PEERS v. GREECE

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28524/95

Donald Peers

against

Greece

REPORT OF THE COMMISSION

(adopted on 4 June 1999)
TABLE OF CONTENTSPage

I.INTRODUCTION

(paras. 1-26) ........................................................ 1

A.The application

(paras. 2-4) ..................................................... 1

B.The proceedings

(paras. 5-21) .................................................... 1

C.The present Report

(paras. 22-26) .................................................. 3

II.ESTABLISHMENT OF THE FACTS

(paras. 27-81) ....................................................... 4

A.Outline of events

(paras. 27-36) .................................................... 4

B.Oral evidence before the Commission’s Delegates

(paras. 37-71) .................................................. 5

C.Inspection of Koridallos prison

(paras. 72-79) ................................................. 10

D.Findings of the European Committee for the Prevention of Torture

and Inhuman or Degrading Treatment

(paras. 80-81) ................................................. 11

III.OPINION OF THE COMMISSION

(paras. 82-115) ..................................................... 15

A.Complaints declared admissible

(para. 82) ....................................................... 15

B.Points at issue

(para. 83) ..................................................... 15

C.As regards Article 3 of the Convention

(paras. 84-100) ................................................ 15

CONCLUSION

(para. 101) .................................................... 19

 TABLE OF CONTENTSPage

D.As regards Article 6 para. 2 of the Convention

(paras. 102-104) ............................................... 20             

CONCLUSION

(para. 105) .................................................... 20

E.As regards Article 8 of the Convention

(paras. 106-111) ............................................... 20

CONCLUSION

(para. 112) .................................................... 21

F.Recapitulation

(paras. 113-115) ............................................... 21

SEPARATE CONCURRING OPINION OF MR L. LOUCAIDES

JOINED BY MM E. BUSUTTIL, J.-C. SOYER, H. DANELIUS, F. MARTINEZ,

K. HERNDL AND R. NICOLINI .................................. 22

PARTIALLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ .............. 23

APPENDIX:DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION ................... 24

I.INTRODUCTION

               The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.

A.The application

               The applicant is a British national, born in 1949. He is currently detained in the prison of Florence in Italy. He was represented before the Commission by Mrs Rozy Spartali-Aretaki, a lawyer practising in Canea, Greece.

               The application is directed against Greece. The respondent Government were represented by their Agent, Mr L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), by Mr V. Kontolemos and subsequently Mr M. Apessos, Senior Advisers (Paredri) of the Legal Advisory Council of the State, as well as by Mrs V. Pelekou, Legal Assistant (Dikastikos Antiprosopos) of the Legal Advisory Council.

               The case concerns the conditions of the applicant’s detention in Koridallos prison and the alleged opening of letters addressed to him by the Commission. The applicant invokes Articles 3, 6 para. 2 and 8 of the Convention.

B.The proceedings

               The application was introduced on 9 October 1994 and registered on 12 September 1995.

               On 27 June 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 § 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 

               The Government's observations were submitted on 27 November 1996, after an extension of the time-limit fixed for this purpose.

               On 21 January 1997 the First Chamber of the Commission, to which the case had been transferred, granted the applicant legal aid.

               The applicant replied to the Government’s observations on 4 August 1997.

           On 16 September 1997 the Commission decided to request supplementary observations.

           The Governments observations were submitted on 8 October 1997. The applicant replied on 10 February 1998, after an extension of the time-limit fixed for this purpose.
          On 21 May 1998 the Commission declared admissible 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. It declared inadmissible the remainder of the application and decided to take no action in connection with the alleged interference in the exercise of the applicant’s right of individual petition under former[1] Article 25 of the Convention.

           On 27 May 1998 the Commission decided to conduct a fact-finding inquiry in Koridallos prison and to hear the applicant in person. It appointed two Delegates for this purpose, Mr E. Busuttil and Mr L. Loucaides.

           The parties were informed of the Commission's decision on admissibility and of its intention to conduct a fact-finding inquiry on 29 May 1998. The text of the Commission's decision on admissibility was sent to them on 4 June 1998.

           On 11 June 1998 the applicant informed the Commission that he had been released on probation and asked not to be expelled from Greece before 22 June 1998 in order to be able to appear before the Delegates. On the same date the Government informed the Commission that it was not certain that the applicant would be able to appear before the Delegates on 22 June 1998 because of his imminent expulsion from Greece.

           On 15 June 1998 the Secretary of the First Chamber of the Commission, referring to former Article 28 para. 1 (a) of the Convention, requested the Government to confirm that the applicant would be able to attend the Delegates’ visit to Koridallos prison on 22 June 1998.

           The delegation of the Commission visited Koridallos prison on 22 June 1998. In addition to inspecting the prison, the Delegates heard the applicant, a former director of the prison, one of the prison’s social workers and one of the applicant’s co-detainees. Before the Delegates the Government were represented by Mr G. Kanellopoulos, Senior Adviser of the Legal Advisory Council of the State, and Mr C. Georgiades, Legal Assistant of the Legal Advisory Council.

           On 8 July 1998 the Commission invited the parties to submit any observations on the merits they considered necessary.

           On 28 August 1998 the Government presented their observations on the merits while the applicant submitted his on 1 September 1998.

           Pursuant to the entry into force of Protocol No. 11 to the Convention the application was transferred to the Commission sitting in plenary.

           After declaring the case admissible, the Commission, acting in accordance with former Article 28 § 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

           The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MMS. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

C.L. ROZAKIS

MrsJ. LIDDY

MML. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

SirNicolas BRATZA

MMI. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

           The text of this Report was adopted on 4 June 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.

           The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

           The Commission's decision on the admissibility of the application is annexed hereto.

           The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.Outline of events

           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. He was transferred to the Central Police Headquarters of Athens in Alexandras avenue where he was detained until 24 August 1994.

           On 24 August 1994 the applicant was transferred to Koridallos prison and was admitted in a comatose state to the prisoners’ psychiatric hospital.

           On 30 August 1994 he was discharged from the psychiatric hospital. The certificate of discharge described him as a drug user. He was immediately taken to Koridallos prison proper.

