FOURTH SECTION
 
 
 
 
 
 
 
CASE OF RUIZ PENA AND PEREZ OBERGHT v. MALTA
 
(Applications nos. 25218/15 and 25251/15)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
17 July 2018
 
 
 
FINAL
 
17/10/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ruiz Pena and Perez Oberght v. Malta,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Ganna Yudkivska, President,
 Vincent A. De Gaetano,
 Paulo Pinto de Albuquerque,
 Faris Vehabović,
 Egidijus Kūris,
 Iulia Motoc,
 Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 16 January and 29 May 2018,
Delivers the following judgment, which was adopted on that last date:
PROCEDURE
1. The case originated in two applications (nos. 25218/15, and 25251/15) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Gerardo Jose Ruiz Pena, a national of Venezuela, and Mr Richard Andrews Perez Oberght, a national of the Dominican Republic, (“the applicants”), on 1 July 2015. 2. The applicants were initially unrepresented. The first applicant was subsequently represented by Dr Y. Micallef Stafrace and the second applicant by Dr F. Abela, the latter from the legal aid office in Malta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3. The applicants alleged that they had suffered a violation of Article 3 in respect of the conditions of their detention. 4. On 25 February 2016 the complaint was communicated to the Government and the remainder of application no. 25218/15 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1964 and 1973 respectively and are detained in Corradino Correctional facility, Paola, Malta. A. Mr Ruiz Peña (the first applicant)
6. The first applicant is a Venezuelan national who has been detained in Corradino Correctional Facility, Paola, since September 2009. He is serving a ten‑year prison sentence following a judgment of 21 March 2012. Since 10 January 2013 he has been detained in Division 3, cell no. 148. The first applicant has never asked for a transfer because, although there were prospects that he would be transferred to a division with an automated flushing system, this would also have meant that he would lose his individual cell and be placed in a dormitory, to the detriment of his privacy. 7. The first applicant submitted that his cell has one window and one air vent. The latter is clogged with dirt and debris and his cell window is positioned too high up, meaning that he therefore has to climb onto the sink to open or close it. He stated that the cell does not have adequate ventilation and it is subject to high temperatures in the summer and low temperatures in the winter. He alleged that he had not been provided with a heater during the winter and that his requests to this effect had been turned down. The prison authorities had provided him only with one blanket, other blankets and clothes having been received from NGOs. In the summer, when the temperature ranges between 35 and 40 degrees Celsius, the two fans purchased by the first applicant do not suffice as they merely circulate hot air, which is made worse in the absence of proper ventilation. 8. He also claimed that he has to use a bucket to flush his toilet. Given the low water pressure, it takes time to fill a bucket and sometimes more than one bucket is necessary to flush the toilet, making the situation deplorable, especially in the summer. 9. As the building housing the Division is more than 150 years old, the ceiling releases dust, which is allegedly harmful to the first applicant’s lungs. 10. The first applicant submitted that he does not have access to drinking water, since the tap water is rusty and filthy, and he therefore has to purchase drinking water. However, his job in prison pays only 0.60 euro (EUR) cents per day and in the summer he drinks three six packs of water a week, at considerable cost. The Government submitted that the first applicant received EUR 34.77 every four weeks in so‑called “gratuity” remuneration and from the “Work and Pay” scheme, with which he had been involved since 2015. They stated that at the tuck shop a six‑pack of water cost EUR 2.24 and an individual bottle EUR 0.38. B. Mr Perez Oberght (the second applicant)
11. The second applicant, who is a national of the Dominican Republic, has been detained in Corradino Correctional Facility since 24 November 2009. He is serving a nine-year prison sentence following a judgment of 15 October 2012. Since 27 January 2012 he has been detained in Division 3, cell no. 155 (with the exception of one day ‑ 3 October 2015 ‑ spent in Division 6). 12. According to the Government, following communication of the complaint, the second applicant was asked whether he wanted to be transferred to another division and replied in the negative. 13. The second applicant submitted that his cell window is at a height of more than two metres and it is very difficult to open without endangering one’s life. Its metal protective bars make it difficult for the cell to admit any natural light. Although there are two openings for the purposes of ventilation, one of them is blocked and there is therefore not sufficient ventilation. 14. The second applicant alleged that the water is not drinkable; he therefore has to purchase it. The Government submitted that the second applicant received EUR 41.58 every four weeks in so-called “gratuity remuneration” and from the “Work and Pay” scheme, with which he had become involved prior to 2015. 