Danilczuk v. Cyprus

The applicant, Mr. Robert Danilczuk, a Polish national formerly held at a Nicosia Central Prisons in Cyprus, submitted an application under the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) alleging poor detention conditions. Specifically, Danilczuk complained that in the various cell blocks in which he was placed, there was overcrowding, cold temperatures, inadequate lighting, and inaccessibility to toilets. A lack of access to toilets overnight required him to urinate in a bottle and defecate in a waste bag. At other times when the cells were not locked, he submitted that he had to wait two to three hours to obtain access to a toilet.

In 2011, the Ombudsman released a report on the conditions at the Nicosia Central Prisons. They noted that there were severe issues with overcrowding and insufficient hygiene facilities. In particular, prisoners were unable to access toilets at night when cells were locked.

In 2012, the Committee for the Prevention of Torture (CPT) released a report about a visit to the Nicosia Central Prisons in 2008, pointing out the high levels of overcrowding in nearly all the detention blocks and insufficient sanitary facilities. The CPT also noted that inmates were obliged to relieve themselves in makeshift receptacles in their cells during the night because the cells were locked and the call bells were switched off. In 2014, the CPT revisited the Prisons and observed that the capacity had improved, but overcrowding still persisted. Even though substantial improvements were made through renovations of cell blocks, the CPT noted that there was still a shortage of adequate sanitary facilities.

Documents from the Cypriot government described cell occupation and size data for the duration of Danilczuk’s stay showing that the applicant had between 1.8 to 9.99 sq. m. of space as he moved between cells. Additionally, the prison corridors were equipped with a central air conditioning system that operated during the summer months which operated in tandem with fans inside the cells. The cells also had properly insulated windows which permitted natural light and ventilation. With regards to toilet accessibility, the Government submitted that, in response to the reports of the CPT and the Ombudsman, the prison made available cell bells during the night time when the cells were locked to allow prisoners to request up to three toilet visits per night; however, no records on their use were kept.

Cyprus submitted that the applicant had not exhausted all available domestic remedies. First, the applicant could have filed a complaint with the Ombudsman, who “had unrestricted access to all detention facilities and was able to inspect them and conduct interviews with detainees in private … [and] make recommendations to the authorities for the improvement of the conditions of detention of detainees in general or in respect of a specific detainee.” Second, he could have brought civil proceedings against the Government for compensation for the violation of his rights under Cypriot law. Lastly, the application could have sought an interim order enjoining the right-violating state action.

• On the availability of alternative domestic remedies:

On the issue of the admissibility of the action, the Court found that the applicant’s action was admissible. The Court argued that when the right infringed upon is a fundamental right to protection against torture, inhuman, and degrading treatment, an effective domestic remedy must be both preventive and compensatory.

The Court held that an application to an ombudsperson is not an effective remedy for the purposes of Article 35 of the Convention because it is not capable of providing redress for the complaint. Under Cypriot law, the Ombudsman’s recommendations are not legally binding decisions nor are capable of providing compensation. Furthermore, the Court held that civil remedies under Cypriot law are purely compensatory and therefore insufficient. Lastly, the Court held that the Cypriot government did not satisfactorily explain its ability to grant injunctions under its domestic law and that it failed to show any indication of its potential success.

• On the Merits of the degrading or inhumane treatment allegations:

On this issue of whether Danilczuk’s conditions were inhuman or degrading, the Court found sufficient merit in Danilczuk’s allegations of overcrowding and adverse detention conditions. The Court found that the conditions of Danilczuk’s detention subjected him to hardship going beyond the unavoidable level of suffering inherent in detention, and was therefore a violation of Article 3 of the Convention. The Court’s findings were supported by the 2012 and 2014 CPT reports which detailed their inspections of the Nicosia Central Prisons. The Court found further evidence in the 2011 Ombudsman’s report after its inspection in 2008: “[i]t is evident that detainees are kept in crowded and unsuitable areas for detention. There appears to be an insufficient number of hygiene facilities and showers in comparison to the number of detainees.”

Based on the evidence, the Court found that at several points, Danilczuk would have had under 3 sq. m. of personal space, occasionally having as little as 1.8 sq. m. This was found to be clearly below the minimum acceptable standards that the Court had previously enunciated. Furthermore, these conditions were present for at least one and one half months, a period that cannot be considered short, occasional, or minor in a violation of rights to a minimum amount of personal space. The Court also found that Danilczuk’s allegations regarding being deprived of access to sanitary facilities had merit based on the CPT and Ombudsman reports.

“Where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3.” (para 40)

“To be considered effective, the remedy should therefore have been able to lead to the improvement of the situation, not only to compensation for the damage sustained…” (para 43)

“For a remedy to be considered effective it should be capable of providing redress for the complainant. Despite the powers granted to the Ombudsman … that official can only make recommendations to the authorities and lacks the power to issue a legally binding decision that would be capable of bringing about an improvement in a complainant’s situation or serve as a basis for obtaining compensation … It follows that recourse to the Ombudsman does not constitute an effective remedy [under Article 35 of the Convention].” (para 44)

“For example, when the applicant was held in the dormitory his personal space could have been as low as 1.8 sq. m. This is clearly below the acceptable minimum standard.” (para 58)