TSARPELAS v. GREECE - 74884/13 (Judgment : Article 3 - Prohibition of torture : First Section Committee) [2018] ECHR 372 (26 April 2018)

In the case of Tsarpelas v. Greece,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Kristina Pardalos, President,
Linos-Alexandre Sicilianos,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 3 April 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 74884/13) 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 a Greek national, Mr Georgios Tsarpelas ("the applicant"), on 28 November 2013. He was represented by Ms I. Kourtovik, a lawyer practising in Athens.

2. The Greek Government ("the Government") were represented by their Agent's delegates, Ms A. Dimitrakopoulou and Ms A. Magrippi, Senior Advisor and Legal Representative A respectively, at the State Legal Council.

3. On 7 November 2016 the application was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. After having given consideration to the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1973. He is a carrier of thalassemia disease. On an unspecified date, he contracted non-�reversible ischemia, which resulted in septic gangrene and the subsequent amputation of his right leg at the hip. He uses crutches, as he is neither eligible to have a prosthetic limb fitted, nor does he have the necessary financial means for such a procedure. The applicant also claims to be a drug user.

6. On 1 May 2013 the applicant was arrested and then detained in Omonoia police station. On 7 May 2013 the public prosecutor ordered his pre-trial detention in Korydallos prison on the basis of decision no. 3386/2010 of the Three-Member Court of Appeal for Felonies (Τριμελές Εφετείο Κακουργημάτων) but he could not be admitted there as the prison was overcrowded. He was subsequently transferred back to Omonoia police station, where he remained until 28 May 2013. On that date he was transferred to Korydallos prison, where he stayed until 30 December 2013. He was subsequently transferred to Larissa prison, where he remained until 25 November 2014. On that date he was transferred to Korydallos prison, from where he was released the next day, that is to say 26 November 2014.

7. On 13 November 2013 the applicant was convicted by the Three-�Member Court of Appeal for Felonies to a sentence of eight years' imprisonment and a fine of 20,000 euros for the offence of buying and selling drugs as a person not addicted to drugs (decision no. 5519/2013).

A. The applicant's submissions on the conditions of his detention and his medical treatment

1. Omonoia Police Station

8. The applicant submitted that the conditions of his detention in Omonoia police station, where he had remained for a period of twenty-�seven days, had been very poor. He had been detained in a cell on the third floor measuring around 40 sq. m, which had held between seventeen and thirty detainees, and sometimes even more. The ventilation system had been dirty and inadequate. The cell had been filthy and unfurnished, with no beds and only a cement bench running along the length of three of the walls, which had accommodated six to eight people, including the applicant. The rest of the detainees had had no access to mattresses but slept on blankets laid on the floor. For a certain period, both male and female prisoners had been held in the cell until a certain organisation filed a complaint and the women were moved elsewhere.

9. There had been only one shower and two floor-level toilets, one of which had not functioned. A guard had had to open the door of the cell every time the applicant needed to visit the toilet and sometimes its use had taken place in front of the other prisoners, since it had no door. He had not been provided with hygiene or cleaning products, nor had he had access to medical care despite his disability and the wounds to his leg, which had become worse owing to the conditions in which he had been detained. The food quality had been poor and he had drunk water directly from the sinks in the toilet area, without any glasses or cups.

10. There had been no outdoor exercise or other occupational activities and, owing to the lack of space within the cell and his disability, the applicant had spent all day sitting on the cement bench. He had not had any access to a telephone or to any form of recreational activity such as television or radio.

2. Korydallos prison

11. On 28 May 2013 the applicant was transferred to Korydallos prison, where he was initially admitted to the prison hospital for two days. His admission note recorded "right leg amputated -� unable to meet his own needs; ulcerated left tibia". On 30 May 2013 he was discharged from the prison hospital. The discharge note referred to "the right leg amputated, blood test HT 34.6%, HB 10.4 due to thalassemia minor". The applicant submitted that he had been asked to sign a declaration that he wished to stop his pharmaceutical treatment, but in fact he had never been provided with any.

