CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 10 juillet 2018

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Application no. 47724/14 Asen JANKOV ILIEV and others against Greece   The European Court of Human Rights (First Section), sitting on 10   July   2018 as a Committee composed of:   Kristina Pardalos, President,   Pauliine Koskelo,   Tim Eicke, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 27 June 2014, Having regard to the formal declarations accepting a friendly settlement of the case, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The case originated in an application (no. 47724/14) 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 fifty-four applicants of various nationalities (“the applicants”), whose names appear in the appended table. The applicants were represented before the Court by Mr K. Tsitselikis and Mr A. Spathis, lawyers practising in Thessaloniki. 2.     The Greek Government (“the Government”) were represented by their Agent, Mr M. Apessos, President of the State Legal Council, and by their Agent’s delegates, Ms A. Dimitrakopoulou and Ms K. Karavasili, Senior Adviser and Legal Representative respectively to the State Legal Council. The Albanian, Bulgarian, Romanian and Russian Government did not make use of their right to intervene (Article 36 § 1 of the Convention). A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicants were detained in Diavata prison in Thessaloniki. The prison was designed to accommodate 370 detainees, which, according to the applicants, had been constantly exceeded during their incarceration period. The cells measured 24 sq. m, including in-cell toilets measuring approximately 3 sq. m. Each cell held ten detainees which resulted in the allocation of approximately 2 sq. m per detainee. 5.     Detainees had been confined to their cells for sixteen hours per day, in the almost complete absence of recreational or educational activities. They often had had to take their meals, which had been of poor nutritional value and insufficient quantity, inside their cells. Rubbish had not been disposed of properly, and left-over food had been often left in the corridors and cells. In addition, the heating and hot water available to the detainees had been insufficient. 6.     Cells had been dirty and overrun with cockroaches and other pests, and the disinfection had been inadequate. In addition, inmates had not been properly separated based on their state of health or whether they had been in pre-trial detention or serving prison sentences. Overcrowding had exposed them to various illnesses, both physical and mental, but their access to medical care had been very poor. 7.     In addition, the thirty-fourth applicant, Mr F. Mille, and the forty ‑ ninth applicant, Mr Tianzis, complained about the conditions of their detention prior to their transfer to Diavata prison. In particular, the thirty ‑ fourth applicant had been detained in the Demokratias police station from 23 November 2013 until 11 May 2014, the date he had been transferred to Diavata prison. The forty-ninth applicant had been detained in the Thessaloniki Transfers Department ( Τμήμα Μεταγωγών Θεσσαλονίκης ) from 16 October 2013 to 2 May 2014, the date he had been transferred to Diavata prison. They both complained that the conditions of their detention in the respective places had been in breach of Article 3 of the Convention, mainly owing to the poor quality of food and the constant confinement to their cells. 8.     The Government did not provide a description of the conditions of the applicants’ detention. B.     Relevant domestic law and practice 9.     The relevant domestic law and practice is described in the Court’s judgments in the cases of Kanakis v. Greece (no. 2) (no. 40146/11, §§   62 ‑ 68, 12 December 2013), and Adamantidis v. Greece (no. 10587/10, §§   11-17, 17 April 2014). COMPLAINTS 10.     The applicants complained, under Article 3 of the Convention, about the conditions of detention in Diavata prison and under Article 13 of the Convention of the lack of an effective domestic remedy in respect of their complaints regarding the conditions of detention. Additionally, the thirty ‑ fourth and the forty-ninth applicants complained, under Article 3 of the Convention, of the poor conditions of their detention in the Demokratias police station and the Thessaloniki Transfers Department respectively. THE LAW 11.     Invoking Articles 3 and 13 of the Convention, the applicants complained of the conditions of their detention in Diavata prison and the lack of an effective remedy thereof. In addition, the thirty-fourth and the forty-ninth applicants complained about the conditions of their detention in the Demokratias police station and the Thessaloniki Transfers Department respectively. A.     