European Court of Human Rights

FIRST SECTION

CASE OF ZABELOS AND OTHERS v. GREECE

(Application no. 1167/15)

JUDGMENT

STRASBOURG

17 May 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zabelos and Others v. Greece,

Kristina Pardalos, President,
Linos-Alexandre Sicilianos,
Aleš Pejchal,
Krzysztof Wojtyczek,
Armen Harutyunyan,
Tim Eicke,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Data concerning the applicants' detention

B. The applicants' description of the conditions of their detention

C. The Government's description of the conditions of the applicants' detention

II. RELEVANT DOMESTIC LAW AND PRACTICE

III. REPORTS OF NATIONAL AND INTERNATIONAL BODIES

A. Ombudsman

38. On 24 October and 9 November 2011, twenty-eight people infected with HIV and detained at the Prison Hospital submitted a complaint to the Ombudsman about the conditions of their detention. On 8 February 2012, a delegation from the Ombudsman's office visited the premises. In a report issued on 26 October 2012 following this visit, the Ombudsman emphasised that the wards were overcrowded, that the detainees did not have at their disposal any recreational activities and that the resources and infrastructure were inadequate. In particular, as regards detainees infected with HIV, the Ombudsman mentioned that the prescription of medication was not regular and that despite the fact that they were hospitalised in order to have easier access to medical care, their continuously growing numbers had led to worse conditions of detention (see Martzaklis and Others v. Greece, no. 20378/13, § 40, 9 July 2015).

B. Parliamentary Assembly of the Council of Europe

40. On 26 June 2013 the Parliamentary Assembly adopted Resolution 1946 (2013) entitled "Equal access to health care" in which it pointed out that inequalities in access to care particularly affect vulnerable groups, including persons in detention. While preparing her report, Liliane Maury Pasquier (Switzerland, SOC), PACE rapporteur on equal access to health care, visited Greece and noted the negative impact of austerity measures on access to health care. On 4 March 2014, Ms Maury Pasquier, alarmed by the living conditions at the Prison Hospital in Athens, called on the Greek authorities to improve the situation as soon as possible. In particular she noted the following:

"I am very concerned at the insalubrious conditions of inmates at [the Prison Hospital] in Athens, reported in the media. The hospital, which was designed to cater for 60 persons, is said to currently be housing 200 prisoners, most of whom are allegedly HIV-positive or suffering from contagious diseases such as tuberculosis and hepatitis. In such conditions, it is impossible to ensure that prisoners receive appropriate treatment, not to mention the fact that overcrowding obviously contributes to the spreading of contagious diseases, thereby endangering the lives of all prisoners in the hospital.

The right to health is a fundamental human right and the State must guarantee everyone equal access to appropriate health care. This applies in particular to prisoners who are entirely under the authority and responsibility of the State. I therefore call on the Greek government to improve the living conditions of prisoners at [the Prison Hospital] as soon as possible. The possible release of some prisoners from the hospital, as announced by the Minister of Justice, would only make sense if the Greek government were to guarantee that, on release, they would receive the treatment they require."

C. Report of the European Committee for the Prevention of Torture ("the CPT")

41. Following its visit to Greece in April 2015, the CPT published its report dated 1 March 2016 (CPT/Inf (2016) 4). It stated, inter alia, the following:

"89. The conditions in [the Prison Hospital] have been the subject of several media reports, and images depicting the appalling state of affairs in the establishment have been posted online. However, at the time of the CPT's visit, urgent action had still not been taken to remedy the situation which was so drastic that the place could be compared to a dumping ground for sick prisoners who are subsequently neglected and not provided with the care required. Such an appalling state of affairs cannot be permitted to continue.

The hospital has an official capacity of 80 beds and on the day of the visit was accommodating 141 prisoners, not including the 47 HIV positive prisoners in Korydallos Women Prison who were under the responsibility of the hospital. This is certainly an improvement from the period prior to November 2014, when some 220 patients were held in the hospital, but the hospital remains severely overcrowded. For example, in the smaller rooms, five patients were held in 17m² while the larger rooms of 43m² were accommodating 10 or 11 patients with beds crammed together; in a hospital setting, Greek law fixes a standard of 6m² of living space per person. In addition to the cramped conditions, the rooms were filthy and cluttered and hygiene was extremely poor.

Moreover, the current drastic understaffing makes it impossible to provide all patients with the proper care they require. The four resident doctors (a general practitioner, a surgeon and two microbiologists) worked Mondays to Fridays from 7h00 to 14h30, and a separate duty resident doctor rota of eight doctors covered the hours of 14h30 to 7h00 and weekends. Approval has apparently been obtained to recruit five additional physicians, which is sorely required. Further, after an absence of two years, a dentist now visits the hospital twice a week.

In addition, a number of specialists visit the hospital (psychiatrists, dermatologists, ophthalmologist, cardiologist and an ear, nose and throat surgeon). However, there is a lack of formal process in exchanging information on patients between the specialists and the treating doctors, and much depends on the individual relationships between doctors.

As regards the nursing complement, 11 of the 14 posts were filled at the time of the visit. Typically, this resulted in four nurses on duty during weekday mornings and two in the afternoons, and at weekends one in the mornings and two in the afternoons. At night, there is only ever one nurse on duty who, in addition to the hospital, has to provide cover for Korydallos Men's and Women's Prisons as well as for the psychiatric hospital (i.e. more than 2,500 prisoners). As a result of the lack of nurses, a number of prisoners were employed as auxiliaries, not only to undertake janitorial duties, but also to provide care to patients such as assistance with feeding and personal hygiene. The delegation received detailed accounts inter alia of how fellow patients had provided care for a cancer patient in the period prior to his death in the hospital in February 2015, and how he was not provided with pain relieving medication until just before his death. It also came across patients who had been neglected and not provided the follow-up care required, such as a prisoner with a post-surgery lax anal sphincter causing him faecal incontinence; once his case was brought to the attention of the doctor, steps were taken to address his problem. Otherwise, nursing staff only had time to distribute medication (including at Korydallos Women's Prison) and undertake complex dressings.

