YANEZ PINON AND OTHERS v. MALTA - 71645/13 (Judgment : Violation of Prohibition of torture - Degrading treatment Inhuman treatment) (Substantive aspect) [2017] ECHR 1166 (19 December 2017)

In the case of Yanez Pinon and Others v. Malta,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ganna Yudkivska, President,
          Vincent A. De Gaetano,
          Paulo Pinto de Albuquerque,
          Faris Vehabović,
          Carlo Ranzoni,
          Marko Bošnjak,
          Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 7 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in three applications (nos. 71645/13, 7143/14 and 20342/15) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Miguel Angel Yanez Pinon, a Mexican national, Mr Mana Owusu, a Ghanian national and Mr Jose Luis Del Rosario, a Dutch national (“the applicants”), on 30 October 2013, 11 March 2014 and 21 May 2015 respectively.

2. The first applicant was represented by Dr L. Calleja, a lawyer practising in Birkirkara, the second applicant was represented by Dr F. Abela, a legal aid lawyer practising in Santa Venera and the third applicant was represented by Dr K. Dingli. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

3. The applicants alleged that the conditions in the detention facility - namely the Corradino Correctional Facility, Paola − (alone or in combination with other conditions) amounted to inhuman and degrading treatment, and that they had been denied access to the medical treatment they needed while in prison, in contravention of Article 3 of the Convention.

4. On 25 February 2016 the complaints concerning Article 3 in relation to the conditions of the detention facility and the relevant medical treatment were communicated to the Government and the remaining parts of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. The Netherlands Government, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44) concerning the third applicant, did not indicate that they intended to do so.

6. Following the second applicant’s repeated attempts to access the domestic legal aid system, on 1 July 2016 the President of the Chamber to which the case was allocated decided to indicate to the respondent Government under Rule 39 of the Rules of Court that they must ensure that the second applicant had adequate access to the legal aid procedure and its relevant services. In its letter of 22 July 2016, the respondent Government informed the Court that the above-mentioned Dr F. Abela would be representing the second applicant. Receipt of the signed authority form was acknowledged on 28 July 2016.

7. In his observations, the third applicant requested that the Court visit the facility. In reply the Government did not object to the Court visiting the premises. The Court considered this request and, having examined the evidential material before it, decided that the case did not require it to undertake a fact-finding mission.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicants were born in 1963, 1976 and 1961 respectively and at the time the applications were lodged were detained in the Corradino Correctional Facility, Paola.

A. Mr Yanez Pinon (the first applicant)

9. The first applicant is serving a sentence of thirteen years’ imprisonment in the Corradino Correctional Facility. The sentence was imposed on him by the Criminal Court on 24 May 2010 for drug-related offences. The Criminal Court also ordered the applicant to pay a fine of 30,000 euros (EUR) as well as EUR 1,898.21 in fees payable to the court experts, which were to be converted into a further eighteen months’ imprisonment if not paid. Pending proceedings before this Court, the first applicant − having served his sentence − was released from detention in September 2016.

10. The applicant alleged that he had been detained in Division 6, a high-security division, from 12 September 2006 until 23 August 2008. He claimed that during this period he had been unable to use any electronic equipment, to work, study or go to church, and that he had been subjected to psychological torture and inhuman and degrading treatment. He argued that he was neither aggressive nor an addict and there was no reason why he should have been placed in Division 6, which was intended to house very dangerous, problematic, aggressive and addicted prisoners. The Government submitted that the first applicant had been placed in Division 6 following an order from the head of security at the prison, and that, according to documents submitted to the Court, on 1 August 2007 the applicant had been given the option to move to a less secure Division, but had refused. In Division 6 he had had access to the main library of the prison. English lessons and mass were also provided in the Division. He could make phone calls and had had access to the communal TV and DVD player, and TV sets were also allowed in the cells. During that time he had also carried out paid work assembling plastic toys.

11. Since 23 August 2008 the first applicant has been detained in Division 3, specifically in cell 139 since 19 August 2013.

12. He complained that the cell windows were very small and that there was inadequate ventilation and no natural light. The water supply was inadequate and he had to use a bucket to flush the toilet.

13. He claimed to be suffering from symptoms that were the after-effects of physical and psychological stress. In this regard, the first applicant stated that he had been examined by the prison psychologist, who had prescribed medicine to help him sleep in addition to painkillers. According to the applicant the psychologist had also suggested that he be referred to the psychiatric hospital, but no such transfer had taken place.

14. The Government submitted that the cells in which the first applicant had been housed in both Division 6 and 3 had measured 365cm x 265cm. They noted that the first applicant had been asked (on an unspecified date) whether he wanted to be transferred from Division 3 but he had replied in the negative. He had also been asked, following communication of the complaint to the respondent Government, whether he had a problem with the window in his cell and the reply had been in the negative. They submitted that the applicant had chosen to paint over the glass shade covering the ceiling light in his cell, and when asked about this, he had stated that he had no need for a ceiling light and for that reason had painted over it. According to the Government, the first applicant had a secondary light that he used and he had stated that it provided plenty of light for him. Moreover, the cell had two vents on opposite sides and the cell door had an aperture which was always left open for ventilation purposes. Relying on an indistinct photo submitted to the Court, the Government submitted that the applicant had covered the ventilation grilles on the wall with masking tape, thereby restricting the ventilation.

15. The Government submitted that the cell was equipped with a wash-basin with running water and an additional wall-mounted tap. According to the Government, when the applicant was asked whether he had an issue with the provision of water, he stated that he no longer had any issues. As far as the use of the toilet was concerned, the Government admitted that Division 3 did not have a combined flushing and WC system and that the inmates had to flush the toilets manually using buckets that were provided in all cells and could be filled from the wall-mounted taps.

16. The Government submitted that the prison psychologist was not in a position to prescribe medicine or to refer inmates to the psychiatric hospital. They stated that when the first applicant was interviewed by the prison psychologist on 18 October 2006, he had stated that he was sleeping three to four hours per night but that he did not want to take medication. According to the medical records kept by the prison medical unit, none of the doctors who had examined the applicant had found it necessary to refer him to a psychiatrist. The in-house doctor at the prison confirmed that the first applicant was never referred for psychiatric treatment as he was not mentally unstable and had not expressed a desire to be referred. The doctor also confirmed that he could not see that there had ever been such a referral by any doctor in the past. The applicant had met the doctor on four occasions and the latter had treated him for his medical needs but no psychiatric concerns had been observed or reported or expressed. On 1 May 2016 the applicant had refused all treatment, which is the right of any patient and must be respected. The Government submitted that the doctor had also confirmed that the medical notes showed that, whilst in Division 6, the first applicant had also been examined by medical doctors and treatment had been provided as needed.

B. Mr Mana Owusu (the second applicant)

1. General submissions

17. The second applicant is currently serving a term of imprisonment of eleven years for drug-related offences in the Corradino Correctional Facility. The Criminal Court, which sentenced him on 26 September 2012, had also imposed a fine of EUR 30,000, which the applicant was to pay within two months and which would be converted to a further term of one year’s imprisonment if not paid. The Criminal Court also ordered the second applicant to pay EUR 1,032.71 in respect of costs arising from the appointment of experts. Likewise, if not paid within fifteen days, this sum would be converted into a term of imprisonment. The judgment was confirmed on appeal on 12 December 2013. The applicant has been held in cell 102 in Division 3 since 9 February 2012.

18. The applicant claimed that he was forced to buy bottled drinking water, as the available water was undrinkable. Since there is no laundry service in prison, he was dependent on donated clothes − which did not always fit him - in order to have access to clean clothing.

19. The applicant alleged that his cell was old and that he was living in squalor. The cell walls contained asbestos and the old paint was peeling off the walls and the ceiling. Moreover, according to the applicant, the building was infested by rats and cockroaches.

20. During summer, the cell was too hot and since the cell window was too small, the ventilation was inadequate. On the other hand, during winter the cell was freezing cold. No heating was provided in the cells and the blankets were not adequate. The applicant stated that he had to wear his jacket in order to be able to sleep in winter.

21. The applicant, a non-smoker, complained that he was not separated from inmates who smoke. He was thus a victim of passive smoking every hour of the day.

22. According to the applicant he was frequently not given any breakfast and more than 95% of the food served in prison consisted of bread and pasta. He also stated that, although tobacco was easily accessible, fresh fruit was mostly restricted. Occasionally, apples that were past their sell-by date and could not be sold in local supermarkets were brought to the inmates.

23. The Government submitted that, when specifically asked by the prison authorities whether he had ever lodged a request to be transferred to a newer part of the prison, the second applicant replied that he had never made such a request and that he did not want to be transferred.

