FIRST SECTION
CASE OF MAROUGGAS v. GREECE
(Application no. 44689/16)
JUDGMENT
STRASBOURG
4 October 2018
This judgment is final but it may be subject to editorial revision.
In the case of Marouggas v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Kristina Pardalos, President,
Pauliine Koskelo,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 11 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 44689/16) 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 Christos Marouggas (“the applicant”), on 28 July 2016.
2. The applicant was represented by Mr C. Lampakis, a lawyer practising in Thessaloniki. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr K. Georgiadis and Ms K. Karavassili, Senior Advisor and Legal Representative A, respectively, at the State Legal Council.
3. On 8 November 2016 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1956 and was detained in Diavata Prison in Thessaloniki when he lodged his application with the Court. He was serving a sentence of sixteen years for attempted murder, being a member of an organised criminal group and other offences. Since his arrest on 29 September 2010 and until the time that he submitted his observations before the Court, he was detained in Diavata Prison. He was initially detained for fifteen days in a disciplinary cell (πειθαρχείο) – that is to say in isolation – and subsequently in cell no. GR 9 for approximately two years, and later in cell no. 2.
5. The applicant submitted that the material conditions of his detention had been very poor. The cells in which he had been detained had measured 24 sq. m, including the toilets, and each one had held ten prisoners; the living space for each prisoner had been therefore less than 3 sq. m. Overcrowding had exposed him to infectious diseases and he had additionally suffered from passive smoking. Due to the overcrowding, he had had barely any space to move within his cell, and the bunk bed above his own had been low, not allowing him to sit up comfortably.
6. Access to natural light and ventilation had been inadequate. Sanitary facilities and supplies had been old, broken and insufficient to ensure the prisoners’ well‑being and personal hygiene. Heating had only been provided for one hour per day (from 9 p.m. until 10 p.m.), while hot water during winter had been provided for two hours per day and had not sufficed for all prisoners. In each ten-person cell there had been five bunk beds, five stools, a small table and five side tables, but no lockable space for personal belongings. The mattresses had been old, mouldy and smelly, and sheets and towels had never been provided. In addition, prisoners had lacked access to cultural, recreational and sports activities and had had to rely on visits from friends and families in order to obtain any newspapers or magazines, which had intensified their feeling of isolation. The applicant also complained about the low quantity and quality of the food.
7. The Government did not submit a description of the conditions of the applicant’s detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
8. The relevant domestic law and practice is described in the decision in the case of Chatzivasiliadis v. Greece (no. 51618/12, §§ 17-21, 26 November 2013).
III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE (CPT)
9. In its report of 16 October 2014, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), following a visit that it made to Greece from 4 until 16 April 2013, noted the following as regards Diavata Prison:
“Diavata Judicial Prison, in Thessaloniki, has a capacity of 250 places, but at the time of the visit held 590 inmates. The establishment has 53 dormitories measuring 24 m² and holding up to 10 inmates each, 10 cells of 11 m² holding on average four inmates each, and three dormitories accommodating 34 female prisoners. The dormitories for female prisoners, located on the ground floor, were separated from the sections accommodating male prisoners. However, like the rest of the inmate accommodation, they offer cramped conditions, with 24 m² of space for five sets of bunk beds. Access to natural light and ventilation was adequate and there were a few stools, but no lockable space for personal belongings. The sanitary annexes contained floor-level toilets and a sink, which also had to be used for washing clothes and dishes; however, on a positive note, the annexes were fully partitioned.”
10. In its report of 1 March 2016, following a visit that it made from 14 until 23 April 2015, the CPT found that the situation in Diavata Prison had remained essentially the same since its previous visit in 2013; on the day of the visit, it had had a capacity of 370 places but had held 588 prisoners, the official capacity having been increased by more than 100 by extending rooms of 24 sq. m to six prisoners instead of four.
THE LAW
I. THE GOVERNMENT’S UNILATERAL DECLARATION AND THEIR REQUEST FOR THE APPLICATION TO BE STRUCK OUT OF THE COURT’S LIST UNDER ARTICLE 37 OF THE CONVENTION
11. After unsuccessful friendly-settlement negotiations, the Government requested the Court, by a letter of 11 April 2017, to strike the case out of its list and enclosed the text of a unilateral declaration with a view to resolving the issues raised by the applicant.
12. The applicant disagreed and submitted his comments on 18 May 2017. He argued that the terms of the declaration were unsatisfactory as to the compensation offered by the Government.
13. The Court notes that, under certain circumstances, it may be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government, even if the applicant wishes the examination of the case to be continued. This will, however, depend on the particular circumstances as to whether the unilateral declaration offers a sufficient basis for finding that respect for human rights, as defined in the Convention, does not require the Court to continue its examination of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI, and Angelov and Others v. Bulgaria, no. 43586/04, § 12, 4 November 2010).
