FIRST SECTION
 
 
 
 
 
 
 
CASE OF SINGH AND OTHERS v. GREECE
 
(Application no. 60041/13)
 
 
 
 
 
 
 
JUDGMENT
 
This version was rectified on 18 October 2017
 under Rule 81 of the Rules of Court
 
 
STRASBOURG
 
19 January 2017
 
FINAL
 
19/04/2017
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Singh and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Mirjana Lazarova Trajkovska, President,
 Ledi Bianku,
 Kristina Pardalos,
 Linos-Alexandre Sicilianos,
 Aleš Pejchal,
 Robert Spano,
 Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 13 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 60041/13) 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”) on 20 September 2013 by thirty-three Greek nationals, an Albanian national and an Indian national, 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 and Ms V. Stroumpouli, Senior Adviser and Legal Representative respectively to the Legal Council of State. The Albanian 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 in that connection. 4. On 28 October 2013 the application was communicated to the Government. 5. The applicants and the Government each filed observations on the admissibility and merits, in accordance with Article 54 § 2 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were or are still detained in Korydallos prison in Athens. 7. Among them, applicant no. 1 was released on 20 February 2009, applicants no. 2 and 4 were released on 1 July 2013, applicant no. 5 was released on 21 June 2013, applicant no. 12 was released on 4 November 2013, applicant no. 13 was released on 22 August 2013, applicant no. 25 was released on 30 October 2013, applicant no. 26 was released on 24 May 2013, applicant no. 27 was released on 17 July 2013, applicant no. 30 was released on 5 July 2013, applicant no. 32 was released on 2 October 2013, applicant no. 33 was released on 4 October 2013, applicant no. 34 was released on 10 May 2013 and applicant no. 35 was transferred to Larissa Prison on 20 June 2013. A. The applicants’ submissions on the conditions of their detention in Korydallos Prison
8. The applicants alleged that the prison had held 2,400 prisoners while it had been designed to accommodate 700. The applicants had been detained in wings A, B, D and E in various cells which all had measured 9 sq. m, including the sanitary facilities, and accommodated four or five prisoners; the living space for each prisoner had therefore been approximately 2 sq. m or even less. Cells designed for one person had had two beds and two or three worn-out mattresses on the floor. 9. The toilet facilities had been partially separated from the rest of the cells. Access to natural light and ventilation had been inadequate. In addition, there had been insufficient heating and hot water. Cells had been dirty and overrun with cockroaches and other pests and no attempt had been made to exterminate them. Healthy prisoners had been held together with sick prisoners, resulting in their exposure to contagious diseases. There had been no adequate medical care, in particular as regards psychological and physical health. 10. The inmates had been confined to their cells for sixteen to seventeen hours per day, as recreational or educational activities had not been provided. More specifically, inmates had been required to stay in their cells as follows: from 6.30 p.m. (on average) to 8.30 a.m. and from 11.30 a.m. to 2.45 p.m. every day. They had had to take their meals, which were of poor quality and nutritional value, inside their cells. 11. Moreover, the prison had been understaffed and had not been able to secure the prisoners’ safety. 12. On 21 June 2013 the applicants along with other prisoners lodged a complaint with the prison authorities, protesting about their conditions of detention, but did not receive any reply. B. The Government’s submissions on the conditions of detention in Korydallos Prison
13. The Government asserted that irrespective of the number of prisoners in each cell, which in any case had not been constant, prisoners had had access to a large yard daily from 8 a.m. to 12 p.m. and from 3 p.m. to thirty minutes before sunset. The prison had had a central heating system and hot water had been available on a daily basis in the morning and in the afternoon. Prisoners additionally had been able to use electric heating devices. Every cell had been furnished with a washbasin, a toilet, wooden shelves, a table and chairs. 14. All the cells had had a window ensuring sufficient light and ventilation. The cells had been regularly disinfected and had been cleaned twice a day by cleaning crews consisting of detainees. All the applicants except applicants no. 4, no. 17, no. 26 and no. 28 had been engaged in this activity. 15. As regards prisoners’ meals, the Government submitted the menu of two random weeks to demonstrate that they had been comprised of a variety of food. Meals had been served in the cells and prisoners had eaten at in-cell tables. 16. Prisoners had been able to play sport and each prisoner had had a personal television set with a headset. In addition, they had had the opportunity to take up one of the 640 jobs available, to take part in educational courses or to attend the “second chance” school. The renovated room of the reading club and the events hall of the “second chance” school had been available as recreational areas. 17. All the detainees had had access to the prison’s infirmary which had been open twenty-four hours per day and there had been twenty doctors of different specialities, including two psychiatrists who had offered consultations to the prisoners. In cases of emergency, inmates had been transferred to the Korydallos Prison Hospital or to an external hospital. II. RELEVANT DOMESTIC LAW AND PRACTICE
