Communicated on 10 September 2014

FIFTH SECTION

Application no. 56854/13 Edward STORY against Malta and 2 other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

A request by the Rapporteur under Rule 49 § 2 for the Government to submit information about the applicants ’ conditions of detention, was replied to on 7 February 2014. From the information submitted by the Government and the replies provided by the applicants in March 2014, t he facts of the case may be summarised as shown below .

The applicants noted that the Court ’ s correspondence has been opened by the prison authorities and that it was disorderly when they received it, thus, they were not sure that they had had access to the entire documentation submitted to the Court by the Government.

1. Mr Story

Mr Story was arraigned in Court on 8 May 2012 and was remanded on the same day in relation to drug related charges. The applicant is currently in detention on remand awaiting trial.

The applicant submitted that in May 2012 when he arrived in prison he had been placed in Division 6, a disciplinary division with very strict standards and no privacy. No one spoke his language in that division. He eventually was moved to Division 13, where again no one spoke his language. Allegedly his items had been stolen and the prison authorities had ignored his complaints, as a result of which he went on hunger strike for three days. After two weeks he was transferred to Division 3.

In fact, from the records held by the p rison authorities, it emerges that the applicant is currently accommodated in cell number 152 which is situated in Division 3. This division is located in the older section of the prison building that has seen various stages of upgrading and renovation. However, there are certain restrictions imposed in the manner of how the building is structured, such as high windows and thick walls that the Government claimed we re necessary for security reasons.

Mr Story has been occupying the said cell as sole occupant. The Government alleged that Mr Story has never made any complaint relative to his cell or to any specific condition to the prison authorities, nor has he request ed a transf er from one division to another.

The applicant alleged that to make his cell habitable he had to paint it himself and equip it with proper lighting.

T here are two ventilators in cell number 152 and there is also a window. The wall-mounted ventilator is 20cm x 15cm and is covered by a rectangular piece of cardboard and there is another roof-located ventilator of a smaller size. The applicant submitted that when it rained water would pour in from the wall-mounted ventilator which he considered was solely a hole in the wall, and which was covered by carton to avoid the wind entering in winter months - in consequence it rendered the room devoid of any ventilation. A window is located in the cell. It consists of both a p erspex -based section that allows daylight to enter and a wooden part. Both sections can in principle be opened and closed from within the cell . The window is situated at a height of 250cm with dimensions of 76.5cm in width by 46cm in height . According to the Government (and photos submitted) the window in cell 152 is always kept closed by the occupant despite the fact that he could open and close the window by alighting onto the bed . The applicant submitted that windows in other divisions were much lower. In his case to attempt to open the window he had to stand on the sink and reach for the lock by means of a piece of wood. Once open (the window opened vertically) it had to be kept open by means of some support, as for example a metal or wooden plank which was not usually allowed in prison. The applicant, who is of a heavy built, is unable to open such a window without the help of other lighter inmates.

L ighting in cell 152 consists of a ceiling light and two wall-mounted portable lamps that may be moved about throughout the cell as required (both of 25 Watts) .

According to the applicant there is often no tap water in the cell and any water was surely not potable. However, according to the Government t ap water is available in each cell , including cell 152 (photos submitted) and Maltese tap water flowing through the Corradino Correctional F acility is certified for human consumption as outlined by the certificate issued by the Director of Environmental Health, dated 24 January 2014, submitted to the Court.

I nmates are also permitted to ac quire bottled water from the tuck-shop ( bottled water is sold to the inmates for EUR 2.10 for a pack of six bottl es or for EUR 0.35 per bottle). E very inmate is given gra tuity money for such purchases amounting to EUR 27.95 monthly . Mr Story received EUR 117 as gratuity during 2012 and EUR 363.35 during 2013. Inmates are also given the opportunity to work against nominal payment of EUR 18.63 monthly . The applicant noted that this work was inhumane given that he had to work for eight hours a day, without social security or pension entitlements or an employment contract, for such a meagre sum of money which could not cover his basic needs . Mr Story received EUR 13.39 during 2012 and EUR 242.19 during 2013 for his work.