12. The applicant remained in Korydallos prison until 30 December 2013. He submitted that he had been placed in a cell with eight other prisoners instead of remaining in the hospital, where he could have received better treatment. Instead of being provided with a special bed adapted to his needs, he had had to sleep on the lower tier of a bunk bed on which he had barely been able to lie down, owing to his disability. The in-cell toilet was not screened off and its use had therefore been visible to the other prisoners. It was not adapted to his needs and its shape had made it very difficult for him to use, having only one limb. During his stay, he had not been regularly monitored by a doctor, nor had he ever been admitted to the prison hospital again after his first visit. The applicant argued that his medical situation had required him to be detained in a hospital; however, this had not been arranged, apart from the two days he had spent in the prison hospital upon his transfer to Korydallos.

3. Larissa prison

13. On 30 December 2013 the applicant was transferred to Larissa prison, where he remained until 25 November 2014.

14. The applicant claimed that the conditions of detention had been very poor in that prison facility as well and that he had not received appropriate medical treatment. He had been placed in a cell along with many other prisoners, as the prison had been overcrowded, and he had not been provided with a special bed or special toilet facilities adapted to his needs. The cell had been filthy and insufficiently lit and ventilated. The toilet had been similar to the one in Korydallos prison. The applicant's access to outdoor exercise had been difficult and dangerous owing to his disability.

15. The applicant submitted that he had not received appropriate medical treatment, that he had not been regularly monitored by a doctor, and that at no time had he been admitted to a hospital with access to nursing staff who would have taken appropriate measures to ensure that his needs were met.

B. The Government's submissions on the conditions of the applicant's detention and his medical treatment

1. Omonoia Police Station

16. The Government's main submission concerning the applicant's detention in Omonoia police station was that it had not reached the level of severity required for it to fall within the scope of Article 3 of the Convention. In particular, the applicant had been detained in Omonoia police station from 8.30 p.m. on 1 May 2013 until 2 p.m. on 28 May 2013, that is to say for twenty-seven days.

17. Omonoia police station had had five beds, all of which had pillows, mattresses and bed linen. The cell had been regularly cleaned and was intended for short-term detention only.

2. Korydallos prison

18. Concerning the applicant's medical treatment in Korydallos, the Government submitted that during his imprisonment in Korydallos, the applicant had been regularly seen by a doctor. Apart from the initial two days from 28 to 30 May 2013, the applicant had been checked by doctors of various specialisms, according to his needs, on 9 November, 9 December and 19 December 2013.

19. As regards the general conditions of his detention, the Government submitted that, in view of his disability, the applicant had been placed in cell no. 3, because it was situated on the ground floor. The cell measured 70 sq. m and had a capacity of twenty detainees. The records at the Government's disposal did not show the exact number of the applicant's fellow inmates but at the time of the Government's submissions the cell had accommodated seventeen detainees.

20. There had been two toilets and a shower, and the detainees had had access to a yard measuring 30 sq. m. The cell had two windows ensuring sufficient light and ventilation, it had been heated and was generally in better condition than the rest of the prison cells. The wing had had a common room measuring 140 sq. m with plastic tables and a kitchen at the detainees' disposal. The cells had been regularly disinfected.

3. Larissa prison

21. The applicant had been transferred to Larissa prison on 30 December 2013, where he stayed for approximately eleven months. He had been detained in ward no. 2 on the ground floor, along with elderly detainees and detainees with disabilities. The ward was in the direct proximity of the doctor's office, it had measured 234.60 sq. m and, during the applicant's incarceration, had accommodated fifty-three detainees on average.

