Communicated on 8 February 2017

FOURTH SECTION

Application no. 36199/15 Jean Pierre ABDILLA against Malta lodged on 25 September 2015

STATEMENT OF FACTS

The applicant, Mr Jean Pierre Abdilla , is a Maltese national, who was born in 1975 and is currently detained in the Corradino Correctional Facility, Paola, Malta.

A. The circumstances of the case

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

The applicant is currently serving a term of imprisonm ent for drug ‑ related offences. He was sentenced to sixteen years imprisonment and fined 40,000 euros (EUR), by the Criminal Court, on an unspecified date, in around 2009.

The applicant started to serve his prison sentence, on 30 November 2009. He was placed in various cells in Division 2 of the Corradino Correctional Facility.

The applicant alleged that a huge amount of maintenance was needed to the area due to its old age (around 200 years old) and that it lacked both light and air. Windows were behind two iron grids and a third layer of exterior iron bars (hereinafter referred to as ‘ triple-barred windows ’ ). Division 2 also has three skylights, which were kept closed even during the summer months, leading to a great amount of heat. The environment was squalid and had a bad smell.

During the unspecified period during which he was placed in cell 45, the applicant had to suffer the fumes and excessive heat from the bakery close to his cell, which fumes and heat poured into his poorly ventilated cell. The applicant also described the cell as being nearly underground and as structurally condemned. Due the triple-barred windows he could barely see outside. In winter the cell was very humid and cold.

On an unspecified date he was moved to cell 70. This cell was very small and had very little ventilation; the applicant felt claustrophobic. Furthermore, he claimed to hardly ever having had access to running water.

According to the applicant, in Division 2 the food was of a very poor quality, non-nutritious, and portions were too small. Additionally, the food quality was so terrible that between 1 September and 4 September of an unspecified year prisoners had to be taken to hospital as a result of food poisoning. The applicant claimed that the kitchen was so dirty that mice were found dead in it.

The applicant complained that there was no combined flushing toilet system installed. Therefore, inmates had to flush their own personal toilet by means of a water bucket provided. Moreover, at times there was no access to running water in the cell. Access to water was limited in general, and water available was not potable. While inmates were permitted to buy bottled water, they were forced to reduce their daily intake when they were short on cash.

As to the showers, hot water was often not available and the water was dirty. He submitted that there were not enough showers, with one of the showers having a broken and cracked tray that could cause injury if one were not careful. He alleged that, for all the inmates in Division 2, only one shower was available most of the time, with two showers being available during the summer months.

The applicant claimed that the cost to make telephone calls was very high and had been increased on 3 December 2014. He had complained to the prison authorities to no avail.

The prison allowance given to them was too little. The applicant claimed that the inmates received EUR 28 a month. This made everything available at the tuck shop excessively expensive. It inevitably also impacted the inmates ’ ability to buy bottled water and make telephone calls.

The applicant claimed to have suffered health issues and was even bed ‑ bound for some time. The emergency buzzer in the cell never worked and when he was bed-bound and tried to ring it, no one came, since the buzzer did not work. It took thirty minutes for someone from the staff to show up, at which point he was told off by the staff member.

Petitions were filed in regard to these conditions. Furthermore, some of his fellow inmates had lodged constitutional cases concerning the situation. However, none led to any change.

B. Relevant domestic law

1. Prison Regulations (Subsidiary Legislation 260.03)

Regulation 3(1) reads as follows:

“ In the application of these regulations the following basic principles and treatment objectives shall at all times be observed:

( a ) The aim of these regulations is to instil in prisoners a sense of discipline and responsibility and, so far as possible, to enable them to reform their character while undergoing their punishment according to law with the dignity and respect due to the human person, to educate them about the impact of crime on their victims, families and communities, and to improve their prospect of successful resettlement in society after release; and

( b ) The deprivation of liberty, by the keeping of a person in prison, is a punishment in itself and the conditions of that deprivation of liberty and the prison ’ s regime shall not be aggravated except as required for justifiable segregation or the maintenance of security, good order and discipline.”

Regulations 17 and 18 read as follows:

Regulation 17

“ (1) Every request by a prisoner to see the Director, the Board [ of Visitors of the Prisons] or a member thereof, and any complaint made by a prisoner, shall be recorded by the prison officer to whom it is made and promptly passed on to the Director.

(2) The Director shall, without undue delay, see prisoners who have asked to see him and take cognizance of any request or complaint made to him.

(3) Where a prisoner has asked to see the Board or a member thereof, the Director shall ensure that the Board or the member is told of the request on their next visit to the prison.

(4) Prison officers in direct contact with prisoners, shall, at their request, supply prisoners with an appropriate form approved by the Director for the purpose of making requests, complaints or petitions. Prisoners may, however, submit any request, complaint or petition in any other proper written form and even verbally.”

Regulation 18

“ (1) If a prisoner so requests the Director may interview him without any other person being present.

(2) If a prisoner so requests the Board and any members thereof may interview him without the Director or any other person being present.

(3) Every prisoner shall be allowed to make a request or complaint to the Director, to the Board or to the Minister, or to petition the President of Malta, or to an internationally recognised human rights body, under confidential cover.

(4) Every request, complaint or petition of a prisoner shall be dealt with and replied to without undue delay.”

Under Regulation 23(3), the cleanliness of the cell, including the toilet situated within it, is the responsibility of the particular inmate occupying the cell.

Regulation 25 specifically deals with the provision of food to prisoners. Regulation 25(4) provides that sentenced persons are not allowed to have any food other than that ordinarily provided, unless duly authorised by the director or medical officer. In addition, as from 1994, a privilege was granted to all sentenced prisoners: they could receive a meal prepared by their family once a week, on Sundays. The rule was subsequently changed to an option of either Saturday or Sunday. In accordance with the prison ’ s operational procedure, every meal has to be inspected in front of the person delivering it. Any other method of delivery of food items, including postal delivery, is prohibited.

Regulation 31 provides for a prison medical service. The PHS provides a list of medicines that may be obtained free of charge, and where the prescribed medicine is not supplied by the Government, it is substituted by generic medicine. This is the same system that is applicable to all Maltese citizens and all recipients of the PHS (including all inmates). Should a patient decline or refuse the generic medicines offered, he or she may opt to buy other similar medicines. The non-acceptance of generic medicine against branded medicine is registered as a “self ‑ recommendation”. The prison authorities have a special fund in order to buy medicines that are not on the PHS list. The fund is reserved for cases requiring immediate intervention.

In so far as relevant, Regulation 51 reads as follows:

“ (1) Except as provided by these regulations, every letter and communication to or from a prisoner may be read or examined by the Director or a prison officer deputed by him, and the Director may stop any letter or communication if its contents are objectionable or if it is of inordinate length.”

“(2) A convicted prisoner shall be entitled:

( a ) to send and receive a letter on his admission to prison and thereafter once a week; and

( b ) to receive a visit once a week.

(3) The Director may allow a prisoner to send or receive an additional letter or visit where necessary for his welfare or that of his family.

(4) The Director may allow a prisoner entitled to a visit to send and receive a letter instead.”

Regulation 54 reads as follows:

“ (1) A prisoner who is a party to any legal or judicial proceedings may correspond with his legal adviser in connection with those proceedings and, unless the Director has reason to suspect that any such correspondence contains matter not relating to the proceedings, the said correspondence shall not be read or stopped under regulation 51(1).

(2) A prisoner shall on request be provided with writing material for the purposes of the foregoing subregulation and of subregulation (4).

...

(4) A prisoner may correspond with an advocate or legal procurator for the purpose of obtaining legal advice on matters other than those referred to in subregulation (1).”

