FIRST SECTION
 
 
 
 
 
 
CASE OF CELA AND OTHERS v. GREECE
 
(Application no. 10244/14)
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
 
20 April 2017
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Cela and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
 Ledi Bianku, President,
 Armen Harutyunyan,
 Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 28 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 10244/14) 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”) on 28 January 2014 by six applicants of Albanian and Greek nationality whose names appear in the annexed list. They were represented by Mr K. Tsitselikis and Mr A. Spathis, lawyers practising in Thessaloniki. 2. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mrs M. Germani and Mrs A. Dimitrakopoulou, respectively Legal Representative and Legal Assistant to the State Legal Council. The Albanian Government did not make use of their right to intervene (under Article 36 § 1 of the Convention). 3. On 12 March 2014 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were detained in Korydallos Prison in Athens when they lodged their application with the Court. 5. The first applicant was detained in Korydallos Prison on 7 March 2013, and was still in detention at the time his observations to the Court were submitted. His detention in Korydallos Prison was temporarily interrupted when he was transferred to Ioannina Prison from 3 July 2013 until 11 July 2013, and to Komotini Prison from 2 December 2013 to 17 December 2013. The second applicant was detained in Korydallos Prison on 22 March 2013 and the third applicant on 21 August 2013; they were still in detention when they submitted their observations to the Court. The fourth applicant was detained in Korydallos prison from 26 June 2013 to 1 May 2014, except for the periods from 17 July 2013 to 3 September 2013, from 27 November 2013 to 10 December 2013, and from 6 February 2014 to 17 February 2014, during which time he was detained in Chania Prison. The fifth applicant was detained in Korydallos Prison from 22 May 2013 to 19 June 2014, except for the period between 20 March 2013 and 28 March 2013. The sixth applicant was detained in Korydallos Prison from 30 January 2013 to 15 August 2014. A. The applicants’ submissions on the conditions of their detention in Korydallos Prison
6. The applicants alleged that the prison held 2,400 prisoners, while it had been designed to accommodate 700. The applicants were detained in wings A and D in various cells which all measured 9 sq. m, including the space for sanitary facilities, and accommodated three or four prisoners; the living space for each prisoner was therefore less than 3 sq. m. 7. The toilet facilities were partially separated from the rest of the cell. In addition, there was insufficient heating and hot water. Inmates had to use a washbasin to wash themselves, as well as their dishes and clothes. Cells were dirty and overrun with cockroaches and other pests, and no attempt was made to exterminate them. Rubbish was not properly collected and food remains were left in the cells and corridors for days. Prisoners were not sufficiently separated according to their health conditions or whether or not they were drug users. There was no adequate medical care, in particular as regards psychological health. 8. The inmates were confined to their cells for sixteen hours per day, as recreational or educational activities were not provided. They had to take their meals, which were poor in terms of quality and nutritional value, inside their cells. 9. Moreover, the prison was understaffed and unable to secure the prisoners’ safety. B. The Government’s submissions on the conditions of detention in Korydallos Prison
10. The Government asserted that the first to fifth applicants had been detained in various cells in wings A and D. All cells measured 9.60 sq. m. and accommodated three or, on rare occasions, four detainees. The first applicant had also been detained in two cells in wing E: one which measured 10.44 sq. m., and another which measured 42.78 sq. m. and accommodated ten to twenty-two detainees, although it had only accommodated twenty-two detainees for a short period of time. 11. All cells had a window ensuring sufficient light. Every cell was furnished with a washbasin, a toilet, beds, a table, chairs and, usually, wooden shelves. Wings A, B, C and D had twelve communal showers each, and wing E had nine communal showers. Each wing could provide 2,000 litres of hot water every day. Detainees were provided with sheets and blankets, except for when they chose to use their own. 12. The prison had a central heating system, and inmates were provided with fans during the summer. Cells were regularly disinfected and cleaned twice a day by cleaning crews consisting of detainees. All wings had rubbish bins. 13. All detainees had access to the prison’s infirmary, which was open twenty-four hours per day, and there were eighteen doctors with different areas of specialism and three nurses who offered appointments to the prisoners. When inmates’ conditions could not be dealt with in the infirmary, they were transferred to Korydallos Prison Hospital, Korydallos Psychiatric Hospital or an external hospital. The Government submitted the applicants’ medical records, to demonstrate that they had been treated on various occasions. Additionally, the prison’s social services took care of detainees’ needs, including those of the applicants, who had used those services on a number of occasions. 14. As regards prisoners’ meals, the Government submitted the menu for ten days selected at random to demonstrate that meals were varied. 15. Prisoners were able to spend four to five hours in the prison yard every day, practising sport. They were allowed to have a television in the cells, and the prison had a lending library and a book club. In addition, detainees had the opportunity to take one of the available jobs or attend “second chance” school. 16. The Government did not submit observations concerning the sixth applicant (see below, paragraphs 24-26). II. RELEVANT DOMESTIC LAW AND PRACTICE
17. The relevant domestic law and practice is described in the Court’s judgment in the case of Kanakis v. Greece (no. 2) (no. 40146/11, §§ 62-68, 12 December 2013). III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE (“the CPT”)
18. Following its visit to Greece in April 2013, the CPT published its report dated 16 October 2014 (CPT/Inf (2014) 26), which stated:
“101. Korydallos Men’s Prison has been described in previous visit reports. At the time of the 2013 visit, it was accommodating more than 2,300 prisoners for an official capacity of 840. During the 2013 visit, just like during previous visits, the delegation observed that cells originally designed for single-occupancy and measuring 9.5 m² were routinely used for three or even four inmates. The delegation found cells in which prisoners had to sleep on mattresses placed on the floor in the toilet areas, due to lack of available space. These are merely examples of a generally bad situation that persists across the entire facility. Cell A-3 in wing E measures 36 m² and was equipped with 16 beds. However, at the time of the visit it was accommodating 27 inmates, both remand and convicted prisoners, leaving less than 1.5 m² per person. Nine of the prisoners were sleeping on the concrete floor on extremely filthy and torn mattresses, two of them in the toilet area. The cell was infested with cockroaches and bed bugs and there was hardly any space left within which to move. Cell B-3 in wing E contained 14 beds and held 19 prisoners, with five prisoners sleeping on mattresses on the floor. There was no artificial light available at all during the night, and prisoners had to step on their cellmates in order to access the toilet, which was filthy. Further, the delegation noted that the garbage containers in the corridor outside the cell were full of food waste, which had not been emptied for some time and emitted a foul smell.
... 116. At Korydallos Men’s Prison, the situation as regards health-care resources had deteriorated significantly since the 2011 visit. The four general practitioner (GP) posts had been abolished, with the result that not a single full-time doctor worked in the establishment. Instead, a rotation system of visiting doctors from local clinics had been put in place shortly before the delegation’s visit, with various general practitioners each attending one morning a week for three hours, giving a total GP presence of a mere 15 hours per week. Such a limited presence of qualified doctors is totally insufficient to provide adequate health-care to more than 2,300 prisoners. However, at the time of the visit, not even these 15 hours of presence were guaranteed; the delegation observed that the scheduled visiting doctors sometimes failed to show up without giving any prior notification. Further, every two months, a new batch of doctors from another hospital in Athens was scheduled to assume the task of visiting GP at Korydallos Men’s Prison. Such a system inevitably leads to a lack of continuity, thereby hindering the ability to provide quality medical care. In the CPT’s view, it is essential for such a large prison, which in addition serves as the point of entry to the penitentiary system for many prisoners, to have the equivalent of at least four full-time general practitioners.
... 132. The situation remained particularly acute at Korydallos Men’s Prison, where a wing of some 400 inmates was usually staffed by only one or two prison officers during the day. At night there were a mere eight officers on duty, who were in charge of the entire prison with a population of more than 2,300 inmates.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
19. The applicants complained that their conditions of detention in Korydallos Prison had violated their right not to be subjected to inhuman or degrading treatment, as provided for in Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
1. The fifth applicant
20. The Government argued that the application should be rejected as inadmissible as far as the fifth applicant was concerned. In particular, the Government maintained that he, Mr Nebegleras, had been named as one of the applicants in the application form, but there was no description of the conditions of his detention, nor had his representatives submitted a power of attorney authorising them to submit an application on his behalf. 21. The fifth applicant contested those arguments and he annexed his power of attorney to the observations submitted in reply to those of the Government. 22. In this respect, the Court points out that a list containing the names and relevant personal data of the first five applicants was submitted to the Court along with the application form. The first, second, third, fourth and sixth applicants’ powers of attorney, issued in the name of Mr Tsitselikis and Mr Spathis, were enclosed with the application form of 28 January 2014. The fifth applicant’s power of attorney was not. The applicants’ representatives submitted the fifth applicant’s power of attorney with their observations, duly signed and dated 11 October 2013. A copy of the fifth applicant’s power of attorney was sent to the Government for information. In addition, the Court notes that, in their application form, all applicants complained of being detained in cells which were similar in dimension, even though the fifth applicant did not specify in which cell he had been detained when he lodged his application with the Court. The applicants further complained of having been personally affected by the general situation prevailing in Korydallos Prison at the time, which they described in detail. 23. In these circumstances, the Court considers that there are no grounds to either doubt that the fifth applicant was willing to participate in the proceedings through counsel or question the validity of the present application. It thus dismisses the Government’s objection in respect of the fifth applicant. 2. The sixth applicant
24. The Government invited the Court to reject the application as incompatible ratione personae in respect of the sixth applicant. In particular, the Government argued that he, Mr Panagiotopoulos, had not been named in the application form as one of the applicants; nevertheless, the details of the conditions of his detention had been included in the statement of facts and power of attorney which had been submitted. 25. The sixth applicant admitted that, by mistake, his name had not been included on the list of applicants, and requested that he be considered an applicant, as his power of attorney and description of the conditions of his detention had been included in the application form. 26. The Court notes that Rule 47 § 1 of the Rules of Court, as in force at the time, provided that an application form should set out the name, date of birth, nationality and address of the applicant. Turning to the present case, the Court observes that the sixth applicant was not included on the list of applicants, nor was his personal data, other than what was included in his power of attorney, made known. It follows that the conditions set out in Rule 47 of the Rules of Court, as in force at the relevant time, were not met, and thus the application should be rejected in respect of the sixth applicant, pursuant to Article 35 § 3 of the Convention. 3. The remaining applicants
(a)  Six-month time-limit
27. The Government contended that the applicants had been detained in Korydallos Prison on various occasions, and only the periods of their detention in the six months preceding the lodging of their application with the Court should be taken into account. Accordingly, the Government claimed that the applicants’ complaints should be examined only in respect of the periods starting from 28 July 2013 onwards. 28. The applicants clarified in their observations that they were only complaining regarding the periods of detention in 2013 and 2014 when they had been continuously detained in Korydallos Prison, with the exception of short intervals when they had spent time in other prisons because of attending trials. 29. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Seleznev v. Russia, no. 15591/03, § 34, 26 June 2008, and Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). 30. Turning to the present case, the Court observes that the periods of detention about which the applicants complain coincide with the periods of detention accepted by the Government, except for in the fourth applicant’s case. In the Government’s view, only the fourth applicant’s periods of detention from 3 September 2013 onwards should be taken into account, while the applicant maintains that the period of detention from 26 June 2013 to 17 July 2013 should also be taken into account. 31. The Court notes that the fourth applicant’s detention in Korydallos Prison was interrupted by short intervals ranging from eleven to forty-seven days, during which time he was detained in Chania Prison. More specifically, he was detained in Korydallos Prison from 26 June 2013 to 1 May 2014, except for the periods from 17 July 2013 to 3 September 2013, from 27 November 2013 to 10 December 2013, and from 6 February 2014 to 17 February 2014, during which time he was detained in Chania Prison. 32. The Court has to determine whether or not it would be appropriate to make a cumulative assessment of the fourth applicant’s periods of detention in Korydallos Prison. 33. The Court reiterates that the concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002‑VII). A period of an applicant’s detention should be regarded as a “continuing situation” as long as the detention has been effected in the same type of detention facility in substantially similar conditions (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012). An applicant’s release or transfer to a different type of detention regime, both within and outside the facility, would put an end to the “continuing situation”. Short periods of absence during which the applicant was taken out of the facility for interviews or other procedural acts would have no influence on the continuous nature of the detention (ibid., § 78). 34. Examining the case of the fourth applicant in the light of the above principles, the Court notes that he was always detained in Korydallos Prison, with the exception of short intervals when he was not released or transferred to a different type of detention facility, but transferred to other prisons for procedural acts, namely attending court hearings. This is what the applicant maintained and the Government did not refute this. It follows that those short absences cannot have any influence on the continuous nature of the fourth applicant’s detention in Korydallos Prison, which should be considered a “continuing situation” within the meaning of the Court’s case-law. 35. The Court therefore finds that the fourth applicant complied with the six-month rule in respect of his complaints under Articles 3 and 13 of the Convention relating to the entire period of his detention from 26 June 2013 to 1 May 2014. (b)  Non-exhaustion of domestic remedies