22. The ward had four squat toilets and a sitting toilet, used by detainees with disabilities. It had had twenty-eight two-tier bunk beds, each with its own television. There were plastic tables and stools for everyone, as well as bedside tables and two fridges. It had been regularly disinfected and was cleaned on a daily basis. Light and ventilation were provided by five large windows. Additionally, the Government adduced examples of weekly menus during the applicant's incarceration and pointed out that the ward had had access to a yard.

23. The inmates had had at their disposal numerous cultural and sports activities for their entertainment. Meals had been designed with the assistance of the prison doctor and special dietary needs had been accommodated. To demonstrate this point, the Government submitted examples of the various meals offered.

24. There had been two psychologists at the prison who could be consulted at either the doctors' initiative or the detainees' request. The record submitted by the Government showed that the applicant had met with the prison psychologist twenty-seven times, and had been provided with financial, psychological and material assistance through the channel of the prison's Department of Social Service.

25. The applicant had been provided with hygiene products, clothes, shoes and a card for making telephone calls. As regards his medical treatment, the applicant had been monitored by the prison doctors and had occasionally been transferred to Larissa hospital. In total, his medical record showed that he had been medically assisted on twenty-seven occasions either in-house or at the city hospital.

26. The Government pointed out that the applicant had not referred to or adduced any evidence showing that he had submitted any request before the prison authorities concerning his complaints before the Court. They additionally submitted that in none of the medical documents did the applicant appear to have been a drug user, as he had falsely claimed in his application. Moreover, he had been convicted for buying and selling drugs as a non-user. Lastly, the applicant had benefited from a beneficial calculation of the days served, owing to his disability.

II. RELEVANT DOMESTIC LAW AND PRACTICE

27. The relevant domestic law and practice is described in Aslanis v. Greece (no. 36401/10, §§ 12-17, 17 October 2013); A.F. v. Greece (no. 53709/11, §§ 31-32, 13 June 2013); 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).

28. In addition, article 66 § 6 of Presidential Decree no 141/1991 reads as follows:

"The detention of both remand and convicted prisoners in police stations is permitted only for the period of time absolutely essential before their transfer to prison, and only then if their direct transfer to prison is not possible."

III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE ("the CPT")

29. In its report of 16 October 2014, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), following its visit to Greece from 4 to 16 April 2013, noted the following as regards Omonoia police station:

"At the time of the visit, the five cells on the first floor of Omonoia Police Station were accommodating 30 persons, some of whom had been held for longer than six months, for an official capacity of 27 men and five women. The conditions in these cells had not improved since the previous visit in 2011. Further, the second floor holding cell (a room of some 20 m² containing only a narrow bench running the length of three walls) was still being used to accommodate detainees for several weeks.

The delegation also found a recently constructed 25 m² cell on the third floor of the station, which was used by the Omonoia Security Department. The cell was holding 21 men and two women overnight, and many persons met by the delegation claimed that, in the past, numbers had been much higher. The cell was dirty and malodorous with no ventilation; persons were being kept in the cell for several days and were only provided with blankets. The Committee must repeat that conditions of detention of the kind described above are totally unacceptable; and to oblige women and men to share such a cell is outrageous."

30. As regards the Larissa prison, it made the following remarks:

"Larissa Prison started operating in 1984, and consisted of five wings with an official capacity of 600 places. At the time of the visit, it was holding 892 inmates. Overcrowding was apparent across the establishment. Wings A, B and C accommodated between 220 and 270 prisoners each in cells on three floors. Standard cells measured some 23 m² and were equipped with five bunk beds, a table and some chairs. In wing A, the delegation came across several cells holding up to 12 persons; consequently, some inmates had to sleep on mattresses placed on the floor or two to a bed. Further, a number of cells were humid and in need of repair (paint falling off the walls, broken windows), and several cells required major refurbishment. That said, the inmates in each cell did benefit from a completely partitioned sanitary annex, measuring some 5 m², with a toilet, a shower and a sink.

Wing D, a former warehouse, accommodated about 135 working and/or elderly prisoners in two separate dormitories. Both dormitories were equipped with rows of bunk beds, affording each prisoner some 3 m² of living space. Next to each bunk bed were a table and two stools. The adjacent sanitary room included six showers (five were operational) and six toilets, as well as four sinks."

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

31. The Government invited the Court to reject the application on the grounds of non-exhaustion of domestic remedies. In particular, the Government maintained that even though the applicant had complained about conditions of detention that had affected him personally on account of his disability, he had failed to lodge a complaint with the public prosecutor under Article 572 of the Code of Criminal Procedure, or with the Prison Board under Article 6 of the Penal Code, which would have allowed the competent authorities to assess the applicant's conditions of detention and take the necessary measures. The applicant did not submit observations in that regard.

32. 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).

33. Regarding conditions of detention in prison facilities, the Court has ruled in some cases that applicants had not exhausted domestic remedies owing to their 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 had complained of particular circumstances which had affected them personally as individuals, and to which the prison authorities could have 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).

34. Turning to the circumstances of the present case, the Court notes that the applicant complained on the one hand about the conditions of his detention in Omonoia police station and in Larissa prison and on the other hand about the lack of proper medical treatment and provision of special furniture in Korydallos and Larissa prisons. In particular, in respect of the period during which he was detained in Korydallos prison, the applicant submitted that he should have been transferred to Korydallos prison hospital, where he would have had access to a special infrastructure adapted to his situation and would have been regularly monitored by a doctor. In respect of Larissa prison, the applicant claimed that he had not been provided with a special bed or toilet adapted to his needs and that he had not been regularly monitored by a doctor. The Court considers that, in so far as the complaints in the present case concern a lack of care administered in prison to the applicant as a disabled person and a lack of hospitalisation or detention in a place specifically adapted to his needs − problems affecting the person concerned personally − he should have made use of the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code − namely an application to the competent public prosecutor or to the prison council − and should have sought to obtain a solution to his problems from them (see, mutatis mutandis, Kordas v. Greece, no. 51574/14, §§ 24 -27, 30 March 2017). Even assuming that the applicant had filed complaints about his state of health and the treatment he was receiving from the authorities as a disabled person, it is not apparent from the case file that he had asked the competent bodies to examine them and to ensure that the appropriate medical treatment or infrastructure, as required by his condition, were provided to him.

35. The Court therefore upholds the Government's objection in part and dismisses the part of the application concerning the applicant's complaints about the lack of care administered to him in prison as a disabled person and the lack of hospitalisation or detention in a place specifically adapted to his needs.

36. The applicant also complained about the conditions of his detention in Omonoia police station and the general conditions of detention in Larissa prison, which had affected him personally. In respect of those complaints, the Court reiterates that when applicants claim to have been personally affected by the general conditions prevailing in a police station or a prison, the remedies provided for by Article 572 of the Code of Criminal Procedure, in respect of police stations and prisons, and Article 6 of the Penal Code, which applies only to prisons, are not effective (see Aslanis, cited above, § 29; Adamantidis v. Greece, no. 10587/10, § 23, 17 April 2014; and Igbo and Others v. Greece, no. 60042/13, §§ 35-36, 9 February 2017). The Government's objection of non-exhaustion in respect of the conditions of the applicant's detention in Omonoia police station and in Larissa prison should therefore be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37. The applicant complained that the conditions of his detention in Omonoia police station and Larissa prison had violated his 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. The parties' arguments

38. Referring to his description of facts, to the CPT report, and to the Court's judgment in Kanakis v. Greece (no. 2) (no. 40146/11, 12 December 2013), the applicant complained that the conditions of detention in Omonoia police station and in Larissa prison had violated his right not to be subjected to inhuman or degrading treatment, as provided for in Article 3 of the Convention.

