CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 janvier 2010

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sB9D5CABB { width:28.35pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9C864DC2 { width:5.6pt; text-indent:0pt; display:inline-block } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD107E55B { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s7D2D15E { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s569E1410 { margin-top:6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s57221CB1 { margin-top:24pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1C40E3A1 { margin-top:12pt; margin-bottom:6pt; text-align:justify } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s13F94BE1 { font-family:Arial; letter-spacing:-0.2pt } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9742D089 { margin-top:24pt; margin-left:29.2pt; margin-bottom:18pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE53E0CD2 { margin-top:18pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD777C0A5 { margin-top:42pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sC31874BD { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s33C53B69 { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s532F35EC { margin-top:6pt; margin-bottom:0pt; text-indent:13.9pt; text-align:justify } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s677DA8A { margin-top:18pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8C50CFA1 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s25CAFCFE { margin-top:18pt; margin-left:17.85pt; margin-bottom:17pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s827D8369 { margin-top:17pt; margin-bottom:11pt; text-indent:14.2pt; text-align:justify } .s4C002FA6 { margin-top:11pt; margin-bottom:24pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s9093EDF4 { margin-top:18pt; margin-left:17.85pt; margin-bottom:24pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC9A8D2E { margin-top:24pt; margin-bottom:11pt } .s431A873C { margin-top:11pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s471F7CE { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s82D7B801 { width:22.93pt; display:inline-block } .sF9287AF { width:174.97pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION           CASE OF ONOUFRIOU v. CYPRUS   (Application no. 24407/04)                 JUDGMENT   STRASBOURG   7 January 2010   FINAL   07/04/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Onoufriou v. Cyprus, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos   Rozakis,   President ,   Anatoly   Kovler,   Elisabeth   Steiner,   Dean   Spielmann,   Sverre   Erik   Jebens,   Giorgio   Malinverni,   judges,   Michael   Fotiou,   ad   hoc   judge , and Søren Nielsen, Section Registrar , Having deliberated in private on 10 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 24407/04) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Andreas Onoufriou (“the applicant”), on 14 April 2004. 2.     The applicant was represented before the Court by Georgios E. Konnaris & Co., a firm of lawyers based in Limassol. The Cypriot Government (“the Government”) were represented by their Agent, Mr   P.   Clerides, Attorney-General of the Republic of Cyprus. 3.     The applicant complained, in particular, of the conditions of his solitary confinement, including restrictions on his contact with his family, and the monitoring of his correspondence. 4.     On 22 May 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5.     Mr George Nicolaou, the judge elected in respect of Cyprus, withdrew from sitting in the Chamber (Rule 28). The Government accordingly appointed Mr Michael Fotiou to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1951 and is currently detained in Nicosia Central Prison. He is serving concurrent eighteen-year sentences pursuant to his conviction for two counts of attempted murder. 7.     On 5 September 2003 the applicant was permitted to leave detention on twenty-four hour leave granted by the prison director. He did not return to the prison when his leave expired. Following a search to trace his whereabouts, he was arrested on 21   September 2003. At the time of his arrest he was in possession of a gun and cartridges and was wearing a bullet-proof vest and a woman’s wig. He was transferred to the maximum security wing of the prison and placed in solitary confinement. He was thus confined until 7 November 2003, that is, for a total of 47 days. A.   The conditions of the applicant’s detention in solitary confinement 8.     The parties’ submissions concerning the conditions of the applicant’s detention during the period of his solitary confinement differed. 1. The Government’s description of the conditions of confinement 9.     The Government agreed that the applicant had been detained in the prison’s maximum security wing but maintained that he was detained in a normal cell. The dimensions of the cell were 2.8 metres by 2.1 metres, that is, 5.88 square metres. It was furnished with a bed, a cupboard and a table. The cell had two windows: an exterior one (0.8m by 0.6m) and a smaller one above the cell door (0.4m by 0.4m). The cell was opened about three times a day for a total of about an hour. This time was used for personal hygiene purposes and taking meals. It was the applicant’s responsibility to clean his cell and he was provided with all the necessary equipment. He had regular direct contact with prison personnel. Moreover, newspapers had been provided in the wing and he had access to books from the prison library. There was a television set in the wing corridor to which the applicant could listen and he would have been provided with a radio if he had requested one. 10.     During the applicant’s confinement he had spent considerable time outside prison when attending court hearings on 2, 10, 13, 16, 22 and 29   October and 4 and 6 November 2003. He was seen on four occasions by the prison doctor (7, 18, 20 and 31 October 2003). He was also visited by a welfare officer on 14 October 2003 and was seen by the prison psychologist on 3 and 30 October 2003. 11.     Although the applicant was allowed to send letters to his family and friends twice a week, he did not attempt to send any such letters. He did not ask to make or receive telephone calls. Visits from family members while the applicant was in solitary confinement were not permitted but during the applicant’s visits to the court, he could meet with his family and friends, and was in fact supplied with food, soft drinks and clothes by his family which he was allowed to take back to prison. On one occasion, a mobile telephone given to the applicant by a family member was confiscated upon his return to prison after a hearing. 2. The applicant’s description of the conditions of confinement 12.     The applicant disputed the Government’s description of the conditions of his confinement. He alleged that following his return to prison on 21 September 2003 he was confined in a cold, damp cell of a maximum of five square meters without food, water or suitable clothing. The cell had no external window and the window of the cell door was considerably smaller than the Government had indicated. The applicant was excessively restricted in his ability to use the toilet or have a shower: for the first four days of his solitary confinement he was forced to use an empty water bottle to urinate and nylon bags for other needs. These were provided to him by a prison officer through the small window in the cell door. Due to the cold, his arm and shoulder had frozen and he suffered from pain but the doctor was not allowed by the prison authorities to provide him with painkillers. He was nevertheless given an anti-inflammatory gel by the doctor using her own funds. Relying on the prison logbook submitted to the Court by the Government, the applicant stated that he had not been allowed to go to the toilet prior to 24 September 2003 or to have food or the opportunity to shower before 25 September 2003, although he was given bottled water and an apple from time to time through his small cell window by a prison officer. He had no access to newspapers, books or television. Further, he was not regularly seen by a doctor and he was not allowed regularly to exit his cell for half an hour in the morning and half an hour in the afternoon, as required by the relevant regulations. 13.     While in solitary confinement, the applicant was not permitted to have visits from his family or to make telephone calls. As for the Government’s allegations that he had not asked to make telephone calls, the applicant replied it was not the practice of the prison authorities to give formal decisions refusing requests to make telephone calls in writing, there were no telephone booths in the maximum security block and, in general, prisoners were not allowed to receive calls from outside the prison. He had no contact with his family in the prison during the period of his solitary confinement and no contact was possible during his court visits. In particular, when he attended hearings at the district court in Limassol, he was kept at the Limassol central police station’s cells. It was only after the period of his solitary confinement that he could see his family and friends at the court’s hearings. 14.     The applicant also alleged that the maximum security wing was used to threaten or punish prisoners given the conditions of detention there and, in particular, the fact that another prisoner would beat up prisoners without any attempt by the authorities to protect them. The applicant alleged that he had been ill-treated in this manner on two occasions but did not provide further details. 3. The prison logbook 15.     According to the entries in the prison logbook which was submitted to the Court by the Government, the applicant was returned to prison on 21   September 2003. On 24   September 2003, the logbook records that the applicant left his cell to use the toilet after special notification had been given to the security direction (“ φρουραρχείο ”). The following day, the entry in the logbook records that he met with the prison director and was given food. 16.     Although the logbook records that on some days the applicant used the toilet on several occasions, on others it indicates that he only used the toilet once.   On 4 October 2003, there is no record of the applicant leaving his cell to use the toilet. Access to shower facilities appears to have been sporadic: at times he showered every couple of days but on other occasions, according to the logbook, he did not leave his cell to shower for two weeks. Similarly, the prison logbook records that on some days the applicant was given two or three meals whereas on others, it would appear that he received only one. On 4 October 2003, there is no entry recording any meal given to the applicant. 17.     The logbook indicates that the applicant saw a prison psychologist four times: on 23 and 26 September and on 3 and 31 October 2003. He saw the prison doctor on 7 and 20 October 2003. He met with the welfare officer on 14 October 2003. On 31 October 2003, he refused to attend a scheduled visit to see a surgeon at the General Hospital 18.     The logbook records that the applicant attended court on seven occasions: on 10 October 2003 for about six hours; on 13 October 2003 for about five hours; On 16 October 2003 for about six hours; on 22 October 2003 for about eight hours; on 27 October 2003, for about one and a half hours; on 29 October 2003 for about seven and a half hours; and on 4   November 2003, for about two hours. 19.     According to the logbook, on 1 November 2003, the applicant met a member of the Prisons Board. On 5 November 2003, he was taken to meet with the Prisons Board and was away from his cell for 20 minutes. 20.     There are two entries in the logbook recording other relevant events. On 17 October 2003, he was taken to a conference room, where he remained for one hour and twenty minutes. On 4 November 2003, he was accompanied by a prison officer to visit a Mr A.T. and was away for about half an hour. 21.     Although the applicant was in solitary confinement until 7   November 2003, only entries from the logbook up to 5 November 2003 have been submitted by the Government. B.     Criminal and Disciplinary Proceedings 22.     On the date of the applicant’s arrest following his failure to return to prison, a police investigation began into alleged offences committed while the applicant was at liberty. According to the Government, this was concluded on 11 November 2003 with the filing of charges against the applicant for the commission of various offences. The applicant maintained that he was charged on 10 October 2003. 23.     In parallel, on 5 November 2003, the applicant was charged with several disciplinary offences concerning the breach of the terms of his leave. However, the disciplinary proceedings were not pursued. 24.     On 19 July 2005 the Limassol Assize Court convicted the applicant of escaping from custody and of other offences associated with his escape. The prison director stated in his evidence before the court that the applicant was placed in solitary confinement in order to protect him from other prisoners who were hostile towards him because of restrictions imposed in the prison affecting everyone as a result of the applicant’s escape. The court noted in its judgment that the applicant had entered a plea of not guilty in respect of the disciplinary offences but that the proceedings were not pursued, no witnesses were heard and no sentence was imposed. Given that there had been no trial, no verdict and no imposition of a sentence in the disciplinary proceedings, the court concluded that the applicant’s confinement could not be treated as a disciplinary sentence. 25.     The applicant lodged an appeal against his conviction before the Supreme Court. 26.     On 11 December 2007 the Supreme Court allowed the applicant’s appeal against his conviction of the offence of escaping from custody given that, at the relevant time, he had been on temporary release and had merely failed to return to prison at the expiry of his release period. C.     Ombudsman’s report of 21 November 2003 (no. 1355/2003) 27.     The applicant, in a letter to the office of the Commissioner of Administration (“the Ombudsman”) dated 6 October 2003, complained about his detention for an excessive period of time in the maximum security wing, alleging in particular that during this period he was not able to have visits or contact with his family by telephone or correspondence and that he was only allowed to leave his cell in order to go to the toilet, have a bath or pick up his food tray. He subsequently complained that his letter addressed to the Ombudsman dated 6 October 2003 was delivered late, after having been sent by the prison director to the Director General of the Ministry of Justice. 28.     According to the Ombudsman’s report of 21 November 2003 the applicant had been confined to a cell in the security wing for 47   days. Having been contacted by the Ombudsman, the prison authorities stated that the applicant had been put in solitary confinement for his own protection given the possibility of retaliation by other prisoners due to the restrictive measures imposed on them as a result of the applicant’s failure to return from home leave. The prison authorities confirmed that the applicant was not permitted any visits, telephone conversations or letters and that moreover, he was not allowed to exit his cell except in order to wash himself, to go to the toilet and to get his food. It was further noted that although the Senior Prison Inspector had given instructions on 31 October 2003 that the applicant be returned to normal detention, the applicant was kept confined to his cell until 7 November 2003 as the instructions had not been registered in the records of the wing but had merely been noted on a piece of paper which had been misplaced. 29.     As regards the applicant’s letter to the Ombudsman dated 6 October 2003, the report noted that a copy of that letter, as well as copies of three other letters addressed to recipients other than the prison authorities, had been sent by the prison director to the Director General of the Ministry of Justice in order to seek instructions as to whether the particular letters should be sent to the intended recipients. The Ombudsman received the letter addressed to her on 5 November 2003. 30.     The Ombudsman in her report observed that it did not appear from the file that the confinement of the applicant had been of a disciplinary nature. She also noted that had the applicant’s confinement been a preventive measure or a measure for the protection of the applicant, as claimed by the prison authorities, then under regulation 151(5) of the Prison (General) Regulations 1997 (“Prison Regulations” – see further “Relevant domestic law and practice”, below) the written approval of the prison director would have been required. No such approval had been given. The Ombudsman therefore considered that the applicant’s confinement was a punitive measure. 31.     Moreover, the Ombudsman was not convinced that the denial of the applicant’s right to receive visits, correspondence and telephone contact, for example with his eight year old son, had aimed to protect the applicant from his fellow inmates. She further observed the following: “It is noted that although in theory the total seclusion of a person in combination with his total social isolation is not acceptable, in practice the European Court of Human Rights and the European Commission have tolerated this type of total confinement in exceptional circumstances. However, this was done in cases concerning particularly dangerous terrorists who had been detained pending their trial and who had been allowed to go into the prison yard at some specific time in the day.” 32.     The Ombudsman concluded that the applicant’s confinement for a total period of 47 days with no right to exit his cell for one hour a day as provided for in the Prison Regulations, in combination with the denial of the applicant’s right to have contact with family and friends, was in breach of the Prison Regulations and constituted a violation of the applicant’s rights under Articles 3 and 8 of the Convention. 33.     As regards the applicant’s complaint concerning the monitoring of the letter he sent to her, the Ombudsman emphasised the importance of allowing prisoners direct and uninhibited access to her office. In this connection she referred, inter alia, to the European Prison Rules and a report by the Council of Europe’s Committee for the prevention of torture (see further “International materials”, below), as well as the case of Silver and others v. the United Kingdom, (no.   5947/ 72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, Commission’s report of 11 October 1980, Decisions and Reports (DR) 9, p. 56). D.     Ombudsman’s report of 15 March 2004 (no. 143/2004) 34.     On 1 January 2004 the applicant submitted an additional complaint to the Ombudsman against the prison authorities. He complained that the prison authorities had, on 20 December 2003, refused to allow him to give his father, who had visited him in prison, a letter addressed to the Ombudsman requesting her to send him copies of past correspondence between them. The applicant claimed that he did not want the contents of his letters to the Ombudsman to be monitored by the prison personnel and that for this reason he had decided to send the letter through his father. He had complained on 30 December 2003 to the prison director. 35.     The Ombudsman, in a report dated 15 March 2004, repeated that prisoners should be allowed unrestricted access to her office. She found that there had been unjustified difficulties and unnecessary obstacles in the direct and unhampered communication of the applicant with her office that had negatively affected the exercise of his rights. She noted that on 3 February 2004, at a meeting held in the Ministry of Justice, it was decided that a designated letter box would be placed in the central prisons to allow prisoners, freely and without procedural or substantive restrictions, to submit complaints to the Ombudsman concerning their conditions of detention. E.     Refusal of pardon 36.     By letter of 22 May 2004 the applicant informed the Court that in May 2004, on the basis of a recommendation by the Attorney-General of Cyprus, fifty-four prisoners were granted an official pardon by the President and were consequently released. The applicant was not among the fifty-four. II.     RELEVANT DOMESTIC LAW AND PRACTICE 37.     The Cypriot Constitution provides, in so far as relevant, as follows: Article 8 “No person shall be subjected to torture or to inhuman or degrading punishment or treatment.” Article 15 “1. Every person has the right to respect for his private and family life. 2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person.” Article 17 “1. Every person has the right to respect for, and to the secrecy of, his correspondence and other communication if such other communication is made through means not prohibited by law. 2. There shall be no interference with the exercise of this right except in accordance with the law and only in cases of convicted and unconvicted prisoners and business correspondence and communication of bankrupts during the bankruptcy administration.” Article 146 “1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person. 2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission. 