FOURTH SECTION
\nCASE OF ABDILLA v. MALTA
\n(Application no. 36199\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n17 July 2018<\/p>\n
FINAL
\n17\/10\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Abdilla v. Malta,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Ganna Yudkivska, President, Having deliberated in private on 29 May 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 36199\/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 (\u201cthe Convention\u201d) by aMaltese national, Mr Jean Pierre Abdilla (\u201cthe applicant\u201d), on 25 September 2015.<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Dr\u00a0Y. Bugeja, a lawyer practising in Valletta. The Maltese Government (\u201cthe Government\u201d) were represented by their Agent, Dr\u00a0P.\u00a0Grech, Attorney General.<\/p>\n 3.\u00a0\u00a0The applicant alleged that he had suffered a violation of Article\u00a03 in respect of the conditions of his detention and that he had lacked an effective remedy as provided for by Article 13 taken in conjunction with Article\u00a03.<\/p>\n 4.\u00a0\u00a0On 8 February 2017 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1975 and is detained in the Corradino Correctional Facility, Paola, Malta.<\/p>\n 6.\u00a0\u00a0The applicant is currently serving a term of imprisonment for drug-related offences. On 3 December 2009 he was sentenced to sixteen years\u2019 imprisonment and fined 40,000 euros (EUR) by the Criminal Court. The punishment was confirmed by the Court of Criminal Appeal on 19\u00a0September 2013.<\/p>\n 7.\u00a0\u00a0The applicant started to serve his prison sentence and on 10\u00a0December 2009 he had been placed in Division\u00a02 (cell no. 88) of the Corradino Correctional Facility. He remained in various cells in Division\u00a02 to date, except for two brief periods in 2011where he had been placed in Division 6 (a high security unit) for nine and eleven days respectively, the latter ending on 4 December 2011. In particular after 4 December 2011 the applicant had been staying in cell no.\u00a045 until 26 December 2014 and thereafter had been hosted in cell no.\u00a070, both in Division 2.<\/p>\n 8.\u00a0\u00a0The applicant alleged that a huge amount of maintenance was needed to the area due to its old age (around 200 years old) and that it lacked both light and air. Windows were behind two iron grids and a third layer of exterior iron bars (hereinafter referred to as \u2018triple\u2011barred windows\u2019). Division 2 also had three skylights, which were kept closed even during the summer months, leading to a great amount of heat. The \u201cenvironment\u201dwas squalid and had a bad smell.<\/p>\n 9.\u00a0\u00a0In the period during which he had been placed in cell no.\u00a045, the applicant had had to suffer the fumes and excessive heat from the bakery close to his cell, which fumes and heat poured into his poorly ventilated cell. The applicant also described the cell as being nearly underground and as structurally condemned. Due the triple-barred windows he could barely see outside. In winter the cell was very humid and cold.<\/p>\n 10.\u00a0\u00a0When, on 26 December 2014,he moved to cell no.\u00a070 (see paragraph 7 above), which was very small and had very little ventilation; the applicant felt claustrophobic. Furthermore, he claimed to hardly ever having had access to running water.<\/p>\n 11.\u00a0\u00a0According to the applicant, in Division 2 the food was of a very poor quality, non-nutritious, and portions were too small. Additionally, the food quality was so terrible that between 1and 4 September 2015 prisoners had to be taken to hospital as a result of food poisoning.The applicant claimed that the kitchen was so dirty that mice were found dead in it.<\/p>\n 12.\u00a0\u00a0The applicant complained that there was no combined automated toilet\u2011flushing system installed. Therefore, inmates had to flush their own personal toilet by means of a water bucket which was provided to them. Moreover, at times there was no access to running water in the cell. Access to water was limited in general, and water available was not potable. While inmates were permitted to buy bottled water, they were forced to reduce their daily intake when they were short on cash.<\/p>\n 13.\u00a0\u00a0As to the showers, hot water was often not available and the water was dirty. The applicant submitted that there were not enough showers, with one of the showers having a broken and cracked tray that could cause injury if one were not careful. He alleged that, for all the inmates in Division 2, only one shower was available most of the time, with two showers being available during the summer months.<\/p>\n 14.\u00a0\u00a0The applicant claimed that the cost to make telephone calls was very high and had been increased on 3 December 2014. He had complained to the prison authorities to no avail.<\/p>\n 15.\u00a0\u00a0He complained that the prison allowance given to detainees was too little. This made everything available at the tuck shop excessively expensive. It inevitably also impacted the inmates\u2019 ability to buy bottled water and make telephone calls.<\/p>\n 16.\u00a0\u00a0The applicant claimed to have suffered health issues and had even beenconfined to his bed because of illness for some time. The emergency buzzer in the cell never worked and when he had beenconfined to his bed because of illness and tried to ring it, no one came, since the buzzer did not work.It took thirty minutes for someone from the staff to show up, at which point he was told off by the staff member.<\/p>\n 17.\u00a0\u00a0Petitions were filed in regard to these conditions. Furthermore, some of his fellow inmates had lodged constitutional cases concerning the situation. However, none led to any change.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 18.\u00a0\u00a0The relevant domestic law pertaining to this case can be found in Story and Others v. Malta (nos. 56854\/13, 57005\/13 and 57043\/13, \u00a7\u00a7\u00a049\u201158 and 60, 29 October 2015).<\/p>\n III.\u00a0\u00a0RELEVANT MATERIAL<\/p>\n 19.\u00a0\u00a0The relevant material pertaining to this case can be found in Yanez\u00a0Pinon and Others v. Malta(nos. 71645\/13 and 2 others, \u00a7\u00a7\u00a063-64, 19\u00a0December 2017).<\/p>\n 20.\u00a0\u00a0According to the \u201cLiving space per prisoner in prison establishments: CPT standards\u201d, of 15 December 2015, a single\u2011occupancy cell should measure6m\u00b2 plus the space required for a sanitary annexe (usually 1m\u00b2 to 2m\u00b2).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 21.\u00a0\u00a0The applicant complained that the prison conditions he had been subjected to in Division 2 at the Corradino Correctional Facility resulted in him suffering inhuman and degrading treatment contrary to Article 3 of the Convention, which reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Non-exhaustion of domestic remedies<\/em><\/p>\n 22.\u00a0\u00a0The Government submitted that the applicant had not made a request to change cell. Furthermore, he had failed to institute constitutional redress proceedings. In this respect the Government argued that \u2013 although this remedy had previously been rejected by the Court on the grounds that it lacked speed \u2013 they insisted that had a request for urgency been lodged it would have beengranted if the domestic court had considered the request well founded. They therefore invited the Court to review its findings. They also noted that the applicant had undertaken constitutional redress proceedings in connection with an Article\u00a06 complaint, showing that he had considered such a remedy effective.<\/p>\n 23.\u00a0\u00a0The applicant submitted that the Government\u2019sinsistence that he could have asked for a transfer was an implicit acceptance that the conditions in Division 2 were problematic. He noted that if there were parts of the prison which had adequate conditions, then the transfers should have been automatic and not discretionary. He also submitted that constitutional redress proceedings were not effective due to their duration \u2011 he noted that his prior complaint to the constitutional jurisdictions had taken more than two years to be decided.<\/p>\n 24.\u00a0\u00a0The Court refers to the general principles stemming from its case\u2011law and the assessment of the constitutional redress proceedings it made in Story and Others v. Malta (nos. 56854\/13, 57005\/13 and 57043\/13, \u00a7\u00a7 72-76 and 82-86, 29 October 2015) and finds no reason to alter the conclusions reached in that case and reiterated recently in Yanez Pinon and Others v.\u00a0Malta (nos.\u00a071645\/13 and 2\u00a0others, \u00a7\u00a076, 19 December 2017) that detainees in situations similar to that of the applicant in the present case were not required to have recourse to constitutional redress proceedings.<\/p>\n 25.\u00a0\u00a0As to the applicant\u2019s failure to request a change in cell, the Court reiterates that the cases brought before it, as well as relevant reports of the Committee for the Prevention of Torture(\u201cthe CPT\u201d), 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\u00a03 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 referred to by the Government of requesting a change in cell would have in fact improved the applicant\u2019s situation (ibid., \u00a7 77). In the specific circumstances of this case, the applicant\u2019s failure to request a transfer cannot be held against him for the purposes of the exhaustion requirement.