FIRST SECTION

CASE OF IATROPOULOS AND OTHERS v. GREECE

(Application no. 23262/13)

JUDGMENT

STRASBOURG

20 April 2017

This judgment is final but it may be subject to editorial revision.

In the case of Iatropoulos and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Ledi Bianku, President,
	Armen Harutyunyan,
	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. 23262/13) against the Hellenic Republic lodged with the Court on 30 March 2013 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Greek nationals and one Bulgarian 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 delegate, Ms F. Dedoussi, Legal Assistant to the State Legal Council. The Bulgarian Government 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 all detained in the Transfers Department of Thessaloniki (Τμήμα Μεταγωγών); they were either in pre-trial detention or serving a prison sentence. Specifically, the first applicant was detained in the Transfers Department of Thessaloniki from 24 January 2013 until 29 April 2013; the second applicant was detained in the Transfers Department of Thessaloniki from 27 November 2012 until 1 March 2013; and the third applicant was detained in the Transfers Department of Thessaloniki from 29 January 2013 until 11 March 2013.
A.  The applicants’ submissions regarding the conditions of their detention in the Transfers Department of Thessaloniki
5.  The applicants alleged that the Transfers Department of Thessaloniki had been an entirely inappropriate place in which to spend long periods of detention, as they had done. The cells in which they had been held had measured 40 sq. m and had been designed to accommodate nine detainees. However, the number of detainees accommodated had varied from twelve to twenty-two.
6.  Cells had been insufficiently lit and ventilated, which, in addition to overcrowding and the filthiness of the premises, had affected inmates’ health. The blankets that had been provided had never been washed. The applicants furthermore stressed that there had been insufficient heating and hot water and that they had never been provided with soap.
7.  Detainees had been confined to their cells and had not been allowed to spend time outside, which had affected their psychological health. Recreational activities had not been offered and cells had not been equipped with televisions or radio.
8.  The meals that had been provided to detainees had cost 5.87 euros (EUR) per day and had not sufficed to cover their daily dietary needs, either in terms of quantity or quality.
9.  On 22 February 2013 the applicants lodged a complaint with the public prosecutor, complaining of the conditions of their detention but received no reply.
B.  The Government’s submissions on the conditions of the applicants’ detention in the Transfers Department of Thessaloniki
10.  The Government firstly argued that the applicants had complained in a general way, without providing specific references concerning the actual conditions of their detention.
11.  As regards the premises in which the applicants had been detained, the Government submitted that the Transfers Department of Thessaloniki had been comprised of six cells on the ground floor which had measured 59 sq. m each and had been designed to accommodate ten male detainees. There had been another two cells which had accommodated female detainees. All cells had had in-cell sanitary facilities and had had sufficient light and received sufficient ventilation through large windows.
12.  Cells had accommodated five to fifteen detainees. Most of the detainees had been held in the facility for very short periods of time, as the Transfers Department had been used when transferring detainees from one facility to another or to the court room. As a result, when the number of detainees had exceeded the number that the cells had been designed to accommodate, that had only remained the case until transfers had been completed. In any event, the space available for each inmate had never been less than 4 sq. m.
13.  An external contractor had cleaned the facilities every day and had disinfected the detention areas once a week. Hot water and heating had been available throughout the premises and all sheets and blankets had been regularly cleaned and replaced in the event that they had become worn out.
14.  Food had been provided to detainees by a private catering company and had been of good quality and quantity; the Government submitted examples of the various meals offered, arguing that these had covered all dietary needs and preferences.
15.  The Government pointed out that the applicants had not referred to or adduced any evidence that they had not received any medical treatment that they had needed. On the contrary, according to the police station’s records, the second applicant had been transferred to Papanikolaou Hospital on 29 December 2013 for a medical check-up.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
16.  The relevant domestic law and practice is described in the Court’s judgments in Aslanis v. Greece (no. 36401/10, §§ 12-17, 17 October 2013), and A.F. v. Greece (no. 53709/11, §§ 31-32, 13 June 2013).
III.  REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE
17.  Following its visit to Greece in April 2013, the European Committee for the Prevention of Torture (“the CPT”) published a report dated 16 October 2014 (CPT/Inf (2014) 26) in which it noted the following:
“41. ... The Metagogon (Transfer) Centre in Thessaloniki, located on the outskirts of the city in a warehouse-type structure, consisted of six large cells on the ground floor, each of which had an official capacity of 10 persons. There were also two cells that were used for accommodating women. At the outset of the delegation’s visit, the Centre was holding 83 men and three women, and a further 26 persons arrived later the same day. It was in principle intended to hold people for up to 24 hours but was now accommodating persons on remand or sentenced prisoners for several months, in addition to persons in transit. The material and hygienic conditions were poor, and there was no access to outdoor exercise.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
