AS TO THE ADMISSIBILITY OF
Application No. 28524/95
by Donald PEERS
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 October 1994 by
Donald PEERS against Greece and registered on 12 September 1995 under
file No. 28524/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
27 November 1996 and the observations in reply submitted by the
applicant on 4 August 1997;
- the Commission's decision of 16 September 1997 to request
supplementary observations;
- the supplementary observations submitted by the respondent
Government on 8 October 1997 and the observations in reply
submitted by the applicant on 10 February 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British national, born in 1949. He is
currently detained in Agias prison in Canea, Greece. In the proceedings
before the Commission he is represented by Mrs Rozy Spartali-Aretaki,
a lawyer practising in Canea.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
A. Particular circumstances of the case
On 19 August 1994 the applicant, who had been treated for heroin
addiction in the United Kingdom, was arrested at Athens airport for
drug-related offences. His money was seized.
The applicant claims that the police also seized a quantity of
methadone - a medically prescribed substance for heroin addicts in the
United Kingdom - he had with him. He also claims that, as he was
suffering from withdrawal symptoms, he asked to see a doctor; he was
asked to sign a statement first; although he applicant agreed, no
medical assistance was given to him. According to the applicant, a
police officer acted as an interpreter during his questioning at Athens
airport.
The applicant was subsequently transferred to the Central Police
Headquarters of Athens in Alexandras avenue where he was detained until
24 August 1994.
The applicant gives the following account of what happened to him
there. As he was suffering from withdrawal symptoms, the applicant made
repeated requests for medical assistance. However, none was given to
him. He was taken before three different judicial officers. He was not
legally represented. Although he was assisted by an interpreter, his
services were inadequate. As a result of this and his medical
condition, he could not follow the proceedings which were very brief.
The charges were not notified to him in writing. Following his third
appearance before a judicial officer, four days after his arrest, he
was taken to a hospital where he was given an injection and a pill. he
was returned to the Police Headquarters and fell into deep sleep. At
one stage he woke up and realised that his property was being ransacked
by two fellow detainees. The next morning he was given another pill.
On 24 August 1994 the applicant was transferred to Koridallos
prison and was admitted in the prison's psychiatric unit. In a
certificate dated 25 July 1995 a psychiatrist of this unit states that,
when the applicant was admitted, he was in a comatose state.
The applicant gives the following account of what happened during
his stay in the psychiatric unit. He was held in the segregation unit
for several days in a single cell in the beginning and then together
with eight to ten other persons. The cells contained nothing but beds.
He was given a mattress and two blankets. The meals "were served on the
floor". He was given medication which he found excessive. At a certain
stage he was taken to the main psychiatric unit. In a letter dated
9 October 1994 the applicant claims that this happened "after he had
been examined by a doctor". In a letter dated 5 December 1994 he claims
that, while in the segregation unit, he was never examined by a doctor.
He spent one night in the main psychiatric unit in a cell with five
others. The cell was very noisy because each inmate had his own
television set and radio. At this stage he was given back certain
clothing items he had with him when he arrived in Koridallos prison.
It appears that some other personal property items, including a
rechargeable portable shaving razor, were kept by the prison
authorities. On at least two occasions -in a letter dated 9 October
1994 and a letter dated 25 August 1996 - the applicant claims that he
never signed for these items. In a letter dated 1 December 1995 the
applicant makes reference to property kept by the prison authorities
for which he had signed and which had been recorded.
On 30 August 1994 the applicant was examined by a doctor who,
according to the applicant, spoke English. The applicant claims that
he asked for his medication to be reduced and to be discharged from the
psychiatric unit. The doctor discharged him, having certified that he
was a user of drugs. The applicant was immediately taken to Koridallos
prison proper.
The applicant makes the following claims which concern his entire
period of detention there from 30 August 1994 until September 1996. The
only things that prisoners were provided with were a mattress, two
blankets and eating utensils. No pillows, sheets or towels were
officially supplied. Prisoners were expected to procure for themselves
toilet paper, toothpaste, other "toiletries" and writing paper.
Prisoners received two meals per day (in addition to breakfast), except
for Sunday when only one mid-day meal was served. There was no
information as to the prison rules and routine in English. All notices
were in Greek. The only persons who would speak English were a social
worker and a doctor. The library, which was in any event destroyed
during the riot of November 1995, had no books on the Greek legal and
penitentiary system in English. All requests, including those for
medical assistance, had to be submitted in Greek. Whenever he tried to
submit a request in writing in English it was ignored. The
announcements on the loudspeakers were also made in Greek. Moreover,
all vocational and educational training was conducted in Greek. The
only manner in which he could study Greek was by listening to one set
of language tapes available in the prison library.
It appears that the applicant initially requested to be kept "in
a quiet cell". As a result, he was placed in the segregation unit in
the "Delta" section of Koridallos prison.