<\/p>\n 26.\u00a0\u00a0The Government\u2019s objection is therefore dismissed.<\/p>\n 2.\u00a0\u00a0Six-month rule<\/em><\/p>\n 27.\u00a0\u00a0The applicant submitted that he was complaining about the entire period of his detention.<\/p>\n 28.\u00a0\u00a0The Court notes that the applicant spent most of his detention in Division 2 save for two brief periods in which he was sent to a high security unit, possibly as a result of disciplinary measures or for his own security.The Court refers to the general principles and relevant considerations as set out in Yanez Pinon and Others (cited above, \u00a7\u00a7 80\u201181; see also Eskerkhanov and Others v. Russia, nos. 18496\/16 and 2 others, \u00a7\u00a031, 25\u00a0July 2017). Given that Division 6 cannot be considered as being the \u201csame type of detention facility in substantially similar conditions\u201d as Division\u00a02, the situation in the present case therefore cannot be regarded as a \u201ccontinuing\u201d one.In that light it considers that the complaint \u2011 in so far as it concerns the period of detention prior to 4 December 2011 (see paragraph 7\u00a0above)\u2013is belated and thus inadmissible for non\u2011compliance with the six-month rule set out in Article\u00a035 \u00a7 1 of the Convention, and must be rejected pursuant to Article 35 \u00a7 4.<\/p>\n 29.\u00a0\u00a0The same cannot be said about the applicant\u2019s complaint in so far as it concerns the period following 4 December 2011 which is compliant with the six months\u2019 rule.<\/p>\n 3.\u00a0\u00a0Conclusion<\/em><\/p>\n 30.\u00a0\u00a0The Court notes that the complaint concerning the conditions of the applicant\u2019s detention for the period following 4\u00a0December 2011 is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submission<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 31.\u00a0\u00a0The applicant reiterated his complaints as set out in paragraphs\u00a08 to\u00a017 above. He further noted that the proof submitted by the Government concerning pest control (see paragraph35below) only related to 2016 and 2017; however, he had been detained years before that. Moreover, it was questionable whether such pest control was indeed effective. Relying on a newspaper article, the applicant made reference to another inmate who had claimed, before the domestic courts, that he had been unable to prepare his defence because of ill-health and cockroach infestation.<\/p>\n 32.\u00a0\u00a0The applicant considered that the biggest problem was hygiene. He lived in a cell where the toilet was placed in his living space and yet it had no combined automated toilet-flushingsystem, as admitted by the Government (see paragraph35below). He noted that flowing water was only available as of 2017, but not previously. In his view, flushing a toilet with a bucket of water was in this day and age not acceptable. In connection with hygiene, he also noted that while he was given powder to wash his clothes, no fabric conditioner was provided. Inmates were given soap bars,as opposed to shower gel, to wash themselves with, but they had to carry it around with them and therefore it was not the most hygienic option. He also noted that of four showers only two were functional and it was only recently that one of the showers \u2013 which had a broken shower tray and was thus hazardous \u2013 had been replaced. Moreover, in winter only one shower could be used, as hot water finished quickly. The applicant noted that the Government had failed to indicate how many people had to be served, and for how many days, by the three water heaters they mentioned (see paragraph 40 below). The applicant claimed that more often than not he had to wash himself with cold water in winter. After a cold shower he would have to return back to his cold cell. In this connection he noted that Malta had high humidity levels which made indoors unbearable without heating in the winter season. While the applicant admitted that blankets were available, he considered that they were not intended for use throughout the day. As to humidity he highlighted that this also exacerbated the heat in summer. He was of the view that it was not for inmates to provide their own fan.<\/p>\n 33.