FIRST SECTION
 
 
 
 
 
 
CASE OF ZOURNATZIDIS AND OTHERS v. GREECE
 
(Application no. 23261/13)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
This version was rectified on 18 October 2017
 under Rule 81 of the Rules of Court
 
 
STRASBOURG
 
20 April 2017
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Zournatzidis and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
 Ledi Bianku, President,
 Aleš Pejchal,
 Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 28 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23261/13) 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 fifty-seven applicants of various nationalities 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, Ms K. Paraskevopoulou and Mr. I. Bakopoulos, Legal Counsellor and Legal Assistant respectively to the State Legal Council. The Albanian and Italian Governments did not make use of their right to intervene (Article 36 § 1 of the Convention). 3. On 16 May 2013 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were or are still detained in Ioannina Prison. 5. Of the applicants, the fourth was released on 11 March 2013 and the eighth was transferred to Alikarnassos Prison on 6 December 2012. The fifteenth applicant was released on 1 March 2013 and the twenty-first on 14 March 2013. The twenty-ninth, forty-ninth, fifty-fourth and fifty-seventh applicants were released on 28 February 2013, the forty-third on 11 March 2013, and the fiftieth on 7 March 2013, while the fifty-sixth was transferred to Amfissa Prison on 14 December 2012. 6. Additionally, the ninth, twenty-fifth, thirty-second and thirty-fifth applicants were released on 30 May 2013, the tenth and twenty-sixth applicants on 16 May 2013, the twelfth and forty-fourth applicants on 4 April 2013, the thirteenth on 28 May 2013, the sixteenth on 9 May 2013, the eighteenth on 14 June 2013, the nineteenth, twenty-second, twenty‑fourth, forty-first and forty-fifth applicants on 9 April 2013 and the twentieth on 23 May 2013. The thirty-fourth and fifty-third applicants were released on 31 May 2013, the thirty-ninth and forty-eighth on 26 April 2013, the fortieth and fifty-second on 30 April 2013, the forty-sixth on 10 April 2013 and the fifty-first on 11 April 2013. A. The applicants’ submissions on the conditions of their detention in Ioannina Prison
7. The applicants alleged that the prison had held 235 prisoners but had only been designed for 85. There were four big cells measuring approximately 45 sq. m each, which had accommodated 32 detainees. There were also four smaller cells: cell no. 5 measured 16 sq. m and had accommodated 20 detainees, cell no. 6 was 12 sq. m and had held 10 detainees, cell no. 7 had an area of 16 sq. m and had housed 20 detainees while cell no. 8, which used to be laundry room, measured 10 sq. m and had accommodated 9 detainees. A corridor of 34.5 sq. m had accommodated 40 detainees. 8. The cells had had no tables or chairs. Inmates had been confined to their cells for seventeen hours a day as recreational or educational activities had not been provided. They had had to take their meals inside their cells. 9. There was not enough separation between prisoners serving sentences and those in pre-trial detention. Additionally, healthy prisoners had been held together with sick prisoners, resulting in exposure to contagious diseases. Inmates had to wash and dry their clothes and underwear in the toilet facilities, which further spread contagious diseases. Medical care had been inadequate, particularly as regards psychological health. 10. On 13 and 25 February 2013 the applicants and other prisoners lodged a complaint with the prison authorities about their conditions of detention, but received no reply. B. The Government’s submissions on the conditions of detention in Ioannina Prison
11. The Government asserted that Ioannina Prison had four cells measuring 50 sq. m with two toilets each, one cell of 36 sq. m, two which measured 15 sq. m, one of 37.63 sq. m and two solitary confinement cells, each 8 sq. m in area. The dining room was 78 sq. m while the corridors had an area of 300 sq. m. At the time of the applicants’ application with the Court, the prison had held 210 to 230 detainees. 12. Extensive repair works had been carried out in 2012 throughout the prison facilities and all areas had been repainted, stools had been placed in the cells, and a bookcase, television and table tennis table had been added to the dining-room, which served several purposes. Moreover, a fully equipped gym had been built for detainees. The detainees’ daily schedule also included free time in the prison yard from 3 p.m. until half an hour before sunset. Numerous cultural events had been regularly organised for the inmates’ entertainment. 13. The cells had been regularly disinfected and cleaned on a daily basis. Ventilation and heating had been adequate in the cells and common areas. Appropriate standards of hygiene had been strictly observed and each new inmate was provided with clean clothing and blankets. All detainees had access to the prison infirmary and there were two general doctors, a dentist and three nurses. In emergencies, inmates were transferred to the Korydallos Prison Hospital or to an external hospital. II. RELEVANT DOMESTIC LAW AND PRACTICE
14. The relevant domestic law and practice is described in Kanakis v. Greece (no. 2) (no. 40146/11, §§ 62-68, 12 December 2013), and Chatzivasiliadis v. Greece (dec.) (no. 51618/12, §§ 17-21, 26 November 2013). III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE (CPT)
15. Following its visit to Greece in April 2013, the CPT published a report dated 16 October 2014 (CPT/Inf (2014) 26), in which the following is stated:
“105. Ioannina Prison, built in 1968, accommodated adult males who have been convicted to a sentence of less than five years or are on remand. With a capacity for 70 persons, it was holding 232 prisoners (130 on remand) at the time of the visit. In 2010, numbers had temporarily dropped to 190 inmates, but in general this facility has been holding between 200 and 250 prisoners, and on occasion even close to 300. The prison is formed by a single building, with an inner court yard that is used for outdoor exercise. The accommodation block consists of nine dormitories located on two floors. In 2012, the European Court of Human Rights found that the conditions in Ioannina Prison amounted to degrading treatment, due to severe overcrowding and the resulting lack of space. Already in 2009, the Greek Ombudsman had noted that the dormitories and cells were “absolutely insufficient” for the number of inmates and that the living space per inmate was “absolutely intolerable”. Regrettably, the delegation found that overcrowding remained a massive problem, affecting all parts of the prison. There are four large dormitories in Ioannina Prison, measuring some 50 m² which at the time of the visit were accommodating some 30 prisoners each. Five smaller dormitories, situated on the ground floor, measured between 15 m² and 32 m², and were accommodating between eight and 18 inmates. 176 prisoners were accommodated inside these nine dormitories, while the remaining 56 prisoners had to sleep in the corridors, several of them in bunk beds (some two to a bed), others on mattresses placed on the floor. There was a complete absence of privacy for the inmates placed in the corridors. Notwithstanding the overcrowding, the large windows in the dormitories offered good access to natural light and sufficient ventilation, and artificial lighting was adequate. Further, the in-cell sanitary annexes (two showers, two toilets and two sinks) were fully partitioned. However, some of them were in a bad state of repair and had mould growing on the ceiling. In sum, the conditions of detention at Ioannina Prison remained very much the same as described by the European Court of Human Rights in its judgment of Samaras and others.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
16. The applicants complained that their conditions of detention in Ioannina Prison 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. The authenticity of the application
17. The Government contended that the fifteenth applicant had failed to provide an appropriate power of attorney for his representative as the one submitted had not been dated. In addition, the eighth and fifty-sixth applicants had signed powers of attorney for their representative following their release from Ioannina Prison. That meant that they had not properly authorised their representative to lodge an application in relation to facts which had occurred prior to the authorisation. 18. The fifteenth applicant stated that the power of attorney had been signed on 21 February 2013 and that, in any event, the lack of a date on the form could not make the authorisation invalid. The eighth and fifty-sixth applicants argued that they had signed the relevant forms while they had still been detained and that, in any case, there was no requirement under the Convention to have an authority form signed while the violation was taking place. 19. The Court observes at the outset that the respondent Government did not at any time argue that the application had been lodged without the applicants’ consent, that the applicants wished to withdraw their complaints or had lost interest in pursuing them. 20. The Court 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). 21. The Court notes as regards the fifteenth applicant that it received an undated, signed power of attorney together with a duly signed application form. 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. 22. As regards the eighth and fifty-sixth applicants, the Court notes that there is no requirement under the Convention that a power of attorney be granted while the alleged breach of the Convention is taking place. Accordingly, the Court finds that there is no doubt that the application discloses a genuine and valid exercise of the applicants’ right of individual petition under Article 34 of the Convention and that the Court is competent to examine it (see, to that effect, Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005‑VII (extracts)). 23. The Court finds therefore that the application has been validly submitted on behalf of the eighth, fifteenth and fifty-sixth applicants and dismisses the Government’s first preliminary objection. 2. Non-exhaustion of domestic remedies