24. They further submitted that the tap water in the cell was fit for human consumption. The water in all parts of the prison facility had been certified by the Public Health Laboratory as being potable (certification submitted to the Court is dated 2015). The water is tested and certified approximately every six months. Division 3 had access to water directly from the mains, that is to say, drinking water. In addition to the availability of the running tap water supply, the inmates had the right to obtain bottled water from the residents’ tuck-shop.

25. In 2015 the second applicant received EUR 40.79 every four weeks in so-called “Work & Pay” remuneration and gratuity money, as well as EUR 169.49 every four weeks for work he carried out assembling plastic dolls. They stated that at the tuck-shop a six-pack of water cost EUR 2.24 and an individual bottle EUR 0.38.

26. The Government submitted that inmates were provided with washing powder − at no cost - so that they could wash their clothes. All cells were equipped with a wall-mounted tap and a sink with running water in which to wash their clothes. It was the duty of the inmates to wash their clothing and to be clean at all times.

27. The Government submitted that the walls did not contain asbestos but were built from Maltese limestone. They stated that the applicant had never painted his cell, nor had he ever requested any materials to do so, even though such material was free of charge. The Government claimed that the applicant had stated that he would never paint his cell himself because he felt that this was the responsibility of the prison officials.

28. The Government denied that the building was infested by rats and cockroaches, pointing out that pest control treatment had been carried out sixteen times at the prison since 2013 (certificates confirming the application of pest control in specific areas of the prison, including Division 3, were submitted to the Court).

29. The Government also submitted that, apart from the window, there were also three vents in the cell, along with an aperture in the cell door which was always left open. However, the applicant had fixed a sheet over the window and had covered one of the ventilation grilles on the wall with a piece of paper, thereby restricting the amount of ventilation.

30. The Government submitted that the second applicant had asked for an extra blanket in January 2012 (while in Division 12) but had then rejected the extra blanket he was given, saying that it was too old. Since the applicant had been in Division 3, he had not asked for any additional blankets.

31. As to the second applicant’s claim concerning passive smoking, the Government submitted that the second applicant resided in a single cell and had access to fresh air in the adjoining yard for most of the day. The learning zones were all smoke-free.

32. The Government contested the applicant’s allegation concerning breakfast and the quality of food, stating that breakfast was served as follows: on weekdays all inmates were served with a ham or cheese sandwich and at weekends and on public holidays sandwiches were served with boiled eggs. The inmates had access to unlimited tea and coffee. The Government submitted to the Court the 15 daily menus constituting the lunch and dinner choices over a six month period - the menus showed a variety of meat and fish dishes, as well as pasta dishes and pies. Apart from the menu of the day, inmates could opt for tuna salad, eggs and chips with corned beef, eggs and chips with ham or cheese, omelette with ham or cheese and soup, or both. According to the Government, in cases where an inmate had been ordered to go on a diet by the doctor, pasta with ricotta or steamed fish would be provided at lunchtime and steamed chicken for dinner. Should a special diet be prescribed by the medical doctor, the food thereby indicated would be provided by the prison authorities. According to the Government, fresh fruit was delivered to the prison every Monday and Thursday − approximately eleven boxes of bananas and fourteen boxes of oranges were delivered to the prison and distributed to the inmates weekly.

2. Domestic proceedings

33. On 28 April 2015 the second applicant instituted proceedings complaining about his conditions of detention. In particular he noted that, cumulatively, he had been held in the correctional facility since 13 July 2009 and, since that date, had been forced to live in a cell subject to the following hardships: without adequate drinking water; without clothing to keep him warm throughout winter; being dependent on charitable institutions to obtain clothing; the cell contained a significant quantity of asbestos that was causing him physical harm; the cell was infested with rats and cockroaches; the Corradino Correctional Facility lacked adequate sanitary facilities; the cell only had one small window which could not be opened as it was too high up; during winter he was only given one thin blanket although the facility was cold and it was therefore difficult to sleep; all detainees were allowed to smoke wherever and whenever they wanted and, as a consequence, inmates who, like the applicant, are non-smokers, were being subjected to passive smoking; these conditions amounted to a breach of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 36 of the Constitution of Malta.

34. On 10 November 2015 the second applicant gave oral testimony and submitted that in prison he generally felt hot and had been advised by a prison guard to buy a fan; after asking for water he had been advised to either buy it or drink the water supplied by the correctional facility. Nothing further was submitted in his oral testimony.

35. The respondent denied the above allegations. According to the medical doctor there were no mental or physical issues, nor had the applicant ever sought medical assistance. As regards the structural complaints submitted by the second applicant, the maintenance official submitted the following evidence in summarised form:

36. The Division in which the complainant was held consists of sixty cells, one of which is not currently in use; complainant is housed in a cell on his own; his particular cell is a normal one with a standard window and adequate light - being built the way it is for security reasons - and the lighting in the cell is appropriate; when the cells are open, inmates may freely walk in and out of them whenever they want, except when “under report” (that is to say confined to quarters); the complainant had access to open spaces from 2.00 p.m. to 5.00 p.m. just like all other inmates and when so authorised; the Correctional Facility conducts a yearly analysis of the water supply to check that it is fit for human consumption, and the most recent report (that of 2015), conducted by a private laboratory, concluded that the water supply is good for drinking and meets the standard for human consumption; the Facility provides potable water from the mains for the inmates and that water is supplied free of charge; inmates are allowed to buy bottled water; when inmates enter the Facility they are given blankets, sheets, pillows and a mattress; upon request, they are also given extra blankets, however, the complainant had never registered any such request; as regards any infestation of rats and cockroaches, the maintenance official presented a report submitted by a private company on these issues (such inspection is carried out yearly) stating that three rodent control visits were carried out in 2014 and the last visit showed that “everything was under control”. As regards smoking: inmates are allowed to smoke in cells; if some inmates within a particular cell are non-smokers, then the other inmates are not allowed to smoke in that particular cell; the complainant does not smoke, although the prison doctor affirms that he stated upon admission into the Correctional Facility that he was a smoker.

37. By a judgment of 28 June 2016 the Civil Court (First Hall) in its constitutional competence dismissed the second applicant’s complaint. It considered that he had failed to submit the evidence that was deemed legally necessary to prove his case − the complainant had merely alleged the existence of the various shortcomings referred to above, but had failed to submit the relevant evidence to substantiate his allegations. By contrast, the evidence submitted in the proceedings by the doctor and the maintenance official satisfactorily showed that the allegations were unfounded.

38. On the specific issues raised, the court found as follows:

Water supply: the Water Services Corporation submitted adequate proof that the water supply used in the Correctional Facility was potable, fit for human consumption and conformed to the Legal Notice on Water intended for Human Consumption Regulation, 2009, after being microbiologically analysed to this end. However, reference is made to the Chemistry (PHL) - Water Analysis Test Report, which stated that the “chloride content exceeds the indicator parameter value in LN 17 of 2009”. Even given the above breach of the statutory limit, the complainant’s allegation is not substantiated as he could make use of viable alternatives to overcome the issue, either consuming warm potable water or buying bottled water from the gratuity money given to him by the facility’s authorities;

39. Blankets and clothing: it sufficiently results that, upon entering the Correctional Facility, inmates are issued with a residential kit consisting of blankets, sheets, pillows and a mattress; if required, inmates may ask their Division officer for more blankets. As regards clothing, the Facility is supported by charities which are allowed to distribute suitable clothing as required. It is apparent that the complainant never submitted a complaint on these issues.

40. Asbestos: The complaint submitted by the complainant alleging that there is asbestos in his cell is not borne out by fact; There is therefore no such danger to the complainant’s health and in fact, no such complaint has been submitted by the complainant at any time during his stay in the facility since 2009.

41. Rodents and cockroaches: pest control by a private company that specialises in this particular activity is constantly and periodically (yearly) undertaken by the Facility’s authorities. According to the treatment report released by the private company involved (dated 4 July 2014) the situation was certified as being under control.

42. Smoking: the complainant is housed in a cell on his own. However, inmates are allowed to smoke in particular areas and at particular times. In the particular division where the complainant is housed, there is no area where smoking is prohibited, and the complainant is therefore being subjected to passive smoking. Ideally, non-smokers should be segregated from smokers in order to avoid unnecessary hardship but, despite this resulting in an unsavoury situation, it is understood that because of the particular circumstances such obvious segregation might not be practically possible. As a result it cannot be held that this situation reaches the level of severity and intensity required by Article 3 of the Convention or Article 36 of the local Constitution. Furthermore, upon examining the medical records presented in the case file of the proceedings, no medical or physical deterioration was recorded in the health of the complainant as a result of the passive smoking analysed herein

43. Cell window and consequent availability of adequate light: the cell at issue is a normal Division cell furnished with a standard window and occupied only by the complainant. The window provides enough light in the cell to serve its purpose. The complainant is allowed to leave his cell at the appointed times, and on the basis of the medical reports that were accumulated throughout the years of confinement, no medical conditions have been reported as arising as a result thereof.

44. No appeal appears to have been lodged against this judgment.

C. Mr Del Rosario (the third applicant)

45. The third applicant is currently detained in the Corradino Correctional Facility. By a judgment of the Criminal Court of 22 June 2010 he was found guilty and sentenced to ten years’ imprisonment and a fine of EUR 30,000, which was to be converted into a term of eighteen months’ imprisonment if not paid, along with EUR 1,289.50 in respect of expert fees. The applicant has been detained in Division 3 since 2010; for the first two and a half years he was held in cell 120, which was a little worse than cell 147 in which he has been housed ever since.

46. He stated that his cell window was positioned at a height of more than two metres; he therefore had to climb onto something to open it. It had three metal bars which hampered the entry of natural light.

47. According to the third applicant, the temperature in his cell may be as low as 10 ^oC during winter, and yet he is not allowed to have a heater in his cell. In winter, the applicant allegedly suffers from arthritis, which causes him unbearable pain. However, he is not able to use Voltaren (which is the only medicine provided by the prison authorities) because he suffers from Hepatitis C.

48. The applicant alleged that during the summer the cells were infested with cockroaches. Furthermore, his cell became very hot and there was inadequate ventilation. However, prison regulations restricted the number of fans per cell to one. Although the applicant had two fans in his cell, he stated that in summer they merely circulated the hot air and the steel door of the cell prevented any fresh air circulation. By contrast, he noted that the offices of the prison personnel (who were exposed to the same temperatures) were equipped with air conditioning and heating facilities.

49. The applicant claimed that in winter the hot water supply was not sufficient to cater for the approximately sixty inmates in his Division. Furthermore, the water was not drinkable and he therefore had to purchase bottled water, which was only possible when he had money. He claimed that when he did not have any money, he was obliged to drink the undrinkable water, which caused him skin blemishes. He stated that drinking water was only distributed to the prison personnel, but did not reach the detainees.

50. The applicant also claimed that inmates did not have access to a laundry and foreign inmates were not given detergents with which to wash their clothes and clean their cells and toilets.

51. According to the applicant, the building was a hundred years old and its condition was inadequate. Dust fell from the applicant’s cell’s ceiling and walls, which he then breathed in.

52. The applicant also stated that since the prison did not provide him with tablets for his migraine, he had been obliged to buy such tablets for six years.

53. According to the Government, the applicant has resided in cell 147 in Division 3 since 8 January 2015, and when asked by the prison authorities if he would like to be transferred to another part of the prison, he declined.

54. In reply to the second and third applicants’ claims, the Government submitted that the window in the cell could be opened using a tool provided by the authorities or by standing on the bed or on a chair or stool. Moreover, the metal bars at the window were a security feature and did not prevent natural light from entering the cell.

55. As to the claim concerning heaters, the Government referred to their submissions below (see paragraph 100). They further noted that - due to the climate in the Maltese islands - such requests were not frequent; however, they submitted that due consideration would be given to the matter if a medical reason was found to be at the root of such request.

56. The Government submitted that the applicant had been diagnosed with right dupuytrens contracture, which is a hand deformity affecting the fingers, so that they cannot be straightened completely. The applicant underwent surgery on the 27 August 2014 which did not result in any complications. The applicant was discharged and prescribed paracetamol and diclofenac. Although the applicant alleged that he suffered from arthritis, he did not visit the medical unit complaining of pain in the joints.

57. The Government also referred to the submissions made in paragraphs 26 and 29 above). They noted that the window in cell 147 could be opened and closed by the occupant. There were also two vents as well as the aperture in the cell door which was always left open. According to the Government the third applicant had covered one of the wall vents with a sheet of paper, thereby restricting the amount of ventilation, and the aperture in the cell door had been covered with a piece of cardboard from inside the cell. Furthermore, the Government submitted that it was permissible for inmates to have more than one fan in their cell. In fact, most of the inmates had two fans, as did the third applicant.

58. As to the quality and provision of water, the Government referred to their submissions in paragraph 86 below. They noted that in 2015, the [third] applicant received EUR 36.45 every four weeks in “Work & Pay” remuneration and gratuity money, as well as EUR 207.50 every four weeks for work he carried out assembling plastic dolls, thereby enabling him to buy bottled water at tuck-shop prices.

59. According to the Government there are no medical records referring to skin blemishes at the Medical Unit. They acknowledged that Division 3 was located within the older part of the facility however they stated that all cells were equipped with the necessary facilities and paint was provided on request so that the inmates could keep their cells in good condition. Relying on photos submitted, the Government considered that the ceiling and walls appeared to be in good condition and there was no flaking.

60. Lastly, the Government acknowledged that the applicant had had to buy migraine tablets, namely Zolmiles 2.5mg. Purchasing these tablets was standard policy for all inmates who suffer from migraine since inmates are eligible for medicine which is supplied by the Government to all citizens for free, but Zolmiles is not on the free medication list. Nevertheless, as can be seen from documentation submitted to the Court, the Secretary of the Malta Community Chest Fund (MCCF) informed the applicant that the MCCF Board had decided to grant him the full cost of treatment upon presentation of the original receipts. They noted that the third applicant had been referred to the State hospital in December 2011 for a common migraine and medication was prescribed as stated above. On 27 August 2014 he was admitted to the Day care unit at the State hospital, where he underwent surgery, and he was discharged the same day, with a follow-up appointment being scheduled for 11 September 2014.

II. RELEVANT DOMESTIC LAW

61. The relevant domestic law pertaining to this case can be found in Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, §§ 49-58, 29 October 2015).

62. Article 3 of the Smoking in Public Places Regulations Subsidiary Legislation 315.04, as in force since 2010, reads as follows:

“(1) No person shall smoke any tobacco product in any enclosed area.

(2) It shall be the duty of the responsible person not to allow smoking of any tobacco product to be carried out in any enclosed area within his premises.

(3) However smoking is permissible in individual rooms in any accommodation premises used for sleeping purposes and which are occupied solely by smoking patrons:

Provided that this exemption does not affect other rooms occupied or which may be occupied by non-smokers.”

III. RELEVANT MATERIAL

63. In October 2016 the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report on its most recent visit to Malta from 3 to 10 September 2015. In so far as relevant, in connection with the conditions of detention in the Corradino Correctional Facility, it reads as follows:

“56. The delegation noted that some renovations had been undertaken in CCF (for example, of Divisions IV and VII). Further, two of the previously most problematic divisions (Divisions VI and XV) had been closed down.

Nevertheless, the remaining divisions provided generally poor living conditions for the inmates, and this was particularly the case in Divisions II, III and XIII. While most cells were sufficient for single occupancy (measuring some 9m²), the dormitory rooms at CCF (for example in Division XIII) were cramped, with nine inmates held in approximately 30m² (i.e. significantly less than the minimum standard of 4m² of living space per prisoner in a multiple-occupancy cell recommended by the CPT).

Many of the cells were excessively hot (over 30 degrees Celsius at the time of the visit) with poorly functioning ventilation. Further, some of the cells were in a bad state of repair, with mould or ingrained dirt evident on the walls and around the windows. Many of the washrooms were dirty, some showers lacked shower-heads and there were problems with drainage, which reportedly caused water to leak into the nearby cells (especially on the ground floor of Division XIII). The in-cell toilets were unscreened, had mal-functioning flushes, and the water was cut off intermittently.

This was particularly problematic given an outbreak of diarrhoea among the prisoners during the delegation’s visit (...).

Prisoners did not believe that in-cell water from the sinks was safe to drink and the staff concurred with them. Many prisoners, especially those inmates who only lived off the basic €27 monthly allowance, complained to the delegation about the lack of ready access to safe drinking water and the need to buy bottled water.

The divisions had individual or shared exercise yards, which consisted merely of a stretch of bare tarmac. They were not equipped with any means of rest (let alone any sports or recreational equipment) or any shelter to protect prisoners from sun or rain. The yards were extremely hot, and at the time of the visit, the delegation noted that not a single prisoner made use of them during the day.

By letter dated 4 November 2015, the Maltese authorities informed the Committee that renovations of Divisions II and III were envisaged and would be completed by the end of 2017.

Further, the authorities planned to connect each division to the main water supply and to install two taps in each division to enable inmates to access drinking water.

58. The CPT welcomes these initiatives. Nevertheless, the CPT recommends that the Maltese authorities take the necessary steps to improve the living conditions at CCF and, in particular, to:

 reduce the occupancy levels in multi-occupancy dormitories to ensure that each prisoner has at least 4m² of living space;

 undertake a systematic refurbishment of the cells and sanitary facilities in Division XIII;

 expedite the planned refurbishment works of Divisions II and III;

 provide, until such time as ready access to potable water is assured, inmates with an appropriate amount of free drinking water; and

 equip the exercise yards with a shelter to protect inmates from inclement weather and a means of rest and, preferably, provide sports/recreational equipment.

b. regime and activities

59. As regards the regime of activities on offer, the aim should be for all inmates to spend a large part of the day engaged in purposeful activities of a varied nature. At the time of the visit, the activities on offer included access to the gym and football ground, educational courses on music, information technology and languages, technical courses on stone masonry and carpentry and lifeskills programmes including on positive parenting and first aid. Work was also on offer to prisoners, mainly in the form of toy doll construction. The CPT’s delegation welcomed the fact that more than 80% of all the inmates had access to some kind of work or education; the situation in this respect had improved since the 2011 visit.