Regulation 59 deals with telephone communication by inmates. Regulation 59(3) provides that it is the prerogative of the prison director, with the approval of the Minister, to determine the frequency and duration of telephone calls made or received by inmates as well as the persons with whom such communications can be held. Regulation 59(4) specifically deals with foreign inmates who do not have any relatives in Malta, who may be allowed one free call a month to a relative overseas. The duration of the call is determined by the director.

Regulation 63 reads as follows:

“ (1) Except as provided by these regulations, a prisoner shall not be permitted to communicate with any outside person or organisation.

(2) The Minister may, with a view to securing discipline and good order or for the prevention of crime or in the interests of any persons, impose restrictions, either generally or in particular cases, upon the communications to be permitted between a prisoner and other persons or organisations other than communications as are referred to in regulation 53(1).”

Regulations 106 to 109 read as follows:

Regulation 106

“ (1) The Board shall visit and inspect the prison not less than once a month and regularly see each prisoner either at his place of work or confinement or in such other manner as the Board deems convenient.

(2) If the Board so requests, such visits and inspections shall be attended by the Director and any other prison officer or officers designated by the Director.

(3) The prisoners shall be asked if they have any complaints to make with regard to their treatment in the prison and any prisoner wishing to make a complaint shall be heard in such part of the prison as the Board may deem fit:

Provided that no sanction shall be ordered, applied, permitted or tolerated against any person or organization for having communicated to the Board any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

(4) Neither the Director nor any other prison officer shall be present while a prisoner is making a complaint before the Board. The Director, however, shall be heard on any such complaint.

(5) The Board shall keep a record of all complaints made to it by prisoners and its decision thereon, and shall, if it deems necessary, take the sworn evidence of the complainant and of such prison of fleers and other prisoners or other persons as the Board may deem relevant. The oath shall be administered by the Chairman or other member presiding.

(6) Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.”

Regulation 107

“It shall also be the duty of the Board to hear and decide upon, as soon as practicable, any request or complaint made to it by a prisoner, or any person on his behalf, other than those made directly to it or to any of its members during the course of a visit or inspection.”

Regulation 108

“(1) The decisions of the Board shall be taken by a majority of the members present and voting. In the case of an equality of votes the Chairman shall have a casting vote in addition to his original vote.

(2) The decisions of the Board shall not be binding upon the Director but it shall be the duty of the Director to take serious cognizance of the recommendations of the Board following a decision taken as provided in subregulation (1) and to enter into a dialogue with the Board on possible implementation measures. Subject to the provisions of subregulation (3), where the Director, or any other prison officer acting on his behalf, is of the opinion that the recommendations of the Board cannot be implemented for reasons which are in the best interests of the prison administration, an explanation in writing of these reasons shall, within one month of the date of receipt of the Board ’ s recommendations, be forwarded to the chairman of the Board and copied to the Minister, or to a person delegated by him. The Minister, or the person delegated by him, may confirm or vary the decision of the Director.

(3) Where the recommendation of the Board entails, in the opinion of the director, a security issue requiring strict confidentiality the Director, within the period of one month mentioned in subregulation (2), shall make a statement to this effect to the Chairman of the Board and shall concurrently submit a personal report directly to the Minister, or to the person delegated by him, giving his own comments on the recommendation, together with his opinion as to whether or not such recommendation should be accepted. The Minister ‘ s decision, or that of the person delegated by him, shall be final and conclusive.”

Regulation 109

“1) The members of the Board shall make a note in the official Visitors ’ Book of every visit or inspection made by them, with such remark as they deem proper in regard to the prisons and the prisoners.

(2) The official Visitors ’ Book shall be produced to the Board at each monthly meeting and at such other times as the Board may require.

(3) The Minister may request to examine the official Visitors ’ Book and the minutes book of the Board.”

2. Prison Act

Section 8 of the Prison Act, Chapter 260 of the Laws of Malta, provides for the establishment of the Board of Visitors of the Prisons. In so far as relevant, it reads as follows:

“ (1) There shall be a Board of Visitors of the Prisons, composed of such members as shall be appointed annually by the President of Malta.

