CASE OF ZABELOS AND OTHERS v. GREECE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
5. The applicants were or are still detained in Korydallos Prison Hospital (“the Prison Hospital”). They all suffer from HIV infection, apart from the third applicant who suffers from chronic obstructive pulmonary disease. 6. The first applicant, Dimitrios Zabelos, was detained in the Prison Hospital from 6 March 2014 until 17 June 2015, when he made use of the remedy provided for by Article 110A of the Criminal Code. 7. The second applicant, Adriatik Berberaj, was detained in the Prison Hospital from 6 April 2010 until 21 January 2011 and from 7 February 2012 until 1 July 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence. 8. The third applicant, Dimitrios Berberidis, was detained in the Prison Hospital on 6 December 2012 and was released on 11 June 2015 following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence. 9. The fourth applicant, Pola Honein, was detained in the Prison Hospital from 18 December 2012 until 1 July 2015. He was released after having made use of the remedy provided for by Article 110A of the Criminal Code. 10. The fifth applicant, Theodoros Iliopoulos, was detained in the Prison Hospital from 8 January 2013 until 2 June 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no. 4322/2015, having served two fifths of his sentence. 11. The sixth applicant, Marouf Kamoli, was detained in the Prison Hospital from 30 December 2013 until 19 May 2015, the date on which he was released following use of the remedy provided by section 11 of Law no. 4274/14, having served two fifths of his sentence. 12. The seventh applicant, Davit Khutsishvili, was detained in the Prison Hospital from 1 July 2014 until 27 October 2016. He was released after having made use of the remedy provided for by section 12 of Law no. 4322/2015. 13. The eighth applicant, Roustam Konstantinidis, was detained in the Prison Hospital from 23 August 2013 until 14 December 2015. He was released following an application on the basis of section 3 of Law no. 4322/2015. 14. The ninth applicant, Ioannis Machos, was detained in the Prison Hospital from 1 November 2012. He was still in detention when the parties submitted their observations. 15. The tenth applicant, Andreas Martzaklis, was detained in the Prison Hospital from 28 May 2013 until 3 August 2015, when he was released after he lodged an application on the basis of section 12 of Law no. 4322/2015. He was again detained in the Prison Hospital from 22 January 2016, and was still in detention there when the parties submitted their observations. 16. The eleventh applicant, Saeed Hamo Moradyan, was detained in the Prison Hospital from 8 February 2013 until 27 January 2016, the date on which he was released on the basis of section 12 of Law no. 4322/2015, having served one third of his sentence. 17. The twelfth applicant, Antonios Oikonomakos, was detained in the Prison Hospital from 27 November 2013 until 30 September 2015, when he was released, having served one tenth of his sentence, on the basis of section 12 of Law no. 4322/2015. He was again detained from 6 November 2015 until 23 December 2015 when he was released, having served two fifths of his sentence, on the basis of the same provision. 18. According to the documents before the Court, the thirteenth applicant, Nikolaos Papadopoulos, was detained in the Prison Hospital for significant periods of time from 4 April 2014 until 16 July 2015. 19. The fourteenth applicant, Spiridon-Xenofon Pirpiniadis, was detained in the Prison Hospital from 20 December 2013 until 13 August 2015, when he was released on the basis of section 12 of Law no. 4322/2015, having served two fifths of his sentence. 20. The fifteenth applicant, Sabri Sabrioglou, was detained in the Prison Hospital from 22 January 2013 until 24 December 2014 and from 11 February until 20 October 2015. 21. The sixteenth applicant, Dimitrios Samlidis, was detained in the Prison Hospital from 8 July 2014 until 26 February 2015, when he was released, after having made use of the remedy provided for by Article 110A of the Criminal Code. 22. The seventeenth applicant, Emmanouil Toufektsis, was detained in the Prison Hospital from 30 October 2013 and was still in detention there when the parties submitted their observations. 23. The eighteenth applicant, Chrisovalantis Tsiriklos, was detained in the Prison Hospital from 4 July 2013 until 8 July 2015, when he was released after having made use of the remedy provided for by Article 110A of the Criminal Code. He was again detained on 21 August 2015 and was still in detention there when the parties submitted their observations. 24. The applicants submitted that the Prison Hospital had been overcrowded which, in addition to causing poor sanitary conditions, had resulted in the deterioration of their already fragile health. They maintained that all of them had been detained in hospital wards which had measured 44 sq. m and which had been occupied by twelve detainees on average for the period between 2013 and 2015. In addition, the second and third applicants had been detained in cells measuring 17 sq. m and which had held four inmates. They further argued that they had not been able to move freely within the wards owing to the space occupied by furniture. In particular, bunk beds were not used in the Prison Hospital and extra furniture, such as medical equipment, was required; therefore half the area of each ward had been occupied by furniture, which had resulted in them having a personal space in which they could move freely of below 2 sq. m. 25. The above-mentioned conditions had led them to receiving inadequate health care. There had been a high risk of infection with contagious diseases as there had not been effective separation of detainees according to the disease from which they had suffered. In addition, only four toilets had been available for the detainees in a total of five wards on the first floor. 26. Meals had been insufficient and of poor quality and the absence of recreational activities had affected their psychological health. Central heating had been inadequate and collection of rubbish, especially in the kitchens, had not been sufficient, creating hygiene problems and resulting in bad smells and the presence of pests. The applicants also complained of the lack of medical staff and properly equipped laboratories for their medical examinations. In particular, during the period 2013-14 only one general practitioner had been available to the hospital. 27. The applicants acknowledged that the conditions of their detention had improved in mid-2016 and that the medical-staff numbers had increased, resulting in conditions which met the requirements of Article 3 of the Convention but only for the period after June 2016. 28. On 18 December 2014 the applicants lodged a complaint with the Prison Board under Article 6 of the Penal Code (Law No. 2776/1999), to which they have not received any reply to date. 29. According to the Government, the Prison Hospital’s official capacity was sixty patients and at the time of the applicants’ detention the hospital had held between 180 and 220 patients. Specifically as regards the applicants, some of them had been detained in wards 7 and 8 on the first floor of the hospital and some others in wards 1, 2 and 3 on the second floor. The wards measured 44.40 sq. m each, and each of them hosted eight to thirteen detainees. Therefore, the personal space available to them ranged from 3.4 sq. m to 5.5 sq. m. It was also noted that toilets had been in the corridors, not inside the wards, which had remained unlocked so as to ensure unobstructed access to the bathrooms. 30. The Prison Hospital was an establishment providing primary medical care by operating as a clinic. Detainees who required more intense or specialised care were referred to public hospitals, a procedure which was used for the third, fourth, ninth, fifteenth and seventeenth applicants. The patients were separated by disease. They were examined regularly by doctors and they were submitted often to general and specialised laboratory examinations. 31. Wards were sufficiently ventilated and heated and had adequate natural light via six large windows. Hot water was ensured by solar water heaters and by boilers which operated for four hours per day. Wards were regularly cleaned by cleaning crews consisting of detainees and disinfected by specialist companies. The hospital’s social service provided personal hygiene products to detainees who could not afford them. All wards and corridors had rubbish bins which were emptied regularly. 32. As regards detainees’ meals, they were designed under medical supervision to ensure that patients received all necessary nutrients. The Government submitted the menu of two random weeks to demonstrate that they had been comprised of a variety of food. 33. According to the Government, detainees were not obliged to spend all day in the wards; on the contrary, they could move along the corridors and spend time in the yard. Various recreational activities were organised and detainees had had the opportunity to enrol in educational programmes since October 2015. Detainees were also granted days of leave that they could spend outside the prison hospital; the third, fifth and eleventh applicants had benefitted from such leave. 34. Lastly, according to the Government, during 2015 and 2016 conditions of detention in the Prison Hospital were drastically improved. That was mainly due to measures taken to reduce overcrowding in prisons under Law no. 4322/2015, which provided for early release schemes. In November 2014 a women’s ward had been opened at the hospital and work had been carried out to improve the facilities. In addition, new and updated medical equipment was procured and medical-staff numbers had been reinforced by the recruitment of three new doctors of various specialties. The Government specified that all the above-mentioned improvements had made the Prison Hospital a detention facility significantly different to the image given in the Greek Ombudsman’s (Συνήγορος του Πολίτη) report, which had been prepared on the basis of a visit in February 2012, that is to say on a date that had no relevance to the present case.