(...)

c. other health-care issues

(...)

76. In the course of the delegation’s visit to CCF, there was an outbreak of diarrhoea. On 4 September 2015, 15 prisoners complained of diarrhoea at CCF, followed by another 20 inmates the following day. Various stool samples from inmates were also sent by CCF to the hospital laboratory on the evening of 4 September. Health Inspectors attended the prison on the morning of 5 September and took samples of water and food from the kitchen. Initially, prison management stated that all inmates affected had been in single cell accommodation and remained there; however, the delegation found nine of the affected prisoners were sharing cells with at least one other person and one inmate was in a large dormitory. The prison management explained that this was their first experience of a new phenomenon and the delegation observed that they were unsure how to contain and deal with the outbreak. On 9 September, some five days after the outbreak had commenced, it was confirmed that the cause of the outbreak was salmonella, which was presumed to have come from tuna in the kitchen. In total, 41 prisoners had been affected by this outbreak.

77. The CPT knows that the risk of disease transmission is enhanced in a closed institution (such as a prison), in particular when general hygiene and environmental conditions are poor. Consequently, prison health-care services should adopt a proactive approach, with a view to minimising the risk of the spread of certain infections.

The CPT recommends that the Maltese authorities put in place robust policies to deal immediately with health (and other) crises that may take place within the prison, including adopting a proactive approach, with a view to minimising the risk of the spread of certain infections and ensure the speedier analysis of test results. To this end, regular health checks of the food quality, storage procedures and hygiene standards and procedures in the CCF kitchen should be undertaken.”

64. In their earlier report, published on 4 July 2013, the CPT had already recommended that Divisions 2 and 3 be renovated as a priority (see, Story and Others, cited above, § 61). That report had also stated:

“In Divisions 2 and 3, material conditions were also far below any acceptable standard. Cells were in a very poor state of repair and had only very limited access to natural light. Another major problem was the high level of humidity in many cells, caused by water leaking from the ceiling. In this regard, cell no. 51 in Division 2 (which also had no window) and cell no. 114 in Division 3 were particularly affected. The latter cell was extremely dilapidated and so humid (with water running down the walls) that the prisoner could not keep any personal belongings in his cell. Moreover, in many cells, the toilet flush was not functioning, and, in particular in Division 3, most of the shower facilities (including the sinks) were broken.”

THE LAW

I. JOINDER OF THE APPLICATIONS

65. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

II. PRELIMINARY ISSUES

66. The Government submitted that following communication of the applications the authorities contacted all the applicants in order to check whether they were interested in moving to another cell so that they could consider any such request. However, according to the Government all the applicants stated that they were happy in their cells and that they wished to remain there. The Government considered that, besides the question of the non-exhaustion of domestic remedies, these circumstances showed that the applicants were no longer interested in pursuing their application and thus, pursuant to Article 37 (1) (a) of the Convention, the applicants’ case should be struck out from the list of cases before the Court.

67. The first applicant submitted that his complaints mainly related to the situation in Division 6, and stated that at the time his repeated objections and complaints had been left unanswered. It had only been some time after he had been put in Division 6 that he had realised that it was considered as a high security division normally used for punishment, and when he became aware of this - three months after his detention there had begun - he had made his first transfer request. He categorically denied being offered a transfer in August 2007. The first applicant argued that he had been released from detention in 2016 but was seeking redress for the situation suffered previously, particularly until August 2008.

68. The second applicant argued that his unwillingness to change cell had been because he was complaining about the generally intolerable conditions he had had to suffer, which would not have been remedied by a simple change of cell. He considered that the Government’s claim that he was no longer interested in pursuing his application should be dismissed.

69. The third applicant categorically denied having been offered better accommodation.

70. The Court considers that the issue of whether or not the applicants refused a change of cell may have implications for the admissibility or merits of their specific complaints; nevertheless, as also shown by their detailed submissions concerning the case, there is no doubt that they still wish to pursue their applications before this Court. It follows that the Government’s request to strike out the applications for lack of interest must be rejected.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

71. The applicants complained that the conditions in the detention facility (alone or in combination with other conditions) amounted to inhuman and degrading treatment, and that they had been denied access to the necessary medical treatment while in prison contrary to Article 3 of the Convention, which reads as follows:

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

A. Admissibility

1. Non-exhaustion of domestic remedies

72. The Government submitted that the applicants had not made a request to change cell, moreover they had refused such an offer when it was put to them, even though the Court had found in Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, 29 October 2015) that the conditions of detention were not in breach of Article 3. Furthermore, the applicants had failed to institute constitutional redress proceedings. In this respect the Government argued that - although this remedy had previously been rejected by the Court on the grounds that it lacked speed - they insisted that had a request for urgency been lodged it would have been granted if the domestic court had considered the request well founded. They therefore invited the Court to review its findings. They also submitted that legal aid would be available for such proceedings. Lastly, they noted that in particular the second applicant had failed to appeal against the first-instance judgment, and that he had been conversant in English, as was evident throughout the domestic proceedings.

73. The first applicant submitted that he had been unaware that he should have first pursued his claim domestically, given that he did not have any legal advice at the time.

74. The second applicant submitted that he had availed himself of constitutional redress proceedings to no avail. As to the possibility of verbal complaints, he pointed out that there had been a language barrier between him and the officers in charge.

75. The third applicant submitted that there had been no real and effective domestic remedies to pursue; he had also repeatedly been told by the prison authorities that he had no right to do this. Furthermore, the applicant - being a Spanish speaker - had trouble communicating in English and for the purpose of these proceedings he was communicating with his legal representative as best he could in the Italian language.

76. The Court refers to its general principles and the assessment of the relevant remedies it made in Story and Others (cited above, §§ 72 - 86) and finds no reason to alter the conclusions reached in that case. In particular it observes that - although the Government requested that the Court review its conclusion concerning constitutional redress proceedings, the only shortcoming of which was the length of the proceedings - the Government did not submit any relevant domestic case-law that would call into doubt the conclusion reached at § 85 of that judgment. On the contrary, the proceedings instituted by the second applicant, which lasted fourteen months at one instance, strengthen that finding. The applicants were therefore not required to institute such proceedings. In so far as the second applicant had attempted such a remedy following the lodging of his case with the Court, but had failed to appeal, the Court does not consider − in the light of the above − that he was required to continue pursuing a clearly ineffective remedy concerning a “continuing situation” which he had brought to the Court’s attention earlier.

77. The Government referred to the offer made by the authorities, after the applications had been communicated, to transfer the applicants to other cells, and their refusal of that offer. The Court considers that - even assuming that this offer was indeed made to all three applicants and was refused - the Government failed to specify whether the other cells would be in the same Division, or elsewhere, or to give any details about the proposed transfer and the conditions it would bring with it. Indeed, the cases brought before this Court, as well as the CPT reports (see paragraph 63 above), indicate that the majority of the cells in the Corradino Correctional Facility are of more or less the same quality, particularly those in Divisions 2 and 3 (the latter being the division used for foreigners), in respect of which urgent refurbishment has been called for by the CPT since 2013. It follows that it has not been shown that the remedy offered by the Government would have in fact improved the applicants’ situation. In the specific circumstances of these cases, the applicants’ refusal to transfer therefore cannot be held against them for the purposes of the exhaustion requirement.

78. The Government’s objection is therefore dismissed.

2. Six-month rule

79. In their second round of observations, the Government submitted that, in his observations, the first applicant had concentrated his submissions on the conditions of detention during the time he had spent in Division 6, which had come to an end in August 2008, and his complaint thus fell outside the six-month time-limit.

80. The Court is mindful of the fact that - if there is no effective domestic remedy to be exhausted - a complaint about conditions of detention must be lodged within six months of the end of the situation complained of. The Court’s approach to the application of the six-month rule to complaints concerning the conditions of an applicant’s detention may be summarised in the following manner: the period of an applicant’s detention should be regarded as a “continuing situation” as long as the detention has been effected in the same type of detention facility in substantially similar conditions. The applicant’s release or transfer to a different type of detention regime, both within and outside the facility, would put an end to the “continuing situation” (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012).

81. It appears from the submissions and material available that, as submitted by the first applicant himself, the conditions in Division 6 were more severe than those in the other Divisions, it being a high-security division. It therefore cannot be considered as being the “same type of detention facility in substantially similar conditions” and the situation therefore cannot be regarded as a “continuing” one. It follows that, given that the first applicant lodged his application on 11 March 2014, the complaint - in so far as it concerns the period of detention in Division 6, which came to an end in August 2008 - is belated and thus inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.

82. The same cannot be said of the other periods of detention served by the applicants in different cells in Division 3, given the similarity of the cells in the same division.

3. Conclusion

The Court notes that the remaining parts of the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The first applicant

83. Further to his application, the first applicant made no other observations concerning the conditions of detention in Division 3 (his observations being limited to the situation in Division 6, which was declared inadmissible at paragraph 81 above).

(b) The second applicant

84. The second applicant complained about the size of his cell (around 9 sq. m) since the overall area included the sanitary facilities. Referring to the CPT report of 2013, he pointed out that the report described the building as being “far below any acceptable standard”. The applicant submitted that he would have been willing to paint his cell however this would have required tall ladders and could have been dangerous, especially as he had a fear of heights.

85. The second applicant claimed that the small window and vents in the cell were inadequate, considering that he was confined to his cell for eleven hours at night and two hours at midday. As to access to the open air, according to the applicant this amounted to four and a half hours in winter and six and a quarter hours in summer. Admitting that he had covered his window and the vent with paper, he explained that he had done this to protect himself from the cold and strong wind during the winter, but that it had remained in place because the window was at a height of 210 cm, meaning that he would have to climb onto the bed and stand on the washbasin in order to reach it. The applicant further submitted that the heat was unbearable despite the vents, and as regards the cold, he thought that there must be other means of heating which would not create security concerns. The applicant admitted that he had once in 2012 asked for an extra blanket and had been given a used, smelly one, which in his view would not have been suitable even to cover a dog. After this humiliation he never asked again and regularly slept in his jacket.

86. The second applicant complained that the toilet was not equipped with an automated flushing system and he therefore had to fill up a bucket from a slow running tap, which exposed him to unhygienic conditions and unpleasant smells. He further submitted that, although declared fit for consumption, water could still be unsafe, and in fact most Maltese people drank bottled water. He explained that he drank two to three litres of water a day and that he could not afford to pay EUR 3 for bottled water every week out of the EUR 10 gratuity money he received. That money also had to serve to supplement his personal hygiene needs, as he only received the following items from the prison authorities: one toilet roll a week, 25 grams of soap every two weeks, and a small amount of detergent each month.

87. The second applicant commented about the quality and quantity of the meals, which had been decreasing as the prison population increased to 60 inmates (for example they were being served one beef burger instead of two). He argued that the menus submitted by the Government did not reflect this. He also contended that the pest control services were clearly not effective, since it was quite normal to see rats and cockroaches crawling out of cracks in the wall, the drains, and the vents.

88. The second applicant complained about passive smoking. He pointed out that the Division had no segregation between smokers and non-smokers, so keeping the small aperture in the metal cell door open to encourage ventilation resulted in passive smoking. Indeed, it was only the learning zones which were non-smoking areas, as admitted by the Government. He also complained that his eyesight was deteriorating as a result of the lack of natural light. At the time the observations were filed, he had been waiting three months to get an appointment in connection with his short-sightedness and headaches.

89. Referring also to the CPT report of 2013, the second applicant claimed that all these conditions taken cumulatively over the lengthy period of his detention amounted to a violation of Article 3.

90. The third applicant emphasised the need for heating because of the cold in the winter months - especially for a person suffering from arthritis - even though in Malta temperatures did not drop below 0 ^oC. The cold got into the bones, even more so in an old building like the one at issue. The stifling heat in summer was also made worse by the lack of ventilation. He pointed out that his window was positioned at too great a height and it was not right that he should be forced to stand on a wobbly plastic stool in order to reach it. He maintained that the cockroach infestation at the prison was a well-known fact.

91. The third applicant’s submissions concerning drinking water echoed those of the second applicant (see paragraph 86 above).

92. He considered that these conditions, taken cumulatively over the entire span of his detention - which had been prolonged by eighteen months since he had been unable to pay the fine imposed on him by the Criminal Court judgment and would be prolonged further since he was not in a position to pay the court expenses ordered by the same judgment - amounted to inhuman and degrading treatment.

(d) The Government

93. The Government referred to the Court’s case-law, particularly Story and Others, cited above, and the prison regulations, as well as the arguments set out in the Facts section in respect of each applicant.

94. They contended that the first occasion on which the second applicant had referred to his cell being humid, damp and lacking sufficient light had been in his observations − an assertion they rejected by means of photos submitted to the Court. They referred to the CPT’s standards, which stipulate that a single-occupancy cell should offer 6 square metres of living space and sanitary facilities - standards which were met in the second applicant’s case. The Government pointed out that the second applicant could have had help to paint his cell from the prison maintenance staff. They also argued that inmates had not been given blankets which were in poor condition and that, since being housed in Division 3, the second applicant had not requested any blankets. They commented that most Maltese dwellings were not equipped with air conditioners and that fans were allowed in the detainees’ cells. The Government submitted photos of the tap in the cell showing it to be in good working condition. They pointed out that, besides the gratuity money of around EUR 40, the second applicant also received money in return for work, which allowed him to buy bottled water if he so wished (see paragraph 25 above). According to the Government, the second applicant had access to fresh air for long stretches of time and the cell had sufficient ventilation to protect him from passive smoking.

95. In connection with the third applicant’s prolonged detention, the Government submitted that he could have paid the fees established by the court judgment from the money he earned while working in prison.

96. In general, the Government submitted that the cells in Division 3 are individual cells (365cm x 265cm) equipped with a bed, a washbasin with running water, a wall-mounted water tap with running water, and a toilet. Showers equipped with hot water are to be found in the Division. Hot water for tea and coffee is also available. Inmates have access to the showers and hot water at all times of the day when the cells are open and inmates are allowed to take thermos flasks of hot water into the cell when they are closed. The bed is equipped with bedding material and there is also a wardrobe. Each cell has a window providing natural light and a minimum of two vents. All the cell doors have an aperture for added ventilation. Each division, including Division 3, has its own yard and detainees can spend their free time in these open-air yards. Inmates have access to fresh air throughout the day from 9.00 a.m. to 11.30 a.m. and from 2.00 p.m. to 3.45 p.m. during winter time and during the summer period the yards are open again between 5.00 p.m. and 7.00 p.m. Inmates are also provided with items for their personal hygiene, including toilet rolls, soap and detergent for washing clothes. Divisions are also provided with cleaning products for the cells and all inmates are given individual cleaning detergents on request. Inmates are also provided with sugar and coffee. All these items, along with the three meals a day, are provided free of charge for the detainees.

97. In addition to the above, in respect of all three applicants the Government submitted that each was housed in an individual cell in Division 3, which can hold sixty people at any one time - a number that was never exceeded. They noted that the applicants had not claimed that the overall floor area of the cell did not allow them to move freely between the furniture items.

98. The windows in the cells measure 50cm x 80cm and are at a height of 210 cm. Vents are located on opposite sides in order to ensure proper ventilation of the cell. Moreover, a hand tool is made available to the inmates enabling them to open the window, or alternatively the window can be opened by standing on the bed or on a chair or stool. The Government submitted that artificial lighting supplemented the available natural light and that inmates were allowed to use two other lamps besides the ceiling lamp. Moreover, the applicants were only confined to their cells for a limited number of hours. Although some of the applicants complained about ventilation in their cells, as the photographic evidence showed, the applicants themselves had blocked the vents either by putting pictures or cardboard over them or over other openings in the cell.

99. In the cells, only cold water is provided for security reasons: there had been instances of hot water being thrown over prison guards after the opening of a cell door. Each Division is provided with a hot water facility for hot drinks. Moreover, inmates are allowed to take thermos flasks filled with hot water into the cell at night-time so that they have the hot water necessary for the preparation of hot drinks during the night. In so far as drinkable water is concerned. The Government submitted that the tap water in the cells was fit for human consumption (see paragraph 24 above) and that the taps in the cells were functional. However, if an inmate wished to drink bottled water, this could be purchased from the residents’ tuck-shop. Each inmate was given gratuity money every four weeks as well as the opportunity to apply to work within the facility to earn some more money through the so-called “Work and Pay” scheme. From the report it is apparent that all three inmates were earning money through this scheme.

100. The applicants are also allowed to use electric fans in order to alleviate the heat during the summer months: as can be seen from the photographic evidence submitted, all applicants have benefited from this opportunity and have installed electric fans in their cells. In so far as the winter months are concerned, heaters are not installed in the cells for security reasons, but an exception is made if a medical condition requires the use of such heaters. In the other cases, such as those of the applicants, blankets are provided and if the applicants require more, they can request additional ones from the prison authorities.

101. Furthermore, Division 3 is equipped with a multiple-cubicle shower-room with hot and cold water. Inmates are free to make use of the shower cubicles daily during the opening hours of the showers, that is to say from 7.45 a.m. till 12.30 p.m. and from 2.00 p.m. to 8.30 p.m. The Government submitted that a limited waiting time for hot water usage was normal and that this waiting time was negligible since the prison was equipped with industrial water heaters.

102. The cells in Division 3 are opened at 7.30 a.m. by the prison guards who distribute hot drinks to the inmates. The cells are left open until 12.30 p.m. and are re-opened from 2.00 p.m. to 8.30 p.m. When the cells are open, the inmates are free to walk in and out of their cells and to access the exercise yard which is adjacent to the Division. Other amenities available to the inmates on a regular basis include a library, a gym, a church, workshops, a school and a tuck-shop. Other activities such as cultural and social events are held from time to time. There is also a communal TV and DVD player, and the inmates may have a television in their cell.

103. Pest control is carried out in the facility on a regular basis. Paint and brushes are made available by the authorities if the inmates wish to paint their cells should the ceiling or the walls flake. If an inmate requires assistance, the Trade Section personnel will be called upon to carry out the necessary works in order for the cell to be kept in good condition.

104. The Government made reference to the CPT report on the visit conducted by CPT officials at the Corradino Correctional Facility in September 2011. In paragraph 17 of the report it was remarked that the material conditions in Division 3 fell below any acceptable standard, and that the cells were in a very poor state of repair, with limited access to natural light, humidity, non-functioning flushing systems and broken shower facilities. They observed that in the response submitted by the Maltese authorities and published on 4 July 2013, it was stated that maintenance works at the CCF were being conducted on a regular basis. Moreover, from the photographic evidence submitted in this case, it is clear that the cells allocated to the applicants were in a good state of repair.

105. Concerning access to sanitary facilities, especially toilets, the Government submitted that the applicants had not complained that the toilet in their respective cells was not separated from the living area. The applicants were not housed in multi-occupancy cells and the cell doors were made of solid material with no transparent panels, thus ensuring privacy. The applicants did not complain that water to flush the toilets was not available but only that they had to use buckets in order to flush the toilets. In this regard the Government made reference to the fact that running water was available at all times in the cells, along with cleaning materials including disinfectant which is made available by the authorities.

106. As to medical treatment, the Government confirmed that on admission to prison, the applicants had been medically examined and medical assessment reports had been completed. Blood and virology tests had also been carried out. From his medical report it was apparent that the first applicant had never been referred to a psychiatrist and that none of the medical doctors who had examined the applicant had ever found this necessary. As to his ophthalmology requests, the Government noted that the second applicant had been treated on a par with other Maltese nationals. The third applicant’s alleged arthritis is not documented in his medical records but they show that he was surgically treated for right dupuytren’s contracture, which lay persons may confuse with arthritis; he had also been referred to hospital with common migraine, and medication had been prescribed.

107. The Government submitted that the prison is equipped with a clinic manned by qualified nurses who are present daily on a fourteen-hour work schedule. In-house doctors give their services to inmates on a daily basis. The prison also engages the services of a psychiatrist and a psychologist in order to examine inmates who need such medical assistance. If the inmates need further medical assistance which is not available in-house, they can obtain it through the general national health care system at no extra cost. The applicants are regularly medically examined and even referred to the State hospital when necessary (see, for example, paragraph 60 above).

2. The Court’s assessment

108. The Court refers to its general principles as set out in Story and Others (cited above, §§ 104-106 and 112, 119 and 125).

109. The Court also notes that most of the issues raised in the present case - namely the condition of the cells, the lighting and ventilation available, the heat suffered in the summer and the cold in the winter, the unsatisfactory hygiene and non-automated toilet-flushing, the availability of running water, hot water, and drinking water - have already been dealt with in Story and Others (cited above, §§ 114-125). Given the similarity of the complaints, as well as the submissions and documentary evidence provided by the parties, the Court refers to its general findings in that case concerning each of the issues mentioned, and reiterates its concerns (particularly at §§ 115-117, and 120-121).

110. The Court reiterates its serious concern about the lack of any heating on the premises and the possibility that such a factor might in itself amount to a violation of Article 3, even in the absence of overcrowded conditions (see, for example, Mihai Laurenţiu Marin v. Romania, no. 79857/12, § 32, 10 June 2014) or any other factors, particularly in the case of extreme temperatures (see Zakharin and Others v. Russia, no. 22458/04, § 125, 12 November 2015) and especially if the detainee suffers from a particular condition (ibid, in fine). However, in the present cases the applicants did not submit detailed information as to specific periods when the temperature inside had dropped to very cold or close to freezing temperatures, and for how long such conditions persisted during the winters over the years during which they had been detained. In such circumstances the Court finds it difficult in the present case to determine precisely the severity of the situation (compare Insanov v. Azerbaijan, no. 16133/08, §§ 124-125, 14 March 2013). Moreover, the second applicant has made no recent request for blankets enabling him to substantiate the claim that the blankets provided were not adequate, nor have such requests been made by the third applicant, whose claim concerning arthritis has not been proved.

111. In addition, in the present case, a number of other issues have been raised by one or more of the applicants. The Court refers in particular to the alleged pest infestation, the quality and quantity of the food available, the lack of clothing, laundry and relevant materials, claims regarding the presence of asbestos, and passive smoking in relation to the second applicant.

112. As regards the pest infestation, the Court observes that by the Government’s own admission there were at least sixteen interventions by pest control operatives over a period of two years. While this shows that the Government is taking action to counter the problem, it undermines the assertion that problems of infestation on the premises do not exist. On the contrary, such frequent treatment rather points to a persistent problem which could give rise to an unsanitary and unsafe environment (compare Testa v. Croatia, no. 20877/04, §§ 61 and 62, 12 July 2007). This is even more likely given the high temperatures which are common in Malta over the summer and the fact that detainees have no access to automatically flushing toilets, resulting in unpleasant odours over periods of time which could attract pests. The Court therefore registers its concern about the matter, particularly given that the applicants claim that it is a common occurrence (see paragraph 87 above). However, the Court also notes that in the domestic proceedings instituted by the second applicant, it was found that - according to the pest control treatment report released by the private company involved (dated 4 July 2014) - the situation had been certified as being under control (see paragraph 41 above). The Court cannot deny that the situation is an unsatisfactory one, but reiterates that, in reaching its conclusion about the conditions of detention, consideration must be given to the cumulative effects of the various aspects thereof.

113. As to the food supplied, the Court notes that the Government’s submissions and accompanying documents - including photographs of some of the different dishes served, the veracity and authenticity of which have not been contested by the applicants - give little credence to the second applicant’s submission in this respect. Nevertheless, it cannot go unremarked that a number of instances of gastrointestinal problems have been reported in the local press, nor can it be ignored that similar problems were encountered during the visit by the CPT (see paragraph 63 above). In this respect, the Court notes, however, that the applicants have failed to demonstrate the inadequacy of the food provided or to specify how, if at all, the provision of such food has affected their health (compare Z.N.S. v. Turkey, no. 21896/08, § 82, 19 January 2010). Thus, while failure to provide food in accordance with the general nutritional tables and menus in prison may put at risk the health of detainees (compare Rotaru v. Moldova, no. 51216/06, § 37, 15 February 2011), it has not been established that this was the situation in the present cases (see also Kurkowski v. Poland, no. 36228/06, § 60, 9 April 2013).

114. As to the claim regarding asbestos, the Court has no reason to doubt that, as stated by the Government (see paragraph 27 above), the building at issue is made of limestone and the cells are not contaminated with asbestos, as was also confirmed by the domestic court in the second applicant’s case (see paragraph 40 above). Moreover, the Court notes that the applicants’ basic needs have been seen to by the distribution of materials free of charge (including limited cleaning materials), and the applicants were not left unclothed - even if partly with private help (see, mutatis mutandis, Mahamed Jama v. Malta, no. 10290/13, § 98, 26 November 2015). In this connection the Court also notes that the absence of a laundry is not in itself conclusive, but it is imperative that cleaning materials suitable for ensuring the required hygienic standards are available at all times (see, mutatis mutandis, Story and Others, cited above, § 121). The Court reiterates that it is incumbent on the respondent Government to organise its prison system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (ibid).