91. At the end of the visit, the CPT's delegation requested that the Greek authorities, as a matter of urgency, undertake a full review of the prison hospital and put in place a plan to resurrect it as a place of care, where prisoners are treated for their illnesses and provided the necessary care in decent conditions. If this review has not yet been conducted, given the very serious right to life issues under Article 2 ECHR as well as the serious ill-treatment concerns under Article 3 ECHR, the CPT recommends that immediate steps are taken to carry out this review. Further, the Committee wishes to be informed of the outcome of the review and the follow-up steps planned to remedy the current situation."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

1. Non-exhaustion of domestic remedies

(a) The parties' arguments

(b) The Court's assessment

52. Turning to the circumstances of the present case, the Court notes that it has previously ruled that Article 110A of the Criminal Code can be invoked by people who suffer from Aids in order to obtain their immediate release; however, that provision, as in force at the time the application was lodged, did not allow for the release on medical grounds of people who were simply HIV-infected (see Martzaklis and Others v. Greece, no. 20378/13, §§ 53 -54, 9 July 2015). From the document prepared by the prison hospital's doctor and adduced to the Court by the Government it is apparent that the applicants are all HIV-infected apart from the third applicant who suffers from chronic obstructive pulmonary disease. Therefore, they could not make use of the remedy referred to by the Government.

53. The Court takes note of the Government's argument that some of the applicants made use of that remedy after having lodged the present application with the Court and that that proved its effectiveness. In this regard it reiterates that 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, cited above, § 47). In any event, the Court notes that the applicants who were released in accordance with Article 110A of the Criminal Code only did so after that provision had been amended by Law no. 4322/2015 so as to include certain degrees of disability among the medical reasons on the basis of which a detainee could apply for his or her early release -� with the exception of the sixteenth applicant who was able to benefit from it as he suffered from tuberculosis. In the absence of any convincing argument from the Government that the applicants could have made use of that remedy prior to its amendment and particularly prior to the lodging of the present application, the Court considers that the applicants could not have had recourse to the remedy provided for by Article 110A of the Criminal Code. It, therefore, dismisses the Government's objection.

2. Application substantially the same

3. Lack of power of attorney

4. Six-month time-limit

B. Merits

1. The parties' submissions

2. The Court's assessment

(a) General Principles

(b) Application to the present case

86. However, as regards the tenth applicant and notwithstanding the above-mentioned considerations, the Court considers that his detention for short periods should not automatically lead to a finding of violation of Article 3 of the Convention (see, mutatis mutandis, Chazaryan and Others v. Greece, no 76951/12, 16 July 2015; Ciocan and others v. Greece (dec.) no. 41806/13, 6 October 2015; and Preci v. Greece (dec.) no. 9387/15, 17 November 2015). Taking into account the general conditions of the applicants' detention as described above, the Court considers that the tenth applicant's detention in the Prison Hospital for twenty-four days did not reach the required level of severity. This part of the complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

"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

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to strike out the application in so far as it concerns the tenth applicant's detention up to 9 July 2015;

2. Declares the application admissible in respect of the first to ninth, eleventh to fourteenth and sixteenth to eighteenth applicants and the rest of the application inadmissible;

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

4. Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 3;

5. Holds

(a) that the respondent State is to pay to the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) to the sixteenth applicant EUR 3,000 (three thousand euros); to the thirteenth applicant EUR 4,000 (four thousand euros), to the first and sixth applicants EUR 5,000 (five thousand euros), to the third, fourth, fifth, seventh, eighth, twelfth, fourteenth and eighteenth applicants EUR 8,000 (eight thousand euros) and to the second, ninth, eleventh and seventeenth applicants EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) jointly EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be deposited directly to a bank account indicated by their representatives;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 17 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposKristina Pardalos
RegistrarPresident

ANNEX

1.     Dimitrios ZABELOS is a Greek national who was born in 1978
2.     Adriatik BERBERAJ is an Albanian national who was born in 1974
3.     Dimitrios BERBERIDIS is an Greek national who was born in 1951
4.     Pola HONEIN is a Greek national who was born in 1984
5.     Theodoros ILIOPOULOS is a Greek national who was born in 1980
6.     Marouf KAMOLI is an Afghan national who was born in 1990
7.     Davit KHUTSISHVILI is a Georgian national who was born in 1988
8.     Roustam KONSTANTINIDIS is a Greek national who was born in 1981
9.     Ioannis MACHOS is a Greek national who was born in 1990
10. Andreas MARTZAKLIS is a Greek national who was born in 1981
11. Saeed Hamo MORADYAN is an Iranian national who was born in 1978
12. Antonios OIKONOMAKOS is a Greek national who was born in 1981
13. Nikolaos PAPADOPOULOS is a Greek national who was born in 1983
14. Spiridon-Xenofon PIRPINIADIS is a Greek national who was born in 1985
15. Sabri SABRIOGLOU is a Greek national who was born in 1978
16. Dimitrios SAMLIDIS is a Greek national who was born in 1981
17. Emmanouil TOUFEKTSIS is a Greek national who was born in 1967
18. Chrisovalantis TSIRIKLOS is a Greek national who was born in 1983