14. Having considered the terms of the Government’s unilateral declaration, the Court finds, given the particular circumstances of the case and in particular because the amount of compensation proposed is substantially lower than the amount the Court would have awarded in similar cases, that the unilateral declaration does not provide a sufficient basis for concluding that respect for human rights, as defined in the Convention and its Protocols, does not require it to continue its examination of the case.
15. This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
16. The applicant complained that the conditions of his detention in Diavata Prison had violated the prohibition of 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
17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
18. The Government did not submit any observations on the merits of the case.
19. The applicant maintained his complaint.
20. Having regard to the applicant’s allegations, which were undisputed by the Government, and reiterating the Court’s case-law concerning the conditions of detention in Diavata Prison (see, inter alia, Adiele and Others v. Greece, no. 29769/13, §§ 47-51, 25 February 2016), the Court considers that the conditions of the applicant’s detention during the above-mentioned period amounted to inhuman and degrading treatment.
21. There has accordingly been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
22. 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 complaint under Article 3.
A. Admissibility
23. The Government did not submit any observations in this regard.
24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
25. As the Court has held on many occasions, Article 13 guarantees the availability at national level of a remedy by which to complain of a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see De Tommaso v. Italy [GC], no. 43395/09, § 179, ECHR 2017 (extracts)).
26. The Court has examined on numerous occasions the issue of domestic remedies in respect of poor conditions of detention in Greece, and has concluded on each occasion that the remedies suggested by the Government were ineffective when the applicants in question claimed they had been personally affected by the conditions prevailing in a prison (see, among other authorities, Igbo and Others v. Greece, no. 60042/13, § 51, 9 February 2017; Singh and Others v. Greece, no. 60041/13, §§ 62-64, 19 January 2017; Alexopoulos and Others v. Greece, no. 41804/13, § 40, 6 October 2016; and Papakonstantinou v. Greece, no. 50765/11, § 51, 13 November 2014). The present case is no exception. Having regard to the fact that the Government have not submitted any observations on the merits of the complaint under Article 13 and to the Court’s case-law on this matter, the Court considers that it has not been shown that effective remedies existed in respect of the applicant’s complaint under Article 3. There has thus been a breach of Article 13 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. 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
28. The applicant claimed 55,000 euros (EUR) in respect of non-pecuniary damage, consisting of EUR 40,000 for the non-pecuniary damage he had suffered on account of the violation of his rights under Article 3 and EUR 15,000 for the violation of his rights under Article 13 of the Convention. He also requested that that amount be paid into the bank account indicated by his representative.
29. The Government contested those claims, arguing that in view of the country’s current financial situation and having regard to the circumstances of the case, the sums claimed by the applicant were excessive. In the Government’s view, the mere finding of a violation would constitute sufficient just satisfaction. The Government also contested the need for any sums awarded to be paid into the bank account indicated by the applicant’s representative.
30. The Court finds that the applicant must have experienced suffering and frustration as a result of the breaches 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 applicant EUR 20,000.
B. Costs and expenses
31. The applicant also claimed EUR 1,280.50 for the costs and expenses incurred before the Court, EUR 1,200 of which corresponded to the fee of his representative, EUR 5.50 for postal expenses and EUR 75 for translation costs. In this regard, he provided the Court with a receipt issued by the post office for EUR 5.50 and a copy of a private services agreement concluded with his representative on 21 July 2016. Under the terms of that agreement, in the event that the Court finds a violation of the Convention, the applicant will have to pay to his representative EUR 1,200, plus applicable VAT. In the event that no violation is found, the lawyer will have to bear the costs himself. The terms of agreement also stipulate that the relevant sum should be paid directly into his representative’s bank account.
32. The Government submitted that only documented claims should be reimbursed, and accordingly submitted that the applicant’s request should be rejected. In this regard, they argued that the applicant had failed to produce the required documents, which would have proved that he had actually incurred these costs. In any event, they found this claim excessive and unsubstantiated, especially in view of the fact that no hearing had taken place; they added that if the Court wished to award a sum of money to the applicant under this head, it should amount to no more than EUR 300.
33. 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 (see, 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 Court notes that that the applicant concluded an agreement with his counsel concerning his fees, which is comparable to a contingency fee agreement. This is an agreement whereby a lawyer’s client agrees to pay the lawyer fees amounting to a certain percentage of the sum, if any, awarded to the litigant by the court. Such agreements, if they are legally enforceable, may show that the sums claimed are actually payable by the applicant. Agreements of this nature – giving rise to obligations solely between lawyer and client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs are actually incurred, but also to whether they have been reasonably incurred (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000‑XI, and Stergiopoulos v. Greece, no. 29049/12, § 63, 7 December 2017).
34. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 800 for costs and expenses incurred in the proceedings before the domestic courts and the Court. The amount is to be paid into the bank account indicated by the applicant’s representative.
C. Default interest
35. 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 the applicant, within three months, the following amounts:
(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account indicated by the applicant’s representative;
(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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy