THIRD SECTION
 
 
 
 
 
 
 
 
CASE OF DANILCZUK v. CYPRUS
 
(Application no. 21318/12)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
3 April 2018
 
FINAL
 
03/07/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Danilczuk v. Cyprus,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Helena Jäderblom, President,
 Branko Lubarda,
 Luis López Guerra,
 Helen Keller,
 Pere Pastor Vilanova,
 Alena Poláčková,
 Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 26 September 2017 and 6 March 2018,
Delivers the following judgment, which was adopted on the latter date:
PROCEDURE
1. The case originated in an application (no. 21318/12) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Robert Tadeusz Danilczuk (“the applicant”), on 8 April 2012. 2. On 18 November 2013 the applicant’s complaint about his conditions of detention at Nicosia Central Prisons was communicated to the Government under Article 3 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 3. Following the communication of the application, the applicant appointed Mr D. Stremecki, a lawyer practising in Szprotawa in Poland, to represent him before the Court. By a letter dated 18 January 2017 he informed the Court that he no longer wished to be represented by him. The Cypriot Government (“the Government”) were represented by their Agent, the Attorney General, Mr C. Clerides. 4. The Polish Government were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of that right. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1965 and is currently detained in Czarne Prison in Poland. A. Background
6. The applicant was placed in detention on remand at Nicosia Central Prisons on 14 September 2010 pending criminal proceedings against him before the Limassol District Court (case no. 25536/10). 7. On 11 January 2011 the applicant was convicted of a number of offences (including burglary, theft, various road traffic offences and unlawful residence). On 24 January 2011 the court imposed four sentences ranging from six months’ to two years’ imprisonment, to run concurrently from 5 September 2010. 8. The applicant was released on 18 May 2012 following the suspension of his sentence by virtue of a decree issued by the President of the Republic concerning a number of prisoners. B. Conditions of the applicant’s detention
1. The applicant’s description of the conditions of his detention
9. In his application form the applicant, without specifying the exact period of his detention, submitted that he had been held in overcrowded cells at Nicosia Central Prisons, where there was only 0.5 to 1.7 sq. m of personal space for each detainee. He stated that the cells were cold and lacked adequate light. Furthermore, there were no toilets in the cells. He sometimes had to wait two to three hours to use the toilet, and, when the cells were locked, he had to urinate into a bottle and defecate into a waste bag. 2. The Government’s description of the conditions of detention
10. The Government submitted that the applicant had been detained from 14 September 2010 until his release on 18 May 2012 in three different parts of Nicosia Central Prisons. Between 14 September 2010 and 24 January 2011 he had been detained in Block 5, which accommodated remand prisoners. Following his conviction and sentence he had been transferred to Block 2B, where he had been detained between 24 January 2011 and 5 October 2011. On the latter date he had been placed in Block 2A, where he had been detained until his release on 18 May 2012. Both Block 2B and 2A accommodated sentenced prisoners. The Government provided copies of Nicosia Central Prisons’ daily occupancy records (ημερήσιες χωρητικότητες των κεντρικών φυλακών) indicating the number of prisoners in each block per day. However, they submitted that no records were kept in relation to occupancy of particular cells in the blocks. (a)  Block 5: 14 September 2010-24 January 2011
11. Block 5 could accommodate up to sixty-eight remand prisoners; it had thirty-four double occupancy cells measuring 6.21 sq. m, eight toilets and eight showers. Block 5 included Block 5A, which had twenty-three double occupancy cells of the same size as Block 5, accommodating forty-three remand prisoners. It was almost certain that during his detention in Block 5 the applicant had shared a cell with another inmate and that therefore he had had 3.10 sq. m of personal space. (b)  Block 2B: 24 January 2011-5 October 2011
12. At the time the applicant had been detained there Block 2B had not yet been renovated. It had twenty-six double occupancy cells measuring 9.98 sq. m; two large cells measuring 19.55 sq. m, which accommodated five to seven detainees, and a common room which had been made into a dormitory for between twenty and fifty inmates. The dormitory measured 90 sq. m and had nineteen windows. Prisoners with short-term sentences had been kept in the dormitory. Block 2B had six toilets and six showers. 13. Based on the daily occupancy records for the relevant period, the number of inmates in the block varied from 80 to 124 per day. The Government stated that it was possible that the applicant had spent time in all the different types of cells in this block during his detention. In the double occupancy cell the applicant would have had 4.99 sq. m of personal space; in the larger cell he would have had from approximately 2.8 to 3.9 sq. m, depending on whether he had shared the cell with five, six or seven inmates; and, lastly, in the dormitory he would have had from 1.8 sq. m to 4.5 sq. m of personal space, depending on the number of inmates detained there with him. If the applicant had been held in the dormitory in early spring or during the winter (see paragraph 49 below), he would have disposed of between 2.04 and 3.2 sq. m of personal space as the daily occupancy records indicated that the block had accommodated between 94 and 110 inmates per day during those periods. (c)  Block 2A: 5 October 2011-18 May 2012
14. On 5 October 2011 the applicant was transferred to Block 2A, which had been renovated. The block had forty-one double occupancy cells, accommodating eighty-two prisoners. The cells measured 9.80 sq. m and thus the applicant had had 4.9 sq. m of personal space at his disposal. There were six toilets, six showers and three urinals. (d)  Additional information regarding the general conditions in the blocks
15. The various parts of the prison were equipped with a central heating system which covered all the blocks and cells. The central air conditioning system which functioned in the summer months was in the corridors and there were individual electrical fans in the cells. All the cells had properly insulated windows, which provided natural light and ventilation. The dimensions of the windows varied. Detainees were free to move outside their cells in the closed prison, including the yard, workshops, kitchen and school from 6 a.m. to 5 p.m. (winter time) or to 6 p.m. (summer time). After that, the detainees could move freely within their blocks until 9 p.m. on weekdays and 10 p.m. on weekends and public holidays. 16. Following the 2012 report of the European Committee for the Prevention of Torture (“CPT”) on its visit to Cyprus from 12 to 19 May 2008, the prison administration discontinued the practice of switching off cell bells during the night, hence detainees had access to the toilets during those hours (see paragraphs 26-27 and 30 below). The administration of the prison had issued order no. 32/2008 concerning prisoners having access to the toilet facilities whenever necessary. The order had also directed prison staff to check and ensure that the call panel in the warden’s room was active at all times, especially during the evening, so that prisoners could be assisted and emergencies prevented. A violation of the order constituted a disciplinary offence. According to a letter by the prison director dated 27 February 2014, records were not kept of when cells were opened for toilet visits during the night, that is between 9 p.m. and 6 a.m. However, a detainee could leave his cell for up to three toilet visits during that period. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
17. Article 8 of the Constitution safeguards the right not to be subjected to torture or to inhuman or degrading punishment or treatment. B. The Rights of Persons Arrested and Detained Law of 2005 (Law no. 163(I)/2005, as amended)
18. The law applies to detainees whose detention has been permitted by Article 11 § 2 (b), (c) and (f) of the Constitution (which are equivalent to Article 5 § 1 (b), (c) and (d) of the Convention), as well as detainees who are being detained for the purposes of the imposition of a sentence (section 2). 19. Section 19 provides as follows:
“(1) Every detainee has the right:
(a) to respect for his right not to be subjected to torture or inhuman or degrading treatment or punishment or any other physical or psychological or mental violence,
(b) to decent treatment, behaviour and living conditions (αξιοπρεπούς μεταχείρισης, συμπεριφοράς και διαβίωσης),
(c) to be in (διαβιεί) a cell of a reasonable size, in which basic facilities and conditions of hygiene, sufficient light and ventilation, and suitable furniture for rest (εξοπλισμός ξεκούρασης) are provided. (2) It is the State’s responsibility to safeguard the rights mentioned in paragraph (1). (3) All the persons responsible for a detention facility shall provide for the adequate and appropriate nutrition, physical and mental health, safety and physical integrity of detainees.”