39. The Government maintained that the level of severity required for a violation of Article 3 of the Convention could not be regarded as having been attained in the instant case. In particular, as regards the applicant's detention in Omonoia police station, the Government cited the Court's decisions in Ciocan and others v. Greece (dec.) (no. 41806/13, 6 October 2015) and Preci v. Greece (dec.) (no. 9387/15, 17 November 2015) and maintained that the applicant's detention there for twenty-seven days did not reach the required level of severity. In respect of the applicant's detention in Larissa prison, the Government referred to their description of facts and to the Court's judgment in Kalamiotis and Others v. Greece, no. 53098/13, §§ 41-42, 29 October 2015). They argued that the applicant had actually benefitted from privileged conditions of detention and medical treatment owing to his disability, and invited the Court to reject the application as manifestly ill-founded. They also added that their version of the facts should be accepted by the Court as the application had been communicated under the immediate and simplified procedure and the applicant had not contested the facts as presented by the Government.

B. The Court's assessment

1. General principles

40. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-�treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

41. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual -� showing a lack of respect for or diminishing his or her human dignity -� or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).

42. In order for a punishment, or treatment associated with it, to be "inhuman" or "degrading", the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-�VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003). In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their 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).

43. The Court 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 to a public hospital, even if he is suffering from an illness that is particularly difficult to treat (see Kudła, cited above, §§ 92-94; Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012; and Savičs v. Latvia, no. 17892/03, § 130, 27 November 2012). Nevertheless, the Court has held that where the authorities decide to place and keep a disabled person in continued detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004; Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; and Z.H. v. Hungary, no. 28973/11, § 29, 8 November 2012).

44. The Court has also held that detaining a disabled person in a prison where he could not move around and, in particular, could not leave his cell independently, amounted to degrading treatment (see Vincent v. France, no. 6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed, contributed to its finding that the conditions of detention amounted to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010).

45. In addition, the general principles concerning prison overcrowding have been set out in Muršić v. Croatia [GC], no. 7334/13, §§ 96-141, ECHR 2016).

2. Application in the present case

46. The Court observes at the outset that the case was not communicated under the immediate and simplified procedure, as the Government erroneously maintained, and, therefore, its case-law concerning the assessment of evidence when the parties provide conflicting accounts of events applies (for a summary of the relevant principles see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151-�153, ECHR 2012).

(a) Conditions of detention in Omonoia police station

47. The Court notes that the part of the applicant's complaint concerning the conditions of his detention in Omonoia police station is not manifestly ill-founded or inadmissible on any other grounds and it therefore declares it admissible.

48. The Court further notes that the applicant was detained in Omonoia police station for a period of twenty-�seven days. The Court has on many occasions examined the conditions of detention in police stations in respect of persons who have been remanded or detained pending expulsion, and found them to be in breach of Article 3 of the Convention (see, among others, Siasios and Others v. Greece, no. 30303/07, 4 June 2009; Vafiadis v. Greece, no. 24981/07, 2 July 2009; Shuvaev v. Greece, no. 8249/07, 29 October 2009; Tabesh v. Greece, no. 8256/07, 26 November 2009; Efremidi v. Greece, no. 33225/08, 21 June 2011; Aslanis, cited above; Adamantidis, cited above; and Kavouris and Others v. Greece, no. 73237/12, 17 April 2014). Apart from the specific deficiencies concerning the applicants' detention in each of the above cases, particularly overcrowding, lack of outdoor space for walking, poor sanitary conditions and the poor quality of the food, the Court based its finding of a violation of Article 3 on the nature of the police stations per se, which are places designed to accommodate people for a short time. Imprisonment for between one and three months was thus deemed contrary to Article 3 (see Siasios and Others, § 32; Vafiadis, §§ 35-36; Shuvaev, § 39; Tabesh, § 43; Efremidi, § 41; Aslanis § 39; Adamantidis § 33; and Kavouris and Others, § 38, all cited above).