           The applicant was placed in the segregation unit of the “Delta” wing of the prison. Subsequently, he was transferred to the “Alpha” wing.

           On 28 July 1995 the applicant was found guilty of drug-related offences by the three-member Court of Appeal (trimeles efetio) of Athens, which due to the nature of the charges sat as a first instance court. The court acknowledged that the applicant was a drug addict and sentenced him to thirteen years' imprisonment and a fine of 5,000,000 drachmas. The applicant appealed.

           In November 1995 there was a riot in Koridallos prison.

           On 30 August 1996, Ms Vasiliki Fragathula, a social worker of Koridallos prison, reported to the prison director, inter alia, the following: The applicant, after his conviction, shared the cell with only one other 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, who was a member of “Drug Addicts Anonymous”. Since the applicant’s arrival in Koridallos prison, his case was being followed by the prison's social service. It was true that no distinctions were made between remand prisoners and convicts.

           In September 1996 the applicant was transferred from Koridallos to Tirintha prison. According to a letter by the director of Tirintha prison 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 in Canea.

           In November 1997 an appeal court upheld the applicant’s conviction but reduced his sentence to nine years’ imprisonment and ordered his expulsion from Greece.

           On 2 June 1998 the applicant applied for release on probation. On 10 June 1998 a chamber of the first instance criminal court of Canea granted his application. The applicant was released from prison and was transferred to the Canea deportation centre. From there he was transported to Piraeus and was expelled from Greece immediately after his appearance before the Commission’s Delegates in Koridallos prison on 22 June 1998.

B.Oral evidence before the Commission’s Delegates

           The evidence of the applicant and the three witnesses who appeared before the Delegates in Koridallos prison on 22 June 1998 may be summarised as follows:

The applicant

 Conditions of detention in Koridallos prisoners’ psychiatric hospital

           The applicant was admitted in Koridallos prisoners’ psychiatric hospital on 24 August 1994. Initially, he was detained in a single cell for three days. He was sleeping all the time due to medication. It was another prisoner who told him how long he had been there. When he woke up, he was moved to a cell with eight to ten “very disturbed” persons. They slept on mattresses on the floor. It was hot but the windows were open. Occasionally the door would open and they would be allowed out to go to the toilet or have a shower or walk in the yard. Meals were served in plastic containers on the floor. In the second cell he stayed for four to five days and nights.

 Conditions of detention in the segregation unit of the Delta wing

           Subsequently the applicant was taken to the prison proper. He asked to be kept somewhere quiet and he was placed immediately in the segregation unit of the Delta wing. In the beginning, the applicant did not know that he was in a segregation unit.

           The cell was very small and high. It had two doors. There were two beds. One could hardly walk between them. During the entire period of his stay in the segregation unit he was detained with another person, Mr Petros Papadimitriou. There was only one window on the roof which did not open and which was so dirty that no light could pass through. There existed just an electric light by which one could not read. There were no windows apart from a peephole in the one of the two doors that could be opened. There was an asian-type toilet in the cell. There was no screen or curtain separating the toilet from the rest of the cell. Sometimes the toilet would flush and sometimes not. There was only one shower in the unit, which had nine cells with up to three prisoners each. There was no sink in the cell.
          It was August when the applicant was placed in the segregation unit. It was very hot. During daytime the door of his cell would be open. The segregation unit was unsupervised and “anything could happen”. However, the applicant had not been ill-treated by any particular person. There were two small high-walled yards, “ten steps down, ten steps back”. At night the door of his cell would be locked. As there was no ventilation, the cell became so hot that the applicant would wake up in a puddle of water. In order to have water in his cell, the applicant would fill a bottle from the tap near the shower and sometimes from the toilet flush.

           After perhaps two weeks in the segregation unit, the applicant was offered the possibility of going to the ordinary cells in the Delta wing. However, he had to turn this offer down because the Delta wing was for drug addicts and “he wanted to stay away from drugs”. In the segregation unit there were no drug addicts. 

Conditions of detention in the Alpha wing

           The applicant did not remember exactly when he left the segregation unit - perhaps two or two and a half months later, end of October beginning of November. He was moved to the Alpha wing where mainly white-collar criminals were kept. Papadimitriou was moved with him and they continued sharing the same cell.

           Alpha was the best wing in the prison. However, it was still dirty and overcrowded. There were three beds in each cell: two bunk beds, one on top of the other, and a third bed. Usually, there were three prisoners in each cell. There was a sink and an asian-type toilet. There was a plastic screen on one side of the toilet, part of which was broken. Although one could not see the inmate using the toilet, one could smell and hear him. The cell had a window. Sometimes there was a table and a chair in the cell.

           The doors of the cells were locked between one and three o'clock in the afternoon and between eight thirty in the evening and eight o'clock in the morning. This schedule differed by one hour between summer and winter. The cells were very noisy due to fellow inmates' television and radio sets. The prisoners had no control over the light switches. In winter the cells were very cold as they were heated for only two hours per day. Sometimes the applicant had to stay in bed under his blankets to keep himself warm. After the riots a lot of windows were broken and it was freezing in the prison. In the summer the cells were unbearably hot, as there was no through draft when the door was shut. Sometimes the applicant had to wait until three or four o'clock in the morning before he would fall asleep. When the door of the cell was open the situation improved but there was no ventilation in the wing in general. Occasionally there were problems with the plumbing and the toilet would not always flush.

           At a time when the applicant was sharing his cell with only one other prisoner, three Chinese inmates were brought in for one night. They slept on two mattresses on the floor.

Complaints concerning the entire period of the applicant's detention in Koridallos prison

           The only thing the applicant was ever given were blankets. He was not given any clothes, sheets, pillows, toiletries (including soap) or toilet paper. He had to buy himself toiletries and toilet paper from the canteen. Occasionally he was left with no money and had to ask other prisoners. The social services department and certain charitable organisations would also help. However, there were times when he was left with no toilet paper, especially when he had to use the toilet often due to problems with his stomach. On these occasions, in order to keep clean, he had to use water from the asian-type toilet. Despite all that, “he managed to keep himself clean”. Eventually, he managed to procure himself sheets and a pillow, which he inherited from other prisoners. However, it took him long, perhaps a year.

           There were ten showers - described by the applicant as pipes - in the basement for 250-360 prisoners held in the wing. There was hot water for two hours a day or perhaps longer. There were no curtains and no windows. After the riots there was no hot water. In winter the showers served as the cats' toilet.

           He had to wash his clothes himself and was faced with problems because of the shortage of hot water. He would dry his clothes by hanging them on the bars of the cell window.  

           Food was served in such a manner that cats were playing around with it. Before entering prison he was a vegetarian but had to change his eating habits as there was no vegetarian diet in Koridallos.

           The applicant “lived in a vacuum”. He could not communicate with the prison staff who did not speak English. The social worker had English. In order to see her, he had to apply. He would see the social worker three times a week for between two and five minutes usually. Ten minutes was the maximum.

           There were no vocational activities, courses or library.

           In the beginning, the applicant was allowed only one phone call a week in the evening. However, later on the social worker arranged for him to be able to phone in the morning. 

Spiros Athanassopoulos

           The witness was director of Koridallos prison between 14 December 1994 and 15 September 1997.

           The witness did not know of any improvements in the Alpha wing since the applicant's transfer from Koridallos prison. There were some improvements in the segregation unit. There were screens separating the toilets from the rest of the cell in the segregation unit, but he did not want to contradict the applicant in this respect. It was possible that in his cell there was no screen. In the segregation unit there was a sink.

           In the segregation unit it was as hot as in the rest of the prison. In summer it could be hot. In winter there was central heating.            The prison administration provided inmates with pillows. However, it was possible that the applicant did not get any because at times there were shortages. There was a problem with sheets especially for foreign prisoners. The latter could get sheets from the social service which had a stock built up from donations or acquisitions through grants from the Ministry of Justice. The prison administration did not provide prisoners with toiletries. Such items were provided by charitable organisations via the social service. Toilet paper could be obtained from the social service or another prisoner or the chief warden. It was more difficult to find sheets than toilet paper.

           Food was not served in an insanitary manner. When transported the pan was 60-70 cm from the floor, although the witness was not 100% sure about that.

           It was possible that the applicant had slept in the same cell with another four prisoners. Usually, each prisoner had his own bed. It was very rare that he did not. However, accommodating four prisoners in a cell had been known to happen.

           There was no problem with the showers. However, those who had to wash their clothes in prison were faced with problems.

           Prisoners communicated with the social workers whom they could see upon request either on the same day or the day after. Those who did not speak Greek could face problems. However, in the witness’s experience, they managed to adapt. There was always somebody, a member of staff or another prisoner, who would speak English.

           All announcements and notices were in Greek. Foreign prisoners used to be informed of their rights orally upon their arrival. However, this was not done in a systematic manner. An information pamphlet entitled “the everyday life in the prison establishment” in English was distributed to newcomers in 1996 but the witness did not remember whether this was before or after the applicant left Koridallos prison.  

Vasiliki Fragathula

           The witness was the social worker of the Delta wing of the Koridallos prison. She met the applicant there and continued following his case throughout his stay in the prison.

           On his arrival in Koridallos prison proper (after his detention in Koridallos prisoners’ psychiatric hospital), the applicant was placed in the segregation unit. This had been decided by the prison director and the chief warden given the applicant's condition - he had withdrawal symptoms. The applicant did not have advance knowledge of the conditions in the segregation unit. Shortly afterwards the applicant complained of the conditions there and the witness arranged for him to meet the director, Mr Costaras. The director gave instructions for the applicant to be moved to another wing. However, this would have been the Delta wing, which was for drug addicts. The applicant was aware of this fact. He had found out himself through his contacts with other inmates. He refused to go there. He considered that staying in the segregation unit would help him stay away from drugs. The witness would not confirm that there were drugs in the Delta wing. However, she accepted that “the Delta wing was problematic for someone who wanted to free himself from drugs”. In her view, the segregation unit was not appropriate for prisoners. However, the applicant, who was suffering from withdrawal symptoms, could not be moved to the Alpha wing immediately. This wing was reserved for persons convicted of economic offences and other prisoners who had shown good behaviour. So the applicant had a choice between the segregation unit and the Delta wing. The witness did not advise the applicant to do one or the other because she did not want to influence what she regarded as a purely personal choice. The applicant chose to remain in the segregation unit. He was moved to the Alpha wing later on, together with all the inmates of the segregation unit, when it was decided to keep in the latter prisoners who were serving disciplinary penalties.

           The witness would communicate with the applicant in English. The applicant did not speak Greek and this exacerbated his adaptation problems in the beginning, since most employees of the prison did not speak English. However, many Greek prisoners spoke some elementary English. Gradually, the applicant through his personal efforts managed to establish a rudimentary level of communication with the prison staff in Greek. There were no information notices in English. The pamphlet to which Mr Athanassopoulos referred was distributed in Koridallos in 1997.

           The social service had a storage room in the prison with toilet paper, razors, detergent, soap etc. The funds for maintaining it came from the Ministry of Justice and charitable organisations. Destitute prisoners could get supplies from this storage room once a week. However, in summertime there were often shortages. The social service did not provide prisoners with sheets and blankets. These were provided by the prison administration to newcomers, but it was impossible to renew them. She did not know whether the applicant had received any sheets. The applicant would get clothes, toiletries and toilet paper from the social service insofar as this was possible, given the limitations that the service was faced with. In the witness's view, given the extended period of the applicant's detention in Koridallos, it was possible that he had been confronted with shortages of toiletries and toilet paper. The applicant was also helped by some charitable organisations that the witness had brought him in touch with.

Petros Papadimitriou

           The witness was an inmate of Koridallos prison. He spent one year in the same cell with the applicant, four months in the segregation unit of the Delta wing and eight months in the Alpha wing. The witness was in the segregation unit on his own will, because he was a new prisoner and wanted some peace and quietness. They were both moved to the Alpha wing, probably when the prison administration decided to keep in the segregation unit inmates serving disciplinary penalties.

           In the segregation unit of the Delta wing there were nine cells with two or three prisoners each. While in the segregation unit, the witness shared his cell with the applicant and nobody else. There were two beds with mattresses and blankets. They were not given sheets or pillows. The toilet had no curtain.

           While in the segregation unit the applicant used to complain a lot. As it was very hot and he had respiratory problems he would wake up at two o'clock in the morning coughing. He would bang on the door because he could not breathe.

           There were usually three prisoners in the cells in the Alpha wing. The witness could not remember more than three prisoners in his cell. He remembered one Chinese sleeping in their cell but not three. He does not remember anybody sleeping on the floor. The toilet  screen was always there and was not broken. The witness kept a cat in the cell.

           As regards the conditions of detention in Koridallos prison in general the witness stated the following: The food was bad and risked being contaminated by cats. It was easy to take a shower and one did not have to queue. However, there was not enough water and no curtains. He spoke to the applicant in English and sometimes in Greek. He would also act as a mediator for him. The prison administration would only give soap. Sometimes the social service would give certain things but with difficulty. The witness would buy toiletries and toilet paper himself. The applicant would buy them whenever he had money. He would also ask the witness for toothpaste and toilet paper and the witness would give him. Sometimes a pillow could somehow be found.

C.Inspection of Koridallos prison

           The Delegates visited the segregation unit of the Delta wing where the applicant had been detained in cell No. 9. The description of the applicant was in general accurate. All the cells were approximately the same size. Cell number nine measured 2,27 by 3 metres. Given that there was practically no window, the cell was claustrophobic. At the time of the Delegates' visit the prisoners were locked in their cells. Cells where two persons were held were very cramped. Prisoners were virtually confined to their beds. There was no screen separating the toilet from the rest of the cell. The toilet was adjacent to the beds. Some prisoners had put curtains themselves. The entire unit was very hot. Due to the lack of ventilation, the cells were unbearably hot “like ovens”. The air was stale and a stench was coming out of the cells. The cells were all in a state of disrepair and they were very dirty. Some prisoners complained about rats in the cells. In cell No. 9 there was no sink. There was a tap. According to the applicant, who accompanied the Delegates during their inspection, the tap had recently been installed. On the doors of some cells there were sings “WC”. When asked the prisoners said that the signs would be put up during the day when the cell doors were not locked to ensure that the cellmate would not enter the cell while the toilet was being used. The applicant’s cell could be compared to a medieval oubliette. The general atmosphere was repulsive.

           The Delegates also visited a cell on the third floor of the Alpha wing where the applicant was detained. According to the chief warden of Koridallos prison, who accompanied the Delegates during their inspection, Mr Papadimitriou was still detained in this cell. The cell measured approximately 4,5 by 2,5 metres. The description of the applicant was again accurate only that the toilet screen was not in disrepair. The cell had windows of an adequate size.

           The Delegates saw the shower area in the basement. It was reasonably clean, although the applicant claimed that during his time it was much dirtier. Most shower cubicles had curtains. However, some did not.

           In the prison storage room there were small bags that were given to new prisoners containing toilet paper and toiletries. However, the Delegates were told that these bags had arrived only very recently. There were no sheets. The inmate in charge claimed that they had all been distributed or that they were at the laundry. There was a cupboard which contained mainly soap.

          The social service storage room was closed at the time. There was a sign indicating that each wing was served once a week. It was opened at the Delegates' request. There were a lot of used clothes. The Delegates were shown toilet paper and one sheet. There existed a book from which it transpired that prisoners visited the room and were provided with different items, such as toiletries, shoes etc.

           The kitchen was rather spacious and clean. The trolleys, however, on which food was transported, did not correspond to Mr Athanassopoulos's description. They were rather low.

           In one corner of a corridor outside the kitchen, a cat had defecated. The Delegates had also the opportunity of seeing the inmates queuing to use the telephones. The queues were rather long.

           According to the chief warden, no prisoners' distribution charts dating from the applicant's detention in Koridallos prison were kept. Nor did there exist the books showing the movement of prisoners from one cell to the other. The only books that were kept indicated the last cell in which each prisoner was kept before leaving Koridallos prison.

D.Findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter the CPT)

           On 29 November 1994 the CPT published a report following its visit to Greece in March 1993 which contains the following findings and recommendations concerning Koridallos prison:

“91[2]....

Koridallos Prison for men was built to accommodate 480 prisoners in four separate blocks, each having 120 cells on three floors. On the first day of the delegation's visit, the establishment was holding 1410 prisoners, approximately 800 on remand and the remainder sentenced. The total prison staff complement was 170, of which some 110 were prison officers. Perimeter security was the responsibility of armed police.

95.In the following paragraphs, the CPT shall make a number of specific recommendations concerning the prison establishments visited by its delegation. However, it wishes to emphasise at the outset that the act of depriving someone of his liberty brings with it the responsibility for the State to detain him under conditions which respect the inherent dignity of the human person. The facts found during the course of the CPT's visit demonstrate that as a consequence of the present level of overcrowding in prisons, the Greek authorities are not in a position to fulfil that responsibility vis-à-vis many prisoners.

The CPT therefore recommends that a very high priority be given to measures to reduce overcrowding in the Greek prison system.

105.As already indicated (cf. paragraph 91), at the time of the delegation's visit to the Koridallos Prison for men the number of inmates amounted to almost three times the establishment's official capacity. A standard cell measured 9.5 m2 and was equipped inter alia with a screened asian-type toilet and a hand-basin. Originally designed for individual occupancy, the cells are just about large enough for two prisoners; with more than two, conditions become very cramped. In practice, only a handful of prisoners had their own cells; the majority of the cells were accommodating two or three prisoners, and a number were accommodating four. The level of overcrowding was somewhat lower in A wing (approximately 300 prisoners) than in B, C and D wings (each of which were accommodating 350 or more inmates).

The prisoner distribution chart indicated that three cells (one in C wing and two in D wing) were holding five prisoners. The delegation visited the relevant cell in C wing, in which it found five prisoners of Indian origin; they claimed to have been held under such conditions for some six weeks.

106.Inevitably, the high level of overcrowding had extremely negative repercussions upon the conditions of detention: living space was very poor, ventilation inadequate, and cell cleanliness and hygiene wanting. In many cells prisoners were to all intents and purposes confined to their beds, there being no room for other furniture. In some of the most over crowded cells, there were more prisoners than beds. Further, the toilet and washing facilities in certain cells were in need of repair.

Despite the overcrowding, prisoners apparently did have ready access to the shower facilities located in the basement of each wing. However, some of the shower cubicles were in a poor state of repair and decoration.

107. The negative aspects of the overcrowding were mitigated to some extent by reasonable out-of-cell time. Between 8.30 to 11.30 and 14.30 to sunset, inmates were allowed to circulate freely and associate with other prisoners within their detention wing and its courtyard; the wing courtyards were of a good size. It must be stressed, however, that the free circulation of prisoners in their detention wings could have undesirable effects in the absence of proper control by prison staff; with the manning levels at the time of the delegation's visit (3 to 4 prison staff on duty during the day in a wing accommodating some 350 prisoners), it is difficult to see how such control could be guaranteed (cf. also paragraph 96).

108. Activities in any meaningful sense of the term were scarce. There were only 236 work places (i.e. 1 work place for 6 prisoners), practically all in the area of general services (kitchen, laundry, cleaning, maintenance, stores, etc.); no workshops were in operation. However, a printing and bookbinding vocational training centre, with places for 30 prisoners, was due to open in 1993. The shortage of work places was particularly resented by many sentenced prisoners, as it prevented them from taking advantage of the system of earning remission through work.

No educational classes were available and the prison library was both small and ill-equipped. Further, there was no prison gymnasium and, as far as the delegation could ascertain, no organised sporting activities. However, the exercise yards were sufficiently large for certain games (e.g. volleyball), and arrangements were in hand to provide a separate weight-training area in each of the yards (at the time of the visit, a few prisoners did weight training in the wing basements).

To sum up, the vast majority of prisoners at the Koridallos Prison for men (including a majority of the sentenced prisoners) were offered no work or educational activities, and possibilities for sport were very limited. Most prisoners spent their day walking around their detention wing or courtyard, talking with fellow prisoners, or watching television in their cell. Such a monotonous and purposeless existence is quite inconsistent with the objective of social rehabilitation set out in the Greek Code of basic rules for the treatment of prisoners (cf. paragraph 94).

109. As regards material conditions of detention at the Koridallos Prison for men, the CPT recommends:

- that immediate steps be taken to ensure that no more than three prisoners are held per cell;

- that serious efforts be made to reduce as soon as possible the occupancy rate to two prisoners per cell (Naturally, the long-term objective should be to have one prisoner per cell, save for specific situations when it is not appropriate for a prisoner to be left alone);

- that every prisoner be provided with his own bed and mattress;

- that shower cubicles, toilets and washing facilities be restored to a good state of repair and maintained in a hygienic condition.

As regards out-of-cell activities, the CPT recommends:

- that current efforts to augment the number of work and vocational training places be intensified;

- that a thorough examination of the means of improving the prison's activity programmes in general (including education, sport and recreational activities) be undertaken without delay and that fuller programmes be progressively introduced as overcrowding is brought down.             

133. The segregation unit at Koridallos Mens Prison consisted of two groups of 10 cells, all of which were apparently used for both disciplinary confinement and other segregation purposes. The cells measured approximately 7 m2; they were equipped with a bed, but no other furniture (eg. table or chair). There was adequate ventilation and artificial lighting; however, access to natural light was, at best, mediocre. Each cell possessed an asian toilet, and some cells had a wash basin. The adjacent exercise yards measured approximately 40 m2. The whole unit required to be - and was being - redecorated.

134. No-one was being confined as a punishment at the time of the delegation's visit. A number of transvestite prisoners had been held in the unit for several months at their own request. Other prisoners were being held in the unit involuntarily, presumably under Rule 93 or 94 of the Code (the absence of a segregation unit register made it difficult to ascertain the precise grounds); certain of them appeared to have psychological or psychiatric problems.

The prisoners were allowed to move freely within the unit and exercise areas during much of the day, and they had TV sets and other personal possessions in their cells (though staff indicated that a prisoner undergoing disciplinary confinement would remain in his cell and would not be allowed personal possessions).

135. The conditions of detention in this segregation unit are on the whole acceptable for prisoners undergoing the disciplinary sanction of confinement in a special cell. However, the CPT considers that it would be desirable for the cells accommodating such prisoners to be fitted with a table and chair, if necessary fixed to the floor.

The CPT also recommends that all prisoners, including those confined to a special cell as a punishment, be allowed at least one hour of exercise in the open air everyday.

136. Conditions of detention in the unit are far less suitable for prisoners subject to segregation for non-disciplinary reasons, in particular if that measure is applied for a lengthy period.

As regards more particularly prisoners who are segregated because of personality disorders and/or for their own protection, the CPT invites the Greek authorities to explore the possibility of creating special units organised along community lines.

The unit is a totally unsuitable place in which to accommodate someone in need of psychiatric care. Neither the material environment nor the staff (ordinary prison officers) are appropriate. The CPT recommends that no such prisoner be placed in the unit. If, exceptionally, prisoners who are emotionally or psychologically disturbed have to be held temporarily in the segregation unit, they should be kept under close observation.

Further, the CPT recommends:

- that the cells in the unit used to accommodate prisoners segregated for a non-disciplinary reason be equipped in the same way as an ordinary prison cell;

- that the respective regimes applicable, on the one hand, to persons undergoing disciplinary confinement and, on the other hand, to persons held in the segregation unit for other reasons, be expressly laid down.”

           The Koridallos prison was visited by the CPT also in May 1997. The relevant report has not yet been published.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

           The Commission has declared admissible

-the applicant’s complaint concerning the conditions of his detention in Koridallos prison

-the applicant’s complaint that the absence of a different regime for remand prisoners amounted to a violation of the right to be presumed innocent and

-the applicant’s complaints concerning the opening of letters addressed to him by the Commission.

B.Points at issue

           Accordingly the points at issue are:

-whether there has been a violation of Article 3 of the Convention;

-whether there has been a violation of Article 6 § 2 of the Convention; and

-whether there has been a violation of Article 8 of the Convention.

C.As regards Article 3 of the Convention

           Article 3 of the Convention provides as follows:

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

           The applicant argues that the conditions of his detention both in the segregation unit of the Delta wing and in the Alpha wing of Koridallos prison amounted to inhuman and degrading treatment. The applicant submits that he never asked to be placed in the segregation unit. The prison administration decided to put him there on his arrival in Koridallos prison. One week later he was given the possibility of going to the Delta wing proper. However, he could not agree because he wanted to keep clean from drugs. The applicant submits that the conditions in the segregation unit had not improved significantly between his detention there and the Delegates’ visit. He also considers that it has been established that, at the time of his detention in Koridallos, the prison administration did not provide inmates with sheets, pillows, toilet paper and toiletries. Although indigent prisoners like the applicant could address themselves to the prison’s social service, it was accepted that their needs could not be always met. The fact that the applicant could have obtained toiletries and toilet paper from his co-detainees does not absolve the Government from responsibility under the Convention. In any event, it was established that the applicant ended up sleeping on a blanket with no sheets or pillow during the hottest period of the year.

          The Government submit that the applicant asked to be detained in the segregation unit. The prison authorities wanted to satisfy his request. However, because there were no cells available he had to share a cell with another inmate. As a result, the problem with the toilet arose. The applicant could have moved to another part of the prison at any time if he so wished. It appears that the applicant never asked for such a transfer because, in the meantime, he had developed a friendly relationship with his cellmate, Mr Papadimitriou. The special character of their relationship is also shown by the fact that they continued sharing a cell when they were both moved to the Alpha wing two months after the applicant’s arrest. The Government do not accept that the applicant was subjected to inhuman or degrading treatment in the segregation unit. In any event, the applicant cannot be considered to be a victim because he was subjected to these conditions of detention on his own initiative. Moreover, the prison authorities tried to alleviate the situation by allowing the applicant extra telephone calls. The applicant himself accepted that he was never left dirty while in the segregation unit. He could take a shower and had frequent contacts with the prison psychiatrist.

           As regards the applicant’s conditions of detention in the Alpha wing, the Government submit that this was the best wing of the prison given that it was mostly occupied by white-collar offenders. Generally speaking, Koridallos prison suffered from overpopulation due to an abrupt increase in the crime rate after the arrival in Greece of economic refugees from Eastern European countries. However, the prison authorities have been constantly trying to improve the situation. The applicant himself was kept with only one more person in a two-person cell. The presence in the cell of three Chinese men for one night was exceptional. There was a sink and a table in the cell as well as a screen in the toilet. Lighting and ventilation were adequate. Although there were some problems concerning the temperature in the cell, these could not be said to amount to inhuman treatment. Moreover, although there were shortages of sheets, toilet paper and toiletries, the applicant could have addressed himself to the social service of the prison. In any event, the applicant accepts that he was never short of basic things, such as toilet paper. The applicant could have a shower. There was possibly a problem with the washing of clothes but the applicant found a solution, albeit with some difficulty. There was no problem with the food, apart from the absence of a special regime for vegetarians, which is an exaggerated claim. Insofar as the presence of cats during the serving of food was concerned, the applicant could not complain because he was sharing the cell with a cat owner. The applicant had everyday contact with the social worker who spoke English. His cellmate also spoke the language. Moreover, all prison wards as well as many inmates had some English. As a result, the applicant cannot claim that he lived in a vacuum. The applicant had ample opportunity of complaining to the prison authorities but never did. In the light of all the above, the Government submit that what prompted the applicant to complain to the Commission was his oversensitive and perhaps sui generis character.

           The Commission recalls that, according to the Convention organs’ case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162). The same holds true insofar as degrading treatment is concerned (Eur. Court HR, Costello-Roberts v. the United Kingdom, Series A no. 247-C, p. 59, para. 30). The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see the above-mentioned Ireland v. the United Kingdom and Costello-Roberts v. the United Kingdom judgments, loc. cit.).

           The Commission notes that during the period under examination the applicant was detained in three different parts of the Koridallos prison complex: in Koridallos prisoners’ psychiatric hospital between 24 and 30 August 1994, in the segregation unit of the Delta wing for a period of at least two months starting from 30 August 1994 and subsequently in the Alpha wing until September 1996. The Commission will first examine whether the applicant’s conditions of detention in Koridallos prisoners’ psychiatric hospital amounted to treatment prohibited by Article 3. Then it will examine whether his conditions of detention in the segregation unit of the Delta wing amounted to such treatment. Finally, it will examine under Article 3 the applicant’s conditions of detention in the Alpha wing.

Conditions of detention in Koridallos prisoners’ psychiatric hospital

           The Commission notes that the applicant was detained in Koridallos prisoners’ psychiatric hospital for six days (see paras. 26 and 27 above). It also notes that he claims that he was sleeping all the time during the first half of his stay there, when he was detained in a single cell. Although, according to the applicant, the second cell in which he was detained was overcrowded, he accepts that he would be allowed out to go to the toilet or have a shower or walk in the yard. Moreover, although it was hot, the applicant accepts that the windows were open. One feature that the Commission considers disquieting is the applicant’s claim that while in the second cell he did not have a bed and had to sleep on a mattress on the floor. However, the applicant’s detention in that cell only lasted three days. In the light of all the above, the Commission considers that the treatment to which the applicant was subjected because of the conditions of detention in Koridallos prisoners’ psychiatric hospital did not reach the level of severity required for a violation of Article 3 of the Convention.

Conditions of detention in the segregation unit of the Delta wing

           The Commission notes that, contrary to what the Government argue, the applicant was not placed in the segregation unit because he had so wanted himself. According to the testimony of Ms Fragathula, this was a measure decided by the prison director and the chief warden and related to the applicant's medical condition, more specifically to the fact that he had been suffering from withdrawal symptoms. According to the same witness, once the applicant became acquainted with the conditions of detention in the segregation unit, he asked for a transfer. He was then offered the possibility of going to the Delta wing where drug addicts were being detained. Although Ms Fragathula would not expressly admit that there were drugs in the Delta wing, she stated that the “wing was problematic for someone who wanted to free himself from drugs”. The Commission considers that this implies that there were drugs illegally circulating in the Delta wing, a cause of serious concern. In these circumstances, the Commission considers that the applicant cannot be blamed for refusing to be moved from the segregation unit. The Commission, therefore, considers that the applicant did not in any way consent to being detained in the segregation unit of the Delta wing. As a result, even assuming that the right not to be detained in conditions that amount to inhuman or degrading treatment can be waived, the Commission cannot find any basis on which to conclude, as the Government propose, that the applicant cannot claim to be a victim in the sense of former Article 25 of the Convention of a violation of Article 3 insofar as the period in the segregation unit is concerned.

           As regards the conditions of detention in the segregation unit, the Commission has had regard to the Delegates’ findings and especially their findings concerning the size, lighting and ventilation of the applicant’s cell, i.e. elements which would not have changed between the time of the applicant’s detention there and the Delegates’ visit. As regards ventilation the Commission notes that the Delegates’ findings do not correspond fully with those of the CPT, which visited Koridallos prison in 1993 and reported in 1994. However, the CPT’s inspection took place in March, while the Delegates went to Koridallos prison in June, i.e. during a period of the year when the climatic conditions are closer to the period the applicant complains about. Furthermore, the Commission takes into account the fact that the Delegates investigated the applicant’s complaints in depth having given special attention, during their in loco inspection, to the conditions in the place where the particular applicant had been detained. In these circumstances, the Commission considers that the findings of its own Delegates should be relied on.

           The Commission notes that the applicant accepts that the cell door was open in the daytime, when he could circulate freely in the segregation unit. Although the unit and its exercise yard were small, the limited possibility of movement enjoyed by the applicant during the daytime must have given him some form of relief.

           Nevertheless, the Commission recalls that the applicant had to spend at least part of the evening and the entire night in his cell. Although the cell was built for one person, the applicant had to share it with another inmate. This is one aspect in which the applicant’s situation differed from the situation reviewed by the CPT in its 1994 report. Sharing the cell with another inmate meant that, for the best part of the period when the cell door was locked, the applicant was confined to his bed. Moreover, there was no ventilation in the cell, there being no opening other than a peephole in the door. The Commission also notes that during their visit to Koridallos the Delegates found that the cells in the segregation unit were exceedingly hot, although it was only June, a month when temperatures do not normally reach their maximum in Greece. It is true that the Delegates’ visit took place in the afternoon when the applicant would not normally be locked up in his cell. However, the Commission recalls that the applicant was placed in the segregation unit during a period of the year when temperatures have the tendency to rise considerably in Greece even in the evening and often at night. This was confirmed by Mr Papadimitriou, an inmate who shared the cell with the applicant and who testified that the latter was greatly physically affected by the heat and the lack of ventilation in the cell.

           The Commission also recalls that in the evening and at night when the cell’s door was locked the applicant had to use the asian-type toilet in his cell. The toilet was not separated from the rest of the cell by a screen and the applicant was not the cell’s only inhabitant.

           The Commission finally notes that, although it has been unable to establish the exact length of the applicant’s detention in the segregation unit, the Government accept that he remained there for two months. Given that for at least two months the applicant had to spend a considerable part of each 24-hour period practically confined to his bed in a cell with no ventilation and no window (see para. 93) which would at times become unbearably hot and given, in particular, that he had to use the toilet in the presence of another inmate and be present while the toilet was being used by his cellmate, the Commission considers that he was subjected to degrading treatment in the sense of Article 3 of the Convention (see No. 7525/90 Delazarus v. the United Kingdom, Dec. 16.2.93, unpublished, referring to the 1991 CPT report on the United Kingdom, CPT/Inf (91) 15; and para. 47 of the 1991 CPT report, op.cit. p. 22).

Conditions of detention in the Alpha wing and applicant’s general complaints

           As regards the conditions of detention in the Alpha wing, the Commission has had again regard to the Delegates’ findings concerning the size, lighting and ventilation of the applicant’s cell, which were acceptable for a place intended to accommodate two persons. The Commission also notes that for the greatest part of the period in question the applicant was sharing this cell with only one other prisoner. It is true that the Government admit that three Chinese inmates slept in the applicant’s cell for one night. However, the applicant has accepted that he did not have to share his bed with anybody that particular night. Thus, although the cell was certainly overcrowded for a short period of time, the applicant was not particularly affected by this state of affairs. Moreover, the Commission notes that there was a screen separating the asian-type toilet from the rest of the cell.

           The Commission also notes that it has been accepted by the Government that there was a shortage of sheets, pillows, toilet paper and toiletries in Koridallos prison during the applicant’s detention there. Having regard to the testimony heard by the Delegates, the Commission considers that it has been established that the various prison services were unable to cover the applicant’s needs in full in this respect during his detention in the Alpha wing. The Commission finds this situation particularly disquieting. However, the Commission notes that the applicant did assure the Delegates that he had managed to keep himself clean due to personal efforts. It also notes that he had been provided by the prison authorities with some, albeit elementary, bedding and that he eventually managed to procure himself sheets and a pillow.

           Furthermore, the Commission notes that the applicant was faced with problems arising out of the limited possibilities of communicating with the prison staff in a common language. The Commission considers it unsatisfactory that, despite the presence of a large number of foreign inmates in Koridallos prison at the time, no serious effort had been made of catering for the special needs of those who did not speak Greek. However, the applicant very quickly established a good relationship with Ms Fragathula and his cellmate, Mr Papadimitriou, both of whom spoke English. As a result, the impact on the applicant of the failure of the prison authorities to make special arrangements for non-Greek-speaking prisoners must have been substantially lessened.

      Finally, the Commission has had regard to the applicant’s remaining complaints including those concerning the washing of clothes and the food. Having taken into consideration all aspects of the applicant’s conditions of detention in the Alpha wing as well as their cumulative impact, the Commission considers that the threshold of severity required for finding a violation of Article 3 was not reached.

CONCLUSION

      The Commission concludes, by 26 votes to 1, that in the present case there has been a violation of Article 3 of the Convention as a result of the conditions of the applicant’s detention in the segregation unit of the Delta wing.

D.As regards Article 6 para. 2 of the Convention

      Article 6 para. 2 of the Convention provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

      The applicant argues that the failure of the Koridallos prison authorities to provide for a special regime for remand prisoners amounts to a violation of Article 6 para. 2 of the Convention. The Government submit that Article 6 para. 2 cannot be interpreted in this manner.

      The Commission recalls its case-law that the Convention contains no Article providing for separate treatment for convicted and accused persons in prisons (No. 6337/73, Dec. 10.7.75, D.R. 3, p. 83). Article 6 para. 2 of the Convention cannot be interpreted as requiring anything different in the applicant’s case. It follows that there has been no violation of this provision.

CONCLUSION

      The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 2 of the Convention.

E.As regards Article 8 of the Convention

      Article 8 of the Convention provides as follows:

“1.  Everyone has the right to respect for his private and family life, his home and 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 applicant claims that letters sent to him by the Commission's Secretariat would be opened by the Koridallos prison administration and not always in his presence.

      The Government submit that letters addressed to prisoners are always opened in front of them because this is required by law and is necessary to prevent criminal offences, such as the smuggling of drugs into the prison. Letters addressed to prisoners by the Commission cannot be exempted because the Commission’s envelopes can be faked by criminals.

      The Commission recalls the Convention organs’ case-law to the effect that, although some measure of control over prisoners’ correspondence is called for, there can be no compelling reasons why letters from the Commission should be opened (Eur. Court HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233, pp. 18 and 22, paras. 45 and 62)

      The Commission considers that it has not been established that letters from the Commission to the applicant were opened in his absence. However, the Government accept that such letters are always opened in front of the prisoner concerned. It follows that the letters that the Commission addressed to the applicant were also opened. There was, therefore, an interference with the applicant’s right to respect for his correspondence under Article 8 of the Convention which can be justified only if the conditions of the second paragraph of the provision are met.

      Although the Government have not transmitted to the Commission the text of the domestic rules that form the legal basis for the interference, the applicant has not disputed that the opening of his correspondence in his presence was “in accordance with the law”. The Commission is also prepared to accept that the aim of the interference was the “prevention of crime”. However, the Commission does not consider that the interference was “necessary in a democratic society”. Although the Government have alluded in general to the possibility of the Commission’s envelopes being forged in order to smuggle prohibited material into the prison, the Commission considers, as the Convention organs have done on previous occasions, that this risk is so negligible that it must be discounted (see above-mentioned Campbell v. the United Kingdom judgment, p. 22, para. 62). As a result, there was a violation of Article 8 of the Convention.

CONCLUSION

      The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention.

F.Recapitulation

      The Commission concludes, by 26 votes to 1, that in the present case there has been a violation of Article 3 of the Convention as a result of the conditions of his detention in the segregation unit of the Delta wing (see para. 101 above).

      The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 2 of the Convention (see para. 105 above).

      The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention (see para. 112 above).

M.-T. SCHOEPFER S. TRECHSEL

SecretaryPresident

to the Commissionof the Commission

(Or. English)

SEPARATE CONCURRING OPINION OF MR L. LOUCAIDES

JOINED BY MM E. BUSUTTIL, J.-C. SOYER, H. DANELIUS, F. MARTINEZ,

K. HERNDL AND R. NICOLINI

I agree with the majority that there has been a violation of Article 3 of the Convention in this case because of the conditions of detention of the applicant in the segregation unit of the Delta wing. However, I must specify that in my view the conditions of detention in question amounted to both inhuman and degrading treatment of the applicant. The concept of “degrading” treatment is autonomous and separate from that of “inhuman” treatment. The difference between the two concepts is not simply one of degree of suffering. In contrast with “inhuman” treatment, “degrading” treatment consists basically of a treatment which is humiliating and/or debasing. In my opinion, in the present case, the conditions of the detention of the applicant, as summarised in paragraph 96 of the report, in fact went beyond  degrading treatment. It is true that there were some elements of humiliating circumstances, such as the fact that the applicant had to use the toilet in the presence of another inmate. However, some other serious aspects of the treatment to which the applicant was subjected by the prison authorities and which were expressly taken into account by the Commission when finding a violation of Article 3 of the Convention, are more appropriately covered by the concept of inhuman treatment. Such are those conditions which must have caused severe physical and mental suffering to the applicant rather than humiliating or debasing him: confinement in a very small cell with no ventilation, no window or opening other than a peephole in the door in unbearably hot temperatures (“like ovens”) and in a stinking atmosphere and having to be present while the open toilet adjacent to his bed was being used by his cellmate.

(Or. English)

PARTIALLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ

I voted against finding a violation of Article 3 of the Convention in this case.

As recalled by the majority, in order to fall within the scope of Article 3, treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case (para. 88 above).

The majority considers that the applicant was subjected to “degrading” treatment. This implies that the conditions in which he had to spend some two months in the segregation unit of the Delta wing did not reach the level of “inhuman” treatment”. I agree with the last mentioned conclusion. I, however, disagree with the majority’s characterisation of the conditions in question as degrading treatment.    

When considering whether a punishment or treatment is “degrading”, the Court has emphasised that it “will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3” (Eur. Court HR, Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).

Although the applicant has undoubtedly suffered from the heat and the other conditions, it has not been suggested that his personality was affected in a manner incompatible with Article 3. Nor is there any evidence or even allegation that the prison authorities had an intention of humiliating or debasing him. Indeed, according to his own testimony the applicant had not been ill-treated by any particular person (para. 41 above). The majority’s conclusion of degrading treatment thus seems to be based on the idea that the prison conditions in which the applicant had to spend the two-month period in question were as such contrary to Article 3.

I do not dispute that conditions in a prison or another institution under the control of the State may as such amount to a breach of Article 3. I, however, consider that the threshold of a violation is in those situations higher than in a situation where certain measures are applied with the intention of ill-treating or degrading a person.

I agree that the conditions in the segregation unit of the Delta wing were far from satisfactory. I also do not doubt that that the applicant may - especially during the night-time (cf. para. 95 above) - have faced situations which can be characterised as humiliating in the ordinary sense of the word. In the overall circumstances of the case this, however, does not in my view justify the conclusion that the applicant was subjected by the respondent State to degrading treatment within the meaning of Article 3.

[1] The term « former » refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[2] The original numbering of the paragraphs has been kept.

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