The applicant gives the following description of the conditions
of detention in the segregation unit. In his cell there was room for
two beds and an asian-type toilet. There was only one window in the
ceiling which did not allow any natural light in because the glass was
opaque and dirty. However, "a little rainfall" would pass through
because the glass was cracked in some places. In summer the cell became
"unbearably hot" at midday, when prisoners had to stay in for some
hours. In winter the cell was not heated and became very cold. There
was electrical light but it was so high up that he could not read. At
one stage it was left on all night. The ventilation was inadequate.
Exercise could be taken in two adjoining courtyards.
The applicant also claims that, while in the segregation unit,
he could not hear the loudspeakers. He was allowed only one telephone
call per week between 9:00 and 10:30 on Monday morning. He could not
reach "his embassy or lawyer" at the time. It appears that telephone
calls could be made also in the evening, but were again often limited
to one per day. When he spoke with his embassy, he was informed that
no legal aid could be obtained before the trial hearing. He continued
consulting a psychiatrist who did not speak English adequately. He was
given anti-depressants, sedatives and sleeping pills.
The applicant further claims that he was offered the possibility
of leaving the segregation unit but refused because he did not want to
be placed in the drug offenders wing, the "Delta" wing.
At a certain stage, the applicant was moved from the segregation
unit to the "Alpha" wing. He claims that he continued consulting the
psychiatrist. As his condition had improved, he was only given sleeping
pills.
As no distinction is in principle made between remand prisoners
and convicts in Koridallos prison, the applicant was subjected to the
same conditions of detention until his transfer to Tirintha prison in
September 1996.
The applicant gives the following account of what happened in the
"Alpha wing" after he left the segregation unit:
- He was detained in cells which were four metres to three metres
or five metres to three metres. The cells had "open" "asian-type"
toilets and, as a result, he had "no toilet privacy". There was also
a sink in each cell. However, there was no hot water. The walls were
"very occasionally" freshly painted. In the winter the cells were only
heated for a few hours every day. In the summer they became very hot,
since there was very little ventilation. However, in a letter dated
25 August 1996 the applicant claims that, during especially hot
periods, the doors were left open for some hours at mid-day and for one
or two hours in the evening, depending on the number of members of
staff present. There were no chairs or wardrobes. Most of the time, he
shared a cell with two other persons. Only for a very short period of
time, coinciding with the preparation by a social worker of a report
dated 30 August 1996, did he share a cell with only one person. One
night he had to share the cell with four other persons, although there
were only three beds.
- Food was often served cold "in the most insanitary manner
possible". Although food was prepared in the prison's kitchens, there
were four additional cookers in each wing where prisoners could cook
extra food they bought or received. These cookers were shared by three
hundred and fifty persons. Not all four of them were always functioning
and, as a result, prisoners had to wait up to an hour in order to use
them.
- There were ten showers in the basement, without curtains. Hot
water was available only a few hours a day. Clothes washing and drying
facilities did not exist and prisoners have to wash their clothes in
the showers. The queues for the showers were very long.
- The prison buildings were unpainted and damp. There were some
areas in the prison where there was no glass in the windows. However,
in a letter dated 25 August 1996 the applicant stated that a
refurbishing of the prions buildings was underway. No provision was
made for activities. There was only one table tennis and some weight
lifting equipment in the basement.
- There were four telephones in each wing for three hundred and
fifty persons. Not all four were always functioning. This allowed for
one and a half minute telephone communications on average per day per
prisoner. He applicant had to wait for up to an hour to use the
telephone. Prisoners could only receive visits from family members, two
per week for those in detention on remand and one for convicts. These
lasted approximately twenty minutes. The prisoners were separated from
the visitors by glass panels. He did not have any family in Greece.
Visits from friends were authorised by the prison director on a
discretionary basis and he was allowed a visit from a friend only once.
No home leave was granted to foreign prisoners.
- There was no possibility of work for remand prisoners.
Further to an order by the investigating judge, the applicant was
examined by an expert-psychiatrist. On 5 September 1994 the latter
opined that the applicant was not a drug-addict.
On 18 January 1995 the applicant asked Dr P, the psychiatrist of
Koridallos prison, for a medical report. On 23 January 1995 Dr P
certified that the applicant was receiving psychiatric treatment as
from 24 August 1994. On 30 August 1994 he was diagnosed as a user of
drugs. As from 9 September 1994 he was being treated for anxiety and
depression. The applicant had produced to Dr P a letter by a British
psychiatrist to the effect that he was a heroin addict.
The applicant claims that on 27 January 1995 he wrote to the
Minister of Justice in English to protest about the situation in
Koridallos prison, but has received no reply. He also claims that he
raised the issue of his missing property with three different judicial
officers who visited Koridallos prison, two from Piraeus and the last
one from Athens. None of these officers spoke English adequately. The
last request was submitted in writing in Greek, the applicant having
been assisted in this connection by a friend. He has received no reply
so far.
On 2 March 1995 the organisation "Over 18" certified that the
applicant had asked to be admitted to their programmes which he had
been following for two months; he was trying seriously to overcome his
addiction to drugs.
On 1 June 1995 the psychiatric clinic of Eginitio Hospital issued
a certificate to be used in court to the effect that the applicant had
reported to them that he was a drug addict and was suffering from
withdrawal symptoms. On 25 July 1995 the applicant applied to the
psychiatric unit of Koridallos prison for another medical certificate.
Such a certificate was issued on the same day and confirmed what Dr P
had stated on 23 January 1995.
On 28 July 1995 the applicant was tried at first instance by the
three-member Court of Appeal (trimeles efetio) of Athens for drug-
related offences. He claims that until then he had not been notified
of the charges. He was represented by counsel provided to him by the
representative of a drug-addiction therapy programme. Since he did not
speak Greek, he was assisted by an interpreter. The court, having read
the expert opinion of 5 September 1994 and some of the above-mentioned
medical certificates, considered that he was a drug addict; as such he
had repeatedly engaged in drug-trafficking, something which had become
a professional activity, and had to be found guilty. However, the
applicant, being a drug-addict, could not be found guilty of possession
of drugs. The court sentenced the applicant to thirteen years'
imprisonment and a fine of 5,000,000 drachmas. However, it ordered that
he should recover the money which had been seized from him at the time
of his arrest. The applicant claims that he was never served with any
of the court documents in English.
The applicant appealed and a hearing was fixed for
3 November 1997. After his conviction the applicant was allowed to work
as a cleaner on an unremunerated basis.
In November 1995 there was a riot in Koridallos prison in the
course of which some property items which the applicant had surrendered
on his admission were destroyed. The prison library was also destroyed.
The applicant claims that some time before January 1996 he
applied for release into a drug-addiction therapy unit but his
application was refused. He claims that at that time all therapy groups
had been cancelled; only pills were given. It appears, however, that
by August 1996 group therapy had resumed.
On 30 August 1996 a social worker reported to the director of
Koridallos prison that there could be no connection between the delay
in the examination of the applicant's appeal and his application to the
Commission. She also stated that the money which had been seized from
the applicant would be returned to him after the examination of his
appeal; the applicant had been informed accordingly. According to the
social worker, the applicant, after his conviction, shared the cell
with only one convict. Letters sent by the applicant were not opened.
Letters sent to the applicant by the European Commission of Human
Rights were opened by a prison officer in front of the applicant.
Foreigners who did not speak Greek could not participate in the
vocational training courses organised in Koridallos prison. A programme
for learning Greek used to be available in the prison library but was
destroyed during the riots. However, it was the intention of the social
office to replace it in due course. According to the Penitentiary Code,
remand prisoners did not have the right to work. However, the
applicant, after his conviction, started working as a cleaner. Almost
immediately after his arrival in Koridallos prison the applicant
started being treated by Dr P, a psychiatrist. He continued to
participate in the awareness and self-help therapeutical programmes for
foreign prisoners of two organisations, "Drug-Addicts Anonymous" and
"Over 18". He was also being taken care of on an individual basis by
a psychologist-member of "Drug-Addicts Anonymous". Finally, since his
arrival in Koridallos prison, the applicant's case was being followed
by the prison's social service. The personal property items the
applicant had surrendered upon his arrival in Koridallos prison had
been stored in a specially designated place but were destroyed by other
inmates during the riot of November 1995. It was true that no
distinctions were made between remand prisoners and convicts. The
applicant did not have the free assistance of an interpreter when he
appeared before the investigating judge after his arrest. However, the
social service of the prison had arranged for the applicant to have the
free assistance of a lawyer and an interpreter when he appeared before
the first instance court. First instance court decisions were not
notified to the prisoners concerned. However, the applicant could have
asked the social service of the prison for a copy. The social service
would have then contacted a charitable organisation. It could have also
arranged for its translation by the competent service of the Ministry
of Foreign Affairs at the expense of a charitable organisation.
In September 1996 the applicant was transferred from Koridallos
to Tirintha prison. According to a letter by the director of Tirintha
prion dated 20 November 1996, this was done "to ensure better
conditions of detention for the applicant". From Tirintha prison the
applicant was transferred at his request to Agias prison.
The outcome of the applicant's appeal is not known.
B. Relevant domestic law and practice
Article 74 of the Code of Criminal Procedure provides as follows:
"Petitions and statements by detained accused persons are
submitted in writing and are handed over to the director of the
prison where the accused is detained; a report is drafted; then
they are registered in a special book and are transmitted to the
competent authority immediately ..."
Article 5 of the Penitentiary Code provides as follows:
"2. Whenever a member of staff commits an illegal act against
a prisoner or violates his/her rights, the prisoner has the right
to complain in writing and without delay to the superior
penitentiary authority and, subsequently, to the court which
supervises the execution of the sentence.
3. The prison director must transmit any petition or letter
addressed by a prisoner to a public authority without delay and
without being informed of its content ..."
Article 121 para. 1 of the Penitentiary Code provides that the
duties of the judge which supervises the execution of the sentence are
provisionally discharged by the public prosecutor of the first instance
criminal court (isangeleas plimmeliodikon) of the place of detention,
while the duties of the court which supervises the execution of the
sentence are provisionally discharged by the first instance criminal
court (plimmeliodikio) of the place of detention sitting in camera.