15. The dust which falls from the cell’s ceiling allegedly affects the second applicant, who suffers from asthma. The Government submitted that the amount of dust falling from the ceiling of his cell was not abnormal, but was what emanates naturally from Maltese stone. They noted that the second applicant had never asked for materials to paint his cell. 16. The second applicant also submitted that because of the humidity in his cell and the fact that he does not have a heater, he frequently catches the flu during the winter months. The Government submitted that the cell was humid because the second applicant had blocked his vent with a towel and did not undertake any maintenance of his cell. 17. The second applicant noted that the light both inside and outside the cell is very poor, making it difficult for him to read. The Government noted that the second applicant had a ceiling light and another wall‑mounted light, as well a portable lamp which he had acquired. Natural light came in through three skylights and artificial light was provided through bell lamps of 400W each. The second applicant also claimed that the spiral staircase is not appropriate in the case of an emergency, since a stretcher could not be carried down it and it would not be possible to evacuate people two at a time. In this connection the Government submitted that other options were available should an emergency arise, such as the use of the walkway between the divisions. II. RELEVANT DOMESTIC LAW
18. The relevant domestic law pertaining to this case can be found in Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, §§ 49‑58 and 60, 29 October 2015). III. RELEVANT MATERIAL
19. The relevant material pertaining to this case can be found in Yanez Pinon and Others v. Malta (nos. 71645/13 and 2 others, §§ 63‑64, 19 December 2017). THE LAW
I. JOINDER OF THE APPLICATIONS
20. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications given their similar factual and legal background. II. PRELIMINARY ISSUES
21. The Government submitted that, following communication of the application, the authorities contacted the applicants in order to check whether they were interested in moving to another cell so that they could consider any such request. However, according to the Government the applicants stated that they wished to remain there. The Government considered that, besides the question of the non‑exhaustion of domestic remedies, these circumstances showed that the applicants were no longer interested in pursuing their application and thus, pursuant to Article 37 (1) (a) of the Convention, the applicants’ case should be struck out from the list of cases before the Court. 22. The Court considers that the issue of whether or not the applicants refused a change of cell may have implications for the admissibility or merits of their specific complaints; nevertheless, as also shown by their submissions concerning the case, there is no doubt that they still wish to pursue their applications before this Court. 23. It follows that the Government’s request to strike out the applications for lack of interest must be rejected. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
24. The applicants complained that the conditions in the detention facility (alone or in combination with other conditions) amounted to inhuman and degrading treatment, contrary to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
25. The Government submitted that the applicants had not made a request to change cell, moreover they had refused such an offer when it was put to them, even though the Court had found in Story and Others v. Malta (nos. 56854/13 and 2 others, 29 October 2015) that the conditions of detention were not in breach of Article 3. Furthermore, the applicants had failed to institute constitutional redress proceedings. In this respect the Government argued that – although this remedy had previously been rejected by the Court on the grounds that it lacked speed – they insisted that had a request for urgency been lodged it would have been granted if the domestic court had considered the request well-founded. They therefore invited the Court to review its findings. They also submitted that legal aid would be available for such proceedings. 26. The first applicant submitted that, given the urgency of the situation, he had had to refer directly to the Court for speedy redress. He also noted that changing his cell would have been detrimental to his privacy as it would have meant moving into a dormitory. 27. The second applicant submitted that the Court’s case-law had already established that there was no effective remedy in his circumstances. Moreover, a change of cell would not have constituted an effective remedy to relieve his suffering. As to the possibility of verbal complaints, he pointed out that there was a language barrier between him and the officers in charge. He was often not understood and often reprimanded, and in his view this was due to the colour of his skin. 28. The Court refers to its general principles and the assessment of the relevant remedies it made in Story and Others (cited above, §§ 72 ‑ 86) and finds no reason to alter the conclusions reached in that case. In particular it observes that – although the Government requested that the Court review its conclusion concerning constitutional redress proceedings, the only shortcoming of which was the length of the proceedings – the Government did not submit any relevant domestic case-law that would call into doubt the conclusion reached at § 85 of that judgment. The applicants were therefore not required to institute such proceedings. 29. The Government referred to the offer made by the authorities, after the applications had been communicated, to transfer the applicants to other cells, and their refusal of that offer. The Court considers that the Government failed to specify whether the other cells would be in the same division, or elsewhere, or to give any details about the proposed transfer and the conditions it would bring with it. Indeed, the cases brought before this Court, as well as the CPT reports (see paragraph 19 above), indicate that the majority of the cells in the Corradino Correctional Facility are of more or less the same quality, particularly those in Divisions 2 and 3 (the latter being the division used for foreigners), in respect of which urgent refurbishment has been called for by the CPT since 2013 (see, for example, Yanez Pinon and Others v. Malta, nos. 71645/13 and 2 others, § 77, 19 December 2017). It follows that it has not been shown that the remedy offered by the Government would have in fact improved the applicants’ situation. In the specific circumstances of the instant applications, the applicants’ refusal to transfer therefore cannot be held against them for the purposes of the exhaustion requirement (ibid.). 30. The Government’s objection is therefore dismissed. 31. The Court notes that the applications are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a)  The first applicant