All but the fifth and fifty-fourth applicants 12.     On 18 and 31 July 2017 the Court received friendly settlement declarations signed by the Government and by all but the fifth, fiftieth and fifty-fourth applicants respectively. In addition, on 4 September 2017 the Court received friendly settlement declarations signed by the Government and the fiftieth applicant respectively. Under these declarations, the above ‑ mentioned applicants agreed to waive any further claims against the Hellenic Republic in respect of the facts giving rise to this application against an undertaking by the Government to pay each of them the amounts detailed in the appended table to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable to the applicants. These amounts will be payable within three months of the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points. The payment will constitute the final resolution of the case in respect of the eighth to eleventh applicants. 13.     Accordingly, the Court takes note of the friendly settlement reached between the parties and is satisfied that the settlement is based on respect for human rights, as defined in the Convention and its protocols. The Court finds no reasons to justify a continued examination of this part of the application (Article 37 § 1 in fine of the Convention). 14.     In view of the above, it is appropriate to strike the application out of the list of cases in respect of all but the fifth and fifty-fourth applicants, in accordance with Article 39 of the Convention. B.     The fifth and fifty-fourth applicants 15.     The Government submitted that the fifth applicant was detained in Diavata prison from 19 July 2013 until 18 June 2014, the date he was released. The fifty-fourth applicant was detained in Diavata prison from 25   June 2012 until 24 June 2014, the date on which he was released. Therefore, both applicants had been released prior to lodging the application with the Court on 27 June 2014. Relying on the Court’s judgment in Housein v. Greece (no. 71825/11, §§ 54–63, 24 October 2013) and in the Court’s decision in Chatzivasiliadis v. Greece (dec.) (no. 51618/12, §§   28 ‑ 35, 26 November 2013), the Government argued that these applicants had had at their disposal the remedy under Article 105 of the Introductory Law to the Civil Code, in conjunction with the Penal Code and Article 3 of the Convention. In the Government’s view, the above-mentioned domestic remedy was capable of affording those applicants adequate redress in the form of monetary compensation for any damage caused to them and invited the Court to declare this part of the application inadmissible and to reject it, pursuant to Article 35 §§ 1 and 4 of the Convention. 16.     The applicants contended that they had been released only a few days before lodging their application with the Court and that dismissing their claims for not having exhausted the domestic remedies would be disproportionate. 17.     Regarding the general principles concerning the application of the rule of exhaustion of domestic remedies within the meaning of Article 35 §   1 of the Convention, the Court refers to its relevant case-law (see, in particular, Akdivar and Others v. Turkey , 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996 ‑ IV, and Vučković and Others v.   Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§   69 ‑ 77, 25 March 2014). In addition, the issue as to whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v.   France , no. 33592/96, § 47, ECHR 2001-V (extracts), and Koutalidis v.   Greece , no. 18785/13, § 61, 27 November 2014). 18.     The Court reiterates that in cases where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others v. Russia , nos.   42525/07 and 60800/08, § 98, 10 January 2012). 19.     As regards the exhaustion of domestic remedies, the situation of a person who was detained under circumstances which he or she deemed contrary to Article 3 of the Convention and who apprised the Court after his or her release is different from the situation of an individual who is still in detention under the circumstances of which he or she complains (see Koutalidis , cited above, § 61). In particular as regards Greece, an action under Article 105 of the Introductory Law to the Civil Code constitutes a purely compensatory remedy which allows the person concerned to seek and obtain redress for his or her conditions of detention in prison following release. However, that remedy does not provide a way to improve a person’s conditions of detention and thus lacks the preventive element referred to in the judgment in Ananyev and Others (see Papadakis and Others v. Greece , no. 34083/13, § 50, 25 February 2016). 20.     The Court also notes that in A.F. v. Greece (no.   53709/11, §§ 59-60, 13 June 2013), it considered it appropriate to examine whether the provisions of a law or regulation which might be relied upon for the purpose of an action under Article 105 of the Introductory Law to the Civil Code were drafted in sufficient detail and guaranteed “justiciable” rights (ibid., §   60). 21.     Turning to the present case, the Court notes at the outset that the fifth and fifty-fourth applicants were released a few days prior to lodging their application with the Court on 27 June 2014. It follows that when they lodged their application with the Court these applicants had left Diavata Prison and were no longer detained under the conditions of which they complained to the Court. Hence, by lodging their application with the Court the aforementioned applicants did not seek to put an end to an ongoing violation of their right not to be subjected to inhuman or degrading treatment in Diavata Prison, but to obtain a subsequent ruling on an alleged past violation of Article 3 on account of the conditions of their detention in that prison and, if appropriate, to receive just satisfaction for non-pecuniary damage. 22.     The Court also notes that the applicants were incarcerated in Diavata Prison and were thus subject to the provisions of the Penal Code. The applicants’ principal complaints before the Court concern overcrowding and sanitary conditions. In the Court’s view, Articles 21, 25 and 26 of the Penal Code guarantee justiciable rights which can be invoked before the national courts (see Chatzivasiliadis , cited above, § 34). An action under Article 105 of the Introductory Law to the Civil Code, in conjunction with the above ‑ mentioned Articles of the Penal Code and Article 3 of the Convention, therefore constituted a domestic remedy which should have been used by the above-mentioned applicants. 23.     It follows that pursuant to Article 35 §§ 1 and 4 of the Convention the application should be rejected on the grounds of non-exhaustion of domestic remedies as far as the fifth and fifty-fourth applicants are concerned. For these reasons, the Court, unanimously, Decides to strike the application out of its list of cases in respect of all but the fifth and fifty-fourth applicants in accordance with Article 39 of the Convention; Declares the remainder of the application inadmissible. Done in English and notified in writing on 6 September 2018. Renata Degener   Kristina Pardalos Deputy Registrar   President Appendix N o . Firstname LASTNAME Birth year Nationality Amount (in euros)   Asen JANKOV ILIEV 1962 Bulgarian 6,500   Muhammad AFZAL 1986 Pakistani 6,000   Hasani ALBAN 1991 Albanian 6,800   Robby ALKHALIL 1987 Canadian 6,500   Vasilios ANOUDIS 1984 Greek -   Vasilios ASIKIS 1963 Greek 5,000   Chek ASMET 1995 Bangladeshi 6,500   Dine ATANAS 1982 Bulgarian 7,200   Ion BAIRAM 1989 Romanian 6,800   Nikolaos BELIANSKI 1988 Greek 6,500   Vasilios CHARALAMBIDIS 1953 Greek 8,200   Ferydun CHEHREGOSHA 1952 Iranian 5,500   Konstantin FATIADI 1976 Kazakhstani 6,800   Sandri FLORINI 1982 Albanian 7,200   Lucian GAVRILIU STEFAN 1989 Romanian 6,000   Spiridon GEORGIOU 1958 Greek 5,000   Dimitris GEORGIS 1979 Greek 6,500   Mihai GHITA 1974 Romanian 7,500   Christos GIANNOPOULOS 1967 Greek 8,000   Spetim HASA 1984 Albanian 7,200   Landi HILAJ 1987 Albanian 7,200   Ivan IVANOV 1988 Bulgarian 6,000   Bledi JARAZI 1980 Albanian 6,800   Giounai KARAHALIL 1975 Greek 7,500   Evaggelos KARALKAS 1972 Greek 6,800   Athanasios KIRIAZIS 1987 Greek 7,500   Agron KODRA 1981 Albanian 7,200   Adrian KODRA [1] 1986 Albanian 6,800   Theodoros KOURTIDIS 1976 Greek 6,800   Stefan KRASMIROF 1988 Bulgarian 6,500   Stayanov MATEI 1975 Bulgarian 6,500   Alexandr MAVRIDI 1971 Russian 7,500   Nikolaos MELETIS 1969 Greek 7,800   Ferdinant MILE 1988 Albanian 8,500   Mikel MILE 1981 Albanian 6,000   Afzal MUHAMMAD 1990 Pakistani 6,000   Muhammad NASIR 1974 Pakistani 5,500   Aldo NESIMI 1986 Albanian 7,500   Hristo NIKOLOV 1971 Bulgarian 7,200   Andi OMERI 1991 Albanian 6,500   Jorgo POTKA 1976 Albanian 6,800   Hasan RAZA 1988 Pakistani 5,500   Amir SALAH 1988 Iraqi 6,500   Festim SHAKE 1977 Albanian 7,500   Ivaylo STANOEV 1977 Bulgarian 7,500   Robert STAVA 1986 Albanian 6,000   Mahmood TAHIR 1978 Pakistani 5,500   Mahmoud TAYYAB [2] 1990 Pakistani 6,500   Nikolaos TIANZIS 1988 Greek 8,000   Ioannis TSALDARIS 1990 Greek 8,000   Dimitrios TSOLAKIDIS 1976 Greek 7,800   Jani TULO 1983 Albanian 5,500   George VASILIADIS 1972 Greek 6,500   Adriatik XHAJA 1989 Albanian -   [1] Rectified on 4 February 2019: the applicant’s name has been corrected from “Pavlin KODRA” to “Adrian KODRA” [2] Rectified on 4 February 2019: the applicant’s name has been corrected from “Mahmood TAYYELO” to “Mahmoud TAYYAB”