The Government have submitted copies of the following documents:
- a decision by a public prosecutor not to institute criminal
proceedings against prison officers for causing bodily harm to
a foreign inmate; the criminal complaint which the prisoner in
question had lodged in Greek;
- two letters by Patras prison transmitting to the public
prosecutor criminal complaints lodged by two inmates against the
director of the prison, a social worker and another member of
staff;
- a letter by the Ministry of Justice asking the public prosecutor
of the Court of Appeal of Piraeus to inquire into complaints of
anonymous prisoners in Koridallos - which concerned the duties
assigned to some inmates - and to report back as soon as
possible; a letter by the public prosecutor of the first instance
criminal court of Piraeus informing the public prosecutor of the
Court of Appeal of Piraeus that no further action was to be taken
on the complaint ; a letter by the public prosecutor of the Court
of Appeal of Piraeus informing the Ministry of Justice of the
same;
- a letter by the Ministry of Justice asking a public prosecutor
to inquire into a complaint an inmate had lodged with the
Ministry about corruption by the director and a social worker of
a prison hospital; a letter by the public prosecutor transmitting
to the Ministry of Justice her decision that no further action
should be taken;
- a letter by the Ministry of Justice transmitting to a public
prosecutor a letter by an inmate who claimed to have information
concerning terrorist organisations; a letter by the public
prosecutor to the Ministry of Justice to the effect that he had
questioned the inmate in question who had only very vague
information to provide and was probably seeking to be transferred
to a prison in Athens;
- a letter by the Ministry of Justice to Koridallos and Patras
prisons transmitting an inmate's complaint about his transfer
from the first prison to the second;
- a letter by the Ministry of Justice asking a public prosecutor
to discuss with a prisoner a matter he had raised in a letter
addressed to the Ministry; a letter by the public prosecutor
informing the Ministry of Justice that he had met the prisoner
in question who wanted to discuss the merits of a criminal case
against him and that he had advised him to submit his arguments
to the competent criminal court; he had also advised him that he
did not have the right to install a telephone in prison at his
own expense;
- a letter by the Ministry of Justice asking the public prosecutor
of Piraeus to inquire into two prisoners' complaints about the
staff of the psychiatric wing of Koridallos prison; a letter by
the public prosecutor informing the Ministry that he had met the
prisoners who did not want, however, to name the persons
concerned;
- a letter by the Ministry of Justice asking a public prosecutor
to meet a foreign prisoner who had complained in Greek about
procedural irregularities at his trial; a letter by the public
prosecutor to the Ministry to the effect that he had met the
prisoner in question and had informed him of his right of appeal;
- a letter by the Ministry of Justice asking a public prosecutor
to meet a prisoner; a letter by the prison transmitting a letter
by the prisoner in question to the Ministry of Justice; a letter
by the prosecutor informing the Ministry of Justice that he had
met the prisoner in question and another prisoner and had
discussed with them the question of the date of their trial;
- a letter by the Ministry of Justice asking the public prosecutor
of Amfissa to inquire into a complaint submitted by a prisoner
in Larissa that the authorities of Amfissa prison would not
allow him to talk on the phone with his brother who was detained
in Amfissa; a letter by the public prosecutor informing the
Ministry of Justice that the complaints were unsubstantiated;
- a letter by the Ministry of Justice asking the public prosecutor
for an inquiry into complaints by an inmate that he had been set
up, being falsely accused of drug-trafficking in prison; a letter
by the public prosecutor informing the Ministry of Justice that
the allegations were unsubstantiated; the public prosecutor's
decision not to take further action;
- a letter by the Ministry of Justice asking a public prosecutor
for an inquiry into allegations that an inmate was not being
given work; a letter by the prosecutor to the effect that the
applicant was being given work whenever such work was available
and whenever it was his turn;
- a letter by the Ministry of Justice asking a public prosecutor
to inquire into complaints contained in a letter by a prisoner
in Koridallos about access to the telephone; a letter by
Koridallos prison transmitting the above-mentioned letter to the
Ministry with comments on the substance of the inmate's
complaints; a letter by the public prosecutor informing the
Ministry of Justice that he had visited the prison, heard the
applicant's complaints, given the necessary instructions to the
prison authorities for the problem to be resolved and decided not
to take further action;
- a letter by the Ministry of Justice asking a public prosecutor
to inquire into a complaint by a foreign prisoner in Greek about
threats by prison officers;
- a letter by the Ministry of Justice dated 23 March 1994 asking
the public prosecutor of Amfissa to inquire into complaints by
prisoners held in the Amfissa prisoners' hospital. The complaints
concerned overcrowding, the state of disrepair of the rooms, the
lack of central heating and colour television, the quality of the
food and water, the unavailability of medical care and the
limited access to the telephone; a letter by the prosecutor dated
21 April 1994 informing the Ministry that extra funds had been
requested from the Ministry for the refurbishment of the rooms,
that the staff were not in any manner responsible through their
intended actions or negligence for the excessive number of
prisoners per room, that the food, heating, medical care and
access to telephone were adequate, that the water was the same
as that used by the rest of the population of Amfissa, that the
Ministry had not provided any colour televisions and that the
prisoners were, in any event, allowed to use their own;
- a letter by the Ministry of Justice asking the public prosecutor
to inquire into the unspecified complaints of a prisoner and the
prosecutor's answer that a case-file had been opened in this
connection by an inquiring magistrate;
- a letter by the Ministry of Justice transmitting a prisoner's
letter to a public prosecutor for information and for any action
which might be appropriate; a letter by the prison authorities
transmitting the above-mentioned prisoner's letter to the
Ministry unopened; the letter in question by which the prisoner
complained about extensive corruption in the prison and informed
the Minister of an impending uprising.
