Diavata prison and the humiliating living conditions for a diabetic prisoner in a wheelchair! Condemnation of Greece for degrading treatment
JUDGMENT
Kargakis v. Greece 14.01.2020 (app. no. 27025/13)
SUMMARY
The case concerned the medical provision for the applicant during his pre-trial detention and his
conditions of detention in Diavata Prison, the lack of an effective remedy to complain about the latter,
and the length of the proceedings relating to the judicial review of that detention.
The Court found in particular that the conditions of detention in Diavata Prison had subjected the
applicant to an ordeal whose severity had surpassed the inevitable degree of suffering in detention,
having regard in particular to his disability and the duration of his imprisonment.
However, the Court considered that the proceedings before the appeal court had complied with the
requirement of promptness under the particular circumstances of the case, given its complexity and
the fact that both the investigating judge who had ordered the applicant’s detention and the
investigating authority which had re-examined the applicant’s placement in detention had been
independent and impartial judicial bodies.
PROVISIONS
Article 3
Article 5
Article 13
PRINCIPAL FACTS
The applicant, Mr Kleanthis Kargakis, is a Greek national who was born in 1950 and livesin Thessaloniki
(Greece).
The case concerns the medical care received by the applicant during his pre-trial detention and his
conditions of detention in Diavata Prison, the lack of an effective remedy in thisrespect and the length
of the procedure for judicial review of the lawfulness of his detention.
On an unspecified date criminal proceedings were brought against Mr Kargakisfor attempting to assist
a foreign national to leave the country without the latter having submitted himself to the relevant
controls, by a person acting in the exercise of his profession and with a combination of offences. On
16 January 2013 Mr Kargakis was arrested and placed in pre-trial detention on the basis of a warrant
issued by the investigating judge at the Thessaloniki Criminal Court. On 7 February 2013 he was placed
in Diavata Prison in Thessaloniki.
While being admitted to pre-trial detention, Mr Kargakis stated that he had already suffered a stroke
and had a history of diabetes and heart disease, and that he was taking medication. In the course of
the detention he was examined by the prison psychiatrist, who diagnosed reactional self-destructive
depression and placed him under psychiatric care. On 24 January 2013 Mr Kargakis was rushed to the
Papanikolaou General Hospital in Thessaloniki, suffering from a probable stroke. His health improved
while in hospital, and he was discharged on his own initiative on 6 February 2013, with strict
recommendations as to his diet and environment in prison. He was required to return to hospital for
emergency care on two occasions in March and left the hospital for prison on 9 April 2013.
Mr Kargakis, who is a wheelchair-bound diabetic, alleges that in Diavata Prison he shared a cell
measuring 20m² with four other prisoners; the cell was unsanitary and not adapted to the needs of
people with disabilities. He also submits that the food was unsuitable for his health conditions. In
addition, he claims that he was unable to benefit from the authorised exercise periods because the
courtyard was neither sheltered nor adapted for persons with disabilities.
On 18 February 2013 Mr Kargakis lodged an appeal with the judge against the order of 16 January
2013 placing him in pre-trial detention. Following several requests by the applicant to speed up the
examination of his appeal, the prosecutor at the first-instance court prepared his opinion for the
investigating judge on 15 April 2013,suggesting that the detention order against the applicant be lifted
and replaced by other restrictive measures. The investigating judge endorsed the prosecutor’s
opinion. On 26 April 2018, however, Mr Kargakis was sentenced to five years’ imprisonment. He
lodged an appeal on the same date.
Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complained about
the conditions of his detention in Diavata Prison and the alleged shortcomings in his medical
treatment. Under Article 13 (right to an effective remedy), he submitted that no effective remedy had
been available to him. Lastly, he alleged that there had been a violation of Article 5 § 4 (right to a
speedy decision on the lawfulness of detention). He considered that his appeal against the detention
order imposed on him had not been examined “speedily” by the investigating judge.
THE DECISION OF THE COURT…
Article 3
The Court first of all noted that the parties had presented different versions of the situation asregards
overcrowding and other conditions in Diavata Prison. It then examined what it considered to be more
objective pieces of information from other sources.
