FIRST SECTION
 
 
 
 
 
 
CASE OF ZABELOS AND OTHERS v. GREECE
 
(Application no. 1167/15)
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
17 May 2018
 
 
FINAL
 
17/08/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zabelos and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Kristina Pardalos, President,
 Linos-Alexandre Sicilianos,
 Aleš Pejchal,
 Krzysztof Wojtyczek,
 Armen Harutyunyan,
 Tim Eicke,
 Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 17 April 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1167/15) 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 24 December 2014 by eighteen applicants of various nationalities, whose names appear in the annexed list. 2. The applicants were represented by Mr K. Tsitselikis and Mr A. Spathis, lawyers practising in Thessaloniki. The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms E. Tsaousi and Ms A. Dimitrakopoulou, legal counsellor and senior advisor at the State Legal Council respectively. 3. The applicants alleged, in particular, that the conditions of their detention in the Prison Hospital had violated their right not to be subjected to degrading or inhuman treatment. 4. On 7 November 2016 the application was communicated to the Government. The Albanian and Georgian Governments did not make use of their right to intervene (Article 36 § 1 of the Convention). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were or are still detained in Korydallos Prison Hospital (“the Prison Hospital”). They all suffer from HIV infection, apart from the third applicant who suffers from chronic obstructive pulmonary disease. A. Data concerning the applicants’ detention
6. The first applicant, Dimitrios Zabelos, was detained in the Prison Hospital from 6 March 2014 until 17 June 2015, when he made use of the remedy provided for by Article 110A of the Criminal Code. 7. The second applicant, Adriatik Berberaj, was detained in the Prison Hospital from 6 April 2010 until 21 January 2011 and from 7 February 2012 until 1 July 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence. 8. The third applicant, Dimitrios Berberidis, was detained in the Prison Hospital on 6 December 2012 and was released on 11 June 2015 following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence. 9. The fourth applicant, Pola Honein, was detained in the Prison Hospital from 18 December 2012 until 1 July 2015. He was released after having made use of the remedy provided for by Article 110A of the Criminal Code. 10. The fifth applicant, Theodoros Iliopoulos, was detained in the Prison Hospital from 8 January 2013 until 2 June 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no. 4322/2015, having served two fifths of his sentence. 11. The sixth applicant, Marouf Kamoli, was detained in the Prison Hospital from 30 December 2013 until 19 May 2015, the date on which he was released following use of the remedy provided by section 11 of Law no. 4274/14, having served two fifths of his sentence. 12. The seventh applicant, Davit Khutsishvili, was detained in the Prison Hospital from 1 July 2014 until 27 October 2016. He was released after having made use of the remedy provided for by section 12 of Law no. 4322/2015. 13. The eighth applicant, Roustam Konstantinidis, was detained in the Prison Hospital from 23 August 2013 until 14 December 2015. He was released following an application on the basis of section 3 of Law no. 4322/2015. 14. The ninth applicant, Ioannis Machos, was detained in the Prison Hospital from 1 November 2012. He was still in detention when the parties submitted their observations. 15. The tenth applicant, Andreas Martzaklis, was detained in the Prison Hospital from 28 May 2013 until 3 August 2015, when he was released after he lodged an application on the basis of section 12 of Law no. 4322/2015. He was again detained in the Prison Hospital from 22 January 2016, and was still in detention there when the parties submitted their observations. 16. The eleventh applicant, Saeed Hamo Moradyan, was detained in the Prison Hospital from 8 February 2013 until 27 January 2016, the date on which he was released on the basis of section 12 of Law no. 4322/2015, having served one third of his sentence. 17. The twelfth applicant, Antonios Oikonomakos, was detained in the Prison Hospital from 27 November 2013 until 30 September 2015, when he was released, having served one tenth of his sentence, on the basis of section 12 of Law no. 4322/2015. He was again detained from 6 November 2015 until 23 December 2015 when he was released, having served two fifths of his sentence, on the basis of the same provision. 18. According to the documents before the Court, the thirteenth applicant, Nikolaos Papadopoulos, was detained in the Prison Hospital for significant periods of time from 4 April 2014 until 16 July 2015. 19. The fourteenth applicant, Spiridon-Xenofon Pirpiniadis, was detained in the Prison Hospital from 20 December 2013 until 13 August 2015, when he was released on the basis of section 12 of Law no. 4322/2015, having served two fifths of his sentence. 20. The fifteenth applicant, Sabri Sabrioglou, was detained in the Prison Hospital from 22 January 2013 until 24 December 2014 and from 11 February until 20 October 2015. 21. The sixteenth applicant, Dimitrios Samlidis, was detained in the Prison Hospital from 8 July 2014 until 26 February 2015, when he was released, after having made use of the remedy provided for by Article 110A of the Criminal Code. 22. The seventeenth applicant, Emmanouil Toufektsis, was detained in the Prison Hospital from 30 October 2013 and was still in detention there when the parties submitted their observations. 23. The eighteenth applicant, Chrisovalantis Tsiriklos, was detained in the Prison Hospital from 4 July 2013 until 8 July 2015, when he was released after having made use of the remedy provided for by Article 110A of the Criminal Code. He was again detained on 21 August 2015 and was still in detention there when the parties submitted their observations. B. The applicants’ description of the conditions of their detention