The Government admitted that there is no installed combined flushing and WC system in Division 3 due to the nature of t he structure of the building, therefore inmates must flush their own personal toilet by means of a water bucket provided within each cell. To this end, there are wall- mounte d water taps in order to fill the buckets with water. The combined system of flushing and WC is available in the new part of the prison. Mr Story alleges th at there is often no running water to allow flushing.

A ll inmates have access to showers at divisional level and no cell is provided with an in-cell shower. Furthermore, all inmates can use the showers numerous times daily, for as long as necessary. However, Mr Story noted that there were only three showers, one of which did not have running water but a plastic bottle of water was its only source of water, the other did not have a showerhead, thus, only one of them was functional. Furthermore, hot water was often not available in winter and frequently no water was available in summer. The applicant submitted that complaints about the lack of water were often made to the prison guards, but they were not noted down.

N o cell in any part of th e prison building (both the old block and the new block) is equipped with heaters , according to the Government this restriction was for security purposes. D uring summer, the inmates are allowed to acquire fans to cool down their cells. Mr Story has two fans in his cell.

According to the photos submitted the state of cell 152 is tidy.

I nmates are permitte d to acquire other nonessential items in their cells including televisions or monitors, D VD players, game consoles etc. upon request. Mr Story ’ s requests have all been granted.

Mr Story claims that there is mould in his cell. According to the Government, f rom an ins pection conducted by the prison officials in cell 152, no mould cou ld be detected in this cell.

Mr Story alleged that he had to pay for his own medication, but given that he was unable to pay he had remained in pain. The Government submitted that Mr Story had been in receipt of various medicine s provided for free through the National Health Service (NHS) in line with Regulation 31 of the Prisons Regulations (Subsidiary Legislation 260.03). According to the Government, f rom the records held by the authorities (not submitted to this Court), it also transpired t hat the applicant had been visited eleven times by a doctor between the 27 August 2012 (following t he applicant ’ s admission on detention on remand) and 30 December 2013. In eight cases, prescription of medicines had been r equired and in fact twelve medicines were provided to the applicant. These medicines were supplied by the NHS except for the Bioflor sachets where a generic alternative was provided instead. It transpires that the applic ant has not made any purchases, relative to self-recommendations (explained below) .

Mr Story noted that he could not make telephone calls at 12.15 which was the only time he could reach his relatives .

The Government referred to the relevant regulations (see relevant domestic law) but noted that in practice, all inmates we re allowed any number of calls between 9.30a.m to 11.45a.m. As from 1 January 2014 the times were changed to 8.30a.m. to 11.45a.m and between 2p . m . to 8p . m. Those inmates who work are granted a specific period between noon and 12.15 p.m . . No calls are made between 12.25 p.m. and 2 p.m. during which time the inmates are confined to their cells.

Inmates are given two telephone cards of EUR 5 each every month (on the first day of the month). Mr Story has been in receipt of these cards since the d ay of his entry in p rison. From the records held by the authorities it also transpires that the applicant availed himself of the opportunity to call abroad using his cards on average 4.5 ti mes a day during the period 1 January 2014 to 6 February 2014. This refers to calls having duration of a minimum of three minutes. Other calls were ma de pertaining to a shorter time. A detailed analysis of the 3 minute plus calls show s that 76 of these calls were of a duration of over 10 minutes with some of a duration of over 20 minutes. In terms of the time during which the calls were made, 50 (30% of the calls) were registered during the morning between 9.08 a.m. to 11.58 a.m. while the remaining 117 calls (70%) were regis tered between 2.30pm and 7.54p.m.. I t also transpires that the applicant has availed himself of incoming call times ranging from 10.00 a.m. till 12.11 p.m. (69% of the calls we re registered between the 22 May 2012 and 7 December 2013). The rest of the calls (31%) were registered between 2.05p . m . and 6.44p . m . He received 35 incoming calls in 2012 and 175 incoming calls in 2013. According to the Government the applicant never submitted a written request to the Director to be granted permission to make calls at 12.15 p.m .

2. Mr Goldzinski

Mr Goldzinski is currently serving a term o f imprisonment for drug related offences. He was sentenced to nine years impris onment and to a fine of EUR 23, 000 by the Criminal Court on 5 December 2013.