115. As to smoking, the Court reiterates that the situation of passive smokers may also raise an issue under the Convention standards (see, for example, Gavrilovici v. Moldova, no. 25464/05, §§ 42 and 44, 15 December 2009, and Ostrovar v. Moldova, no. 35207/03, § 85, 13 September 2005), especially if an applicant’s health is effected by such exposure (see, for example, Onaca v. Romania, no. 22661/06, § 40, 13 March 2012). The Court is struck by the fact that the common areas (save for the learning zones) are smoking areas and refers to the findings of the domestic courts in this respect (see paragraph 42 above), particularly given the general ban in Malta on smoking in public spaces. Nevertheless, as far as his cell is concerned, the second applicant was detained in a single-occupancy cell and, while it is not impossible that the odour in the adjoining cells might have reached his own, it has not been shown to the Court’s satisfaction that any fumes reached the second applicant’s cell. It follows that while an unregulated smoking environment remains regrettable, the second applicant could for most of his day seek refuge from such fumes either in his own cell or in the yard to which he had access nearly all day long - this situation distinguishes the second applicant’s case from other cases brought before the Court in which detainees were sharing multi-occupancy rooms with smokers for most of the day (as in, for example, Ostrovar, cited above). Moreover, it has not been claimed that the second applicant suffered any specific health condition or deterioration as a result of the situation.

116. Lastly, as it did in Story and Others, in examining the cumulative effect of the factors complained of, the Court cannot but take account of the fact that cells were unlocked at 7.30 a.m. and left open until 12.30 p.m.; they were unlocked again at 2 p.m. and locked at 8.30 p.m. Inmates were therefore free to move around and access the exercise yard, as well as other recreational facilities, for more than ten hours a day. Such a favourable situation has a particular bearing when assessing the applicants’ conditions of detention. To that must be added the fact that, even when in their cells, the applicants were not exposed to extreme conditions, since they each had a cell measuring around 9 sq.m, with an individual sleeping place and the relevant accessories.

117. The Court also notes that, according to the records submitted by the Government, the applicants in the present case were not suffering from any particular health condition likely to make their detention more burdensome. Nor is it apparent that there was any actual deterioration of their physical or mental condition while they were in detention. It also appears that the applicants were regularly seen by doctors in connection with common ailments and were prescribed the relevant medical treatment, as would have been the case had they been treated in the State Hospital like any other citizen at liberty (see, mutatis mutandis, Prestieri v. Italy, (dec.), no. 66640/10, 29 January 2013). In this connection, the Court notes that the medicine taken by the third applicant would, likewise, not have been provided free of charge to Maltese citizens. However, it appears that the applicant ultimately had the possibility of having the cost of his medicines covered by an NGO (see paragraph 60 above). The Court reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entire population. However, this does not mean that each detainee must be guaranteed the same medical treatment as is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012).

118. Having regard to the preceding paragraphs, although the Court is concerned about a number of matters highlighted above, in the present case it is not convinced that the overall conditions of detention and the medical treatment received by the applicants, subjected them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention or that, given the practical demands of imprisonment, their health and well-being were not adequately protected.

119. It follows that there has been no violation of Article 3 of the Convention.

FOR THESE REASONS, THE COURT

1. Decides, unanimously, to join the applications;

2. Declares, unanimously, the complaints concerning the conditions of detention of the applicants in Division 3 and their medical treatment admissible and the remainder of the applications inadmissible;

3. Holds, by four votes to three, that there has not been a violation of Article 3 of the Convention.

Done in English, and notified in writing on 19 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ganna Yudkivska
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Pinto de Albuquerque, Ranzoni and Bošnjak is annexed to this judgment.

G.Y.
M.T.

JOINT DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE, RANZONI AND BOŠNJAK

1. We respectfully disagree with the majority that there has been no violation of Article 3 of the Convention. In our opinion, the conditions of detention to which the applicants have been subjected, taking into account their cumulative effect, constitute degrading treatment within the meaning of this provision.

2. The complaints were lodged by three applicants serving custodial sentences in Division 3 of the Corradino Correctional Facility in Malta. They suffered from inappropriate conditions of imprisonment during part or all of their sentences (lasting 13, 11 and 10 years respectively).

3. In a previous judgment, Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, 29 October 2015), which concerned the conditions of detention in the same division of the Corradino Correctional Facility over the same period of time, the Court, by a majority, found that there had been no violation of Article 3 in respect of the claims submitted by the applicants in that case.

4. The present case does not concern prison overcrowding. However, even in cases where overcrowding does not constitute, on its own, a violation of Article 3, other aspects of detention conditions have to be examined (see Canali v. France, no. 40113/09, § 50, 25 April 2013). 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 (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). Moreover, when assessing conditions of detention, account has to be taken, inter alia, of the cumulative effects of these conditions, and the length of time a person is detained in particular conditions has also to be considered (see Story and Others, cited above, §§ 104 and 106).

A. Prison conditions in Division 3 of Corradino Correctional Facility

1. Issues already exposed in Story and Others v. Malta

5. As the Court noted in paragraph 109 of the present judgment, several of the issues raised in this case were already dealt with in Story and Others, in particular the condition in the cells, the available lighting and ventilation, the summer heat and winter cold, the unsatisfactory hygiene arrangements and non-automated toilet-flushing, and the availability of running water, hot water and drinking water. However, let us consider how the Court dealt with these issues in the previous case.

6. As to humidity in the cells, the Court referred to publicly available information stating that Malta’s climate had very high humidity levels (sometimes as high as 90% and rarely below 40%). It stated, “[w]hen coupled with high temperatures in the summer and low temperatures in winter, this causes mould and dampness, which is aggravated in winter. In this connection, ventilation and heating are key factors in preventing mould”. The Court then held, first, that the ventilation was “not ideal” (with reference to the CPT report), but that there was not a sufficient indication that the installations, namely the windows and ventilators, could not supply enough ventilation. It expressed concern as to what would happen if the prison authorities did not ensure that all the wall-mounted ventilators were fully functional and allowed fresh air to enter (see Story, §§ 114-116).

7. Secondly, concerning the heating, which was also depicted as a key factor in preventing mould, the Court expressed uneasiness about the fact that no heating whatsoever was available in the prison, although in the winter months the country suffered from great humidity, “with temperatures which can drop to a few degrees above zero”. Nevertheless, it considered that detainees “should at least make requests for further blankets or warmer clothing” (see Story, § 117). However, the Court did not explain how such blankets or clothing could be of any use against humidity or the heat suffered in summer.

8. As to the unsatisfactory hygiene conditions, the Court reiterated that close proximity and exposure to the toilet was objectionable from a hygiene perspective. It also took issue with the fact that the cells were not equipped with an automated flushing system, and that water was not always readily available in order to flush the toilet using a bucket. The Court emphasised that this matter, causing unpleasant smells and a perilous hygiene situation, raised particular concern (see Story, §§ 120-121).

9. Furthermore, the Court referred to the temporary unavailability of showers, as supported by the CPT report, and held that it was “inexcusable that over a span of five years the situation concerning the functionality of showers appeared to remain problematic”. In addition, the authorities failed to ensure a regular supply of both hot and cold water in the showers, which was qualified as “unfortunate” (see Story, §§ 122-123).

10. As to the availability of drinking water, the Court considered that, even assuming that the tap water was undrinkable, the applicants could have made use of the hot potable water available or alternatively purchased their own bottled water (see Story, § 124). However, it failed to explain why it should be for the detainees to pay for water that was fit to drink.

11. Although the Court expressed “concerns”, “particular concern” or “uneasiness” with respect to each of the above-mentioned unsatisfactory prison conditions, and found them “unfortunate”, “regrettable”, “inexcusable” or “problematic”, it ultimately assessed all the deficiencies as unrelated aspects and held that each single deficiency did not raise “by itself” an issue under Article 3. Taking this approach, the Court in its conclusion (see Story, § 128), although again expressing its concern about a number of the matters highlighted, was “not convinced that the overall conditions of detention subjected them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention or that, given the practical demands of imprisonment, their health and well-being were not adequately protected”.

12. In this respect, we would concur with the dissenting opinion expressed in the Story case by Judge Casadevall, who found that the living conditions endured by the prisoners appeared “deplorable” and, using the words of the CPT report, “far below any acceptable standard”. He likewise found “somewhat shocking the arguments put forward [by the majority] to reject those complaints”, and stressed that the Court, although reiterating its concern, did not reach the conclusions which were “called for in view of the deplorable situation to which the applicants have been subjected”.

13. The same considerations are valid in the present case because, as already mentioned, it concerns the conditions of detention in the same division of the Corradino Correctional Facility over the same period of time. Thus, the deficiencies identified in the Story case would, to our mind, suffice for finding a violation of Article 3 of the Convention also in the present case.

2. Additional issues exposed in the present case

14. Such a finding is, in our case, even more manifest, in that the Court has acknowledged a number of additional issues that were raised by one or more of the applicants, in particular the alleged pest infestation, the quality and quantity of the food available, the lack of clothing, laundry and relevant materials, claims regarding the presence of asbestos, and passive smoking (see paragraph 111 of the judgment). However, not even these additional deplorable detention conditions were considered by the majority to be constitutive of a violation of Article 3. We are unable to understand and to accept their conclusion.