49. The Court notes that the applicant was detained in Omonoia police station for a period of less than a month, namely twenty-seven days. However, the Court reiterates that assessment of the minimum level of severity for any ill-treatment to fall within the scope of Article 3 is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudla, cited above, § 91). In the present case, the Court considers that the state of the applicant's health and in particular the fact that he had had his right leg amputated, which resulted in his needing to use crutches to move around, in conjunction with his detention for twenty-seven days in Omonoia police station − a facility which, in terms of its design, lacked the necessary amenities for prolonged periods of detention − attained the minimum level of severity required for it to fall within the scope of Article 3 of the Convention.

50. Having regard to its case-law on the subject and the material submitted by the parties, the Court considers that the Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case than the one it reached in the above-cited cases. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention on account of the applicant's conditions of detention in Omonoia police station.

(b) Conditions of detention in Larissa prison

51. As regards the applicant's detention in Larissa prison and in particular the complaint relating to overcrowding, the Court notes that according to the information provided by the Government, the applicant had been placed in a block measuring 234.60 sq. m which had accommodated fifty-three detainees on average during the applicant's incarceration, the actual number ranging from fifty-two to fifty-five individuals. Accordingly, the applicant's personal space had been approximately 4.42 sq. m, varying from 4.26 sq. m to 4.51 sq. m. This version of facts was not contested by the applicant, who submitted that he had been placed in a ward with many other prisoners, without specifying the number of detainees or the size of the ward. According to the Court's case-law, the allocation of an area of more than 4 sq. m of personal space in multi-occupancy accommodation in prison cannot in itself constitute a violation of Article 3 of the Convention (see GC v. Italy, no. 73869/10, § 81, 22 April 2014; Kalamiotis and Others v. Greece, no. 53098/13, § 39, 29 October 2015; and Muršić, cited above, § 140).

52. In so far as the applicant complained that the cell had been filthy and insufficiently lit and ventilated, the Court finds that the applicant did not provide any evidence to contest the Government's assertion that the ward had been regularly disinfected and cleaned on a daily basis and that ventilation and light had been provided by five large windows. The Court further notes that the Government provided invoices from a private company which disinfected the premises in the prison. In respect of the applicant's complaint that the toilet had been similar to the one in Korydallos prison, the Court finds this allegation to be unsubstantiated, as the applicant did not provide any clarification of what he meant. In particular, the applicant did not specify how he was personally affected by the problems found by the CPT in that prison (see paragraph 30 above). The mere reference to an earlier judgment of the Court concerning Larissa prison and the CPT's report are not sufficient to refute the Government's specific assertions concerning the various aspects of the applicant's detention. In the light of the foregoing, the Court concludes that this part of the complaint must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

53. Relying on Article 13 of the Convention, the applicant complained of a violation of his right to an effective domestic remedy in respect of his complaints under Article 3. Article 13 provides as follows:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

54. Referring to the Court's case-law (Ciocan and others (dec.), cited above; Preci (dec.), cited above; Bazios v. Greece (dec.), no. 51345/13, 3 November 2015 and Aarabi v. Greece, no. 39766/09, 2 April 2015) the Government claimed that the applicant did not have an arguable claim for the purposes of Article 13.

55. Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (see, for example, Powell and Rayner v. the United Kingdom, 21 February 1990, § 31, Series A no. 172). The criteria for considering a claim to be "arguable" cannot be construed differently from the criteria applied when declaring claims to be "manifestly ill-founded" (see Powell and Rayner, cited above, § 33, and Kienast v. Austria, no. 23379/94, § 54, 23 January 2003). At the same time, notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another provision of the Convention (a "substantive" provision) is not a prerequisite for the application of Article 13 (see Klass and Others v. Germany, 6 September 1978, § 64, Series A no. 28, and Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).

