FIRST SECTION

CASE OF TUNIS v. ESTONIA

(Application no. 429/12)

JUDGMENT

STRASBOURG

19 December 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tunis v. Estonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Isabelle Berro-Lefèvre, President,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Mirjana Lazarova Trajkovska,
	Julia Laffranque,
	Linos-Alexandre Sicilianos,
	Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 3 December 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 429/12) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Terki Tunis (“the applicant”), on 27 December 2011.
2.  The applicant was represented by Ms K. Namm, a lawyer practising in Rakvere. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
3.  The applicant alleged that the conditions of his detention in Tallinn Prison had been in breach of Article 3 of the Convention.
4.  On 19 November 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1972. He is currently serving a prison sentence.
A.  The conditions of the applicant’s detention
6.  From 18 July 2006 to 2 June 2009 the applicant was detained in custody pending trial in Tallinn Prison. Subsequently he was transferred to Viru Prison.
1.  The applicant’s submissions
7.  According to the applicant, he stayed in cell no. 443 in the second block of the remand wing of Tallinn Prison. The applicant provided conflicting information concerning the size of the cell and its usable floor area. According to his initial submissions, cell no. 443 measured 15 square metres. Later he submitted that it measured 14.3 square metres. It accommodated six detainees including the applicant. The cell was equipped with bunk beds, a table, benches and a toilet, which left either 7.4 or 6.5 square metres (according to the applicant’s different submissions) of usable floor area in the cell.
8.  The detainees were locked in the cell day and night except for one hour of daily outdoor exercise. The outdoor exercise yard measured 2.7 by 4.7 metres and was also used by other detainees. It had a concrete floor which could be wet or covered in snow according to the weather conditions and had no benches or sports equipment. Persons remanded in custody pending trial, like the applicant, had no access to a gym.
2.  The Government’s submissions
9.  The Government provided the following information about the applicant’s stay in different cells:
Number of cell	Number of days	Average number of inmates	Cell surface in square metres	Average surface per person in square metres	Percentage of time out of the total period of 1023 days	
126	44	6	14.35	2.39	4.3	
221	9	6	15.43	2.57	0.9	
316	2	5	14.84	2.97	0.2	
421	7	5.9	14.36	2.43	0.7	
453	24	6	15.3	2.55	2.3	
615	15	2.8	14.84	5.3	1.5	
443	921	5.7	15.3	2.68	90.1	
10.  The Government noted that the number of days was approximate as days of transfer were given a double entry (half-days were counted as whole).
11.  According to the Government, cell no. 443 – where the applicant spent most of his detention in Tallinn – measured 16.8 square metres, including a separate toilet area of 1.5 square metres. When the toilet space was deducted from the total cell surface area, this left 15.3 square metres of usable floor area for the detainees in the cell. The furnishings (two benches, a table, three bunk beds and closets for personal belongings) took up 6.906 square metres of the floor area and left 8.394 square metres of free floor space in the cell. For most of the time six detainees were kept in the cell (76% of the time), and for some periods four or five detainees were accommodated in cell no. 443. In respect of the occupancy of cell no. 443, the Government provided the following information:
Number of persons in cell no. 443 at the same time	6	5	4	
Number of days with the above number of persons	698	196	27	
Surface area per person in square metres (excluding toilet)	2.55	3.06	3.83	
Percentage of the number of days	76	21	3	
12.  Cell no. 443 had a window which could be partly opened and ensured natural light and ventilation in the cell. There was also both artificial lighting and artificial ventilation in the cell. The cell was equipped with central heating. There was a sink with cold running water and a toilet which was separated from the sleeping area by a door.
13.  The detainees had a possibility of one-hour daily outdoor exercises in yards measuring on average 3 by 5 metres.
B.  The applicant’s health problems
14.  During his detention the applicant complained on several occasions of pain in his back and neck. He was examined by doctors and given painkillers. X-ray examinations on 2 April and 3 September 2008 revealed small signs of osteochondrosis.
15.  A neurologist who examined the applicant on 8 April 2008 noted in the applicant’s health card that his movements were free, he was able to rise on his heels and toes, was moving without any particular problems, and that there were no sensory problems. There was no need for any treatment for pain at the time. The doctor taught the applicant exercises and noted that he should move and exercise. The applicant was diagnosed with episodic pains in the lumbar region without signs of aggravation.
16.  The applicant was hospitalised in the prison hospital from 27 October to 10 November 2008. In respect of his back and neck pain he consulted a neurologist and a specialist rehabilitation doctor who also taught him relaxation, stretching and muscle strength exercises, as well as ergonomic positions and activities.
17.  According to the applicant, he had had no back problems before he was taken into custody. The Government referred to the applicant’s health card, according to which he had said in March 2008 that he had had back pain “for years” and that he had been regularly doing rehabilitation exercises which had alleviated the problem.
C.  Complaints to the administrative courts
1.  Administrative case no. 3-08-551
18.  On 12 December 2007 the applicant made a request to Tallinn Prison to be authorised to use a gym twice a week because his health had deteriorated owing to lack of movement. The prison administration refused as communication between remand prisoners had to be excluded and there were no resources to ensure the use of a gym on a cell-by-cell basis. The Ministry of Justice dismissed the applicant’s complaint. He then lodged a complaint with the Tallinn Administrative Court.
19.  By a judgment of 3 June 2008 the Tallinn Administrative Court dismissed the applicant’s complaint. Basing its judgment on the medical documents, the court found that there was no evidence that access to a gym was imperative for the treatment of his back pain. The applicant had been advised to do rehabilitation exercises, but these could also be done in the cell and exercise yard.
20.  On 21 October 2008 the Tallinn Court of Appeal upheld the Administrative Court’s judgment. It noted, however, that the applicant had been referred to a rehabilitation specialist, and that if this doctor had concluded that the applicant needed regular rehabilitation exercise for his treatment the prison administration would have had to ensure the necessary conditions for this activity.
21.  The applicant did not appeal against the Court of Appeal’s judgment.
2.  Administrative case no. 3-09-816
22.  On 26 November 2008 the applicant made a request to Tallinn Prison to be ensured the possibility of doing his exercises. The prison administration dismissed his request.
23.  On 15 January 2009 the applicant lodged a complaint with the Ministry of Justice that he had been kept in conditions that damaged his health and was unable to do exercises recommended by the doctor.
24.  On 27 March 2009 the Ministry of Justice dismissed his complaint.
25.  The applicant further complained to the Tallinn Administrative Court. He asked the Administrative Court to establish that, by keeping him in poor living conditions, Tallinn Prison was acting unlawfully. By a judgment of 15 September 2009 the Administrative Court dismissed the complaint. It referred, inter alia, to the Tallinn Court of Appeal’s judgment of 21 October 2008 (see paragraph 20 above), and noted that the applicant had in the meantime undergone medical examinations by a neurologist and a rehabilitation specialist. The latter had taught him special exercises. However, the doctors had not given any instructions to the prison to ensure special conditions or equipment for the applicant, such as the use of a gym. The applicant could do the exercises recommended to him in his cell or in the exercise yard. The Administrative Court concluded that the applicant should have been able to do the exercises in the framework of the applicable prison regime. The size of the applicant’s cell – 15 square metres for six detainees – had been in line with the Internal Prison Rules (Vangla sisekorraeeskiri), according to which there had to be at least 2.5 square metres of floor space per prisoner.
26.  On 25 March 2011 the Tallinn Court of Appeal dismissed the applicant’s appeal. The court did not question that the applicant’s health problems had probably been caused by lack of movement and exercise. However, it considered that the applicant had not proved that Tallinn Prison was responsible for the deterioration of his health. He had had the possibility of independently doing the exercises recommended by the doctors without the use of a gym or special equipment. The free floor surface of 6.5 square metres was in itself not insufficient for doing physical exercise. It was clear that not all the detainees could have used that surface at the same time but they could have agreed among themselves who wanted to do exercises and when. The same applied to the outdoor exercise yard.
