CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 juillet 2015

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GREECE   (Application no. 20378/13)             JUDGMENT (Extract)       STRASBOURG   9 July 2015   FINAL   09/10/2015     This judgment has become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Martzaklis and Others v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro, President,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Erik Møse, judges,   and Søren Nielsen, Section Registrar, Having deliberated in private on 16 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20378/13) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Greek nationals (whose names are appended) (“the applicants”), on 19 March 2013. 2.     The applicants were represented by Mrs E.-L. Koutra and Mr R. Milonova, lawyers practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s deputy, Mr K. Georghiadis, member of the State Legal Council. 3.     The applicants complained, in particular, of a violation of Article 3, taken alone or in conjunction with Articles 13 and 14 of the Convention. 4.     On 8 April 2014 the complaints concerning Articles 3, 13 and 14 were communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants are HIV-positive, with a minimum degree of disability of 67%. They are, or were, detained in Aghios Pavlos Hospital (psychiatric section) at Korydallos Prison. A.     The applicants’ prison history 6.     Andreas Martzaklis: imprisoned on 7 May 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court, a decision given by the Indictments Division of the Khalkida Criminal Court in 2010 ordering the execution of a sentence passed by the Athens Criminal Court of Appeal which had been stayed, and a judgment delivered by the Athens Court of Appeal sentencing him to four years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 8 May 2013 but rearrested the same day and placed in preventive detention. 7.     Christos Sarris: provisionally detained from 5 December 2011 to 14   December 2012, and detained by judgment of 14 December 2012 sentencing him to 6 years’ imprisonment and then by judgment of 19 March 2014 sentencing him to 6 years and 4 months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 9 May 2014 pursuant to section 19 of Act No.   4242/2014. 8.     Christos Efstathiou: imprisoned on 14 February 2011. Detained pursuant to a decision given by the Indictments Division of the Khalkida Criminal Court on 22 December 2008, ordering the execution of the remainder of a sentence with suspensive effect, and pursuant to a judgment delivered by Athens Criminal Court, which merged the sentences into a total of 25 months. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 June 2014 pursuant to Article 105 of the Criminal Code. 9.     Efthymios Karatzoglou: imprisoned on 18 July 2011. Detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appel on 12 April 2013 sentencing him to two years and eight months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 15 May 2013 pursuant to section 1 of Act No. 4043/2012. 10.     Achilleas Papadiotis: imprisoned on 17 February 2011. Detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 10 June 2013 sentencing him to 10 years and 4 months’ imprisonment (starting date for serving the sentence: 8 December 2012). Detained as a convicted prisoner at the time of the application to the Court. Transferred to Patras Prison on 6 October 2014. 11.     Dimitrios Nikolopoulos: imprisoned on 20 August 2012 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 9 February 2012 sentencing him to 10 years’ imprisonment, and a judgment delivered by the Athens Criminal Court on 1 December 2010 sentencing him to three months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Placed in Aghios Pavlos Hospital. 12.     Spyridon Petrenitis: detained since 18 April 2012 pursuant to a judgment delivered by the Larissa Court of Appeal on 1 April 2013 sentencing him to two years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 23 May 2013 under section 1 of Act No. 4043/2012. 13.     Chrysafis Chatzikos: imprisoned on 13 July 2012 and detained ever since under the following decisions: 17 March 2010 judgment of the Athens Criminal Court sentencing him to ten months imprisonment; 23 February 2012 judgment of the Athens Criminal Court sentencing him to seven months’ imprisonment; 24 February 2012 judgment of the Athens Criminal Court sentencing him to ten months’ imprisonment; 8 June 2012 decision of the Indictments Division of the Chios Criminal Court ordering the execution of the remainder of a sentence with suspensive effect which had been passed by the Athens Criminal Court on 31 August 2011; and 5 April 2013 judgment of the Athens Criminal Court of Appeal sentencing him to 18 years’ imprisonment (in provisional detention from 16 August 2012 to 5 April 2013). 14.     Christos Dorizas: imprisoned on 21 September 2012 and detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appeal on 11 November 2011, sentencing him to ten years’ imprisonment, followed by a judgment delivered by the same court on 14 December 2012 sentencing him to fifteen months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court and constantly since then. 15.     