\u00a0\u00a0The applicant accepted that drinking tap water was possible; however it was known that it was not healthy to drink such tap water on a regular basis since it might damage one\u2019s kidneys, due to \u201cfur\u201d(calcium deposits). He also noted that the acknowledgment by the Government of a food poisoning incident and planned improvements to the kitchen (see paragraph 38 below) only strengthened his claim, as did the renovation of the buzzers (see paragraph 42 below). As to food, he noted that the list provided by the Government showed that inmates had a healthy meal only on Sundays. He also considered that the portions were small, in fact they were handed out in take-out boxes and had to last an inmate for six hours or more; and that the only fruit was banana and oranges. The little variation forced inmates to buy their own food.<\/p>\n 34.\u00a0\u00a0The applicant claimed to spend nearly EUR 100 a month to provide for his hygiene and a TV subscription, while he only earned EUR\u00a046. He noted that while he was given a EUR 10 telephone card per month, he generally spent another EUR 25 on telephone cards to keep in touch with his family. In this connection he also noted that the earnings from the \u201cWork and Pay\u201d scheme were meagre. He claimed that for a whole day of work(according to him ten to twelve hours) he would get approximately EUR\u00a015. In three and a half years of work he had totalled EUR 6,262.50.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 35.\u00a0\u00a0The Government\u2019s submissions concerning the structural and general situation pertaining in Division 2 of the Corradino Correctional Facility are the same as those submittedin connection with Division 3 in previous cases before the Court (see, in particular, Story and Others, cited above, \u00a7\u00a7 9 and 18, and Yanez Pinon and Others,cited above, \u00a7\u00a7\u00a024,\u00a025,\u00a032,54, 96-105 and 107) and are supported by photographs in connection with Division 2 and related cells.<\/p>\n 36.\u00a0\u00a0In connection with the applicant\u2019s specific claims they noted that natural light and air reached the common area of Division 2 directly through windows and skylights and that the windows could be opened from inside each cell. The Government submitted that no cell was underground or partially underground and that running water was always available \u2013 in particular Division 2 was equipped with tanks storing 7,000 litres of water running into thirty cells. They also considered that a lack of a combined automated toilet-flushingsystem caused no hardship to inmates.<\/p>\n 37.\u00a0\u00a0As to the applicant\u2019s claims concerning the bakery, the Government noted that the ovens of the bakery were situated on the opposite side than that leading to Division 2. Verifications had also shown that cell no. 45 showed no sign of humidity. Moreover, inmates were given a blanket each and they could ask for an additional one. Inmates were also allowed to have their own quilts. The Government noted that all the cells had the same measurement (9 sq.m.) and the applicant had never complained of claustrophobia to the Prison medical officer.<\/p>\n 38.\u00a0\u00a0Reiterating details about meal distribution (see Yanez Pinon and Others, cited above, \u00a7 32) the Government considered that portions were appropriate for adults. They admitted that there had been one incident of food poisoning in 2015, but noted that the applicant had not been affected by the incident.No other incident had taken place since then and investment was being made to build a new kitchen and improve the provision of services. They further submitted that the kitchen was cleaned and scrubbed daily, and water tested regularly.There had only been one incident where mice were found dead in the kitchen,and a contract was in place with a company to ensure proper pest control.<\/p>\n 39.\u00a0\u00a0In reference to the applicant in the present case they submitted that in the past three years he had been receiving EUR 46.40 every four weeks in gratuity money and that he had also earned additional money from the \u201cWork and Pay\u201d scheme (a monthly average of: EUR 96 in 2014; EUR\u00a0129 in 2015; EUR 217 in 2016, and EUR 191 in 2017). The Government noted that all basic needs were covered free of charge and the tuck shop \u2013 which sold items at wholesale price \u2013 only provided the possibility of purchasing items over and above the basic needs.In the Government\u2019s view, fabric conditioner was not a basic need.<\/p>\n 40.