18.  The applicants complained that their conditions of detention in the Transfers Department of Thessaloniki 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.”
19.  The Government contested that argument.
A.  Admissibility
1.  Abuse of the right of individual petition
20.  The Government submitted that the applicants had abused their right of individual petition. They argued that the second and third applicants had not informed the Court that their detention to the Transfers Department of Thessaloniki had ended prior to their lodging their application with the Court and, similarly, that the first applicant had failed to inform the Court that he had been transferred to a prison facility shortly after he had lodged his application with the Court. The applicants had thus neglected to inform the Court of material in their possession that was essential for the examination of the case.
21.  The applicants argued that small discrepancies between the dates they had given in their application form and the actual dates during which they had been incarcerated could not be considered as constituting a lack of due diligence or as an attempt to mislead the Court. In addition, their representative had not been made aware of the precise date on which their respective periods of detention in the Transfers Department of Thessaloniki had ended.
22.  As regards the question of an abuse of the right of application the Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see, among other authorities, Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000‑X). The Court, having regard to the contents of the case file, does not consider that that is so in the instant case. While it is true that the applicants failed to inform the Court of the actual date on which their detention in the Transfers Department of Thessaloniki had ended, it cannot be said that it has been established with sufficient certainty that the applicants intended to mislead the Court.
23.  As regards the applicant’s failure to inform their lawyer of the date they were transferred to a prison, the Court reiterates that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential, both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (V.M. and Others v. Belgium [GC], no. 60125/11, § 35, 17 November 2016, and Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014). In the present case, the Court notes that the mere fact that the applicants’ representative was not informed immediately of the applicants’ transfer to a prison is not sufficient to enable it to establish with certainty that the applicants had not maintained contact with their representative.
24.  Given those circumstances, the Government’s objection cannot be upheld.
2.  Non-exhaustion of domestic remedies
25.  The Government further invited the Court to reject the application on the grounds of non-exhaustion of domestic remedies. They contended, in particular, that an action for damages in the administrative courts under section 105 of the Introductory Law to the Civil Code, read together with Article 57 of the Civil Code, Article 3 of the Convention or Article 7 of the Constitution, would have constituted an effective remedy in the instant case and listed, in this connection, a series of domestic decisions which, in their view, proved their point.
26.  The Government also referred to the provisions of the Penitentiary Code (Law no. 2776/1999) and of Presidential Decrees nos. 141/1991 and 254/2004, arguing that they could have been invoked before national courts in conjunction with section 105 of the Introductory Law to the Civil Code.
27.  The applicants argued that the aforementioned domestic remedies had not been effective, especially taking into account the fact that conditions of detention in police stations are a problem of a structural nature in Greece, and cited in this respect the Court’s judgments in Kaja v. Greece (no. 32927/03, § 40, 27 July 2006), Nieciecki v. Greece (no. 11677/11, § 41, 4 December 2012), and Aslanis (cited above, § 32).
28.  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 in this respect (see, in particular, Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996‑IV, §§ 65-69, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).
29.  The Court reiterates that 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). It also reiterates that bringing 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 the conditions of his detention in prison following his release. However, that remedy cannot be deemed effective for a person who is still in detention in so far as it does not provide a way to improve the conditions of his detention and thus lacks the preventive element within the meaning of Ananyev (cited above) (see, mutatis mutandis, Papadakis and Others v. Greece, no. 34083/13, § 50, 25 February 2016).
30.  The Court observes that the first applicant was still being detained in the Transfers Department of Thessaloniki on the date on which he lodged his application with the Court and that the aforementioned remedy would therefore not have been effective for him. It follows that the Government’s objection should be dismissed in respect of the first applicant.
31.  The Court further observes that the second and third applicants had been transferred to prison facilities before they lodged their application with the Court.
32.  The Court notes that it has already considered the objection of non-exhaustion of domestic remedies after it was lodged by the Government in cases concerning conditions of detention similar to the present case (see, in particular, Kavouris and Others v. Greece, no. 73237/12, §§ 22-31, 17 April 2014, and Lici v. Greece, no. 69881/12, §§ 32-43, 17 April 2014). It has consistently rejected it on the grounds that, as national case-law currently stands, bringing an action under section 105 of the Introductory Law to the Civil Code in conjunction with the articles invoked by the Government would not offer appropriate redress to applicants.
33.  The Court sees no reason to depart from its previous rulings in the present case.
34.  In view of the foregoing, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies. It further notes that the application is not inadmissible on any other grounds and must therefore be declared admissible.
B.  Merits
35.  The applicants complained of the conditions of their detention and drew the Court’s attention mainly to the complete lack of outdoor exercise available and the filthiness of the cells and sanitary facilities. Relying on a series of judgments by the Court, they argued that detention in police stations for prolonged periods of detention constituted per se a violation of Article 3.
36.  Referring to their own description of the detention facilities (see paragraphs 10-15 above), the Government submitted that the conditions of the applicants’ detention had been adequate.
37.  The Court notes that the parties’ positions diverge, notably in respect of the number of detainees accommodated in the cells of the Transfers Department of Thessaloniki, the quality of the food offered there and the cleanliness of the premises. The Court reiterates, however, that where there is a dispute about conditions of detention, there is no need for it to establish the veracity of each element that is in dispute. It may find a violation of Article 3 of the Convention on the basis of facts presented to it which the Government have failed to refute (see, mutatis mutandis, Grigoryevskikh v. Russia, no. 22/03, § 55, 9 April 2009).
38.  The Court notes in this respect that it has on many occasions examined the conditions of detention in police stations for persons who have been remanded or detained pending expulsion, and found them to be in breach of Article 3 of the Convention (see 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 v. Greece, no. 10587/10, 17 April 2014; and Kavouris and Others, cited above). 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 on offer, the Court based its finding of a violation of Article 3 on the nature of police stations per se, which are places designed to accommodate people for a short time only. Imprisonment for between one and three months was thus considered contrary to Article 3 (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).
39.  Turning to the present case, the Court notes that the applicants were detained for periods ranging from forty-four days to three months in the Transfers Department of Thessaloniki, a facility which, in terms of its design, lacked the amenities required for prolonged periods of detention.
40.  The Court also takes note of the fact that the Government affirmed in their submissions that the applicants had been detained in the Transfers Department of Thessaloniki out of necessity – that is to say due to the overcrowding that existed at the time in Greece’s prison facilities.
41.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes 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 applicants’ conditions of detention in the Transfers Department of Thessaloniki.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
42.  Relying on Article 13 of the Convention, the applicants complained of a violation of their right to an effective domestic remedy in respect of their complaints under Article 3.
43.  The Government contested that argument.
44.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
45.  For the same reasons as those which have led to the dismissal of the Government’s objection concerning the non-exhaustion of domestic remedies (see paragraphs 25-34 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 applicants’ complaints concerning the conditions of their detention in the Transfers Department of Thessaloniki.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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
47.  The applicants claimed 6,000 euros (EUR) each in respect of non-pecuniary damage. Invoking the Court’s judgments in Stoica v. Romania (no. 42722/02, 4 March 2008), Galotskin v. Greece (no. 2945/07, 14 January 2010), and Taggatidis and Others v. Greece (no. 2889/09, 11 October 2011), the applicants requested that the sums awarded to them be paid into a bank account indicated by the applicants’ representative, owing to the number of the applicants and the complexity of the logistical issues involved.
48.  The Government contested those claims. They argued that the applicants’ claims for non-pecuniary damage should not be examined by the Court, as it was not clear into which account the sum to be awarded should be paid. They furthermore maintained that the sums claimed by the applicants were excessive. In the Government’s view, the mere finding of a violation would constitute sufficient just satisfaction.
49.  The Court finds that the applicants must have experienced suffering and frustration as a result of the breaches of their 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, cited above, § 173). Ruling in equity, as required under Article 41 of the Convention, it awards each of the applicants EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts.
B.  Costs and expenses
50.  The applicants also claimed EUR 1,500 for the costs and expenses incurred before the Court.
51.  The Government submitted that only documented claims should be reimbursed and asked that the applicants’ claim for costs be rejected.
52.  The Court notes that the applicants did not submit a copy of their legal services agreement with their representatives. It accordingly dismisses their claim.
C.  Default interest
53.  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 application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay each of the applicants within three months   EUR 4,000 (four 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;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 20 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Renata Degener	Ledi Bianku
	Deputy Registrar	President

ANNEX

1.	Anastasios IATROPOULOS is a Greek national who was born in 1967.
2.	Georgios CHOLIDIS is a Greek national who was born in 1967.
3.	Christos DIMITROV is a Bulgarian national who was born in 1970.