Code are not effective (see , among other authorities, Igbo and Others v. Greece , no. 60042/13, § 35, 9 February 2017).

34 . The Court sees no reason to depart from its previous case-law in the present case. Accordingly, the Court finds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention due to the absence of effective remedies in respect of the complaint concerning the applicant ’ s conditions of detention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

35 . 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.”

A. Damage

36 . The applicant claimed 50,000 euros (EUR) in respect of non  pec uniary damage, requesting that the sum awarded to him be paid to a bank account indicated by his representative.

37 . The Government contested those claims. They argued that the sum claimed by the applicant was excessive and un substantiated. In the Government ’ s view, the mere finding of a violation would constitute sufficient just satisfaction. In any event, if the Court wished to award a sum of money to the applicant, it should take into account that he had been given fifteen days of leave in order to take matriculation exams and had also worked for four days with a beneficial reduction in his sentence . The Government also contested the need for any sums awarded to be paid into a single bank account indicated by the applicants ’ representative.

38 . The Court finds that the applicant must have experienced suffering and frustr ation as a result of the breach of his rights under Article 3. 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 (see Ananyev and O thers , cited above, § 173). Ruling in equity, as required under Article 41 of the Convention, it awards the applicant EUR 4,500 in respect of non-pecuniary damage.

B. Costs and expenses

39 . The applicant also claimed EUR 1, 35 0 for the costs and expenses incurred before the Court based on a private services agreement concluded with his representative on 26 July 2016, and a further EUR 150 for translation costs. He also asked for the relevant sum to be deposited directly to his representative ’ s bank account .

40 . The Government submitted that only documented claims should be reimbursed and therefore considered that the applicant ’ s request should be rejected. In this regard, they considered that the applicant had failed to produce the required documents which would have proven that he had actually incurred these costs. In any event, they found this claim excessive and unsubstantiated.

41 . The Court restates its established case-law to the effect that an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum ( see, for example, X and Others v. Austria [GC], no. 19010/07, § 163, 19 February 2013). Under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the C ourt may reject the claim in whole or in part. In the present case, the Court notes that that the applicant concluded an agreement with his counsel concerning their fees . Agreements of this nature – giving rise to obligations solely between lawyer and client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs are actually incurred but also to whether they have been reasonably incurred (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000 ‑ XI , and Stergiopoulos v. Greece , no. 29049/12, § 63, 7 December 2017).

42 . Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 800 for the proceedings before the do mestic courts and the Court. This amount is to be deposited to the bank account indicated by the applicant ’ s representative.

C. Default interest

43 . 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. Declares the complaints under Article 3, in so far as the applicant ’ s detention in Diavata Prison from 9 May 2016 onwards is concerned, and Article 13 admissible;

2 . Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant ’ s detention in Diavata Prison from 9 May 2016 to 20 December 2016 ;

3 . Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective domestic remedies regarding the complaints about the conditions of the applicants ’ detention;

4 . Holds

(a) that the respondent State is to pay the applicant, within three months , the following amounts:

(i) EUR 4 ,500 ( f our thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii ) EUR 800 ( eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses , to be deposited to the bank account indicated by the applicant ’ s representative ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount s at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 12 July 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Kristina Pardalos Registrar President