\u00a0\u00a0As to the showers in Division 2, the Government submitted that they were regularly repaired and maintained and that in 2016 they were completely refurbished. They noted that the cell which had been commented on by the CPT had never been occupied by the applicant. Hot water in the showers was supplied through three water heaters of 150 litres each. However, if all the inmates had a shower at the same time it could be possible that there would not be sufficient time for water heaters to adequately heat up for those inmates having a shower after many others. The water supplied was potable as certified by specialised laboratories.<\/p>\n 41.\u00a0\u00a0The Government submitted that a EUR 10 card for telephone calls was given every month to each inmate, who could also purchase additional cards. The correctional facility was equipped with telephony infrastructure that supported the services of the particular service provider serving the facility. The rates applicable to inmates and to the entire facility were those set by the service provider, and the facility made no profit from this service. The new rates applicable from 2014 and set by the provider were 5\u00a0cents per minute forcalls to fixed lines and 25 cents per minute to local mobile phones.<\/p>\n 42.\u00a0\u00a0Lastly, the Government submitted that according to their records the applicant was never certified as being confined to his bed due to illness. Furthermore, they noted that in 2016 the emergency buzzer system was upgraded and a digital system replaced the analogue system previously used, thus making the procedure more efficient.<\/p>\n 43.\u00a0\u00a0More generally, relying on Story and Others (cited above), the Government considered that there had been no violation of Article 3 of the Convention.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 44.\u00a0\u00a0The Court refers to the general principles as set out in Story\u00a0and\u00a0Others (cited above, \u00a7\u00a7 104-106, 112, 119 and 125) and Mur\u0161i\u0107 v.\u00a0Croatia ([GC], no. 7334\/13, \u00a7\u00a7 96-101, ECHR 2016).<\/p>\n 45.\u00a0\u00a0The Court also notes that most of the issues raised in the present case \u2011 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, showers and non-automated toilet-flushing, the availability of running water, hot water, and drinking water \u2013 have already been dealt with in Story and Others (cited above, \u00a7\u00a7 114\u2011125) and more recently in Yanez Pinon and Others(cited above, \u00a7 109), together with the quality of food and the situation concerning pest control (ibid., \u00a7\u00a7\u00a0112\u2011113). Some of those issues were also dealt with in Pe\u0148aranda Soto v.\u00a0Malta, no.\u00a016680\/14, \u00a7 71, 19 December 2017).Given the similarity of the complaints, as well as the submissions and documentary evidence provided by the parties, the Court refers to its general considerations and findings inthose cases concerning each of the issues mentioned by the present applicant and reiterates that seen against the background that inmates were each hosted in a single occupancy cell of 9\u00a0sq.m. and that they were free to move around and access the exercise yard, as well as other recreational facilities, for more than ten hours a day, those overall conditions of detention do not amount to a violation of Article\u00a03 of the Convention (seeYanez Pinon and Others, cited above,\u00a7\u00a7 116 and 118).<\/p>\n 46.\u00a0\u00a0In addition to the above elements complained of, the present applicant raised a few further issues which must also be assessed by the Court in order to evaluate the cumulative conditions of detention. The applicant further complained that the environment in Division 2 was squalid and had a bad smell and that the food portions were small; that cell no.\u00a045 was nearly underground and subjected to extra heat and fumes from the bakery; that cell number no. 70 was small; that the prison allowance was too little given the costs of phone calls and other items the applicant wished to purchase, and that when he was unwell and needed to use the buzzer, it did not work (see paragraphs8 to 11 and 14 and 16 above).<\/p>\n 47.\u00a0\u00a0The Court reiterates that in cases which concern conditions of detention, applicants are expected in principle to submit detailed and consistent accounts of the facts complained of and to provide\u2013 to the greatest possible extent \u2013 some evidence in support of their complaints (see, inter alia,Visloguzov v.\u00a0Ukraine, no. 32362\/02, \u00a7 45, 20 May 2010, with further references).<\/p>\n
\nVincent A. De Gaetano,
\nPaulo Pinto de Albuquerque,
\nFaris Vehabovi\u0107,
\nEgidijus K\u016bris,
\nIulia Motoc,
\nMarko Bo\u0161njak, judges,
\nand Marialena Tsirli, Section Registrar,<\/p>\n