Panagiotis Kormalis: imprisoned on 25 July 2012 and detained pursuant to a judgment delivered by the Crete Criminal Court of Appeal on 10 June 2013 sentencing him to five years and three months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. His release warrant mentioned that he had contracted AIDS. 16.     Aimilianos Chamitoglou: imprisoned on 5 April 2012 and detained: first of all, under a provisional detention order of 1   October 2013 (on charges of armed robbery); and secondly, pursuant to a judgment delivered by the Athens Court of Appeal on 25 February 2014 sentencing him to six years’ imprisonment (beginning on 27   March 2012). On 10 February 2014 the Athens Criminal Court of Appeal acquitted him of the armed robbery charge. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. 17.     Antonios Poulopoulos: imprisoned on 19 August 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 20 June 2012 sentencing him to six years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 13 September 2013 under Article 105 of the Penal Code. 18.     Nikolaos Drosakis: imprisoned on 24 April 2012. Detained pursuant to a decision given by the Indictments Division of the Nafplio Criminal Court on 17 October 2012, and to the judgments of the Nafplio Criminal Court of Appeal and the Athens Criminal Court of Appeal of February and 24 April 2013 respectively, sentencing him to various prison terms. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 March 2014 under section 1 of Act No. 4043/2012. Has since returned to prison. 19.     According to the information supplied by the applicants who had been convicted under court judgments, which information was not disputed by the Government, the courts had not granted suspensive effect to their appeals (see Article 497 § 4 of the Code of Criminal Procedure). B.     Conditions of detention at the Aghios Pavlos Hospital in Korydallos Prison 20.     In a petition transmitted on 5 October 2012 under Article 572 of the Code of Criminal Procedure to the supervising public prosecutor responsible for Korydallos Prison, forty-five HIV-positive persons detained in the Aghios Pavlos Hospital, including the applicants, complained of their conditions of detention on the second floor of that hospital. They drew attention to the overcrowded premises, the uncontrolled admission of new patients, and the fact that they were held with other detainees suffering from cancer, asthma, hepatitis, venereal diseases, bronchitis, scabies, psoriasis and even tuberculosis, which diseases necessitated confinement to individual cells because several of them were transmissible. A small quantity of cream had been distributed to some of the HIV-positive detainees who were also affected with scabies. They had been advised to change their sheets and underwear every day and to wash them at high temperatures, even though the washing machine was out of order. When they had gone to fetch their medication the nurses had told them not to touch the bars through which they handed over the medicines in order to prevent the risk of infection. The administrative and medical staff had not given the detainees any official information in order to minimise the seriousness of the epidemic. 21.     On 12 October 2012 the supervising public prosecutor had informed the detainees that “only 15 persons” were suffering from scabies. Relying on Article 6 of the Prison Code the HIV-positive detainees, including the applicants, had also complained to the Prison Hospital Board, but had received no reply. 22.     A delegation of HIV-positive detainees had been received by the supervising public prosecutor to draw attention to the constantly increasing numbers of persons detained in the Aghios Pavlos Hospital and the intolerable conditions of detention. 23.     The applicants submitted that the cells were so overcrowded that the personal space available for each detainee was less than 2 m², including beds and sanitary facilities. 24.     The bathrooms fell short of minimum hygiene standards and cleaning in the premises was left to the discretion of the few HIV-positive persons in receipt of an allowance enabling them to purchase cleaning products. 25.     The food was so poor in nutritional value that HIV-positive detainees risked developing AIDS owing to physical debilitation. 26.     The premises were under-heated, and detainees were exposed to low temperatures, particularly at night. 27.     Nor had the problem of smoking been resolved. Several detainees smoked in the communal areas, the cells and the dormitories, and the non-smokers, especially those with respiratory problems, became passive smokers. 28.     The hospital staff did not include any infectious disease specialists, which placed HIV-positive detainees at risk because they were diagnosed by non-specialists. 29.     During the distribution of medicines the nurse, wearing gloves, left the boxes on the floor outside the cell bars, and the HIV-positive persons had to stretch through the bars to retrieve them, avoiding touching the others, as recommended by the nurse. 30.     The applicants also complained about the fact that diagnoses were conducted automatically and that the doctors always prescribed the same medicines without individually examining each patient. Any requisite transfers to outside hospitals were always carried out after long delays. Distribution of medication prescribed for some of the applicants was often interrupted without explanation for periods of between one week and one month. Other applicants had not yet begun their treatment, which delay the doctors explained by claiming that “the limit [regarding the presence of the virus in the blood] necessitating the initiation of treatment has increased”. 