56. Turning to the instant case, the Court considers that, having regard to the reasoning and conclusions set out above as regards the applicant's failure to raise his complaints concerning a lack of care administered to him as a disabled person and a lack of hospitalisation or detention in a place specifically adapted to his needs before the relevant domestic authorities (see §§ 34-35 above), the complaint under Article 13 in respect of the above-mentioned complaints should be declared manifestly ill-founded and rejected under Article 35 §§ 3 and 4 of the Convention (see Knezevic and others v. Slovenia (dec.), no. 51388/13, § 34, 19 September 2017). As regards the applicant's complaint concerning the conditions of his detention in Larissa prison which has been declared inadmissible as being manifestly ill-founded, it cannot be regarded as "arguable" for the purposes of Article 13. Therefore, that part of the applicant's complaint under Article 13 should also be declared manifestly ill-�founded within the meaning of Article 35 § 3 of the Convention and rejected under Article 35 § 4.

57. On the other hand, the Court considers that the applicant's complaints under Article 3 of the Convention concerning the conditions of detention in Omonoia police station can be regarded as "arguable" for the purposes of Article 13. Therefore, the applicant's complaint under Article 13 taken in conjunction with Article 3 concerning the conditions of detention in Omonoia police station must be declared admissible.

58. For the same reasons as those which have led to the partial dismissal of the Government's objection concerning the non-exhaustion of domestic remedies (see paragraphs 31-36 above), the Court finds that there has been a violation of Article 13 owing to the absence of any effective remedies in respect of the applicant's complaints concerning the conditions of his detention in Omonoia police station.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

60. The applicant claimed 20,000 euros (EUR) in respect of non-�pecuniary damage, requesting that the Court take into account his personal circumstances.

61. The Government contested those claims, arguing that the sum was excessive in view of the circumstances of the case and the current financial situation of the country. In the Government's view, the mere finding of a violation would constitute sufficient just satisfaction.

62. The Court finds that the applicant must have experienced suffering and frustration as a result of the breach of his rights under Article 3. By contrast, the finding of a violation may in itself constitute sufficient just satisfaction for a breach of Article 13 of the Convention arising from the lack of effective domestic remedies in respect of such conditions (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 173, 10 January 2012). Ruling in equity, as required under Article 41 of the Convention, it awards the awards the applicant EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

63. The applicant also claimed EUR 1,600 for the costs and expenses incurred before the Court. In particular, he estimated the time spent on the case by his representative to have been twenty hours, at an hourly rate of EUR 80, which is the minimum rate according to the Athens Bar Regulation and the Lawyers' Code.

64. The Government submitted that only documented claims should be reimbursed and therefore argued that the applicant's request should be rejected. In any event, they found this claim excessive and unsubstantiated, especially in view of the fact that no hearing had taken place. They also pointed out that, according to the Lawyers' Code, a lawyer's fee may be freely agreed between the parties and the rate of EUR 80 per hour applies only where there is no such agreement. Therefore, the applicant could have agreed on a lower rate than 80 EUR per hour.

65. The Court reiterates its established case-law to the effect that an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (for example, X and Others v. Austria [GC], no. 19010/07, § 163, 19 February 2013). Under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Chamber may reject the claim in whole or in part. In the present case, the claim is not supported by any documentary evidence. Therefore, the Court rejects the claim in respect of costs and expenses.

C. Default interest

66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 3 and 13 concerning the conditions of the applicant's detention in Omonoia police station admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention in Omonoia police station;

3. Holds that there has been a violation of Article 13 read in conjunction with Article 3 of the Convention in respect of the conditions of the applicant's detention in Omonoia police station;

5. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Renata DegenerKristina Pardalos
Deputy RegistrarPresident

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> TSARPELAS v. GREECE - 74884/13 (Judgment : Article 3 - Prohibition of torture : First Section Committee) [2018] ECHR 372 (26 April 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/372.html Cite as: CE:ECHR:2018:0426JUD007488413, ECLI:CE:ECHR:2018:0426JUD007488413, [2018] ECHR 372