Thus, the Court noted that according to information provided to the Government by the Director of
Diavata Prison in a document of 9 May 2018, each prisoner benefited from an individual area of
approximately 4.4 sq. m. That information tallied with the Government’s version.
As regards the conditions relating to heating, hot water, lighting, cleanliness of dormitories and
provision of hygiene items, the Court could not comment on the applicant’s allegations. It did,
however, noted that Diavata Prison had no canteen and that the prisoners had to eat their meals in
their cells, seated on their beds. Moreover, the Court took note of the applicant’s statements to the
effect that he had not had access to the exercise yard, that the latter had not been adapted to the
needs of persons with disabilities, that his food had been unsuited to his diabetic condition, and that
he had had to share his cell with smokers, in breach of doctor’s orders. The Government did not
contest those allegations.
Having regard to the foregoing considerations, the Court found a violation of Article 3 of the
Convention as regards the applicant’s general conditions of detention in Diavata Prison.
Article 13 read in conjunction with Article 3
The Court pointed out that the remedy required under Article 13 of the Convention had to be
“effective” in practice as well as in law. In the present case the Court noted that in his appeal of 18
February 2013 the applicant had mentioned his health issues, his invalidity and the fact that he had
been hospitalised for several days after his detention, backing up his assertions with the relevant
medical certificates. The applicant had also referred to his health issues and his “poor” conditions of
detention in the requests which he had submitted to the investigating judge on 5 April 2013.
Furthermore, on 9 April 2013 the applicant had lodged a supplementary memorial to his appeal of
18 February 2013, stating that his health problems had worsened since his placement in detention
and that his conditions of detention, which he had described in detail, had been incompatible with his
state of health.
The Court noted that although the investigating judge had eventually decided to release the applicant
on licence, he had only done so after ascertaining that the latter was unlikely to commit any further
offences. The investigating judge did not analyse the applicant’s conditions of detention or his health
issues, even though the prosecutor’s opinion had highlighted his serious heart problems and opined
that his continued detention in a prison was liable to prove fatal owing to the poor conditions
prevailing in Greek prisons.
That being the case, the Court considered that the remedy used by the applicant had not provided
proper redress, because, above and beyond the matter of his release, the investigating judge had not
responded to the applicant’s complaints concerning his conditions of detention.
The Court therefore found that there had been a violation of Article 13 of the Convention read in
conjunction with Article 3 concerning the general conditions of detention in Diavata Prison.
Article 5 § 4
As regards the period to be taken into account in order to determine whether the respondent State
fulfilled the “speediness” requirement laid down in Article 5 § 4, the Court observed that such period
had begun on 18 February 2013, when the applicant had applied for release on licence. It had ended
on 24 April 2013, when the investigating judge had allowed the application. That period had therefore
lasted for sixty-five days. The applicant himself would not appear to have substantially delayed the
proceedings in question.
The Court reiterated that the applicant had been arrested and placed in pre-trial detention by the
investigating court on 16 January 2013. It noted that the latter, as a judicial authority, was
independent and impartial. The Court took the view that a distinction should be drawn between the
present case and other casesin which the applicants’ detention had been ordered by an administrative
body without equivalent guarantees. Moreover, the review of the lawfulness of the applicant’s
detention following his application for release lodged on 18 February 2013 had been conducted by an
investigating judge, who had also been independent and impartial and had adjudicated on the basis
of the opinion of the public prosecutor with the court of first instance.
The Court noted the relative complexity of the proceedings before the investigating judge in both legal
and factual terms. The investigating judge had had to assess, atsecond instance, the applicant’s appeal
against his placement in detention.
Furthermore, the Court noted that before adjudicating on the applicant’s appeal of 18 February 2013,
the investigating judge had been required to transmit the case file to the public prosecutor’s office so
that the latter could express an opinion on the applicant’s continued detention. That procedure, which
was prescribed by domestic law, clearly extended the length of proceedings.
The Court therefore considered that the proceedings before the court of appeal had, in the
circumstances of the case, complied with the “speediness” requirement. There had accordingly been
no violation of Article 5 § 4 of the Convention.
Just satisfaction (Article 41)
.The Court held that Greece was to pay the applicant EUR 3,900 in respect of non-pecuniary damage
and EUR 1,000 in respect of costs and expenses, plus any tax that might be chargeable on those sums.