31.     The applicants also complained of a lack of access to the outside world, news programmes and even use of the telephone, and the fact that the detainees were not held separately from the convicted prisoners. 32.     Lastly, the applicants stated that a video on conditions of detention had been leaked in November 2014 and had induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way. ... THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 47.     The applicants complained of their conditions of detention at the Aghios Savvas Hospital in Korydallos Prison, their “ghettoisation” in a separate wing of that hospital, and the failure of the authorities to consider whether those conditions were compatible with their state of health. They alleged a violation of Article 3 taken alone and in conjunction with Article   14 of the Convention. Those provides read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in (this) Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” ... B.     Merits 60.     The Government accepted that during the period from September to December 2011 there had been a shortage of medication for HIV-positive patients in the Korydallos Prison Hospital owing, on the one hand, to the increased number of such detainees and on the other, to insufficient funding for the purchase of such highly expensive medication. However, that issue had been resolved at the beginning of 2012. Follow-up treatment was provided for HIV-positive detainees at regular intervals, patients requiring hospital treatment were transferred to public hospitals, and biological tests on HIV-positive persons were sent to the relevant specialised laboratories. 61.     The Government rejected the applicants’ use of the word “ghettoisation”, and explained that the HIV-positive detainees were accommodated on the second floor or the Aghios Pavlos Hospital because of the need to treat and provide for them, to protect them from infectious diseases, to provide them with quality meals, and to ensure that they had longer exercise periods and access to their own separate kitchens and washrooms. 62.     The applicants relied on the findings of the recent report by the Committee for the Prevention of Torture and Inhuman and Degrading Punishment or Treatment of 5 July 2013, which concerned the general conditions of detention in Korydallos Prison and other prisons, particularly as regards overcrowding and the segregation of detainees carrying the HIV virus. In particular connection with the conditions prevailing in the Aghios Pavlos Hospital at Korydallos, they submitted that the Greek press had published many articles on the situation in that hospital, and that the media coverage had extended beyond the national borders. Representatives of several political parties which had paid numerous visits to the hospital had described the conditions they had witnessed as “shocking”. Even the hospital staff had publicly stated that the conditions were problematical. A video on the conditions of detention had been leaked in November 2014 and induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way. 63.     The applicants presented several recent press articles from 2013 and 2014 reporting on the worsening living conditions in the hospital, particularly the increasing numbers of HIV-positive detainees (128 out of a total of 209) and renewed delays and interruptions in the provision of treatment. 64.     The Court reiterates its case-law to the effect that Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital so that he can have a particular kind of medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudla v. Poland [GC], no.   30210/96, § 94, ECHR   2000 ‑ XI). 65.     The Court also reiterates that the national authorities must ensure that the diagnoses and care provided in prisons, including prison hospitals, are prompt and accurate, and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation (see Pitalev v. Russia , no. 34393/03, §   54, 30 July 2009). The Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia , no. 46468/06, § 140, 22   December 2008). 66.     Lastly, the Court notes that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities. Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection. What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of. The burden of proof is then shifted to the Government to provide explanations and supporting documents (see Salakhov and Islyamova v. Ukraine , no.   28005/08, § 132, 14 March 2013). 67.     In the present case, the Court notes that it transpires from the applicants’ allegations that they are held in dormitories which are so overcrowded that the personal space available for each detainee is less than 2 m², including beds and sanitary facilities. The bathrooms fall short of minimum hygiene standards and cleaning in the premises is left to the discretion of a few detainees.     The food is so poor in nutritional value that HIV-positive detainees risk developing AIDS through physical debilitation.   The premises are under-heated and the detainees are exposed to low temperatures, particularly at night. 68.     