From the Prison authorities ’ records, it transpires that the ap plicant is accommodated in cell number 130, situated in Division 3 of the Corradino Correctional Facility. While the applicant also considers that there is lack of living space in the dormitories of ten persons, the Government noted that Mr Goldzinski has been occupying the said cell as the sole occupant. It does not appear that the applicant has ever made any prior complaint about his cell or any specific condition to the prison authorities , neither has he requested to change cell .

The complaint and general conditions of detention pertaining to Mr Goldzinski are the same as above, with a few differences mentioned below.

Mr Goldzinski generally leaves his window open, he also considers that it is not possible to open the window by alighting onto the bed. The said window is situated at 1.5 metres above the sink, and thus it is only by standing on such sink that one may open it. L ighting consists of a ceiling light and one wall-mounted portable lamp which he purchased himself– he has not request ed an additional lamp, although inmates are in fact allowed two lamps.

According to the applicant there is often no tap water in the cell. However, according to the Government t ap water is available in each cell , including cell 130.

Mr Goldzinski received gratuity in the sum of EUR 293.44 during 2012 and EUR 363.35 during 2013 as well as the amount of EUR 130.41 during 2012 and EUR 242.19 during 20 13 for work carried out by him.

Mr Goldzinski also has two fans in his cell. He noted that the cold in winter was terrible and caused him to be ill. He maintained that he often did not have bed linen or blankets, sometimes not even a bed to sleep on.

According to the Government Mr Goldzinski keeps his cell in a disorderly and unkempt state. When the Prison authorities through the Correctional Supervisor brought this to the attention of Mr Goldzinski , he replied that the mess was due to his ongoing personal family troubles and the applicant promised to clean his room.

Mr Goldzinski ’ s requests for nonessential items have all been granted.

A part of cell 130 exhibits water retention, which yields mould (approximately 1 square metre as transpires from photos submitted) . The applicant submitted that the photo was not realistic and that in reality a larger part of the cell was moulded causing him asthma, a condition he had never suffered from before.

The Government pointed out that the applicant has been in receipt of various medicines provided for free through the NHS . According to the Government, f rom the records held by the authorities (not transmitted to the Court) Mr Goldzinski was visited forty-three time s by the doctor between 5 Octo ber 2011 (date of the applicant ’ s admission in detention on remand) and 23 January 2014. In twenty-nine cases, prescriptive medicines were required and in fact fifty medicines were provided to the applicant. These medicines were supplied by the NHS except for a specific shampoo where a generic alternative was provided instead .

Mr Goldzinski noted that he had had to purchase some medicines himself. However, according to the Government, th ose medicines refer to a choice made by the applicant himself . From the records held by the authorities, it transpires that there are a number of self-recommendati ons (see below) registered on the applicant ’ s behalf, which concern ear drops to remove ear wax, Voltaren gel, a number of vitamins and Daktarin powder.

Lastly he noted that he was made to take medicine without any explanations, and that he was not allowed to access the yard.

3 . Mr Przewlocki

Mr Przewlocki was sentenced to 12 years ’ imprisonment and to a fine of EUR 23,000 by the Criminal Court b y means of a judgment of the 30 January 2013 , for drug related offences .

From the prison authorities ’ records, it transpires that he is accommodated in cell number 137 which is situated in Division 3 – he has been in Division 3 for three years and ten months . Mr Przewlocki has also been occupying the said cell as sole occupant. He has never made any complaint relative to his cell or to any specific condition to the prison authorities, nor has he request ed a transf er from one division to another. The general conditions of detention pertaining to Mr Goldzinski are the same as above, with a few differences mentioned below.

There is only one ceiling ventilator in his cell which he claims does not work, but there are two portable lamps – he notes that the ceiling lamp is subject to central control and may not be lit or switched off according to needs. From the photos submitted it appears that cell 137 is kept in a relatively tidy state . Mr Przewlocki has also been allowed to acquire other nonessential items in the cell . He claims that they do not require authorisation . He also alleges that one of his personal fans was removed from his cell after the taking of the photographs.