20. Section 36(1) provides that a person who has suffered a violation of his or her rights granted to him or her by the law in question has a cause of action for damages against the State and the member of the police, member of staff of the prison or the person in charge of the detention centre who is responsible for the violation, whether or not the person suffered any actual injury, damage or pecuniary or other loss as a result. Under section 36(2) a person who has a cause of action under section 36(1) is not prevented from claiming damages or another remedy on the basis of an actionable right/cause of action provided or recognised by any other law. Such claims can be made simultaneously. C. Law no. 2(III)/2009: the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Optional Protocol) (Ratification) Law of 2009
21. Law 2(III)/2009 ratified the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 18 December 2002. Under section 4(1) the Office of the Commissioner of Administration (“the Ombudsman”) is designated as the national preventive mechanism. 22. Under section 5 of the law the Ombudsman is empowered to freely conduct visits to places of detention, following notification to the competent authorities, and has free access to all areas, premises and facilities; to examine the treatment of detainees and the general conditions of detention; and to carry out interviews with detainees and any other person. By virtue of section 6, the competent detention authorities are also required to provide the Ombudsman with all information, data, documents and material and access to records and registers upon request. Section 7 states that following a visit the Ombudsman can make recommendations in a report to the competent detention authority concerning the place of detention with a view to strengthening the protection for and improving the treatment and conditions of detainees, a particular detainee or persons deprived of their liberty in the said place or places of detention, and to prevent the torture and other cruel, inhuman or degrading treatment or punishment of such persons. The competent authority must then consider the recommendations, conduct a dialogue and hold consultations with the Ombudsman and any other authority of the Republic which may be involved in their implementation in order to adopt the appropriate measures. In addition, the Ombudsman, with the express authorisation of the detainee or person concerned, has to bring to the attention of the Attorney General any allegations of human rights violations made during interviews, regardless of whether or not they concern punishable criminal acts, so that that official can take the matter up (sections 9(1), (2) and 10). D. Relevant case-law on compensation for violations of human rights as submitted by the Government
23. In Takis Yiallouros v. Evgenios Nicolaou ([2001] 1 C.L.R. 558), which concerned an alleged violation by another individual of the claimant’s right to a private life and correspondence, the Supreme Court, sitting as a full bench, held that claims for human rights violations were actionable rights that could be pursued in the civil courts against those responsible, with a view to recovering from them, inter alia, just and reasonable compensation for any damage suffered as a result. The Supreme Court thus confirmed the existence of an obligation to award general damages for breaches of the fundamental human rights and freedoms guaranteed by the Constitution, even when the violation did not constitute a tort in civil law. It pointed out that the provisions of Article 13 of the Convention formed part of the domestic law and safeguarded the right to an effective remedy for a violation of rights guaranteed by the Convention. 24. In the joined cases of Evripidis Evripidou v. the Attorney General and Petros Patsalidis v. the Attorney General (action nos. 7252/06 and 141/07, decision of 16 October 2008, unreported), the Nicosia District Court held that the State had breached Article 10(2) of the International Covenant on Civil and Political Rights and the domestic law that had ratified it (Law no. 16/69) by not segregating the plaintiffs, who were being held on remand, from convicted persons and by not affording them different treatment appropriate to their status. Relying on Takis Yiallouros, the court found that the applicants had a right to compensation for the breach of their rights under the law and awarded them damages of 4,000 euros each. The plaintiffs had been detained on remand for just under eight months at Nicosia Central Prisons and had brought the actions following their release. III. RELEVANT INTERNATIONAL AND DOMESTIC REPORTS
A. The CPT’s 2012 report
25. On 6 December 2012 the CPT released its report on its visit to Cyprus from 12 to 19 May 2008. 26. In its report the CPT pointed out, inter alia, that high levels of overcrowding prevailed in nearly all the detention blocks at Nicosia Central Prisons. It also observed the following:
“B. Nicosia Central Prisons
1. Preliminary remarks
62. Since the CPT’s previous visit to Nicosia Central Prisons in 2004, the establishment’s official capacity of 340 has not changed, whereas the number of inmates has risen from 480 to 520. 80 inmates were on remand and 440 sentenced (296 to long sentences, 18 of which were life sentences); 27 inmates were women and 11 were juveniles under 21 years old. About 54% of the prisoners were foreign nationals. 63. In its report on the visit in 2004, the CPT outlined its concerns as regards the rampant overcrowding at Nicosia Central Prisons. Since then the situation has further deteriorated, and the Committee understands that the establishment had to cope with even greater overcrowding in 2007 (with 662 inmates reported on 30 July); the population reduction since 2007 was largely due to a general amnesty, rather than to a strategic approach. An occupancy rate of over 152%, as observed during the visit in 2008, represents severe overcrowding, posing challenges to the general infrastructure of the prison, including issues of order and security and classification of prisoners. ...