15. At the outset, the Court reiterated its “serious concern” about the lack of any heating on the premises and pointed to the possibility that such a factor “might in itself amount to a violation of Article 3” (see paragraph 110 of the judgment). We could not agree more with that observation. However, the majority then stated that the applicants “did not submit detailed information as to specific periods when the temperature inside had dropped to very cold or close to freezing temperatures, and for how long such conditions persisted”. In this regard, we disagree.

16. First, in view of the member States’ obligations under Article 3 of the Convention, it is their duty to ensure that a person is detained in conditions which are compatible with respect for his or her human dignity (see paragraph 4 above). A functional heating system seems to us a matter of course, or a minimum standard in all detention facilities; it should regulate temperature as well as humidity. If detention facilities lack any heating, it is for the States to show convincingly that the minimum requirements of adequate temperatures and dryness are nevertheless met.

17. Secondly, the Court has already acknowledged that Malta’s climate has very high humidity levels, with high temperatures in summer and low winter temperatures, which can drop to a few degrees above zero (see Story, §§ 114 and 117; see also paragraph 6 above). Against this background, we cannot understand what additional information the applicants were supposed to submit. Did they, for example, have to buy a thermometer and, over a long period of time, measure the daily temperature in the respective cells and in other premises in order to demonstrate the severity of the situation? In our view, this severity in unheated premises is self-evident.

18. As to the pest infestation, the second applicant claimed that the building was infected by rats and cockroaches (see paragraph 19 of the judgment). The Court observed that there were at least sixteen interventions by pest control operatives over a period of two years, meaning that there was a persistent problem which could give rise to an unsanitary and unsafe environment. Once again, it registered its “concern” about the matter and qualified the situation as “unsatisfactory”. However, the Court contented itself with the Government’s assertion that “the situation has been certified as being under control” (see paragraph 112 of the judgment). Sixteen interventions within two years can hardly mean that the situation is actually “under control”, let alone that the problem is solved, but only that the situation may not be deteriorating. Is that a sufficient level of protection?

19. As to the food supplied and the availability of potable water, although the second applicant’s submissions were given little credence, a number of instances of gastrointestinal problems among detainees have been identified, and the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report on its most recent visit to Malta in which it urged the government to “adopt a proactive approach” in dealing with such problems (see paragraphs 63 and 113 of the judgment).

20. As to the absence of a laundry, the Court noted that the applicants’ basic needs had been seen to by the distribution of materials free of charge, but added that these included only “limited cleaning materials”. It then continued, with reference to Story and Others (cited above, § 119), that it is “imperative that cleaning materials suitable for ensuring the required hygienic standards are available at all times” (see paragraph 114 of the judgment). However, the majority omitted to take a clear stand on whether or not the necessary materials were actually available to all applicants at all times.

21. As to the passive smoking, the Court noted that the applicants had to share common areas that were smoking areas. This fact “struck” the majority and they qualified it as “regrettable”, but it remained without any consequences. In this respect, the Court put forward an argument that we can hardly accept, namely that the applicant could “for most of his day seek refuge from such fumes either in his own cell or in the yard” (see paragraph 115 of the judgment). In other words, the applicant had either to “flee” and avoid the common areas inside the building, or to remain all the time in his cell where, incidentally, he could potentially also be subject to passive smoking unless he kept the door closed all the time. Does that really constitute an acceptable solution for the problem of passive smoking?

B. The cumulative effect of prison conditions

22. The Court, in paragraph 112 of the judgment, stated that in reaching its conclusion about the conditions of detention, “consideration must be given to the cumulative effects of the various aspects thereof”. Again, we could not agree more with this statement, which corresponds with the Court’s case-law (see Story and Others, cited above, § 106; Aleksandr Makarov v. Russia, no. 15217/07, §§ 98-100, 12 March 2009; and Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). Moreover, the length of time a person is detained in particular conditions also has to be considered (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 142, 10 January 2012; Alver v. Estonia, no. 6481/01, 8 November 2005). When detainees are detained for a longer period of time, special attention needs to be paid to the cumulative effect (see, for example, Modarca v. Moldova, no. 14437/05, § 69, 10 May 2007).

23. However, in the present case the majority failed to follow up on the various concerns expressed by assessing all of the deficiencies in a holistic manner, and failed to draw the necessary conclusion as to the cumulative effect of the deplorable conditions in Division 3 of the Corradino Correctional Facility.

24. This cumulative effect seems obvious when all of the issues identified in the previous Story case, as well as in the present case, are taken into account, namely:

- humidity in cells;

- lack of any heating;

- inadequate ventilation;

- unsatisfactory hygiene conditions;

- limited availability of drinking water;

- problems with pest infestation;

- food problems;

- claims regarding asbestos;

- absence of a laundry;

- passive smoking.

25. It should be pointed out that the majority themselves indicated the possibility that the “lack of any heating” might in itself amount to a violation of Article 3, which confirms the extreme seriousness of this issue.

26. Moreover, the Court in its assessments of the various claims and issues exposed either in the Story judgment or in the present judgment has used the following terms, some of them several times: “not ideal”, “unfortunate”, “concern(s)”, “uneasy”, “regrettable”, “takes issue”, “particular concern”, “inexcusable”, “problematic”, “remain vigilant”, “serious concern” “persistent problem”, “unsatisfactory”, “is struck”.

27. These elements, taken together in the assessment of the cumulative effect of the above conditions of detention, should have led the Court to find that the applicants were subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. This is all the more true in view of the long period of time during which the applicants had - and still have - to endure the deplorable conditions. All three applicants were serving a custodial sentence of at least 10 years, which requires that special attention needs to be paid to the cumulative effect.

28. Furthermore, our assessment of the situation in the Corradino Correctional Facility concurs with the CPT report of July 2013, which reads (see Story, § 61, and paragraph 64 of the present judgment):

In the light of the above, the CPT urged the Maltese authorities to draw up a comprehensive plan to renovate the entire CCF as soon as possible and to provide a timetable for the implementation of the different stages. Divisions 2 and 3 should be renovated as a matter of priority.”

29. According to the CPT report of October 2016 (see paragraph 63 of the judgment), most divisions continued to provide “generally poor living conditions for the inmates”, in particular in Division 3. The delegation noted, inter alia:

“Many of the cells were excessively hot (over 30 degrees Celsius at the time of the visit [from 3 to 10 September 2015]) with poorly functioning ventilation. Further, some of the cells were in a bad state of repair, with mould or ingrained dirt evident on the walls and around the windows. Many of the washrooms were dirty, some showers lacked shower-heads and there were problems with drainage, which reportedly caused water to leak into the nearby cells .... The in-cell toilets were unscreened, had mal-functioning flushes, and the water was cut off intermittently.

This was particularly problematic given an outbreak of diarrhoea among the prisoners during the delegation’s visit....

Prisoners did not believe that in-cell water from the sinks was safe to drink and the staff concurred with them. ...

30. As regards other elements relevant for assessing the prison conditions, which the majority referred to in order to justify the finding of no violation of Article 3, we do not find the respective arguments convincing. These elements cannot compensate for the many deficiencies identified.

31. First, the majority relied on the fact that detainees are “free to move around and access the exercise yards as well as other recreational facilities” (see paragraph 116 of the judgment). In this regard, we would recall the problematic situation of passive smoking in the common areas (see paragraph 17 above). Furthermore, we would reiterate the CPT’s description of the exercise yards as not being equipped “with any means of rest (let alone any sports or recreational equipment) or any shelter to protect prisoners from sun or rain” (see paragraph 24 above). We find it cynical that the majority qualified this situation as “favourable” (see paragraph 116).

32. Secondly, the further “compensatory” argument of the majority, namely the fact that the applicants were not suffering from any particular health problems (see paragraph 117), is likewise unacceptable in our opinion. Do such prison conditions constitute degrading treatment only in cases where detainees have fallen seriously ill or encountered serious mental problems? Is this the standard the Court has established? Do detainees need to wait until they actually suffer from serious health conditions? Should they not rather be prevented from and protected against falling ill due to deplorable prison conditions? We consider that the latter approach should be the one taken by the Court.

C. Conclusion

33. In our opinion, the cumulative effect of the deplorable conditions of detention in Division 3 of the Corradino Correctional Facility in Malta as described above, combined with the long period during which the applicants had to endure these conditions, reached the threshold of degrading treatment for the purposes of Article 3 of the Convention. In consequence, we have voted for finding a violation of this provision.

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You are here: BAILII >> Databases >> European Court of Human Rights >> YANEZ PINON AND OTHERS v. MALTA - 71645/13 (Judgment : Violation of Prohibition of torture - Degrading treatment Inhuman treatment) (Substantive aspect) [2017] ECHR 1166 (19 December 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1166.html Cite as: ECLI:CE:ECHR:2017:1219JUD007164513, CE:ECHR:2017:1219JUD007164513, [2017] ECHR 1166