18. The relevant domestic law and practice is described in the Court’s judgment in the case of Kanakis v. Greece (no. 2) (no. 40146/11, §§ 62-68, 12 December 2013). III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE (“the CPT”)
19. Following its visit to Greece in January 2011, the CPT published its report dated 10 January 2012 (CPT/Inf (2012) 1). It stated:
55. Korydallos Men’s Prison was holding 2,345 inmates for an official capacity of 700. The CPT has been highlighting the necessity for the authorities to take action to drastically reduce the occupancy levels in the prison since 1993. Despite repeated recommendations by the CPT for the numbers held in each single-occupancy cell (9.5m²) to be reduced to no more than two prisoners, the authorities have taken no action to date. At the time of the 2011 visit, the delegation observed once again that the cells continued to accommodate three, four or even five inmates. 20. The CPT visited Greece again in April 2013 and in its report dated 16 October 2014 (CPT/Inf (2014) 26) stated:
101. Korydallos Men’s Prison has been described in previous visit reports. At the time of the 2013 visit, it was accommodating more than 2,300 prisoners for an official capacity of 840. During the 2013 visit, just like during previous visits, the delegation observed that cells originally designed for single-occupancy and measuring 9.5 m² were routinely used for three or even four inmates. The delegation found cells in which prisoners had to sleep on mattresses placed on the floor in the toilet areas, due to lack of available space. These are merely examples of a generally bad situation that persists across the entire facility. Cell A-3 in wing E measures 36 m² and was equipped with 16 beds. However, at the time of the visit it was accommodating 27 inmates, both remand and convicted prisoners, leaving less than 1.5 m² per person. Nine of the prisoners were sleeping on the concrete floor on extremely filthy and torn mattresses, two of them in the toilet area. The cell was infested with cockroaches and bed bugs and there was hardly any space left within which to move. Cell B-3 in wing E contained 14 beds and held 19 prisoners, with five prisoners sleeping on mattresses on the floor. There was no artificial light available at all during the night, and prisoners had to step on their cellmates in order to access the toilet, which was filthy. Further, the delegation noted that the garbage containers in the corridor outside the cell were full of food waste, which had not been emptied for some time and emitted a foul smell.
... 116. At Korydallos Men’s Prison, the situation as regards health-care resources had deteriorated significantly since the 2011 visit. The four general practitioner (GP) posts had been abolished, with the result that not a single full-time doctor worked in the establishment. Instead, a rotation system of visiting doctors from local clinics had been put in place shortly before the delegation’s visit, with various general practitioners each attending one morning a week for three hours, giving a total GP presence of a mere 15 hours per week. Such a limited presence of qualified doctors is totally insufficient to provide adequate health-care to more than 2,300 prisoners. However, at the time of the visit, not even these 15 hours of presence were guaranteed; the delegation observed that the scheduled visiting doctors sometimes failed to show up without giving any prior notification. Further, every two months, a new batch of doctors from another hospital in Athens was scheduled to assume the task of visiting GP at Korydallos Men’s Prison. Such a system inevitably leads to a lack of continuity, thereby hindering the ability to provide quality medical care. In the CPT’s view, it is essential for such a large prison, which in addition serves as the point of entry to the penitentiary system for many prisoners, to have the equivalent of at least four full-time general practitioners.
... 132. The situation remained particularly acute at Korydallos Men’s Prison, where a wing of some 400 inmates was usually staffed by only one or two prison officers during the day. At night there were a mere eight officers on duty, who were in charge of the entire prison with a population of more than 2,300 inmates. THE LAW
I. PRELIMINARY POINTS
A. Regarding applicants nos. 1, 2, 4, 5, 13, 26, 27, 30 and 34
21. The Court notes that in their observations received on 13 March 2014 applicants nos. 1, 2, 4, 5, 13, 26, 27, 30 and 34 informed the Court that they would like to withdraw their application. The relevant part of Article 37 § 1 of the Convention reads:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a)  the applicant does not intend to pursue his application ...”
22. The Court finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application in respect of the aforementioned applicants. Accordingly, the application should be struck out of the Court’s list of cases in so far as it relates to applicants nos. 1, 2, 4, 5, 13, 26, 27, 30 and 34. B. Regarding applicant no. 8
23. Applicant no. 8, Mr Theofilos Theofilou, died on 12 May 2015. By a letter of 31 May 2016 his wife, Ms Elvira-Eleni Theofilou, née Liouliou, informed the Court of her wish to pursue in his stead the grievances he had raised. 24. The Court notes that in a number of cases in which an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see, for instance, Deweer v. Belgium, 27 February 1980, §§ 37-38, Series A no. 35; X v. France, 31 March 1992, § 26, Series A no. 234‑C; Ahmet Sadık v. Greece, 15 November 1996, § 26, Reports of Judgments and Decisions 1996‑V; and Janowiec and Others v. Russia [GC], no. 55508/07 and 29520/09, §§ 97-101, ECHR 2013; concerning specifically complaints under Article 3 of the Convention see Keser and Kömürcü v. Turkey, no. 5981/03, § 53, 23 June 2009). 25. The Court reiterates the need to distinguish cases in which the applicant died in the course of the proceedings from cases where the application was lodged with the Court by the applicant’s heirs after the death of the victim (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005‑VI, and Biç and Others v. Turkey, no. 55955/00, § 20, 2 February 2006). 26. When, as in the present case, a person claiming to be the victim of a violation of one of his or her own rights under the Convention lodges an application with the Court, that person makes a personal and clear choice to exercise his or her personal right of individual application under Article 34 of the Convention and, thus, to activate the jurisdiction of the Court. This is not the case when the heirs of a person who may be considered as a victim under the Convention, lodge an application with the Court after the death of that person (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014). From the Court’s case-law cited in paragraph 24 above, it can be inferred that even in cases where the applicant dies after lodging his or her application, the Court may be called upon to determine whether, as alleged by the deceased applicant in his or her application, the Contracting State violated his or her rights, when the heirs of the deceased applicant have expressed their wish to continue the proceedings or when the Court considers it appropriate to continue the examination of the application under Article 37 § 1 in fine of the Convention. In such cases, the decisive point is not whether the rights in question are or are not transferable to the heirs wishing to pursue the procedure, but whether the heirs can in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (ibid.). 27. In the present case, the Court, having regard to the subject-matter of the present case and the material before it, considers that the widow of Theofilos Theofilou, as his next of kin, has a legitimate interest in pursuing the application on his behalf. Accordingly, it accepts that Ms Theofilou may pursue the application in so far as it was lodged by the late Mr Theofilou. For practical reasons, Mr Theofilou will continue to be called “the eighth applicant” although Ms Theofilou is now to be regarded as such (see Hasan İlhan v. Turkey, no. 22494/93, § 1, 9 November 2004). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
28. The applicants complained that their conditions of detention in Korydallos 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. Regarding applicants nos. 10, 12, 25, 32 and 33
29. The Government submitted that applicants nos. 10, 12, 25, 32 and 33 had been released on the date of introduction of their application to the Court and thus they should have lodged an application for damages under section 105 of the Introductory Law to the Civil Code in conjunction with the Penal Code (Law no. 2776/1999). In this respect, the Government submitted that the aforementioned applicants had not exhausted the available domestic remedies and invited the Court to declare this part of the application inadmissible and to reject it pursuant to Article 35 §§ 1 and 4 of the Convention. 30. The applicants contested this argument and claimed either that they had been released after lodging the application with the Court or that they were still in detention. 31. The Court reiterates that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV). 32. The Court also reiterates that in cases where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012). The special importance attached by the Convention to Article 3 requires that the Contracting Parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Had it been otherwise, the prospect of future compensation would have legitimised particularly severe suffering in breach of this core provision of the Convention and unacceptably weakened the legal obligation on the State to bring its standards of detention into line with the Convention requirements (ibid, § 98). 33. However, 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 v. Greece, no. 18785/13, § 61, 27 November 2014). 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 the conditions of detention of the person concerned and thus lacks the preventive element within the meaning of the above-cited judgment Ananyev and Others (see Papadakis and Others v. Greece, no. 34083/13, § 50, 25 February 2016). 34. In addition, the issue of 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)). 35. Turning to the present case, the Court notes that applicant no. 12 was released on 4 November 2013, applicant no. 25 was released on 30 October 2013, applicant no. 32 was released on 2 October 2013 and applicant no. 33 was released on 4 October 2013. It follows that on the date they introduced their application to the Court, 20 September 2013, they were still in detention in Korydallos Prison. 36. As regards applicant no. 10, the Government submitted that he had been released on 26 September 2008. The Court notes, nevertheless, that when the applicant signed the power of attorney on 27 June 2013, which was officially verified by a notary, he was still in detention. He also argued that at the time he had submitted his observations to the Court he had still been in detention. The Government did not dispute this element in their additional observations. It follows that applicant no. 10 should be considered as in detention on the date the application was introduced to the Court. 37. In view of the foregoing the Court considers that the domestic remedy referred to by the Government merely provided for the person concerned to obtain redress in respect of an act or omission by the State in the exercise of public authority, and did not provide an effective mechanism in order to put an end to detention under circumstances which constitute inhuman or degrading treatment and thus was of no benefit to the applicants. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies as regards applicants nos. 10, 12, 25, 32 and 33. 2. Regarding applicant no. 35
38. The Government argued that there was no record of applicant no. 35 having been detained in Korydallos Prison and invited the Court to reject this part of the application as incompatible ratione personae. Additionally, the Government contended that in any case, the applicant had not been in detention in Korydallos Prison when he had lodged his application with the Court and thus, his application should be declared inadmissible for failure to lodge an action under section 105 of the Introductory Law to the Civil Code. 39. The applicant contested these arguments. He affirmed that he had been detained in Korydallos Prison until 20 June 2013 and on that date he had been transferred to Larissa Prison, where he has remained until this day. The applicant also complained under Article 3 of the Convention of the conditions of detention in Larissa Prison submitting that they were similar to those in Korydallos Prison and should, therefore, be considered as a continuous situation. 40. The Court notes that the applicant submitted a power of attorney to his representative dated 17 April 2013 which was officially verified by the prison authorities in Korydallos. It follows that applicant no. 35 was in detention on that date in Korydallos Prison. In addition, it was not disputed by the Government that three months before lodging the application with the Court, the applicant had been transferred to Larissa Prison where he remains until today. 41. The Court reiterates that the action under section 105 of the Introductory Law to the Civil Code constitutes a purely compensatory remedy and does not provide an effective mechanism in order to put an end to the detention under circumstances which constitute inhuman or degrading treatment. 42. Given that the applicant had not been released when he lodged his application with the Court on 20 September 2013, but had been transferred to another prison to continue the execution of his sentence, the remedy under section 105 of the Introductory Law to the Civil Code would not have been effective for him (see Papadakis and Others, cited above, § 51). 43. It follows that the Government’s objections on incompatibility ratione personae and on inadmissibility due to non-exhaustion of domestic remedies should be rejected. 44. Regarding the conditions of detention in Larissa Prison, the Court observes that the applicant did not at any stage of the proceedings advance any argument in support of this part of the complaint, other than to say that the conditions of detention were similar to those in Korydallos Prison. It follows that this part of the application should be rejected as unsubstantiated. 3. The rest of the applicants
45. The Government 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 within a month following their complaint to the Prison Board on 11 June 2013. In this regard, it invited the Court to reject the application due to non-exhaustion of domestic remedies. 46. The applicants disputed the Government’s assertion that this was an effective remedy.
47.

Outcome for Article 3: violation