... 2. Ill-treatment
... 71. Further, the vast majority of inmates had no access to the toilet during the night, when, as the delegation learned, call bells were switched off. As a result, inmates were frequently obliged to urinate and defecate in makeshift receptacles in their cells. The CPT considers that to oblige an inmate to discharge human waste, and more particularly defecate, in a bucket or other receptacle in a confined space used as a shared living area, is degrading, both for the inmate concerned and for all other persons occupying the cell.
... 3. Conditions of detention
a. material conditions
72. High levels of overcrowding prevailed in nearly all of the detention blocks, with older Blocks (1 and 2) being the most severely affected. For example, Block 2B had an official capacity for 36 persons, yet accommodated 73 prisoners. In Blocks 1B, 2A and 2B many persons were obliged to sleep four to a room measuring 10m², or in bunk beds in the blocks’ TV-rooms. Further, several cells in Blocks 1B, 2A and 2B had no window at all, resulting in poor ventilation and reduced access to natural light. Sanitary facilities in those Blocks were also severely dilapidated; however, the delegation noted that work was in progress to construct new sanitary facilities for Blocks 1 and 2.”
27. The Government’s response to the CPT’s report, also published on 6 December 2012, included the following observations. “Paragraph 71, page 31
The Administration of the Prison Department has issued an order No. 32/2008, concerning the access of prisoners to toilet facilities whenever necessary. By this order the personnel of the Prison is directed to check and ensure that the call panel in the warden’s room is active at all times and especially during the evening hours, so that the prisoners can be assisted and emergency cases can be prevented. It also informs the personnel that the violation of the order consists a disciplinary offence.
... Page 32, paragraph 74
... (i) In order to expand the Prison areas, renovations are being made in Blocks 1A, 1B, 2A, 2B, so that 40 new cells as well as additional hygienic places will be built. Renovations are expected to be completed within the year 2011.”
B. The CPT’s 2014 report
28. On 9 December 2014, the CPT released a report on its visit to Cyprus from 23 September to 1 October 2013. 29. As regards Nicosia Central Prisons, the CPT welcomed the steps that had been taken by the authorities to improve the material conditions within the prison, notably as concerned Block 2, which had undergone a complete renovation. It observed that overcrowding continued. It also stated the following:
“C. Nicosia Central Prisons
1. Preliminary remarks
55. At the time of the visit, Nicosia Central Prisons was accommodating 609 inmates for an official capacity of 455. The establishment held 101 male remand prisoners and 451 male sentenced prisoners (308 sentenced to long sentences, of which 23 were life sentences); 46 prisoners were women, 27 sentenced (of whom two were sentenced to life imprisonment) and 19 on remand; and there were 14 male young offenders (18 to 21 year-olds) and four juvenile prisoners (16 and 17year-olds). About 52% of the prison population were foreign nationals. 56. Since the previous visit in 2008, the prison capacity had been increased by 105 places through inter alia the creation of 23 double-occupancy cells on the upper floor of Block 5, the transformation of Block 9 into a young offenders’ unit with 30 places, and the provision of additional places in the open prison. Further, Block 2 (A and B) for sentenced prisoners had been completely renovated. However, despite these improvements, the overcrowding in the closed prison remained significant with 523 inmates for 324 places.