(2) The Visitors shall hold office from the 1st January of the year for which they shall be appointed.

(3) If any vacancy in the Board occurs during the year, on account of death, resignation or for any other cause, the President shall, as soon as practicable, appoint another person to fill the vacancy:

Provided that the Board and the members thereof may act notwithstanding any such vacancy.

(4) The members of the Board shall exercise such functions as shall be assigned to them by regulations made under article 6 of this Act.

(5) The Minister responsible for justice, the Chief Justice, the judges, the magistrates and the Attorney-General shall be ex officio Special Visitors of the prisons, and as such it shall be lawful for them to have at any time access to the prisons for the purpose of inspecting such prisons and any of the prisoners therein. They shall enter in the official Visitors ’ Book any remarks which they may deem proper in regard to the prisons and prisoners, and the book shall be produced to the members of the Board of Visitors on their next visit to the prisons.”

3. Code of Organisation and Civil Procedure

Article 469A of the Code of Organisation and Civil Procedure (“the COCP”), Chapter 12 of the Laws of Malta, provides for judicial review of administrative action and, in so far as relevant, reads as follows:

“ (1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

( a ) where the administrative act is in violation of the Constitution;

( b ) when the administrative act is ultra vires on any of the following grounds:

( i ) when such act emanates from a public authority that is not authorised to perform it; or

(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or

(iii) when the administrative act constitutes an abuse of the public authority ’ s power in that it is done for improper purposes or on the basis of irrelevant considerations; or

(iv) when the administrative act is otherwise contrary to law.

(2) In this article -

" administrative act" includes ( tfisser ) the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organization or administration within the said authority ...

" public authority" means the Government of Malta, including its Ministries and departments, local authorities and any body corporate established by law.

(4) The provisions of this article shall not apply where the mode of contestation or of obtaining redress, with respect to any particular administrative act before a court or tribunal is provided for in any other law.

(5) In any action brought under this article, it shall be lawful for the plaintiff to include in the demands a request for the payment of damages based on the alleged responsibility of the public authority in tort or quasi tort, arising out of the administrative act.

The said damages shall not be awarded by the court where notwithstanding the annulment of the administrative act the public authority has not acted in bad faith or unreasonably or where the thing requested by the plaintiff could have lawfully and reasonably been refused under any other power.”

4. Relevant European Materials

In so far as relevant, the Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) (from 26 to 30 September 2011) published on 4 July 2013, reads as follows:

“ In Divisions 2 and 3, material conditions were also far below any acceptable standard. Cells were in a very poor state of repair and had only very limited access to natural light. Another major problem was the high level of humidity in many cells, caused by water leaking from the ceiling. In this regard, cell no. 51 in Division 2 (which also had no window) and cell no. 114 in Division 3 were particularly affected. The latter cell was extremely dilapidated and so humid (with water running down the walls) that the prisoner could not keep any personal belongings in his cell. Moreover, in many cells, the toilet flush was not functioning, and, in particular in Division 3, most of the shower facilities (including the sinks) were broken.

In the light of the above, the CPT urged the Maltese authorities to draw up a comprehensive plan to renovate the entire CCF as soon as possible and to provide a timetable for the implementation of the different stages. Divisions 2 and 3 should be renovated as a matter of priority.”

COMPLAINT

The applicant complains under Article 3 that the prison conditions he has been subjected to have resulted in him suffering inhuman and degrading treatment. He also complains under Article 13 about the lack of an effective remedy available in connection with the violation of his rights under Article 3.

QUESTIONS TO THE PARTIES

1. Did the conditions of the detention facility, notably Division 2, amount (alone or in combination with other conditions) to inhuman and degrading treatment, contrary to Article 3 of the Convention? Did they affect the applicant ’ s physical and/or psychological health condition?

2. Did the applicant have at his disposal an effective domestic remedy for his Convention complaint under Article 3, as required by Article 13 of the Convention?