36. The Government invited the Court to reject the application on the grounds of non-exhaustion of domestic remedies. In particular, the Government maintained that the applicants had failed to lodge 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 applicants’ conditions of detention and, if necessary, order their transfer to a different cell or a different prison. 37. The applicants disputed the Government’s assertion that this was an effective remedy. 38. Regarding the general principles concerning the application of the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, the Court refers to its relevant case-law (see, in particular, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996‑IV, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014). 39. Regarding conditions of detention, the Court has ruled in some cases that applicants had not exhausted domestic remedies, owing to a failure to make use of the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code (Law No. 2776/1999) (Vaden v. Greece, no. 35115/03, §§30-33, 29 March 2007, and Tsivis v. Greece, no. 11553/05, §§ 18-20, 6 December 2007). 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, on many occasions the Court has ruled that, when applicants claim to have been personally affected by the general conditions prevailing in a prison, the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code are not effective (see, among other authorities, Papakonstantinou v. Greece, no. 50765/11, § 51, 13 November 2014). 40. As the applicants in the instant case fall into the latter category, the Court sees no reason to depart from its previous case-law. 41. In view of the foregoing, the Government’s objection as to non-exhaustion of domestic remedies should be dismissed. Furthermore, the Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and is not inadmissible on any other grounds. It must therefore be declared admissible in respect of the first to fifth applicants. B. Merits
42. The applicants complained of the conditions of their detention, mainly drawing the Court’s attention to the problem of overcrowding in Korydallos Prison. 43. Referring to their own description, the Government claimed that the conditions of the applicants’ detention had been adequate, and in any event they had been improved since the Court’s judgment in Nieciecki v. Greece (no. 11677/11, 4 December 2012) relating to conditions of detention in the same prison. In particular, in that judgment the Court had accepted that each cell had accommodated four to five detainees. In the present case the applicants maintained that each cell measuring 9.6 sq. m. had accommodated three to four detainees, which had resulted in the allocation of personal space ranging from 2.4 sq. m. to 3.2 sq. m. for each detainee. As regards the first applicant in particular, from 10 April 2013 tο 6 June 2013 he had been detained in cell EB5Θ, which had measured 42.78 sq. m. and had accommodated ten to twenty-two detainees, and from 6 June 2013 to 16 September 2013 he had been detained in cell B1 in wing E, which had measured 10.44 sq. m. 1. General principles
44. The applicable general principles are set out in Muršić v. Croatia [GC] (no. 7334/13, §§ 96-141, 20 October 2016). 2. Application of the above principles to the present case
45. The Court notes that the applicants and the Government are in dispute as to the factual elements surrounding the conditions of the applicants’ detention, including the opportunities for outdoor exercise and recreational activities and the hygiene of the premises. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of facts presented to it which the respondent Government have failed to refute. 46. In this connection, the Court notes that the Government accepted the applicants’ allegations that each cell in wings A and D had measured 9.6 sq. m., including the space for sanitary facilities, and had accommodated three to four detainees. The applicants alleged that the in-cell area for sanitary facilities had measured 3 sq. m., and the Government did not dispute that assertion. It therefore follows that each applicant detained in wings A and D had at his disposal personal space ranging from 1.65 sq. m. to 2.2 sq. m. As regards the first applicant, who was detained in two cells in wing E for a certain period, the Court notes that the Government asserted that cell EB5Θ had measured 42.78 sq. m. and had accommodated ten to twenty-two detainees, and cell B1 had measured 10.44 sq. m. and had accommodated five detainees. Also, taking into account the existence of sanitary facilities within the cells, the first applicant had at his disposal personal space of less than 3 sq. m. in the first cell and less than 2 sq. m. in the second cell. It follows that the applicants had at their disposal less than 3sq. m of personal space, irrespective of which cell they were detained in. The above findings also coincide with the observations of the CPT regarding the problem of overcrowding at Korydallos Prison, which provides a reliable basis for the Court’s assessment (see Kehayov v. Bulgaria, no. 41035/98, § 66, 18 January 2005). 47. In view of these findings and the relevant principles enunciated in its case-law (see paragraph 44 above), the Court finds that a strong presumption of a violation of Article 3 arises in the case at issue. 48. Turning to whether there were factors capable of rebutting the strong presumption of a violation of Article 3, the Court notes that the applicants submitted that overcrowding had persisted during the whole course of their detention ranging from eight months (the fourth applicant) to twenty-one months (the first applicant). In view of the applicants’ submissions and the CPT’s findings, and in the absence of any convincing information from the Government to the contrary, the Court accepts the applicants’ argument that Korydallos Prison was filled beyond its design capacity during the course of their detention, to the point that there was a flagrant lack of personal space. It is also clear that such a lack of space cannot be seen as short, occasional and minor within the meaning of the Court’s case-law (see Muršić, cited above, § 130). 49. These circumstances are sufficient for the Court to conclude that the strong presumption of a violation of Article 3 has not been rebutted. The above finding renders it unnecessary for the Court to consider separately the rest of the applicants’ allegations regarding their conditions of detention.
50.

Article of the Convention at issue: Article 3
Outcome: violation