27.  On 15 June 2011 the Supreme Court decided not to examine an appeal by the applicant. The copy of the Supreme Court’s decision in the file bears a “true copy” stamp dated 27 June 2011, and according to the applicant it was served on him the following day.
II.  RELEVANT DOMESTIC LAW
28.  Section 90(3) of the Imprisonment Act (Vangistusseadus) provides that remand prisoners are kept in locked cells twenty-four hours a day, except during the time when they are working or studying. Remand prisoners who are accused in the same criminal case are to be kept separately. Under section 93(3), a remand prisoner is allowed to be in the open air for at least one hour daily, if he or she so wishes.
29.  Regulation no. 72 of the Minister of Justice on the Internal Prison Rules (Vangla sisekorraeeskiri), adopted on 30 November 2000, provides that there has to be at least 2.5 square metres of floor space per prisoner in a room or a cell (section 6).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
30.  The applicant complained that the conditions of his detention in Tallinn Prison had been in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
31.  The Government contested that argument.
A.  Admissibility
32.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
33.  The applicant complained under Article 3 of the Convention of his detention in overcrowded conditions and lack of sufficient rehabilitation treatment, as a result of which his health had deteriorated. He argued that he had had no back problems before he had been taken into custody.
34.  The applicant disputed the information provided by the Government in respect of the size of cell no. 443 and argued that the size of the cell, excluding the toilet area, had been 14.3 square metres, that is 2.38 square metres per person – less than required by domestic law. The usable floor area, excluding furniture, had been 7.4 square metres. It had been impossible to do exercises in the cell or in the exercise yard.
35.  The Government considered that there had been no breach of Article 3 of the Convention.
36.  In respect of the scope of the case, the Government pointed out that the applicant had not disputed the conditions in cell no. 443 in Tallinn Prison as such. His domestic complaints had been related to the fact that he had not been given access to a gym in order to do his physical exercises as in his opinion cell no. 443 and the exercise yard had been too small for him to do the exercises. The Government contended that the applicant had not disputed the size of the cell in any other respect, nor had he disputed any other conditions of his detention in the prison. Nor had he complained about the lack of medical assistance.
37.  The Government further emphasised that in the administrative case no. 3-08-551 it had been established that there had been no medical grounds for providing the applicant with access to a gym. His medical condition had not changed by the time of the administrative case no. 3-09-816, which was the object of the application before the Court. In the latter case, the domestic courts had established that the applicant had been taught exercises (relaxing, stretching, muscle-building exercises) which he could do independently, and the specialist doctors had not found that he should have been provided with any special conditions. The size of the cell had not been considered to be too small for doing the exercises. The Government argued that there was no reason for the Court to depart from the findings of the domestic courts. The fact that the applicant had failed to do the exercises to preserve or improve his health could not incriminate the State.
38.  In respect of the size of the cell, the Government submitted that for most of the time the applicant had had 2.55 square metres of floor area at his disposal (15.3 square metres in cell no. 443 for six persons, excluding the toilet which was separate from the rest of the room). Thus, the Internal Prison Rules had been complied with. The Government considered that the floor area in the cell available to the applicant had also been in compliance with the Convention having regard to the cumulative effect of the conditions of his detention, which had been satisfactory.
2.  The Court’s assessment
39.  The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
40.  Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).
41.  In the context of deprivation of liberty, the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must, in any event, go beyond that inevitable element of suffering and humiliation connected with the detention. The State must ensure that a person is detained in conditions which are compatible with respect for 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, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).
42.  When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, § 50, 8 November 2005).
43.  The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 36, 7 April 2005, and, for a detailed analysis of the principles concerning the overcrowding issue, see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143‑148, 10 January 2012).