...”. 3. Conditions of detention
a. material conditions
62. The CPT welcomes the steps taken by the authorities to improve the material conditions within the prison, notably as concerns Block 2 which underwent a complete renovation, including the installation of air conditioning units in the cells. It is intended that Block 1 will also be renovated to the same standard. Despite some wear and tear, Blocks 5 and 8 continued to offer essentially satisfactory material conditions. However, apart from Block 5A, serious overcrowding was evident throughout the prison. It was particularly evident in Blocks 1 and 2, where all the cells designed for single occupancy (some 6m²) were accommodating two persons. Cells of this size are hardly suitable for accommodating one person, never mind two. Further, in Block 1, the two association/television rooms had been converted into multi-occupancy dormitories with prisoners sleeping on bunk-beds. As a result, Block 1B which had an official capacity for 35 persons was accommodating 90 prisoners. The communal sanitary facilities were in an acceptable state of repair although greater efforts should be made to repair promptly the non-functioning urinals and toilets. Many complaints were also received of difficulties in accessing the toilet at night, including in Block 2 where an electronic recording system was in place which could note the time taken for a cell to be unlocked following a request to access the toilet. ...
... 64. The CPT recommends that:
...
- measures be taken to reduce the occupancy levels in Blocks 1, 2, 3, 5 and 8 throughout the prison. To this end, it should be ensured that those cells measuring under 7m² is only used to accommodate one prisoner and that the living space in multi-occupancy cells is at least 4m² per prisoner;
- steps be taken to ensure that a system is in place to ensure that prisoners who need to access the sanitary facilities during periods of lock-up are able to do so in a timely manner.
...
 b. regime
65. Prisoners continue to benefit from an open-door regime, which allows them to be out of their cells from 6 a.m. until 9 p.m. during weekdays and to spend some three hours a day in the outdoor exercise yards. However, from discussions with inmates and prison staff, the lack of activities remains the most problematic aspect of the prison. ...”
30. In their response, also published on 9 December 2014, the Government repeated the comments they had made in their reply to the 2012 report concerning access to toilet facilities at night (see paragraph 27 above). C. The Ombudsman’s report of 6 September 2011
31. On 6 September 2011, the Ombudsman released a report on the conditions of detention and the treatment of detainees at Nicosia Central Prisons. The Ombudsman reiterated the CPT’s findings after its 2008 visit and, on the issues of overcrowding and unhygienic conditions, observed:
“[I]t is evident that detainees are kept in crowded and unsuitable areas for detention. There appears to be an insufficient number of hygiene facilities and showers in comparison to the number of detainees.
... Furthermore, it appears that prison staff are unable to cope with the demands created by the high number of detainees. For instance, my office received a complaint that during the night cell bells are deactivated and detainees cannot notify on-duty staff to have access to the toilet or alert them in the case of an emergency. As a result, detainees are obliged to relieve themselves in their cells using bottles and waste-bags.
... I am of the opinion that the above treatment is extremely degrading ... and it creates unhygienic conditions for everyone in the prison.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
32. The applicant alleged that his conditions of detention at Nicosia Central Prisons had been inadequate. In this connection he complained of overcrowding, the hygiene conditions and that the cells were cold and lacked adequate light (see paragraph 9 above). The complaint falls to be considered under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
33. The Government contested that argument. A. Admissibility
1. The Government’s objection as regards non-exhaustion of domestic remedies
(a)  The parties’ submissions
34. The Government submitted at the outset that the applicant had failed to exhaust domestic remedies. The Cypriot legal system provided a variety of remedies for allegations of violations of Article 3 of the Convention by detainees which, in line with the Court’s case-law, were both preventive and compensatory in nature. The Government relied, in particular, on the Court’s judgments in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, § 98, 10 January 2012); Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, § 111, 20 October 2011) and Norbert Sikorski v. Poland (no. 17599/05, § 116, 22 October 2009). 35. As far as preventive remedies were concerned, the applicant could have raised his complaints regarding the allegedly inadequate conditions of his detention with the Ombudsman, who was the designated national preventive mechanism under Law no. 2(III)/2009, by which Cyprus had ratified the Optional Protocol to the United Nations Convention against Torture (see paragraph 21 above). The Ombudsman had unrestricted access to all detention facilities and was able to inspect them and conduct interviews with detainees in private. He or she had the power to make recommendations to the authorities for the improvement of the conditions of detention of detainees in general or in respect of a specific detainee. The Ombudsman prepared a report with recommendations and consultations then followed, which aimed at the adoption of measures for the implementation of the recommendations. Furthermore, any allegations of human rights’ violations made by detainees during visits were brought to the attention of the Attorney General, regardless of whether they constituted punishable criminal acts, so that that official could take action (see paragraph 22 above). 36. As to remedies of a compensatory nature, the Government submitted that the applicant could have brought civil proceedings for compensation against the Government. He had had two remedies at his disposal. First, for the time he had spent in detention on remand, he could have brought such proceedings claiming a violation of his rights under Law no. 163(I)/2005. Section 19 of that law set out the rights detainees enjoyed, including the right not to be subjected to ill-treatment and the right to decent conditions of detention and a proper cell. Under section 36(1) there was an actionable right to compensation for those whose rights had been violated under that law. Second, for the time he had spent in detention following his conviction and sentencing, he could have brought an action on the basis of the Supreme Court’s judgment in the case of Takis Yiallouros (see paragraph 23 above). 37. According to that judgment, alleged human rights violations were actionable and could be pursued in the civil courts with a view to obtaining compensation for damage suffered as a result and any other appropriate remedies the courts were empowered to grant in their civil jurisdiction. The Government noted that in the course of such proceedings the applicant could have sought an interim order. As an example of a successful civil claim by prisoners concerning conditions of detention on the basis of the judgment in Takis Yiallouros, and one in which damages had been awarded, the Government relied on the Nicosia District Court’s judgment in Evripidis Evripidou v. the Attorney General and Petros Patsalidis v. the Attorney General (see paragraph 24 above). The Government pointed out that the applicant could have sought an interim order in the course of such proceedings. In the exercise of their civil jurisdiction, the domestic courts had the power under section 32(1) of the Courts of Justice Law (Law no.14/1960 as amended) to grant an injunction (interim, perpetual or mandatory). 38. The applicant made no submissions on the Government’s objection. (b)  The Court’s assessment
(i)  General principles
39. In the context of complaints of inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: an improvement in the material conditions of detention, and compensation for the damage or loss sustained on account of such conditions (see Ananyev and Others, cited above, § 97). If an applicant has been held in conditions in breach of Article 3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. However, once the applicant has left the facility in which he or she has endured the inadequate conditions, what remains relevant is that he or she should have an enforceable right to compensation for the violation that has already occurred (ibid.). 40. Where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. Indeed, the special importance attached by the Convention to this provision requires, in the Court’s view, the States parties to establish, over and above a compensatory remedy, an effective mechanism in order to put an end to such treatment rapidly (see Story and Others v. Malta, nos. 56854/13 and 2 others, § 73, 29 October 2015 with further references). The need, however, to have both of those remedies does not imply that they should be available in the same judicial proceedings (ibid.). 41. It is incumbent on the Government claiming non-exhaustion of domestic remedies to satisfy the Court that a remedy was effective and available, both in theory and in practice, at the relevant time (ibid., § 75). 42. Lastly, the Court reiterates that in order to satisfy the requirements of Article 13, which has a close affinity with the rule of exhaustion of domestic remedies, a decision must be binding and enforceable and must come from an authority that has a sufficiently independent standpoint (ibid., § 76). (ii) Application to the present case
43. The Court would first emphasise that at the time the present application was lodged with the Court the applicant was still detained in allegedly inadequate conditions. To be considered effective, the remedy should therefore have been able to lead to the improvement of the situation, not only to compensation for the damage sustained (see Mandić and Jović, cited above, § 111). 44. In so far as the Government argue that the applicant should have complained to the Ombudsman, the Court reiterates that, as a general rule, an application to an ombudsman cannot be regarded as an effective remedy for the purposes of Article 35 of the Convention (see Ananyev and Others, cited above, §§ 105-106, and Aleksandr Makarov v. Russia, no. 15217/07, § 83, 12 March 2009). For a remedy to be considered effective it should be capable of providing redress for the complainant. Despite the powers granted to the Ombudsman under Law no. 2(III)/2009 (see paragraphs 21-22 above), that official can only make recommendations to the authorities and lacks the power to issue a legally binding decision that would be capable of bringing about an improvement in a complainant’s situation or serve as a basis for obtaining compensation. While the Ombudsman’s activities may usefully contribute to a general improvement in conditions of detention, he or she remains unable, in view of the specific remit, to provide redress in individual cases as required by the Convention (see Ananyev and Others, cited above, § 106). It follows that recourse to the Ombudsman does not constitute an effective remedy. 45. To the extent that the Government referred to a civil action – be it under Law no. 163(I)/2005 (see paragraphs 18-20 above) or on the basis of the Takis Yiallouros judgment (see paragraphs 23 and 36 above) – that constitutes a purely compensatory remedy. It does not provide a way to improve the conditions of detention of the person concerned and thus lacks the preventive element required (ibid., § 98). The Court notes in this respect that the plaintiffs in the cases of Evripidis Evripidou and Petros Patsalidis (see paragraph 24 above) had brought proceedings following their release and had only sought compensation. Furthermore, although the Government mentioned the power of the domestic courts to grant injunctions in their civil jurisdiction and indicated that the applicant could have applied for an interim order in the context of civil proceedings, they did not provide any further explanation; their submission in that respect therefore remained vague. Nor is there any indication that an application for interim measures in such a case had any chances of success (see, mutatis mutandis, Story and Others, cited above, § 84). 46. In view of the foregoing, the Court finds that the Government have not established the existence of effective remedies in respect of the applicant’s complaint. Accordingly, the application cannot be rejected for failure to exhaust domestic remedies. 47. It remains, however, to be seen whether the application complies with the other admissibility criteria under Article 35 of the Convention. 2. Other grounds of admissibility
(a)  The parties’ submissions
48. The Government submitted that the applicant’s description of the conditions of his detention, both with regard to the size of his cells and the hygiene conditions, was unfounded (see paragraph 9 above). 49. With reference to his specific allegation about overcrowded cells in which detainees only had 0.5 sq. m to 1.7 sq. m of personal space, the Government submitted that the applicant had probably been referring to Block 2B, and in particular to his placement in one of the two larger cells. There, he would have had approximately 2.8 to 3.9 sq. m of personal space, depending on whether he had shared the cell with five, six or seven inmates. In the dormitory, he would have had from 1.8 sq. m to 4.5 sq. m of personal space, subject to the number of other inmates there at the time. The applicant’s reference to “cold cells” suggested that he had been held in one of the larger cells or the dormitory in early spring or winter. If so, he would have disposed of between 2.04 and 3.2 sq. m of personal space in the dormitory as the daily occupancy records showed that the block concerned had accommodated between 94 and 110 inmates per day during those periods (see paragraph 13 above). The Government pointed out, however, that the applicant would have been held in those conditions for only a short period of time, about a month and a half, and that his detention had been accompanied by sufficient freedom of movement inside the prison, including the prison yard (see paragraph 15 above). Furthermore, proper regard should be had to the fact that the dormitory in Block 2B, where the applicant had probably been held, had nineteen windows allowing natural light and ventilation (see paragraph 12 above). Lastly, the fact that the applicant had been moved from Block 2B and placed in Block 2A as soon as renovation work on the latter had been completed indicated that the applicant had not been detained in Block 2B with the aim of humiliating or debasing him. 50. As regards the other blocks, the Government, relying on the daily occupancy records, submitted that the number of inmates in both Block 5 and Block 2A during the period the applicant had been detained there had not exceeded capacity. There had thus been a maximum of two detainees in each cell. That meant that if the applicant had shared a cell with another inmate, he would have disposed of 3.1 sq. m of personal space in Block 5 and of 4.99 sq. m. in Block 2A. 51. With regard to the CPT’s 2014 report (see paragraphs 28-29 above) recommendations and had made serious efforts to tackle overcrowding in Nicosia Central Prisons, the CPT’s purpose was distinct from that of the Court. The CPT had a preventive role, whereas the Court had to adjudicate on the particular circumstances of cases before it. They also emphasised that the practice of switching off cell bells during the night, which had resulted in inmates not having access to toilets during that hours, had been discontinued following the CPT’s 2012 report. By virtue of order no. 32/2008, prison staff had to check and ensure that the call panel in the warden’s room was active at all times, especially during the evening, so that prisoners could be assisted and emergencies prevented. A violation of the order constituted a disciplinary offence (see paragraph 16 above). 52. The Government concluded by saying that the authorities had not failed in their obligation to ensure that the applicant had not been subjected to distress or hardship exceeding the unavoidable level of suffering inherent in detention. In any event, they argued that the conditions of the applicant’s detention had not met the threshold required for a violation of Article 3. They therefore argued that the complaint was manifestly-ill founded. 53. The applicant did not make any submissions in reply to the Government but subsequently sent a copy of the CPT’s 2014 report to the Court as the document he wished to rely on. (b)  The Court’s assessment
54. The Court notes that the application 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. General principles
55. The Court refers to the principles summarised in its case-law regarding inadequate conditions of detention (for a summary of the relevant general principles see the recent Grand Chamber judgment in the case of Muršić v. Croatia [GC], no. 7334/13, §§ §§ 96-141, ECHR 2016). 2. Application to the present case
56. The Court observes at the outset that the applicant spent the entire period of his detention, that is, from 14 September 2010 until 18 May 2012, at Nicosia Central Prisons. This period falls between the CPT’s visits in 2008 and 2013. The findings of the CPT therefore in its 2012 and 2014 reports (see paragraphs 25-26 and 28-29 above), provide a reliable basis for the assessment of the conditions in which he was imprisoned (see, for example, Kehayov v. Bulgaria, no. 41035/98, § 66, 18 January 2005). The Ombudsman’s report of September 2011 is also pertinent (see paragraph 31 above). 57. The Court points out that both the CPT and the Ombudsman raised concerns in their respective reports about, inter alia, the general problem of overcrowding and access to the toilets at night in these prisons (see paragraphs 25-26, 28-29 and 31 above). 58. As to overcrowding, in their submissions the Government have admitted that when the applicant was held in Block 2B, depending on the number of the inmates detained with him in the larger cell or the dormitory, he would have had under 3 sq. m. of personal space during part of his detention there. For example, when the applicant was held in the dormitory his personal space could have been as low as 1.8 sq. m. This is clearly below the acceptable minimum standard. Taking into account the relevant principles enunciated in its case-law (see paragraph 55 above), the Court finds that a strong presumption of a violation of Article 3 arises in the case at issue. Turning to whether there are factors capable of rebutting that presumption, the Court notes that although the authorities did not keep records in relation to the occupancy of cells and the dormitory, they submitted that the applicant would have been held in those conditions for about one month and a half, a period which cannot be considered as a short, occasional and minor reduction in the required personal space (see Muršić, cited above, §§ 151153). The presumption of a violation of Article 3 therefore applies in this respect. 59. In so far as hygiene conditions are concerned, the Court notes that throughout the applicant’s detention in the three different blocks, he was deprived of access to toilets when the cells were locked, forcing him to relieve his sanitary needs in a bottle and waste bag. Although the Government disputed this, the CPT’s and the Ombudsman’s reports that cover the relevant period lend credence to the applicant’s allegations. 60. In view of the above, the Court finds that the conditions of the applicant’s detention subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounted to degrading treatment prohibited by Article 3 of the Convention.

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