(a)  The parties’ submissions
24. The Government asked the Court to reject the application on the grounds of non-exhaustion of domestic remedies. They argued that the applicants 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 (Law No. 2776/1999), within a month of their complaint to the Prison Board on 13 and 25 February 2013. They further maintained that the applicants could have requested a transfer to another prison under Articles 72 and 76 of the Penal Code. 25. The Government contended that applicants who had already been released when they had lodged their application with the Court or who had been released following their application but prior to its examination had had at their disposal the remedy under section 105 of the Introductory Law to the Civil Code, in conjunction with the Penal Code and Article 3 of the Convention. They also referred to the provisions of Presidential Decrees nos. 141/1991 and 254/2004, arguing that they could have been relied on before the national courts in conjunction with section 105 of the Introductory Law to the Civil Code. In the Government’s view, the above-mentioned domestic remedy was capable of affording those applicants adequate redress in the form of monetary compensation for any damage caused to them. 26. The applicants argued that the aforementioned domestic remedies were not effective and cited the Court’s judgements in Nisiotis v. Greece (no. 34704/08, § 29, 10 February 2011), and Mathloom v. Greece (no. 48883/07, § 49, 24 April 2012) in that regard. (b)  The Court’s assessment
27. 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). 28. 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). 29. 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 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 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 (see Papadakis and Others v. Greece, no. 34083/13, § 50, 25 February 2016). 30. 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 section 105 of the Introductory Law to the Civil Code were drafted in sufficient detail and guaranteed “justiciable” rights (ibid., § 60). (i)  The fourth, eighth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth, fifty-sixth and fifty-seventh applicants
31. Turning to the present case, the Court observes that the fourth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth and fifty-seventh applicants were released on various dates prior to lodging their application with the Court on 30 March 2013 (see paragraph 5 above). 32. It also observes that the eighth and fifty-sixth applicants were transferred on December 2012 to other prison facilities, about which no information has been submitted to the Court to allow it to consider the two periods of detention as a “continuing situation” within the meaning of the Court’s case-law (see Ananyev and Others, cited above, § 78). 33. It follows that when they lodged their application with the Court on 30 March 2013 the fourth, eighth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth, fifty-sixth and fifty-seventh applicants had left Ioannina Prison and were no longer detained under the conditions of which they complained to the Court. Hence, by lodging their application with the Court the aforementioned 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 Ioannina Prison, but to obtain a subsequent ruling on an alleged past violation of Article 3 on account of the conditions of their detention in that prison and, if appropriate, to receive just satisfaction for non-pecuniary damage. 34. The Court also notes that the applicants were incarcerated in Ioannina Prison and were thus subject to the provisions of the Penal Code. The applicants’ 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 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 used by the above-mentioned applicants. 35. 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 as far as the fourth, eighth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth, fifty-sixth and fifty-seventh applicants are concerned. (ii)  The ninth, tenth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-fifth, twenty-sixth, thirty-second, thirty-fourth, thirty-fifth, thirty-ninth, fortieth, forty-first, forty-fourth, forty-fifth, forty-sixth, forty-eighth, fifty-first, fifty-second and fifty-third applicants
