FIRST SECTION
 
 
 
 
 
 
CASE OF IGBO AND OTHERS v. GREECE
 
(Application no. 60042/13)
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
9 February 2017
 
FINAL
 
09/05/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
. In the case of Igbo and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Mirjana Lazarova Trajkovska, President,
 Kristina Pardalos,
 Linos-Alexandre Sicilianos,
 Aleš Pejchal,
 Robert Spano,
 Armen Harutyunyan,
 Tim Eicke, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 17 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 60042/13) 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”) by fourteen applicants of Greek, Turkish, Nigerian and Senegalese nationality, whose names appear in the annexed list. They were represented by Mr K. Tsitselikis and Mr A. Spathis, lawyers practising in Thessaloniki. 2. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr I. Bakopoulos, member of the State Legal Council, and Mrs K. Karavasili, legal representative of the State Legal Council. The Turkish Government did not make use of their right to intervene (Article 36 § 1 of the Convention). 3. The applicants alleged that they had been detained in inhuman and degrading conditions, and that they had not had effective domestic remedies at their disposal. 4. On 4 November 2013 the application was communicated to the Government. 5. The applicants and the Government filed observations on the admissibility and merits of the application, in accordance with Article 54 § 2 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were or still are detained in Chios Prison, either in pre-trial detention or serving prison sentences. The first to fifth applicants and the tenth and thirteenth applicants were placed in cell no. 9, the sixth to ninth applicants and the eleventh and twelfth applicants were placed in cell no. 5, and the fourteenth applicant was placed in cell no. 3. 7. The fifth applicant was transferred to Korydallos Prison on 10 September 2013, the seventh applicant was released on 29 October 2013 and the ninth applicant was released on 4 September 2013. A. The applicants’ submissions on the conditions of their detention in Chios Prison
8. The applicants submitted that Chios Prison was overcrowded, resulting in a situation where each inmate was allocated approximately 2 sq. m of personal space. The prison consisted of six cells which each had fifteen beds and five mattresses on the floor, and three cells which each had ten beds. As regards the cells in which the applicants were held, their measurements were as follows: cell no. 3 measured 10 sq. m. and accommodated six detainees, cell no. 5 measured 40 sq. m. and accommodated twenty detainees, and cell no. 9 measured 20 sq. m. and accommodated ten detainees. The sixth, eighth and ninth applicants slept on the floor, which was standard practice for other inmates as well. 9. The applicants pointed out that the toilets in the cells were not partitioned off from the rest of the cells, and there was no hot water. Filthiness of the cells, in addition to overcrowding, exposed the inmates to contagious diseases and created various psychological problems, in respect of which no medical treatment was provided. Detainees lacked access to adequate dental care. 10. The applicants stressed that inmates were not sufficiently separated according to their health conditions or according to whether they were in pre-trial detention or serving prison sentences, as was required by the Penal Code. 11. The applicants also contended that they were confined to their cells for sixteen to seventeen hours per day, in the absence of any recreational or educational activities. 12. Meals, which were insufficient and of poor quality, were served in the cells and consumed on the beds. 13. On 29 August 2013 the applicants lodged a complaint with the Prison Board, arguing that the conditions of their detention were very poor, but did not receive any reply. B. The Government’s submissions on the conditions of detention in Chios Prison
14. The Government submitted that Chios Prison consisted of nine cells, each furnished with a table, stools, a fridge, cooking stoves, wardrobes and a television. Cells were sufficiently ventilated and heated and had adequate natural light. Additionally, they were regularly cleaned and disinfected. 15. In respect of prison overcrowding, the Government argued that the prison had accommodated 142 inmates at the time the applicants had lodged their application with the Court, only slightly exceeding its capacity of 120 detainees. 16. All detainees had access to adequate medical care provided by the prison doctor. In case of emergency, or when a serious incident occurred, detainees were transferred to Chios General Hospital or Korydallos Prison Hospital in Athens. Those suffering from contagious diseases were held separately or transferred to hospital. The Government provided information showing that some of the applicants had had consultations with doctors in respect of various conditions. 17. There were fifty available places for detainees who wished to work. In addition, detainees had the opportunity to attend educational programmes or other recreational activities which were scheduled from time to time. Most of the applicants participated in some of the educational courses. 18. As regards prisoners’ meals, the Government submitted a menu from a week selected at random to demonstrate that meals were varied. II. RELEVANT DOMESTIC LAW AND PRACTICE
19. The relevant domestic law and practice is described in the Court’s judgment in Kanakis v. Greece (no. 2) (no. 40146/11, §§ 62-68, 12 December 2013) and the Court’s decision in Chatzivasiliadis v. Greece (dec.) (no. 51618/12, §§ 17-21, 26 November 2013). III. REPORT OF THE UNITED NATIONS SPECIAL RAPPORTEUR
20. The United Nations (UN) Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, visited Greece in October 2010. In his report dated 4 March 2011, he stated the following regarding Chios Prison:
“110. The prison consists of 6 chambers with 18 beds and 2 mattresses each and 3 chambers with 10 beds each. In addition, there is one cell for 2 people used for the elderly or sick and one cell for solitary confinement. The capacity of the prison is 120 but at the time of the visit 163 persons were being detained. Of all prisoners 52 were pre-trial detainees and 105 foreign nationals. There are 62 persons working at the prison in 4 shifts. The severe overcrowding had increased the problems with drugs and inter-prisoner violence. According to the director, the prison had been renovated and cleaned over the last weeks. A doctor came every Monday, Wednesday and Friday. The prison regime is as follows: At 7.45am the gates open and detainees can go to the inner yard; 8 am breakfast; at 11 the yard is closed but they can move freely inside the building; 11.30 lunch; 12 medicine; 12.30 head count and order to go back to the chambers; at 3 pm the chambers open again and from 3.15 to sunset they can go to the yard; 7.30 medication; and at 8 pm the gates close again. 111. The cells were very small and overcrowded. At the time of the visit, the cells were fairly clean although some cells had problems with cockroaches. Many prisoners complained about the diet and hygiene conditions. There were little recreational activities offered to the detainees and only 41 detainees could work at the prison which was decided by a special committee. The health care provided was inadequate and the doctor was young and inexperienced. Conjugal visits were not allowed and permission of visits was only granted for direct blood relatives but not for friends. The detainees stated that it was difficult to complain or be heard in case of arbitrary or discriminatory treatment. In comparison to other prisons, such as Kos and Komotini which were both much more overcrowded but taken well care of by their respective directors, the overall conditions of Chios Prison were fairly poor.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
21. The applicants complained that their conditions of detention in Chios Prison violated their right not to be subjected to inhuman or degrading treatment, as provided for in Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
1. The arguments of the parties
22. The Government invited the Court to reject the application on the grounds of non-exhaustion of domestic remedies. With regard to the fifth, seventh and ninth applicants, the Government contended that they had been released or transferred to other prisons, and should therefore have instituted civil proceedings under section 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. The domestic remedy was capable of affording those applicants adequate redress in the form of monetary compensation for any damage caused to them. 23. In respect of the rest of the applicants who were still in detention, the Government submitted that they had failed to lodge a complaint with the Court for the Execution of Sentences (Δικαστήριο Εκτέλεσης Ποινών), pursuant to Article 6 of the Penal Code, within a month of their complaint to the Prison Board on 29 August 2013. 24. Lastly, the Government argued that the complaints relating to inadequate medical care, insufficient measures against the contraction of contagious diseases, and non-compliance with sanitary regulations were inadmissible, as they consisted of general allegations which were not related to the applicants’ situation. 25. The applicants contested these arguments. The fifth, seventh and ninth applicants submitted that they had been released or transferred after they had lodged their application with the Court. In respect of the remedy proposed by the Government, namely the complaint to the Court for the Execution of Sentences, the applicants argued that it was not effective. 2. The Court’s assessment
26. 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 when 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). 27. 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). 28. 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, an action under section 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 his or her release. However, this 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 (see Papadakis and Others v. Greece, no. 34083/13, § 50, 25 February 2016). 29. The Court also notes that, in its judgment 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 section 105 of the Introductory Law to the Civil Code were drafted in sufficient detail and guaranteed “justiciable” rights (ibid., § 60). (a)  The fifth and ninth applicants
30. Turning to the present case, the Court observes that the fifth applicant was transferred to Korydallos Prison on 10 September 2013 to continue serving his sentence. It also observes that the ninth applicant was released on 4 September 2013. Therefore, when they lodged their application with the Court on 20 September 2013, and not on 24 June 2013 as they erroneously maintained, both applicants had left Chios prison and were not detained anymore under the conditions of which they complained to the Court. It follows that, by lodging their application with the Court, the fifth and ninth applicants did not seek to put an end to an ongoing violation of their right not to be subjected to inhuman or degrading treatment in Chios prison, but to obtain a subsequent ruling on the alleged passed violation of Article 3 on account of the conditions of detention in that prison and, if appropriate, to receive just satisfaction for non-pecuniary damage. 31. The Court also notes that the applicants were incarcerated in Chios Prison, and were thus subjected to the provisions of the Penal Code. The applicants’ principal complaints before the Court concern the prison’s overcrowding, the sanitary conditions and the quantity and quality of the food provided. In the Court’s view, Articles 21, 25, 26 and 32 of the Penal Code guarantee justiciable rights to be invoked before the national courts (see Chatzivasiliadis, cited above, § 34). An action under section 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 exhausted by the fifth and the ninth applicants. 32. Pursuant to Article 35 §§ 1 and 4, it follows that the application should be rejected on the grounds of non-exhaustion of domestic remedies as far as the fifth and ninth applicants are concerned. (b)  The seventh applicant
33. The Court notes that the seventh applicant was released on 29 October 2013. Therefore, when he lodged his application with the Court on 20 September 2013, the seventh applicant was still detained in Chios prison, and the remedy under section 105 of the Introductory Law to the Civil Code would not have been effective for him (see Alexopoulos and Others v. Greece, no. 41804/13, § 27, 6 October 2016). 34. It follows that the Government’s objection as to inadmissibility due to non-exhaustion of domestic remedies should be rejected as far as the seventh applicant is concerned. (c)  The rest of the applicants
35. Regarding conditions of detention, the Court has ruled in some cases that applicants had not exhausted domestic remedies, owing to a failure to make use of the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code (Law No. 2776/1999) (Vaden v. Greece, no. 35115/03, §§30-33, 29 March 2007, and Tsivis v. Greece, no. 11553/05, §§ 18-20, 6 December 2007). In those cases, the applicants complained of particular circumstances which had affected them personally as individuals, and to which the prison authorities could put an end by taking the appropriate measures. On the other hand, on many occasions the Court has ruled that, when applicants claim to have been personally affected by the general conditions prevailing in a prison, the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code are not effective (see, among other authorities, Papakonstantinou v. Greece, no. 50765/11, § 51, 13 November 2014). 36. The applicants falling in the latter category, the Court sees no reason to depart from its previous case-law in the instant case. 37. In view of the foregoing, the Government’s objection as to non-exhaustion of domestic remedies should be dismissed. Furthermore, the Court notes that the rest of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
38. The applicants complained of the conditions of their detention, mainly drawing the Court’s attention to the problem of overcrowding in Chios Prison. 39. Referring to their own description, the Government claimed that the conditions of the applicants’ detention were adequate. 1. General principles
40. The applicable general principles are set out in Muršić v. Croatia [GC] (no. 7334/13, §§ 96-141, 20 October 2016). 2. Application of the above principles to the present case
41. Turning to the circumstances of the present case, the Court notes that the parties provided conflicting descriptions of the conditions of the applicants’ detention in Chios Prison, especially as regards the provision of medical care and the hygiene of the premises. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of the facts presented to it which the respondent Government have failed to refute. 42. In this connection, the Court notes that the Government submitted no information on the size of the cells where the applicants were held, or on the number of people accommodated in those cells. They only provided general information on the total number of detainees in Chios Prison and the furniture in the cells (see paragraphs 14-18 above for the Government’s submissions). 43. According to the applicants’ submissions concerning the size and occupancy of the cells, inmates had approximately 2 sq. m or less of personal space (see the applicants’ description of their conditions of detention, paragraphs 8-13 above). The Court takes note of the Government’s assertion that the prison was not overcrowded even though it had exceeded its capacity, but finds that this is not supported by evidence, unlike the applicants’ claims, which were corroborated by the report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (see paragraph 20 above). 44. In view of these findings and the relevant principles enunciated in its case-law, the Court finds that a strong presumption of a violation of Article 3 arises in the case at issue (see Ananyev, cited above, § 148). 45. Turning to whether there were factors capable of rebutting the strong presumption of a violation of Article 3 (see Muršić, cited above, §§ 129‑135), the Court notes that the applicants submitted that overcrowding persisted during the course of their detention, such detention ranging from three months (the seventh applicant) to one year and eight months (the first applicant). In view of the applicants’ submissions and the UN Special Rapporteur’s report, and in the absence of any convincing information to the contrary from the Government, the Court accepts the applicants’ argument that Chios Prison was filled beyond its capacity during the course of their detention, to the point that there was a flagrant lack of personal space. It is clear that such a lack of space cannot be seen as short, occasional and minor within the meaning of the Court’s case-law (see Muršić, cited above, § 130). 46. These circumstances are sufficient for the Court to conclude that the strong presumption of a violation of Article 3 has not been rebutted. The above finding renders it unnecessary for the Court to consider separately the rest of the applicants’ allegations regarding their conditions of detention.
47.

Outcome for Article 13: violation