According to the Government ’ s inspection conducted by the prison officials in cell 137, no mould could be detected. However, the applicant submitted that there was around 50 cm of mould around his sink.

Mr Przewlocki who also complained about the lack of tap water (contested by the Government) and combined flushing system, noted that the lack of water created unhygienic conditions particularly because of the inability to flush the WC or to clean the room; also the absence of any other equipment which was not provided. Mr Przewlocki noted that he had been regularly sick because of the tap water in his room and that the doctor told him he should not drink such water. He noted that the result of the tests carried out by the Government had not referred to water collected in his room, as no such water had been collected.

Mr Przewlocki received EUR 101.28 as gratuity during 2011, EUR 363.55 as gratuity during 2012 and EUR 363.35 during 2013. He also received EUR 18.63 during 2011, EUR 111.78 during 2012 and EUR 93.15 during 2013 (between August and December 2013) for work carried out by himself .

Mr Przewlocki has also been in receipt of various medicines provided for free through the NHS. From the records held by the authorities (which were not submitted to the Court) it also transpired that he was visited thirty-one times by the doctor between the 26 Apri l 2011 (following the applicant ’ s admission in detention on remand) and the 21 January 2014. In fifteen cases, prescription of medicines was required and in fact twenty-eight medicines were provided to the applicant. These medicines were supplied by the NHS except for cold relief tablets and a cream for which a g eneric alternative was provided. I t transpires that there are two self-recommendations regist ered on behalf of the applicant, a pain killer and a cream which is only available for free through the NHS if it had been prescribe d by a Consultant Dermatologist, which is not the case for the applicant.

B. Relevant domestic law and practice

1. Prison Regulations

A ccording to Regulation 23 (3) of the Prison Regulations (Subsidiary Legislation 260.03), the cleanliness of the cell including the toilet situated within it, falls under the responsibility of the particular inmate occupying the cell.

Regulation 25 of the Prisons Regulations specifically deals with provision of food to prisoners. In the case of sentenced persons Regulation 25 (4) of the Prisons Regulations provides that sentenced persons are not allowed to have any food other than that ordinarily provided except as duly authorised by the Director or by the Medical Officer. Besides, as from the year 1994, a privilege was granted to all sentenced prisoners to receive a meal prepared by the family members of the said sentenced persons, once a week on Sunday, which was subsequently changed to an option of provision either on a Saturday or on a Sunday. According to the prison ’ s operational procedure every meal has to be inspected in front of the person delivering the food. Any other method of delivery of food items, inclusive of postal delivery, is prohibited.

Regulation 59 of the Prisons Regulations deals with telephone communication by inmates. Regulation 59 (3) provides that it is the prerogative of the 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.

2. Medical care

Regulation 31 of the Prisons Regulations provides for a prison medical service.

The NHS provide s a list of medicines that may be obtained for free and where the prescribed medicine is not supplied by the Government, this is substituted by generic medicine. This is the same system applicable to all Maltese citizens and all recipients of the NHS (inclusive of all the inmates). Should a patient decline or refu se the generic medicines offered, the patient may opt to buy ot her similar medicines. The non- acceptance of generic medicine against branded medicine is regis tered as a self-recommendation . The prison authorities also have a special fund in order to buy medicines that are not on the NHS list . Such fund is reserved for cases requiring immediate intervention.

2. Council of Europe reports

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 (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 (in cluding 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 implemen tation of the different stages. Divisions 2 and 3 should be renovated as a matter of priority. ”

COMPLAINTS

The applicants complain under Article 3 of the Convention about the conditions of their detention .

QUESTION TO THE PARTIES

Did the conditions of the detention facility, notably Division 3, amount (alone or in combination with other conditions) to inhuman and degrading treatment, contrary to Article 3 of the Convention?

Appendix

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Nationality

56854/13

22/08/2013

Edward STORY

09/08/1983

Valletta

Polish

57005/13

22/08/2013

Bartosz GOLDZIŃSKI

20/10/1984

Valletta

Polish

57043/13

22/08/2013

Tomasz PRZEWLOCKI

19/02/1974

Valletta

Polish