Article 3 of the European Convention on Human Rights (hereafter the ECHR) recognizes the absolute right not to be subjected to torture or to inhuman or degrading treatment or punishment, and thus enshrines one of the fundamental values of democratic societies. Article 13 establishes the right of anyone whose rights under the ECHR have been violated to have access to an effective remedy before national authorities, and imposes an obligation on the State to provide appropriate remedies for this purpose.
In July 2020 the decision of the European Court of Human Rights (hereafter ECtHR) in the case of Lautaru and Seed v. Greece (application no. 27025/13) was published, concluding that Greece had violated Articles 3 and 13 of the ECHR in this case. See the decision as posted on the HUDOC database here and the ECtHR press release here.
The case concerns the detention conditions of the applicants in Malandrino Prison. In particular, the first applicant was detained in Malandrino Prison from January 7, 2014 to June 19, 2015, whilst the second applicant was detained in Malandrino Prison from 3 May 2010 to 19 June 2018.
The applicants argued that a total of fifteen persons were held in a cell which was less than twenty-five square meters and in which there were only ten beds, with the result that five prisoners (including the first applicant) were sleeping on mattresses on the floor. They also complained about the generally unsanitary conditions, the lack of heating, the quality and quantity of their meals and the lack of educational, recreational or sports activities.
On May 5, 2014, the two applicants complained to the supervising prosecutor of the prison about the conditions of their detention (see par. 14-15 of the decision), while in June 2014 and July 2019, the warden of the prison addressed two reports to the director of the prison in response (see paras. 17-21).
It is also important to mention that during its visit to Greece in September 2009, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Malandrino Prison. Their report (dated November 17, 2010) noted that: a) the official capacity of the prison was increased without a corresponding improvement in infrastructure or an increase in the number of staff, b) while the prison had only opened in 2001, it was already in a state of collapse and “a general atmosphere of abandonment reigned” (see paras. 36-37 ECtHR decision).
In addition, the Court accepted that the applicants had no real remedy available to them to complain about the conditions of their detention, and therefore there was also a violation of Article 13 of the ECHR in conjunction with Article 3.
Despite the fact that the ECtHR did not actually take a position on the specific issue, the following is also worth mentioning: the Greek government argued that the specific appeal should be rejected because the applicants refused an offer to transfer to another cell, where the detention conditions were more favorable. As proof of this claim, two statements from the applicants were submitted, (in Greek) in which they stated that despite the conditions they do not want to transfer to another cell, as they have problems with other prisoners. Also, according to what is mentioned in the decision, the government, using the 3-7-2009 report by the warden of the prison, argued that when the applicants submitted an appeal to the supervising prosecutor complaining about the conditions of their detention, they were called by the warden of the prison to communicate their complaints to him as well, and when the warden read them the content of their appeal, they expressed surprise and replied that the said appeal was drafted by a lawyer and not by them. They assured the warden that they wanted to remain in their cell and refused his offer to be transferred to another cell. In response to the above, the applicants argued that a) they instructed their lawyer (who also knew the Romanian language) to draft the appeal to the prosecutor, b) although they signed the above-mentioned statements, they were drawn up by the prison warden and they themselves do not know the Greek language. They claim that no one read these statements to them in a language they understood, and that they were forced to sign them. In general, they complained that the attitude of the prison authorities was intended to intimidate them and prevent them from reporting violations of their rights, a situation that also violates their right to individual appeal under Article 34 of the ECHR.
Although the ECtHR limited itself to examining the above issue in the context of the admissibility of the appeal and to rejecting the relevant objection of the government (see paras. 39-45 and 43-44), the above “attitude” of the prison authorities and the invocation of these arguments by the government can be considered problematic. A key problem that arises in this particular case is that the allegations made by the government imply that, not only did the allegations in the complaint not happen, but that they were, additionally, invented by a lawyer. Lawyers, however, belong to the category of defenders of human rights (see more on the concept of defenders of rights here) and an attack on their reputation and ethos without evidence is in itself a blow to the rule of law.
Respect for fundamental rights is one of the key components of a state that is governed by the rule of law. The fundamental rights that every citizen should enjoy are enshrined in the European Convention on Human Rights. It is a primary and indisputable obligation of the state to respect these rights.
In this particular case, however, the European Court of Human Rights held that the applicants’ rights had been violated as the conditions of their detention constituted inhuman or degrading treatment, whilst the applicants had no real remedy available to them to complain about these conditions.
It is noted in passing that some of the allegations made by the government (namely that the appeal to the prosecutor containing the complaints about the conditions of detention was not drafted by the applicants themselves but by a lawyer) raise further concerns as to whether the manipulation of the penal authorities and the arguments of the government (both in this particular case and in general) are in line with the principles and ideals of a state governed by the rule of law.
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