44.  Whereas the provision of four square metres remains the desirable standard of multi-occupancy accommodation, the Court has found that where the applicants have at their disposal less than three square metres of floor surface, the overcrowding must be considered to be so severe as to justify in itself a finding of a violation of Article 3 (see, for example, Ananyev and Others, cited above, § 145; Blejuşcă v. Romania, no. 7910/10, § 41, 19 March 2013, both with numerous further references; and Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 77-80, 20 October 2011).
45.  Turning to the present case, the Court considers that the crux of the applicant’s complaint, both before the administrative courts and this Court, concerns the conditions of his detention, in particular the limited space available to him combined with the regime where the only out-of-cell activity worth noting was an hour of daily exercise in the outdoor exercise yard, which itself was also of a quite limited size. The Court has also taken note of the applicant’s argument that he had not received rehabilitation treatment of sufficient quality, and, as a result his health had deteriorated. However, the Court considers that this complaint, too, in substance related to the lack of sufficient space to do the physical exercises. In other words, the applicant did not complain of the inadequacy of the medical assistance as such, but rather that he had had no possibility to do the recommended exercises.
46.  The Court notes that the parties’ positions differed as to the exact size of cell no. 443 where the applicant spent most of his time. According to the information provided by the Government, there had been 2.55 square metres of floor area per inmate (excluding the toilet area) at the time the cell accommodated six detainees. According to the applicant, the floor area per person had been 2.38 or 2.5 square metres. However, the Court considers that it does not need to determine this issue, regard being had to the fact that, in any event, the personal space available to the applicant was less than 3 square metres. In the Court’s opinion, this area, which also included the furniture, was so limited as to create in itself a strong presumption that the conditions of the applicant’s detention amounted to degrading treatment and were in breach of Article 3. Considering that the applicant was confined in the cell round the clock with the exception of one hour of daily outdoor exercise time in a yard of about 15 square metres, to be shared with five other persons, the Court finds that the conditions of the applicant’s detention amounted to treatment contrary to Article 3 of the Convention. This conclusion is not affected by the fact that the applicant did not raise complaints about other aspects of the detention conditions in his cell or in the prison in general.
47.  The Court also notes that it is in dispute between the parties whether the therapeutic exercises recommended to the applicant could have been done in such a limited space, as suggested by the Government, or whether or not the applicant’s health indeed deteriorated during his stay in the prison and whether this deterioration could be attributed to the authorities.
48.  The Court considers that there is no need for it to rule on these matters since the degree of overcrowding in the applicant’s cell gives it sufficient grounds to decide on the case. It only notes that the fact that the applicant suffered from back and neck pain and had difficulties in doing the prescribed exercises – if this was at all possible – aggravated the impact of the cramped living conditions. The Court further notes that the applicant spent more than two years and ten months in those conditions, excluding short periods in other cells of the prison or the prison hospital.
49.  In the light of the above, the Court considers that the conditions of the applicant’s detention caused him suffering which exceeded the unavoidable level of suffering inherent in detention and attained the threshold of degrading treatment proscribed by Article 3.
There has accordingly been a violation of Article 3 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
50.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
51.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
52.  The Government considered that, as the Convention had not been violated in respect of the applicant, there was no basis for awarding any compensation. Furthermore, they submitted that, should the Court find a violation of the applicant’s rights, that finding would constitute sufficient just satisfaction.
53.  The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated solely by a finding of a violation. In view of the circumstances of the present case, and having regard to its case-law in respect of the violation found, it awards the applicant EUR 10,000, as requested, in respect of non-pecuniary damage, plus any tax which may be chargeable on that amount.
B.  Costs and expenses
54.  The applicant also claimed EUR 3,000 for the costs and expenses incurred before the domestic courts and this Court.
55.  The Government considered that no award should be made in respect of legal expenses, which had not been set out in sufficient detail and were excessive.
56.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 to cover costs under all heads, plus any tax that may be chargeable to the applicant on that amount.
C.  Default interest
57.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 19 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Isabelle Berro-Lefèvre
	Registrar	President