Article 105 of the law introducing the Civil Code provides for
the award of compensation to persons who sustain losses as a result of
something done or omitted by an organ of the state in the exercise of
the powers invested in it, except where the legal rule which has been
breached serves to protect the general interest.
Article 101 para. 3 of the Code of Criminal Procedure provides
that the investigating judge is under an obligation to appoint legal
counsel ex officio, if such a request is expressly submitted by the
accused.
COMPLAINTS
1. The applicant complains of the conditions of his detention in
Koridallos prison. He invokes Article 3 of the Convention. He also
invokes Article 6 para. 2 of the Convention in that, whilst in
detention on remand, he had been subjected to the same regime as
convicts.
2. The applicant complains under Article 6 of the Convention of the
length of the proceedings against him. He also complains, invoking the
same provision, that he had to arrange himself through the drug-therapy
group for an interpreter at first instance and that, being currently
unrepresented, he cannot obtain a copy of the first instance decision
and does not have access to the case-file for the preparation of his
appeal. In addition, he claims that he was discriminated against by the
first instance court in the following manner. Although national law
provides for lower sentences in the cases of drug-addicts, the domestic
court refused to apply the relevant provision because the applicant was
certified as a drug-addict by a United Kingdom, as opposed to a Greek,
authority. In his observations of 4 August 1997 the applicant also
complained under Article 6 para. 3 (b) and (c) of the Convention that
he did not have a lawyer at the pre-trial stage.
3. The applicant further complains that, although he is a drug-
addict, he does not receive adequate medical treatment. He does not
invoke any provisions of the Convention in this connection.
4. The applicant complains under Article 8 of the Convention that
letters sent by the Commission's Secretariat are being opened by the
prison administration not always in front of him. Some letters,
including letters that have been mailed for him from outside the
prison, have been lost.
5. The applicant complains under Article 1 of Protocol No. 1 that
the money which was confiscated during his arrest has not been returned
to him in breach of the order of the first instance criminal court and
that the property which he surrendered when being admitted in
Koridallos prison was destroyed during the riots.
6. The applicant complains that he is hindered in the effective
exercise of his right of petition, in breach of the last sentence of
Article 25 para. 1 of the Convention. He claims that the delays in the
hearing of his appeal are the result of the application he has lodged
with the Commission.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 October 1994 and registered
on 12 September 1995.
On 27 June 1996 the Commission (Second Chamber) decided to
communicate the application to the respondent Government.
The Government's written observations were submitted on
27 November 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 4 August 1997.
On 16 September 1997 the First Chamber of the Commission, to
which the case was transferred, decided to request supplementary
observations.
The Government's written observations were submitted on
8 October 1997. The applicant replied on 10 February 1998, after an
extension of the time-limit fixed for that purpose.
On 21 January 1997 the Commission (First Chamber) granted the
applicant legal aid.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention of the conditions of his detention in Koridallos prison. He
also complains under Article 6 para. 2 (Art. 6-2) of the Convention
that, whilst in detention on remand, he had been subjected to the same
regime as convicts.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 6 para. 2 (Art. 6-2) of the Convention provides as
follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Government argue that the applicant has not exhausted
domestic remedies. They submit that he should have used the
possibilities for complaining under Article 5 of the Penitentiary Code
by addressing himself to the public prosecutor of the first instance
criminal court (isangeleas plimmeliodikon) of Athens. If he had not
obtained redress, he could have challenged the decision of the
prosecutor before the local first instance criminal court which would
have examined the case in camera (simvulio plimmeliodikon).
The Government stress that prisons, including Koridallos prison,
are regularly visited by prosecutors. They have submitted extracts from
the prosecutors' duty roll to support their contention. The Government
also submit that prisoners in Greece are free to correspond with all
judicial and political authorities. They have submitted in this
connection copies of a number of complaints addressed by prisoners to
the Ministry of Justice. The Government contend that these complaints
were lodged under Article 5 of the Penitentiary Code. They have also
submitted copies of complaints addressed to other authorities. The
Government state that prisoners' complaints are examined by prosecutors
who are independent judicial officers and who have the right to
institute criminal proceedings.