36. The Court notes that the ninth, tenth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-fifth, twenty-sixth, thirty-second, thirty-fourth, thirty-fifth, thirty-ninth, fortieth, forty-first, forty-fourth, forty-fifth, forty-sixth, forty-eighth, fifty-first, fifty-second and fifty-third applicants were released on various dates in April, May and June 2013 (see paragraph 6 above). When they lodged their application with the Court on 30 March 2013 the above-mentioned applicants were therefore still detained in Ioannina Prison, and the remedy under section 105 of the Introductory Law to the Civil Code would not have been effective for them (see Alexopoulos and Others v. Greece, no. 41804/13, § 27, 6 October 2016). 37. It follows that the Government’s objection as to inadmissibility due to non-exhaustion of domestic remedies should be rejected as far as the ninth, tenth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-fifth, twenty-sixth, thirty-second, thirty-fourth, thirty-fifth, thirty-ninth, fortieth, forty-first, forty-fourth, forty-fifth, forty-sixth, forty-eighth, fifty-first, fifty-second and fifty-third applicants are concerned. (iii)  The remaining applicants
38. The Court has ruled in some cases regarding conditions of detention that applicants had not exhausted domestic remedies owing to a failure to make use of the provisions of Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code (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, the Court has on many occasions ruled that when applicants allege that they 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). 39. As the rest of the applicants fall into the latter category, the Court sees no reason to depart from its previous case-law in the instant case. 40. In view of the foregoing, the Government’s objection as to non‑exhaustion of domestic remedies should be dismissed. 41. The Court notes that the rest of the application 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
42. The applicants complained of the conditions of their detention, mainly drawing the Court’s attention to the problem of overcrowding in Ioannina Prison. They referred, inter alia, to the Court’s judgments in Nisiotis v. Greece (no. 34704/08, 10 February 2011); Taggatidis and Others v. Greece (no. 2889/09, 11 October 2011); Samaras and Others v. Greece (no. 11463/09, 28 February 2012); and Tzamalis and Others v. Greece (no. 15894/09, 4 December 2012) which concerned the conditions of detention in the same prison, and maintained that nothing had changed in the meantime. 43. Referring to their own description, the Government argued that the conditions of the applicants’ detention had been adequate. 1. General principles
44. The applicable general principles are set out in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-141, 20 October 2016). 2. Application of the above general principles to the present case
45. 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 Ioannina Prison, especially as regards the provision of medical care and about hygiene. 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. 46. In that connection, the Court notes that the Government submitted that the overall surface area of the cells was 320 sq. m, including the sanitary facilities, and that at the time the applicants were detained the total number of inmates in Ioannina Prison ranged from 210 to 230 (see paragraphs 11-13 above for the Government’s submissions). The Court further notes that the overall area of the common areas, such as the dining room and corridors, cannot be taken into account when calculating the minimum personal space allocated to detainees (see, mutatis mutandis, Muršić, cited above, § 114). It follows that the inmates in this case had approximately 1.5 sq. m or less of personal space, a conclusion which is further supported by the CPT’s report (see paragraph 15 above). 47. The Court takes note of the Government’s assertion that renovation works in 2012 resulted in improvements in the facilities. However, it finds that such severe overcrowding cannot be compensated for only by repairs or improvements. 48. In view of those findings and the relevant principles set out 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). 49. 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 was persistent throughout their detention, which lasted several months or years. In view of the parties’ submissions and the CPT’s report, and in the absence of any convincing information to the contrary from the Government, the Court accepts the applicants’ argument that Ioannina Prison was filled beyond its actual capacity during their time in detention, to the point that there was a flagrant lack of personal space. It is clear that experiencing 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). 50. Those 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.
51.

Outcome for Article 3: violation