32. The first applicant referred to his submissions as outlined in the Facts section (see paragraphs 7-10 above). He added that the water analysis had not been done in his presence and thus he was not aware of the circumstances surrounding those tests. He also noted in reply to the Government’s submissions that the expense entailed in purchasing drinking water had to be considered over and above other expenses for food, toiletries, detergents, telephone cards etc. and in the light of the fact that his contract with the “Work and Pay” scheme was not continuous. In fact the Government had only submitted his earnings for the year 2015-2016. (b)  The second applicant
33. The second applicant also referred to his submissions as outlined in the Facts section (see paragraph 13-17 above). He further noted that the Government had acknowledged the abnormal height of the window and the limitations of the old building. It was known that small, high-positioned windows restricted natural light. Moreover, he wondered whether any security concerns could be dealt with by means other than metal bars. He explained that the Government’s claim that the air vent was blocked by a towel was only because in the winter months it was a means of keeping out the cold. The second applicant echoed the first applicant’s submissions in connection with the heat and cold in the cells (see paragraph 16 above). 34. The second applicant submitted that the majority of the Maltese population drank bottled water, since tap water could be unsafe. This meant that he spent EUR 3 of his EUR 10 gratuity remuneration a week on bottled water. He also pointed out that the test results provided by the Government stated that “this test report refers only to the parameters investigated on the sample submitted by the customer”, and noted in this connection that the “customer” was the respondent State. The second applicant also felt that it was not his duty to paint his cell but that he should not, as a result, have to suffer from the ceiling dust. He also noted that, although Maltese limestone did indeed retain water ‒ as submitted by the Government ‒ there were remedies to rectify this problem and the consequent humidity and mould, but none were in place. 35. Relying on the comments made in Story and Others, as well as on the relevant CPT reports (see paragraph 19 above), the second applicant noted that the cells were still in a very poor state of repair. The highlighted problems still persisted, in particular in connection with the lack of natural light, the levels of humidity, the non-automated flushing systems and the shower facilities. Given the cumulative effects and the duration of his detention, the second applicant felt that Article 3 had been breached. (c)  The Government
36. The Government referred to the Court’s case-law, particularly Story and Others, cited above, and the prison regulations, as well as the arguments set out in the Facts section (see paragraphs 10 and 14-17 above) in respect of each applicant. 37. In addition to the above, the Government submitted that each applicant was housed in an individual cell in Division 3, which can hold sixty people at any one time – a number that was never exceeded. They noted that the applicants had not claimed that the overall floor area of the cell did not allow them to move freely between the furniture items. 38. The windows in the cells measure 50cm x 80cm and are at a height of 210 cm. Vents are located on opposite sides in order to ensure proper ventilation of the cell. Moreover, a hand tool is made available to the inmates enabling them to open the window, or alternatively the window can be opened by standing on the bed or on a chair or stool. The Government submitted that artificial lighting supplemented the available natural light and that inmates were allowed to use two other lamps besides the ceiling lamp. Moreover, the applicants were only confined to their cells for a limited number of hours. Although the second applicant complained about ventilation in the cells, as the photographic evidence showed, he had blocked the vents with a cloth. 39. In the cells, only cold water is provided for security reasons: there had been instances of hot water being thrown over prison guards after the opening of a cell door. Each division is provided with a hot water facility for hot drinks. Moreover, inmates are allowed to take thermos flasks filled with hot water into the cell at night-time so that they have the hot water necessary for the preparation of hot drinks during the night. In so far as drinkable water is concerned, the Government submitted that the tap water in the cells was fit for human consumption and that the taps in the cells were functional. The water in all parts of the prison facility had been certified by the Public Health Laboratory as being potable (certification submitted to the Court is dated 2015). The water is tested and certified approximately every six months. Division 3 had access to water directly from the mains, that is to say, drinking water. In addition to the availability of the running tap water supply, the inmates had the right to obtain bottled water from the residents’ tuck shop. Each inmate was given gratuity money every four weeks as well as the opportunity to apply to work within the facility to earn some more money through the so-called “Work and Pay” scheme. 40. The applicants are also allowed to use electric fans in order to alleviate the heat during the summer months: as can be seen from the photographic evidence submitted, both applicants have benefited from this opportunity and have installed electric fans in their cells. In so far as the winter months are concerned, heaters are not installed in the cells for security reasons, but an exception is made if a medical condition requires the use of such heaters. In the other cases, such as those of the applicants, blankets are provided and if the applicants require more, they can request additional ones from the prison authorities. 41. Furthermore, Division 3 is equipped with a multiple‑cubicle shower‑room with hot and cold water. Inmates are free to make use of the shower cubicles daily during the opening hours of the showers, that is to say from 7.45 a.m. till 12.30 p.m. and from 2.00 p.m. to 8.30 p.m. The Government submitted that a limited waiting time for hot water usage was normal and that this waiting time was negligible since the prison was equipped with industrial water heaters. 42. The cells in Division 3 are opened at 7.30 a.m. by the prison guards who distribute hot drinks to the inmates. The cells are left open until 12.30 p.m. and are re-opened from 2.00 p.m. to 8.30 p.m. When the cells are open, the inmates are free to walk in and out of their cells and to access the exercise yard which is adjacent to the Division. Other amenities available to the inmates on a regular basis include a library, a gym, a church, workshops, a school and a tuck shop. Other activities such as cultural and social events are held from time to time. There is also a communal TV and DVD player, and the inmates may have a television in their cell. 43. Pest control is carried out in the facility on a regular basis. Paint and brushes are made available by the authorities if the inmates wish to paint their cells should the ceiling or the walls flake. If an inmate requires assistance, the Trade Section personnel will be called upon to carry out the necessary works in order for the cell to be kept in good condition. 44. The Government admitted that Division 3 did not have a combined flushing and WC system and that the inmates had to flush the toilets manually using buckets that were provided in all cells and could be filled from the wall-mounted taps. However they claimed, that water was available as well as cleaning materials. 45. The Government submitted that further to the CPT report relative to a visit conducted in September 2011 which had reported unacceptable standards, maintenance works were being conducted on a regular basis. 2. The Court’s assessment
46. The Court refers to its general principles as set out in Story and Others (cited above, §§ 104-106, 112, 119 and 125) and Muršić v. Croatia ([GC], no. 7334/13, §§ 96-101, ECHR 2016). 47. The Court reiterates that in cases which concern conditions of detention, applicants are expected in principle to submit detailed and consistent accounts of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their complaints (see, inter alia, Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010, with further references). 48. The Court also notes that most of the issues raised in the present case ‑ namely the condition of the cells, the lighting and ventilation available, the heat suffered in the summer and the cold in the winter, the unsatisfactory hygiene and non-automated toilet-flushing, the availability of running water, hot water, and drinking water ‑ have already been dealt with in Story and Others (cited above, §§ 114‑125) and more recently in Yanez Pinon and Others (cited above, § 109). Some of those issues were also dealt with in Peňaranda Soto v. Malta (no. 16680/14, § 71, 19 December 2017). Given the similarity of the complaints, as well as the submissions and documentary evidence provided by the parties, the Court refers to its general findings in the case of Story and Others concerning each of the issues mentioned, and reiterates its concerns (particularly at §§ 115‑117, and 120-121). Nevertheless, a number of issues merit further comment. 49. As it did in the recent judgment of Yanez Pinon and Others (cited above, § 110), the Court reiterates its serious concern about the lack of any heating on the premises and the possibility that such a factor might in itself amount to a violation of Article 3, even in the absence of overcrowded conditions or any other factors, particularly in the case of extreme temperatures and especially if the detainee suffers from a particular condition. However, in the present cases the applicants did not submit detailed information as to specific periods when the temperature inside had dropped to very cold or close to freezing temperatures, and for how long such conditions persisted during the winters over the years during which they had been detained. In such circumstances the Court finds it difficult in the present cases to determine precisely the severity of the situation (ibid.). Moreover, the first applicant admitted to having received further blankets from NGOs and did not claim that he had requested blankets which had been denied him, nor did the second applicant claim that he had requested further blankets and been refused. 50. Unlike in Story and Others, cited above, in the present case the Government did not dispute that the second applicant’s cell was indeed humid. However, they claimed that this was the result of the second applicant’s action in blocking the air vent, which the latter claimed to be a protective action to combat the cold. The Court takes issue with this matter, despite the fact that in the present case insufficient details were brought to its attention, since it is not insensitive to these repeated complaints made by applicants in cases before it. The Court notes that the CPT also commented on the humidity in the cells in Division 3 (see paragraph 19 above). In this connection, the Court considers that positive action by the Government is indeed called for, as humidity worsens the resulting situation where there are extremes of both cold and heat. The Court reiterates that the cold suffered might in itself amount to a violation of Article 3, and does not exclude the finding of such a violation if an applicant were to set out his case in a more concrete and detailed manner. However, on the facts as submitted by the applicants the Court cannot reach that conclusion. 51. Furthermore, in Story and Others (cited above, § 116) it was noted that it would be of concern to the Court if the prison authorities did not ensure that all wall-mounted vents are fully functional in all cells, and that they allow fresh air to enter, while barring the entrance of external elements such as strong winds and rain. It noted that it would be of even more concern if, contrary to the Government’s submission, the prison authorities were not making available the required equipment (be it a two-foot arm, or any other appropriate tool) to open and keep open high windows, as detainees should not have to put themselves in peril by having to climb on beds or sinks, or be dependent on other detainees to lift them up in order to access such windows. The Court notes that, two years later, the applicants are still claiming that their vents are blocked and that they have to open or close the window by climbing onto the sink, thereby putting their life at risk (see paragraphs 7 and 13 above). The Court thus reiterates the need for all wall‑mounted vents to be fully functional in all cells. Nevertheless, it notes that the applicants have not specified that they asked for and were refused access to an appropriate tool to open or close the windows, nor have they rebutted the Government’s argument to that effect (see paragraph 38 above). 52. As it did in Story and Others (cited above, § 121) the Court also takes issue with the fact that the applicants’ cells are not equipped with an automated flushing system. This is even more so if, as stated by the applicants, water was not always readily available to enable them to flush by using a bucket (see also CPT comments, at paragraph 19 above). This matter raises particular concern to the Court as this may cause unpleasant smells but also a perilous hygiene situation, particularly given that the toilets were situated in the vicinity of the applicants’ beds without any partition. It is thus imperative that running water be available at all times, together with the relevant cleaning materials to ensure the required hygienic standards in each cell. The Court notes that the Government claimed (see paragraph 44 above) that detergents and cleaning facilities were readily available, as was running water. 53. In the present case the first and second applicants also raised the issue of the dust falling from the ceiling. The photos submitted by the Government in relation to cell no. 148 do not show any specific degradation of the ceiling, but the same cannot be said in respect of cell no. 155. However, in this connection the Court notes first and foremost that no evidence has been provided showing that the second applicant had any complications or more frequent asthma attacks as a result of this alleged situation. Moreover, even if the cell had needed renovation, the Court reiterates that it does not find it demeaning for the detainees to be encouraged to paint their cells, with paint provided by the authorities (Story and Others, cited above, § 125 and Peňaranda Soto, cited above, § 72). It has not been submitted that this was an obligation and the Government stated that assistance by the Trade Section personnel would have been forthcoming if requested (see paragraph 43 above). It does not appear that this was the case. 54. As to the second applicant’s claim concerning the spiral staircase ‑ which relates to the structure of the building as opposed to the condition of the cells ‑ even assuming that, in the absence of any demonstrable effect on the second applicant, this was a factor to be taken into consideration, the Government have submitted an alternative to using that staircase in emergency situations. 55. Lastly, the Court reiterates that of the other elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners could take it. The Prison Standards developed by the Committee for the Prevention of Torture make specific mention of outdoor exercise and consider it a basic safeguard of prisoners’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out‑of‑cell activities (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 150, 10 January 2012). In examining the cumulative effect of the above factors, the Court cannot but take account of the fact that cells were unlocked at 7.30 a.m. and left open until 12.30 p.m.; they were unlocked again at 2 p.m. and locked at 8.30 p.m. Therefore inmates were free to move around and access the exercise yard, as well as other recreational facilities, for more than ten hours a day. Such a favourable situation has a particular bearing when assessing the applicants’ conditions of detention (see Story and Others, cited above, § 126 and Yanez Pinon and Others, cited above, § 116). 56. Having regard to the preceding paragraphs, while the Court is concerned about a number of matters highlighted above, in the present case the Court is not convinced that the overall conditions of detention subjected the applicants to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (ibid, § 118). 57.

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