The Government further submit that national law contains a number
of criminal and civil law provisions which protect the dignity,
physical integrity and personality of all citizens. Whenever an agent
of the State illegally violates a person's right, he or she is
punished, usually by a disciplinary penalty, and the State pays
compensation.
According to the Government, there was nothing preventing the
applicant from lodging a complaint in English. In any event, he could
have asked for the assistance of his embassy or of one of the
charitable organisations with which he was in contact. Similarly he
could have inquired about his rights.
However, the Government stress that the above-mentioned remedies
concern illegal acts committed against prisoners by prison staff, i.e.
violations of criminal or disciplinary provisions. They do not concern
the lack of "luxurious life conditions in prison" or more general
complaints relating to the administration, maintenance or enlargement
of prisons. Complaints concerning the improvement of life conditions
in prisons are examined by the Ministry of Justice on the basis of
"more general administrative and political considerations".
In any event, the Government submit that the complaints are
manifestly ill-founded. The conditions in Koridallos prison are in
general normal and human. Human dignity is respected and the special
needs of the applicant were catered for. The European Committee for the
Prevention of Torture has found the conditions in the segregation unit
of Koridallos prison acceptable. Following his conviction, the
applicant shared a cell with only one other inmate and worked.
Moreover, the Government question the applicant's creditworthiness.
They refer in this connection to the fact that the applicant never
raised his complaints with the domestic authorities. However, in the
Government's view, "this is not the only indication" that the applicant
is untrustworthy. No further details are provided.
The applicant submits that a complaint under Article 5 of the
Penitentiary Code is not an effective remedy. The law does not specify
the competence of the organs mentioned in that provision, the procedure
they should follow, the nature of the decisions they may adopt and the
kind of reparation they can afford. In any event, the applicant does
not complain of "illegal acts or violations of his rights" as these
concepts are understood in Greek law.
Moreover, the applicant argues that, even assuming that this was
an effective remedy, he did not have access to it. He was never
informed of his rights, something which was in any event impossible
since he could not communicate with the prison staff due to linguistic
problems. Since his money had been confiscated he could not engage the
services of a lawyer and there is no possibility of obtaining legal aid
for complaining about prison conditions. Complaints lodged in English
were not answered by the authorities. This is evidenced by the fate of
the letter the applicant sent to the Ministry of Justice on 27 January
1995. All the complaints produced by the Government before the
Commission, including those by foreign prisoners, are in Greek. The
applicant could not ask another person to draft a complaint for him.
This would have resulted in the prison's staff's having knowledge of
the complaint and might have entailed adverse consequences for the
applicant.
The applicant points out that very few of the letters of
complaint produced as evidence by the Government emanate from
Koridallos prison, which moreover is not regularly visited by
prosecutors. In any event, the Government have not produced evidence
of any complaints which had positive results for the complainants.
As regards the substance of the complaints the applicant submits
that subjecting remand prisoners to the same regime as convicts is in
breach of national law and Recommendation No. R(87)3 of the Committee
of Ministers of the Council of Europe. He also stresses the lack of any
possibility of communication with the prison staff due to linguistic
problems, the impossibility of submitting any requests in a language
other than Greek and the absence of any information concerning life in
prison in English. Finally, he submits that the conditions in
Koridallos prison are degrading since prisoners cannot keep clean and
warm, have very limited contact with the outside world due to the
scarcity of telephones and lack entertainment and physical exercise.
The Commission must first examine the Government's contention
that the applicant has not exhausted domestic remedies. The Commission
recalls in this connection that, according to the Court's case-law, it
is incumbent on the Government claiming non-exhaustion to satisfy the
Convention organs that the remedy was an effective one available in
theory and in practice at the relevant time, that is to say, that it
was accessible, was one which was capable of providing redress in
respect of the applicant's complaints and offered reasonable prospects
of success. However, once this burden of proof has been satisfied it
falls to the applicant to establish that the remedy advanced by the
Government was in fact exhausted or was for some reason inadequate and
ineffective in the particular circumstances of the case or that there
existed special circumstances absolving him or her from the requirement
(Eur. Court HR, Mentes and others v. Turkey judgment of
28 November 1997, to be published in Reports 1997, para. 57).
The Commission will first consider whether the applicant should
have lodged a complaint under Article 5 of the Penitentiary Code. The
Commission notes that complaints under this provision must be first
addressed to the superior penitentiary authority. The Government submit
that, in the circumstances of the case, this would be the local public
prosecutor. The applicant, however, argues that a complaint under
Article 5 of the Penitentiary Code cannot be considered to be an
effective remedy because, inter alia, the law does not specify the
nature of the decisions that can be adopted under this provision and
the kind of reparation that can be afforded. The Commission has
examined the evidence produced by the Government concerning the
practice under Article 5 of the Penitentiary Code. The Commission
considers that the Government have not submitted anything which could
establish that the prosecutor's powers in this connection extend beyond
the institution of criminal proceedings in cases where criminal law has
been breached.
In any event, the Commission notes that the Government accept
that the procedure under Article 5 of the Penitentiary Code, which
concerns "illegal acts or violations of a prisoner's rights", would not
provide a remedy in respect of complaints relating to the general
administration or facilities in a prison. This view is confirmed by the
manner in which the prosecutor reacted in the only case invoked by the
Government which concerned complaints about the general conditions of
detention, namely the case of the Amfissa prisoners' hospital in
respect of which the Ministry of Justice requested an inquiry on
23 March 1994. However, what the applicant complains about in the
present case is precisely the general conditions in Koridallos prison.
The Commission, therefore, considers that complaining to the Public
Prosecutor under Article 5 of the Penitentiary Code was not, in the
circumstances of the case, a remedy which was capable of providing
redress in respect of the applicant's above-mentioned complaints. It
follows that this was not a remedy which had to be exhausted.
The Commission considers that the same holds true in respect of
a complaint under the same provision to the Ministry of Justice since,
as the Government accept, such a complaint would have been examined on
the basis of more general administrative and political considerations.
The Commission notes that the Government also make indirect
reference to two other remedies, lodging a criminal complaint and suing
under the Civil Code for damages. However, the Commission has already
considered, first, that the prosecutor's powers under Article 5 of the
Penitentiary Code do not extend beyond the institution of criminal
proceedings in cases where criminal law has been breached and,
secondly, that a complaint to the prosecutor under this provision is
not an effective remedy in the circumstances of the case. The same
conclusion must, therefore, be reached in respect of a criminal
complaint. As regards the possibility of suing for damages the
Commission recalls that in No. 14986/89 it considered that under Greek
law this did not constitute an effective remedy in respect of
complaints under Article 3 (Art. 3) of the Convention concerning
general conditions of detention (Dec. 3.7.91, D.R. 70, p. 240). The
Commission does not consider that it should depart from this case-law
in the present case. The Commission notes in this connection that the
success of an action in tort would depend on the applicant's showing
that he was subjected to treatment which was illegal under domestic
law. However, the Government argue in the context of Article 5 of the
Penitentiary Code that it was impossible for the applicant to argue
that the conditions of his detention amounted to an "illegal act or a
violation of his rights". It follows that none of the remedies
suggested by the Government was effective in the circumstances of the
case. The Commission, therefore, considers that the application cannot
be rejected under Article 26 (Art. 26) of the Convention for failure
to exhaust domestic remedies.
Moreover, the Commission has had regard to the parties' other
observations. It considers that this part of the application raises
serious questions of fact and law which are of such complexity that
their determination should depend on an examination of the merits. This
part of the application cannot, therefore, be regarded as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, and no other ground for declaring it
inadmissible has been established.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the fairness of the proceedings against him. He refers
in this connection to the question of the interpreter at first
instance, his lack of access to the case-file, to the failure to
communicate certain documents to him and to discrimination in
sentencing. Finally, he complains under Article 6 para. 3 (b) and (c)
(Art. 6-3-b, 6-3-c) of the Convention that he did not have a lawyer at
the pre-trial stage.
Article 6 (Art. 6) of the Convention provides as relevant:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by a ...
tribunal ...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require ..."
The Commission recalls that, according to the Convention organs'
case-law, the question of whether a trial is in conformity with the
requirements of Article 6 (Art. 6) must be considered on the basis of
an examination of the proceedings as whole and not one isolated aspect.
This principle holds true for the specific guarantees of paragraph 3
as well as for the concept of fair trial in paragraph 1 (No. 11069/84,
Dec. 7.9.89, D.R. 62, p. 5). However, the Convention organs have
accepted that the requirements of paragraph 3 (c) of Article 6
(Art. 6-3-c) could be relevant in pre-trial proceedings insofar as the
fairness of the trial is likely to be prejudiced by an initial failure
to comply with them (Eur. court HR, Imbrioscia v. Switzerland judgment
of 2 November 1993, Series A no. 275, p. 13, para. 36).
The Commission notes that the applicant complains of lack of
legal assistance at the pre-trial stage. However, Article 100 para. 3
of the Code of Criminal Procedure provides that the investigating judge
is under an obligation to appoint legal counsel ex officio, if such a
request is expressly submitted by the accused. The applicant did not
submit such a request and, as result, did not provide domestic
authorities with an opportunity to prevent the violation complained of,
as he was in principle required to do under Article 26 (Art. 26) of the
Convention (Eur. Court HR, Cardot v. France judgment of 19 March 1991,
Series A no. 200, p. 19, para. 36). Although the applicant claims that
he had not been informed of his right to do so, the Commission
considers that this does not exempt him from the obligation to exhaust
domestic remedies in this connection. During all the material time the
applicant was in contact with the social service of the prison which
provided him with appropriate practical advice.