The applicants stated that diagnoses are conducted automatically and that the doctors always prescribe the same medicines without individually examining each patient. The staff hospital does not include any infectious disease specialists, which places HIV-positive detainees at risk because they are diagnosed by non-specialists. Any requisite transfers to outside hospitals are always carried out after long delays. Distribution of medication prescribed for some of the applicants is often interrupted without explanation for periods of between one week and one month. Other applicants have not yet begun their treatment, which delay the doctors explain by claiming that “the limit [regarding the presence of the virus in the blood] necessitating the initiation of treatment has increased”. 69.     The Court also notes that the Government have not really rebutted the applicants’ specific allegations, confining themselves to a few generalities concerning the Aghios Pavlos Hospital in Korydallos Prison. 70.     The Court would not question the prison authorities’ initial intention to transfer such HIV-positive detainees as the applicants to the Prison Hospital in order to provide them with greater comfort and regular follow-up treatment. It takes note of the Government’s arguments to the effect that the applicants’ situation is not akin to “ghettoisation” because their placement in the psychiatric hospital had been justified by the need to improve their treatment, to protect them against infectious diseases, to ensure better nutrition, to enable them to exercise for longer periods and to give them access to their own separate kitchens and washing facilities. 71.     Therefore, any differential treatment implemented had pursued a “legitimate aim”, namely to provide them with better conditions of detention than were available to ordinary detainees. Nevertheless, a difference in treatment lacks objective and reasonable justification if, additionally, there is no “reasonable relation of proportionality” between the means used and the aim pursued. If an HIV-positive detainee were to be kept separate from other detainees, he would have to be transferred to premises which were tailored to his medical needs and well-being. 72.     In that regard, the Court notes from the outset that the applicants were simply HIV-positive and had not developed AIDS, and, as such, there had been no need to isolate them in order to prevent the spread of a disease or the contamination of other detainees. Furthermore, the Court attaches great importance to the findings of the Ombudsman and the observations of the Justice Minister and the Prosecutor with the Court of Cassation, as well as those of the Parliamentary Assembly of the Council of Europe and the CPT .... These findings show that the authorities’ good intentions were doomed to failure in view of the situation prevailing in the psychiatric department of the Prison Hospital. In his report of 26   October 2012 the Ombudsman noted the irregular intervals at which the applicants received their treatment and the difficulty of treating them in a place where the risk of transmission of infectious diseases was very high. In a press release of 6 March 2014 the Ombudsman pointed out that the infrastructures were old and completely inappropriate, that there were insufficient medical staff and that the concentration of HIV-positive persons in one wing had created the conditions for “ghettoisation and stigmatisation” .... For its part, the CPT stressed that the fact that detainees were HIV-positive was not a valid public health reason for isolating them. 73.     In March 2014 the Parliamentary Assembly of the Council of Europe noted that the hospital, which had been designed for 60 patients, housed 200 detainees, most of whom were HIV-positive or suffered from infectious diseases such as tuberculosis and hepatitis, and that in such conditions it was impossible to provide the detainees with appropriate healthcare .... 74.     In January   2014, according to the applicants’ allegations based on press articles which had been included in the case file, undisputed by the Government, the number of detainees in the Aghios Pavlos Hospital totalled 209   persons, 128 of whom carried the HIV virus. The articles once again noted interruptions and delays in the administration of medication. 75.     Under those conditions, the Court deems proven the poor material and health conditions at the Aghios Pavlos Hospital, as well as the irregularities in the administration of appropriate treatment. It holds that the applicants were – and some of them possibly still are – exposed to physical and mental suffering that went beyond the suffering inherent in imprisonment. It therefore finds that they sustained inhuman and degrading treatment and that their segregation had no objective and reasonable justification because it was not necessitated by the circumstances. There has accordingly been a violation of Article 3 taken alone and in conjunction with Article 14 of the Convention. ...   FOR THESE REASONS, THE COURT, UNANIMOUSLY, ...   2.     Holds that there has been a violation of Article 3 taken alone and in conjunction with Article 14 of the Convention;   ... Done in French, and notified in writing on 9 July 2015, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Søren Nielsen   Isabelle Berro   Registrar   President