24. The applicants submitted that the Prison Hospital had been overcrowded which, in addition to causing poor sanitary conditions, had resulted in the deterioration of their already fragile health. They maintained that all of them had been detained in hospital wards which had measured 44 sq. m and which had been occupied by twelve detainees on average for the period between 2013 and 2015. In addition, the second and third applicants had been detained in cells measuring 17 sq. m and which had held four inmates. They further argued that they had not been able to move freely within the wards owing to the space occupied by furniture. In particular, bunk beds were not used in the Prison Hospital and extra furniture, such as medical equipment, was required; therefore half the area of each ward had been occupied by furniture, which had resulted in them having a personal space in which they could move freely of below 2 sq. m. 25. The above-mentioned conditions had led them to receiving inadequate health care. There had been a high risk of infection with contagious diseases as there had not been effective separation of detainees according to the disease from which they had suffered. In addition, only four toilets had been available for the detainees in a total of five wards on the first floor. 26. Meals had been insufficient and of poor quality and the absence of recreational activities had affected their psychological health. Central heating had been inadequate and collection of rubbish, especially in the kitchens, had not been sufficient, creating hygiene problems and resulting in bad smells and the presence of pests. The applicants also complained of the lack of medical staff and properly equipped laboratories for their medical examinations. In particular, during the period 2013-14 only one general practitioner had been available to the hospital. 27. The applicants acknowledged that the conditions of their detention had improved in mid-2016 and that the medical-staff numbers had increased, resulting in conditions which met the requirements of Article 3 of the Convention but only for the period after June 2016. 28. On 18 December 2014 the applicants lodged a complaint with the Prison Board under Article 6 of the Penal Code (Law No. 2776/1999), to which they have not received any reply to date. C. The Government’s description of the conditions of the applicants’ detention
29. According to the Government, the Prison Hospital’s official capacity was sixty patients and at the time of the applicants’ detention the hospital had held between 180 and 220 patients. Specifically as regards the applicants, some of them had been detained in wards 7 and 8 on the first floor of the hospital and some others in wards 1, 2 and 3 on the second floor. The wards measured 44.40 sq. m each, and each of them hosted eight to thirteen detainees. Therefore, the personal space available to them ranged from 3.4 sq. m to 5.5 sq. m. It was also noted that toilets had been in the corridors, not inside the wards, which had remained unlocked so as to ensure unobstructed access to the bathrooms. 30. The Prison Hospital was an establishment providing primary medical care by operating as a clinic. Detainees who required more intense or specialised care were referred to public hospitals, a procedure which was used for the third, fourth, ninth, fifteenth and seventeenth applicants. The patients were separated by disease. They were examined regularly by doctors and they were submitted often to general and specialised laboratory examinations. 31. Wards were sufficiently ventilated and heated and had adequate natural light via six large windows. Hot water was ensured by solar water heaters and by boilers which operated for four hours per day. Wards were regularly cleaned by cleaning crews consisting of detainees and disinfected by specialist companies. The hospital’s social service provided personal hygiene products to detainees who could not afford them. All wards and corridors had rubbish bins which were emptied regularly. 32. As regards detainees’ meals, they were designed under medical supervision to ensure that patients received all necessary nutrients. The Government submitted the menu of two random weeks to demonstrate that they had been comprised of a variety of food. 33. According to the Government, detainees were not obliged to spend all day in the wards; on the contrary, they could move along the corridors and spend time in the yard. Various recreational activities were organised and detainees had had the opportunity to enrol in educational programmes since October 2015. Detainees were also granted days of leave that they could spend outside the prison hospital; the third, fifth and eleventh applicants had benefitted from such leave. 34. Lastly, according to the Government, during 2015 and 2016 conditions of detention in the Prison Hospital were drastically improved. That was mainly due to measures taken to reduce overcrowding in prisons under Law no. 4322/2015, which provided for early release schemes. In November 2014 a women’s ward had been opened at the hospital and work had been carried out to improve the facilities. In addition, new and updated medical equipment was procured and medical-staff numbers had been reinforced by the recruitment of three new doctors of various specialties. The Government specified that all the above-mentioned improvements had made the Prison Hospital a detention facility significantly different to the image given in the Greek Ombudsman’s (Συνήγορος του Πολίτη) report, which had been prepared on the basis of a visit in February 2012, that is to say on a date that had no relevance to the present case. II. RELEVANT DOMESTIC LAW AND PRACTICE
35. The relevant domestic law and practice is described in the Court’s judgment in Martzaklis and Others v. Greece (no. 20378/13, §§ 33-39, 9 July 2015) and the Court’s decision in Chatzivasiliadis v. Greece ((dec.) no. 51618/12, §§ 17-21, 26 November 2013). 36. In addition, the Ombudsman of the Hellenic Republic (Συνήγορος του Πολίτη – hereinafter “the Ombudsman”) is an independent administrative authority provided by Article 103 § 9 of the Constitution. It was established by Law no. 2447/1997 and it is currently governed by the provisions of Law no. 3094/2003. The Ombudsman intervenes with the administration on behalf of citizens for the protection of their rights and respect for the principles of legality and equality. It makes recommendations and proposals to the administration. It does not impose sanctions and cannot annul illegal acts of the administration (see Kaja v. Greece, no. 32927/03, § 34, 27 July 2006). 37. Article 11 of Law no. 4274/2014 provided for exceptional measures to relieve overcrowding in prisons. Under that provision, detainees who at the time the Law came into force had been sentenced to up to ten years’ imprisonment and had served two fifths of their sentences were to be released following an order issued by the public prosecutor. Article 12 of Law no. 4322/2015 provided for similar measures. Under that provision, detainees who at the time of publication of the Law had been sentenced to up to three years’ imprisonment and had served at least one tenth of it were automatically released and those who had been sentenced to up to five years’ imprisonment were automatically released if they had served one fifth of their sentences. Detainees who had been sentenced to up to ten years’ imprisonment and those who had been sentenced to more than ten years’ imprisonment had the right to be released under certain conditions following an order of the public prosecutor, if they had served two fifths and one third of their sentences respectively. III. REPORTS OF NATIONAL AND INTERNATIONAL BODIES
A. Ombudsman
38. On 24 October and 9 November 2011, twenty-eight people infected with HIV and detained at the Prison Hospital submitted a complaint to the Ombudsman about the conditions of their detention. On 8 February 2012, a delegation from the Ombudsman’s office visited the premises. In a report issued on 26 October 2012 following this visit, the Ombudsman emphasised that the wards were overcrowded, that the detainees did not have at their disposal any recreational activities and that the resources and infrastructure were inadequate. In particular, as regards detainees infected with HIV, the Ombudsman mentioned that the prescription of medication was not regular and that despite the fact that they were hospitalised in order to have easier access to medical care, their continuously growing numbers had led to worse conditions of detention (see Martzaklis and Others v. Greece, no. 20378/13, § 40, 9 July 2015). 39. In a press release issued on 6 March 2014, the Greek Ombudsman reiterated his findings concerning the Prison Hospital and urged the authorities to take measures. B. Parliamentary Assembly of the Council of Europe
40. On 26 June 2013 the Parliamentary Assembly adopted Resolution 1946 (2013) entitled “Equal access to health care” in which it pointed out that inequalities in access to care particularly affect vulnerable groups, including persons in detention. While preparing her report, Liliane Maury Pasquier (Switzerland, SOC), PACE rapporteur on equal access to health care, visited Greece and noted the negative impact of austerity measures on access to health care. On 4 March 2014, Ms Maury Pasquier, alarmed by the living conditions at the Prison Hospital in Athens, called on the Greek authorities to improve the situation as soon as possible. In particular she noted the following:
“I am very concerned at the insalubrious conditions of inmates at [the Prison Hospital] in Athens, reported in the media. The hospital, which was designed to cater for 60 persons, is said to currently be housing 200 prisoners, most of whom are allegedly HIV-positive or suffering from contagious diseases such as tuberculosis and hepatitis. In such conditions, it is impossible to ensure that prisoners receive appropriate treatment, not to mention the fact that overcrowding obviously contributes to the spreading of contagious diseases, thereby endangering the lives of all prisoners in the hospital. The right to health is a fundamental human right and the State must guarantee everyone equal access to appropriate health care. This applies in particular to prisoners who are entirely under the authority and responsibility of the State. I therefore call on the Greek government to improve the living conditions of prisoners at [the Prison Hospital] as soon as possible. The possible release of some prisoners from the hospital, as announced by the Minister of Justice, would only make sense if the Greek government were to guarantee that, on release, they would receive the treatment they require.”
C. Report of the European Committee for the Prevention of Torture (“the CPT”)
41. Following its visit to Greece in April 2015, the CPT published its report dated 1 March 2016 (CPT/Inf (2016) 4). It stated, inter alia, the following:
“89. The conditions in [the Prison Hospital] have been the subject of several media reports, and images depicting the appalling state of affairs in the establishment have been posted online. However, at the time of the CPT’s visit, urgent action had still not been taken to remedy the situation which was so drastic that the place could be compared to a dumping ground for sick prisoners who are subsequently neglected and not provided with the care required. Such an appalling state of affairs cannot be permitted to continue. The hospital has an official capacity of 80 beds and on the day of the visit was accommodating 141 prisoners, not including the 47 HIV positive prisoners in Korydallos Women Prison who were under the responsibility of the hospital. This is certainly an improvement from the period prior to November 2014, when some 220 patients were held in the hospital, but the hospital remains severely overcrowded. For example, in the smaller rooms, five patients were held in 17m² while the larger rooms of 43m² were accommodating 10 or 11 patients with beds crammed together; in a hospital setting, Greek law fixes a standard of 6m² of living space per person. In addition to the cramped conditions, the rooms were filthy and cluttered and hygiene was extremely poor. Moreover, the current drastic understaffing makes it impossible to provide all patients with the proper care they require. The four resident doctors (a general practitioner, a surgeon and two microbiologists) worked Mondays to Fridays from 7h00 to 14h30, and a separate duty resident doctor rota of eight doctors covered the hours of 14h30 to 7h00 and weekends. Approval has apparently been obtained to recruit five additional physicians, which is sorely required. Further, after an absence of two years, a dentist now visits the hospital twice a week. In addition, a number of specialists visit the hospital (psychiatrists, dermatologists, ophthalmologist, cardiologist and an ear, nose and throat surgeon). However, there is a lack of formal process in exchanging information on patients between the specialists and the treating doctors, and much depends on the individual relationships between doctors. As regards the nursing complement, 11 of the 14 posts were filled at the time of the visit. Typically, this resulted in four nurses on duty during weekday mornings and two in the afternoons, and at weekends one in the mornings and two in the afternoons. At night, there is only ever one nurse on duty who, in addition to the hospital, has to provide cover for Korydallos Men’s and Women’s Prisons as well as for the psychiatric hospital (i.e. more than 2,500 prisoners). As a result of the lack of nurses, a number of prisoners were employed as auxiliaries, not only to undertake janitorial duties, but also to provide care to patients such as assistance with feeding and personal hygiene. The delegation received detailed accounts inter alia of how fellow patients had provided care for a cancer patient in the period prior to his death in the hospital in February 2015, and how he was not provided with pain relieving medication until just before his death. It also came across patients who had been neglected and not provided the follow-up care required, such as a prisoner with a post-surgery lax anal sphincter causing him faecal incontinence; once his case was brought to the attention of the doctor, steps were taken to address his problem. Otherwise, nursing staff only had time to distribute medication (including at Korydallos Women’s Prison) and undertake complex dressings. 91. At the end of the visit, the CPT’s delegation requested that the Greek authorities, as a matter of urgency, undertake a full review of the prison hospital and put in place a plan to resurrect it as a place of care, where prisoners are treated for their illnesses and provided the necessary care in decent conditions. If this review has not yet been conducted, given the very serious right to life issues under Article 2 ECHR as well as the serious ill-treatment concerns under Article 3 ECHR, the CPT recommends that immediate steps are taken to carry out this review. Further, the Committee wishes to be informed of the outcome of the review and the follow-up steps planned to remedy the current situation.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
42. The applicants complained that the conditions of their detention in the Prison Hospital had violated their right not to be subjected to inhuman or degrading treatment as provided in 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
1. Non-exhaustion of domestic remedies
(a)  The parties’ arguments
43. The Government invited the Court to reject the application on the grounds of non-exhaustion of domestic remedies in so far as some of the applicants were concerned. In particular, they argued that the second, fifth sixth, seventh, eighth, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants had failed to apply for release on the basis of Article 110A of the Criminal Code, which allowed for the early release of those who suffered from acquired immune deficiency syndrome (Aids). In the Government’s view, the effectiveness of this remedy was proved by the fact that the first, fourth, ninth, sixteenth, seventeenth and eighteenth applicants had used it and had been released after having lodged the present application with the Court. 44. With regard to the fifteenth applicant, the Government contended that he had been released on the date of the introduction of the application to the Court. Therefore, he should have instituted civil proceedings under Article 105 of the Introductory Law to the Civil Code, in conjunction with the Penal Code and Article 3 of the Convention, which was directly applicable to the national legal order. That domestic remedy was capable of affording that applicant adequate redress in the form of monetary compensation for any damage caused to him in respect of that period. As regards the second period of the applicant’s detention in the Prison Hospital after the lodging of the application – from 11 February 2015 until 20 October 2015 – the Government submitted that it should be rejected as the applicant could not possibly have known when he lodged his application that he would be again detained under the same conditions. 45. The applicants contended that an application to get released on the basis of Article 110A was not an effective remedy that could be used by them for various reasons. Firstly, Article 110A of the Criminal Code as in force at the time the application was lodged had only concerned those who had been suffering from acquired immune deficiency syndrome, and not those who were HIV-infected, as had been the case of the applicants. The provision had been amended by Law no. 4322/2015 and under the new version, a certain degree of disability could justify early release of a detainee. The applicants mentioned by the Government as having made use of that remedy had been able to do so on the basis of the amended version and according to the degree of disability of each one with the exception of the sixteenth applicant who had made use of that provision as he suffered from tuberculosis, which was explicitly mentioned in the law. Secondly, the early release scheme provided for by Article 110A could only be availed of once and the relevant procedure lasted several months; therefore, it was only natural that the applicants preferred the early release schemes based on non-medical grounds. Thirdly, Article 110A was applicable under certain conditions and did not concern those in pre-trial detention or those who were serving a sentence of more than ten years. Among the applicants, the second, fifth, twelfth and eighteenth of them were in pre-trial detention, while another ten of them were serving a sentence of more than ten years; therefore, they could not make use of that remedy even in its amended form. 46. The applicants also claimed that the remedy provided for by Article 110A of the Criminal Code was not meant to improve the conditions of the applicants’ detention but to put an end to their detention. Therefore it could only be considered as an effective remedy with regard to Article 5 of the Convention and not Article 3. 47. The fifteenth applicant argued that his application should be considered admissible for both periods of his detention in the Prison Hospital. As regards the first period of his detention, he had been detained from 22 January 2013 until 24 December 2014, that is to say until the day the application had been lodged with the Court. According to the Court’s case-law, an action under Article 105 of the Introductory Law to the Civil Code was effective only when the detainee had already been released and not when he was still detained in the conditions of which he or she complained. As regards the second period of his detention, from 11 February until 20 October 2015, it should be considered as a continuing situation with the first period of his detention taking into account that he had been again detained under the same conditions within six months of the day of his release. (b)  The Court’s assessment
48. 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). In addition, the issue as to whether domestic remedies have been exhausted is normally determined by reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts), and Koutalidis v. Greece, no. 18785/13, § 61, 27 November 2014). 49. The Court reiterates that in cases where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012). 50. As regards the exhaustion of domestic remedies, the situation of a person who was detained under circumstances which he or she deemed contrary to Article 3 of the Convention and who apprised the Court after his or her release is different from the situation of an individual who is still in detention under the circumstances of which he or she complains (see Koutalidis, cited above, § 61). In particular as regards Greece, an action under Article 105 of the Introductory Law to the Civil Code constitutes a purely compensatory remedy which allows the person concerned to seek and obtain redress for his or her conditions of detention in prison following release. However, that remedy does not provide a way to improve a person’s conditions of detention and thus lacks the preventive element referred to in the judgment in Ananyev and Others (cited above, § 98. See also Papadakis and Others v. Greece, no. 34083/13, § 50, 25 February 2016). 51. The Court also notes that in A.F. v. Greece (no. 53709/11, §§ 59-60, 13 June 2013), it considered it appropriate to examine whether the provisions of a law or regulation which might be relied upon for the purpose of an action under Article 105 of the Introductory Law to the Civil Code were drafted in sufficient detail and guaranteed “justiciable” rights (ibid., § 60). 52. Turning to the circumstances of the present case, the Court notes that it has previously ruled that Article 110A of the Criminal Code can be invoked by people who suffer from Aids in order to obtain their immediate release; however, that provision, as in force at the time the application was lodged, did not allow for the release on medical grounds of people who were simply HIV-infected (see Martzaklis and Others v. Greece, no. 20378/13, §§ 53 -54, 9 July 2015). From the document prepared by the prison hospital’s doctor and adduced to the Court by the Government it is apparent that the applicants are all HIV-infected apart from the third applicant who suffers from chronic obstructive pulmonary disease. Therefore, they could not make use of the remedy referred to by the Government. 53. The Court takes note of the Government’s argument that some of the applicants made use of that remedy after having lodged the present application with the Court and that that proved its effectiveness. In this regard it reiterates that the issue as to whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann, cited above, § 47). In any event, the Court notes that the applicants who were released in accordance with Article 110A of the Criminal Code only did so after that provision had been amended by Law no. 4322/2015 so as to include certain degrees of disability among the medical reasons on the basis of which a detainee could apply for his or her early release — with the exception of the sixteenth applicant who was able to benefit from it as he suffered from tuberculosis. In the absence of any convincing argument from the Government that the applicants could have made use of that remedy prior to its amendment and particularly prior to the lodging of the present application, the Court considers that the applicants could not have had recourse to the remedy provided for by Article 110A of the Criminal Code. It, therefore, dismisses the Government’s objection. 54. Turning to the fifteenth applicant, the Court observes that his first period of detention ended the day the application was introduced to the Court. It is apparent that when he lodged his application with the Court on 24 December 2014 he did not seek to put an end to an ongoing violation of his right not to be subjected to inhuman or degrading treatment in the Prison Hospital, but to obtain a subsequent ruling on an alleged past violation of Article 3 on account of the conditions of his detention in that prison and, if appropriate, to receive just satisfaction for non-pecuniary damage. 55. The Court also notes that the applicant was incarcerated in the Prison Hospital and was thus subject to the provisions of the Penal Code. The applicant’s principal complaints before the Court concern overcrowding and sanitary conditions. In the Court’s view, Articles 21, 25 and 26 of the Penal Code guarantee justiciable rights which can be relied on before the national courts (see Chatzivasiliadis, cited above, § 34). An action under Article 105 of the Introductory Law to the Civil Code, in conjunction with the above‑mentioned Articles of the Penal Code and Article 3 of the Convention therefore constituted a domestic remedy which should have been used by the fifteenth applicant as regards the first period of his detention. 56. As regards the second period of the fifteenth applicant’s detention, the Court notes that he raised his complaint about the allegedly poor conditions during that period for the first time in his observations dated 21 April 2016. However, the applicant’s detention in that facility ended on 20 October 2015, which is more than six months before the date of introduction of this complaint (see, for example, Ashot Harutyunyan v. Armenia, no. 34334/04, § 99, 15 June 2010). The Court notes that the two periods of the applicant’s detention cannot be considered as a “continuing situation” within the meaning of the Court’s case-law which could bring the events complained of by the applicant within the Court’s competence, as in the meantime the applicant was released (see Ananyev and Others, cited above, § 78). It follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 57. It follows that pursuant to Article 35 §§ 1 and 4 of the Convention the application should be rejected on the grounds of non-exhaustion of domestic remedies in so far as the fifteenth applicant’s first period of detention is concerned and owing to non-respect of the six-month time-limit as far as the second period of his detention is concerned. 2. Application substantially the same
58. The Government submitted that the application was inadmissible in so far as the tenth applicant was concerned, as under Article 35 § 2 (b) the Court could not deal with an application which was substantially the same as a matter that had already been examined by the Court or which had already been submitted to another procedure of international investigation or settlement and contained no relevant new information. The tenth applicant had in fact lodged application no. 20378/13 with the Court, in which he complained of the conditions of his detention in the Prison Hospital for the same period as in the present application. On 9 July 2015 the Court’s judgment was published by which the tenth applicant was awarded 10,000 euros. Therefore, the present application should be rejected for the tenth applicant. 59. The tenth applicant acknowledged that he had participated in application no. 20378/13, in which the Court had found a violation of Article 3 on account of the conditions of his detention in the Prison Hospital. He therefore requested that his application be examined for the period after the publication of that judgment, that is to say from 9 July until 3 August 2015, the date on which he had been released. 60. The Court reiterates that the admissibility criterion under the first limb of Article 35 § 2 (b) of the Convention is intended to ensure the finality of the Court’s decisions and to prevent applicants from seeking, through the lodging of a fresh application, to appeal against previous judgments or decisions of the Court (see Lowe v. the United Kingdom (dec.), no. 12486/07, 8 September 2009, and Kafkaris v. Cyprus (dec.), no. 9644/09, § 67, 21 June 2011). 61. An application will generally fall foul of the first limb of Article 35 § 2 (b) where an applicant has previously brought an application which related essentially to the same person, the same facts and raised the same complaints (see Vojnovic v. Croatia (dec.), no. 4819/10, § 28, 26 June 2012; Anthony Aquilina v. Malta, no. 3851/12, § 34, 11 December 2014; and X. v. Slovenia (dec.), no. 4473/14, § 40, 12 May 2015). It is insufficient for an applicant to allege relevant new information where he or she has merely sought to support his or her past complaints with new legal argument (see, for example, I.J.L. v. the United Kingdom (dec.), no. 39029/97, 6 July 1999, and Kafkaris, cited above, § 68). In order for the Court to consider an application which relates to the same facts as a previous application, the applicant must genuinely advance a new complaint or submit new information which has not previously been considered by the Court, within the six-month time-limit set out in Article 35 § 1 of the Convention (see Lowe and Kafkaris, § 68, both cited above; and Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, §§ 50-56, ECHR 2017). 62. Turning to the circumstances of the present case, the Court notes that, following the Government’s objection, the tenth applicant by his observations requested the withdrawal of his application in so far as it concerns the period of his detention until 9 July 2015. The Court takes note of the applicant’s request. Having regard to Article 37 of the Convention, it finds that the tenth applicant does not intend to pursue his application in so far as it concerns the period of his detention up to 9 July 2015, within the meaning of Article 37 § 1 (a) of the Convention. The Court also finds no reasons of a general character, affecting respect for human rights as defined in the Convention, which require further examination of his complaints by virtue of Article 37 § 1 of the Convention in fine. It therefore strikes out the part of the applicant’s complaint concerning the period of his detention up to 9 July 2015. 3. Lack of power of attorney
63. The Government also claimed that the fifth applicant had failed to provide an appropriate power of attorney for his representative, as the one submitted had contained only his name in the relevant box where the signature should be. Even assuming that the applicant was illiterate, then the application should be rejected for lack of authenticity as this would probably mean that it had not been him but somebody else who had signed with his name. 64. The applicant stressed that he was illiterate and therefore writing down his name was the only possible way for him to sign the power of attorney. 65. The Court notes that in the present case the Government do not allege in express terms that the application was made without the applicant’s consent. Their objection appears to be centred on the question whether the power of attorney is legally valid. In this regard, the Court reiterates that it has previously found that it is essential for representatives to demonstrate that they have received specific and explicit instructions, within the meaning of Article 34 of the Convention, from alleged victims on whose behalf they purport to act (see Safaii v. Austria, no. 44689/09, § 32, 7 May 2014). 66. The Court notes as regards the fifth applicant that it received a power of attorney which in the place reserved for the applicant’s signature had just his name. In the absence of any indication that the application was lodged without the fifteenth applicant’s consent and agreement or that the applicant did not intend to lodge a complaint, the Court dismisses the Government’s objection. 4. Six-month time-limit
67. Lastly, the Government submitted that the application should be rejected in so far as the first period of detention of the second applicant is concerned as having been lodged out of time. In particular, the second applicant had been detained in the Prison Hospital during two, separate periods, the first extending from 6 October 2010 until 21 January 2011 and the other from 7 February 2012 until 1 July 2015. As the application had been introduced on 24 December 2014, the applicants’ complaints concerning the first period of detention should be rejected. 68. The applicant maintained that he had complained only for the second period of his detention and therefore, the Government’s objection should be rejected. 69. The Court notes that the second applicant did not mention in his application the first period of his detention and therefore, his complaints concerned solely the second period, that is to say from 7 February 2012 until 1 July 2015. It therefore, rejects the Government’s objection. 70. The Court notes the rest of this complaint 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. The parties’ submissions
71. Referring to their description of facts, the applicants complained that the conditions of their detention in the Prison Hospital had violated their right not be subjected to inhuman or degrading treatment. They mainly drew the Court’s attention to overcrowding and poor hygiene conditions. They referred to many reports of NGOs and independent bodies that had visited the Prison Hospital on various dates between 2012 and 2016, arguing that the lack of personal space, recreational facilities and medical staff, as well as the poor sanitary conditions, had persisted throughout their detention, at least from February 2012, when the second applicant had been detained, up to the date they submitted their observations to the Court. The applicants maintained that the conditions of their detention had been in violation of their rights under Article 3 of the Convention. 72. They also disagreed with the method of calculation advanced by the Greek Government, according to which each one had had at his disposal 3.5 sq. m on average. In particular, they asserted that in a situation of detainees in hospital, as was their case, the space occupied by beds and other furniture should be deducted from the overall surface area of the ward, as the amount of furniture seriously diminished the space available for anyone to move around. They added that in the case of detainees in hospital, bunk beds were not used and extra furniture was required; therefore, half of the ward had been occupied by furniture and only 22 sq. m had been available for them to move around in. Lastly, they referred to a document prepared by the Prison Hospital and adduced by the Government, in which it was stated that the current conditions were far better than the conditions prevailing in 2014. In their view, that document proved their allegations concerning the conditions of detention for the period between 2012 and 2015. 73. The Government referred to their description of the conditions of the applicants’ detention and maintained that even if they had not been ideal, they had not been such as to breach Article 3 of the Convention. They drew the Court’s attention mainly to the improvements that had taken place in 2015 and 2016, insisting, however, that even before these improvements the conditions of the applicants’ detention had been appropriate. Lastly, they claimed that the applicants’ allegations were general and that a simple reference to the CPT’s reports could not substantiate their claims, as those reports had concerned previous periods other than the applicants’ detention. 2. The Court’s assessment
(a)  General Principles
74. The applicable general principles are set out in Muršić v. Croatia ([GC] no. 7334/13, §§ 96-141, 20 October 2016). 75. The Court further reiterates that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him or her to a public hospital, even if he or she is suffering from an illness that is particularly difficult to treat. However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92 - 94, ECHR 2000‑XI; Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012; and Savičs v. Latvia, no. 17892/03, § 130, 27 November 2012). 76. Lastly the Court reiterates that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities. Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection (see Vladimir Vasilyev v. Russia, no. 28370/05, § 66, 10 January 2012). What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). The burden of proof is then shifted to the Government to provide explanations and supporting documents (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 132, 14 March 2013). (b)  Application to the present case
77.

Outcome for Article 13: violation