The Commission, therefore, considers that the applicant has not
exhausted domestic remedies in connection with his complaint about lack
of legal assistance at the pre-trial stage. This part of the
application must be, therefore, rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. As regards the applicant's remaining complaints about the
fairness of the proceedings, the Commission notes that, although the
applicant was expressly invited to inform the Commission of further
developments in his case when the application was registered, he has
failed to inform the Commission of the outcome of his appeal. In these
circumstances, the Commission considers that it cannot determine
whether the method of appointment of the interpreter at the first
instance hearing, the alleged lack of access to the case-file, the
alleged failure of the authorities to communicate certain documents to
the applicant and the alleged discrimination in sentencing affected the
fairness of the trial as a whole. The Commission finds, therefore, that
the applicant cannot yet claim to be a victim of a violation of his
rights under Article 6 para. 1 (Art. 6-1) of the Convention in
connection with the above complaints (cf. mutatis mutandis No. 31195/9,
Dec. 27.2.97, D.R. 88-A, p. 169).
It follows that this part of the application is premature and
must be rejected as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
length of the proceedings against him.
Article 6 para. 1 (Art. 6-1) of the Convention guarantees for
everyone the right to a hearing within a reasonable time in the
determination of a criminal charge against him.
The Commission notes that the period to be taken into
consideration started on 19 August 1994 when the applicant was
arrested. The Commission considers that until 3 November 1997, when the
applicant appeal would have been heard, the proceedings had not been
unreasonable in length. Moreover, the Commission notes that the
applicant has failed to provide any information about his appeal
hearing, although he had been expressly invited to do so when the
application was registered. It follows that he has failed to
substantiate his complaint insofar as the period after 3 November 1997
is concerned.
In the light of all the above, the Commission considers that this
part of the application is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant complains that, although he is a drug-addict, he
does not receive adequate medical treatment.
The Government submit that the applicant has not exhausted
domestic remedies. The applicant claims that domestic remedies were not
accessible to him.
The Commission recalls that it has considered that lodging a
criminal complaint with the public prosecutor with a view to joining
the proceedings as partie civile and asking for damages is in principle
an effective remedy under Greek law for complaints of this nature
(No. 21300/93, Dec. 10.4.96, D.R. 85-A, p. 47). The applicant has not
lodged such a complaint. Moreover, for the reasons set out above, the
Commission considers that the alleged lack of information about his
procedural rights does not absolve the applicant from exhausting
domestic remedies in this connection.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
6. The applicant complains under Article 8 (Art. 8) of the
Convention that some of the letters he has addressed to the Commission,
including letters that have been mailed for him from outside the
prison, have been lost.
Article 8 (Art. 8) of the Convention provides as relevant:
"1. Everyone has the right to respect for his ...
correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission notes that the applicant has not instituted any
civil or criminal proceedings in this connection. As a result, he has
failed to exhaust domestic remedies.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
7. The applicant complains under Article 8 (Art. 8) of the
Convention that letters sent to him by the Commission's Secretariat are
being opened by the prison administration not always in front of him.
The Government argue that the applicant has not exhausted
domestic remedies. They accept, however, that letters by the Commission
are opened in front of prisoners for security reasons. They are not,
however, read and in this manner the constitutional rights of prisoners
are respected. In any event, the Government contend that letters
addressed by the Commission to the applicant have never been opened.
The applicant claims that he did not have to exhaust domestic
remedies and refers to the arguments mentioned above in connection with
his other complaints.
The Commission notes that the Government accept that opening
letters addressed by the Commission to prisoners in front of the latter
is not against domestic law or the Constitution. Moreover, they do not
refer to any court decisions adopting a different interpretation of
national law or the Constitution from that proposed by the Government.
In these circumstances, the Commission considers that it cannot be
accepted that there were any effective remedies for the applicant to
exhaust.
Having had regards to the parties' other observations, the
Commission considers that this part of the application raises serious
questions of fact and law which are of such complexity that their
determination should depend on an examination of the merits. This part
of the application cannot, therefore, be regarded as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other ground for declaring it inadmissible has been
established.
8. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that the money which was confiscated during his arrest has not
been returned to him and that the property which he surrendered when
being admitted in Koridallos prison was destroyed during the riots.
The Commission recalls that the money which was confiscated
during his arrest has not been returned to him because he has appealed
against the first instance court decision which ordered that this money
should be returned to him. Moreover, the applicant has not instituted
any civil or criminal proceedings in connection with the property which
was destroyed during the riots.
It follows that the applicant has not exhausted domestic remedies
and this part of the applicant must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
9. The applicant complains that he is hindered in the effective
exercise of his right of petition, in breach of the last sentence of
Article 25 para. 1 (Art. 25-1) of the Convention. He claims that the
delays in the hearing of his appeal are the result of the application
he has lodged with the Commission.
Having examined all the circumstances of the present case, the
Commission considers that no action need to be taken in respect of this
complaint.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicant's complaints concerning the general conditions of
his detention in Koridallos prison and the opening of letters
addressed to him by the Commission;
DECLARES INADMISSIBLE the remainder of the application;
DECIDES THAT NO ACTION NEED BE TAKEN IN CONNECTION WITH THE
ALLEGED INTERFERENCE IN THE EXERCISE OF THE APPLICANT'S RIGHT OF
INDIVIDUAL PETITION UNDER ARTICLE 25 OF THE CONVENTION.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy