Convictions by the European Court of Human Rights (ECtHR) for violation of Article 3 of the European Convention on Human Rights, which enshrines the prohibition of torture, bring to European states the problem of overcrowding in prisons and the consequent inadequate conditions of food detention. To date, Greece has been convicted in 139 cases-appeals for inhumane treatment and the vast majority of these cases concern conditions of detention in prisons and other detention facilities.
The above mentioned by the Greek Judge at the European Court of Human Rights, if. Professor Ioannis Ktistakis, in a lecture on “The Prohibition of Torture”, as part of the event “Honoring Dimitrios Evrygenis”, organized tonight in Thessaloniki by the Center for International and European Economic Law under the auspices of the Thessaloniki Chamber of Commerce and Industry.
The Greek judge referred to ECtHR jurisprudence based on which “in the issue of prison overcrowding – a modern, persistent European problem – the state’s responsibility is objective”. “The absence of intent on the part of the authorities – penitentiary or otherwise – does not exclude the finding of a violation of the European Convention due to the objective element of overpopulation. This means that the lack of financial resources or other logistical difficulties cannot be an excuse for the inadequate conditions of detention”, pointed out Mr. Ktistakis, explaining that for this reason the European Court proceeded to formulate combined criteria for the evaluation of each complaint for overcrowding in European prisons, the most important of which is the standard of three square meters, as the minimum useful area of a prisoner per cell, following the suggestion of the European Commission against Torture.
The evaluation criteria by the European Court of Justice
“When the useful area for each detainee falls below three square meters, the detainee’s lack of personal space is considered to be so serious as to give rise to a strong presumption of a violation of Article 3 of the Convention. This strong presumption of violation is overturned only in exceptional circumstances,” he noted, while adding that the rest of the detention center evaluation criteria relate to access to outdoor exercise, natural light and ventilation, adequacy of room temperature, food, adequate yarding, ensuring privacy inside the cells, maintaining good hygiene conditions, easy access for prisoners to toilets, effective disinfection.
“When a prisoner has more than 4 square meters of personal space, the other aspects of the conditions of detention in the specific store remain very important for the evaluation by the European Court”, added Mr. Ktistakis, noting that in Greece the Penal Code revised in 2022 provides that prisoners’ cells must have an area of at least six square meters.
He clarified, finally, that the European court “in any case, takes into account all available updated relevant national sources, such as e.g. relevant statistical tables of prisoners published on the Greek website every fortnight by the General Secretariat of Criminal Anti-Criminal Policy or the relevant reports of the Ombudsman and the National Commission for Human Rights”.
Prohibition of torture
The prohibition of torture, inhuman or degrading treatment or punishment, as the full name of the right is, is enshrined in the 1948 Universal Declaration of Human Rights and subsequent binding rights texts, such as the International Covenant on Civil and Political Rights, the American Convention of Human Rights and the Charter of Fundamental Rights of the European Union. It is enshrined in two special conventions against torture, one of the UN and one of the Council of Europe, which bear the same title. In the European Convention on Human Rights, the prohibition of torture is enshrined in Article 3.
“This article enshrines one of the most fundamental values of democratic societies. It is a value of human civilization, closely linked to respect for human dignity. For this reason, unlike most rights in the European Convention, this prohibition is absolute. No deviation from this is permissible, even in case of an emergency threatening the life of the nation, e.g. armed conflict or in the most difficult circumstances, such as the fight against terrorism”, underlined Mr. Ktistakis and developed the escalation of violations, as followed by jurisprudence and includes the less aggravating “degrading treatment or punishment” (degrading and humiliating behavior in contrast to physical and mental pain), “inhuman treatment” (requires a minimal level of severity and causes either actual physical harm or severe mental pain), and the most serious violation, “torture” (deliberate inhuman treatment causing very serious and brutal pain).
Modern torture
“Any conduct by law enforcement agencies against an individual that reduces human dignity constitutes in principle a violation of Article 3 of the Convention,” the Greek judge pointed out, referring to the court’s ruling in the Navalny v. Russia case.
“The applicant, the well-known politician who died under mysterious circumstances in Russian prisons, had not resisted during his public arrest and subsequent transfer to a Russian police station. The court held that the violent twisting of his arm by the police during these events was not made absolutely necessary by the applicant’s own conduct. The said use of force reduced the applicant’s human dignity and amounted, according to the Court, to degrading treatment for human dignity,” explained Mr. Ktistakis.
He also referred to modern torture that can be practiced using sophisticated scientific techniques, new forms of pain that have little in common with physical pain, but seek, even temporarily, to disintegrate the person’s personality, disrupt the mental and psychological of balance and the crushing of his will.
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