3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse. 4. Upon such a recourse the Court may, by its decision- (a) confirm, either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever, or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed. ... 6. Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared there under that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.” 38.     Regulations 114 and 116 of the Prison Regulations deal with the contact rights of prisoners (correspondence, telephone calls and visits). In so far as relevant, they provide as follows: Regulation 114 “1. A prisoner who has been sentenced to imprisonment can send letters to his family members, associates and friends twice a week, provided he submits these letters beforehand for examination by the competent officer in accordance with the provisions of the present regulations. It is provided that the director can allow a prisoner to send more letters, if in his judgment   this will help him to maintain beneficial contacts with the outside world. 2. There is no restriction on the number of letters a prisoner can receive in prison. 3. The prisoner can, if a direct need is shown, request permission from the director to contact by telephone, or to ask the competent prison officer to contact on his behalf, his lawyer or members of his family as well as professional or other associates for the settlement of personal, family and other matters in abeyance or differences ...” Regulation 116 “1. Every prisoner is allowed to have visits by members of his family, relatives or friends up to six times a month ...” 39.     Regulation 115 of the Prison Regulations deals with the monitoring of the correspondence of prisoners. The relevant provisions provide as follows: Regulation 115 (2) “The content of telephone calls or letters is monitored in cases where in the director’s view such control is necessary for security reasons or for preventing the commission of a new offence or for any other justifiable reason.” Regulation 115 (5)   “The privilege of correspondence or telephone contact can be suspended following an order by the director in the case of a disciplinary offence by the prisoner.” Regulation 115 (6)   “Letters addressed by prisoners to any official authority of the Republic or to politicians or to the mass media are always sent through the director.” Regulation 115 (7) “In the event that the director ascertains that their content does not come within the competence of the authority or person it is addressed to, or that in the letters improper or abusive language is used, or malicious allegations or unsubstantiated accusations are included against anyone or an attempt is made to distort facts or information concerning the security and in general the functioning of the prisons is revealed, the director can, in the interests of public security or public order or public morals or the protection of the reputation or rights of others or to prevent the revelation of confidential information or to preserve the authority and impartiality of the judiciary, prohibit the sending of these letters. The director informs the prisoner of his decision. It is provided that prisoners can contact the Prisons Board by means of letters without any monitoring of their content by the prison authorities.” 40.     The Prison Regulations concerning solitary confinement provide, in so far as relevant, as follows: Regulation 151(1) “The prison director can, when he deems it appropriate, order the confinement or isolation of a prisoner for such period as he considers necessary for the purposes of (a) preservation of discipline and order; (b) protection of the interests of the prisoner himself or of other prisoners; (c) confinement or isolation of violent prisoners, who by their behaviour cause problems and intimidate other prisoners; (d) discipline ...”. Regulation 151(5) “The extension of the confinement of the prisoner in a special cell or isolated space (apart from the wing in which he resides for preventive and not disciplinary reasons) for over twenty-four hours requires the written approval of the director ... Prisoners under confinement or isolation have a right to exit the place of confinement or isolation for half an hour in the morning and half an hour in the afternoon.” Regulation 155 “A prisoner who is to be accused of a disciplinary offence may be confined to his individual cell or a special cell, according to the situation and the seriousness of the offence, until the examination of the facts of the case is completed. The period of confinement of the prisoner must not exceed four days, unless the director approves the extension of the period of confinement of the prisoner for another two days.” Regulation 156 “In the event that a prisoner is to be accused of a disciplinary offence, the accusation should be set out as soon as possible and the trial of the case should begin at the latest two months from the date of the commission of the offence and should be concluded as quickly as possible.” Regulation 158(1) “A prisoner shall not be punished before having acquired knowledge of the offence of which he is accused and without having been given the possibility to defend himself.” III.     INTERNATIONAL MATERIALS A.   Extracts from the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), Strasbourg, 5 April 2008 41.     The CPT produced a report to the Government of Cyprus following its visit to Cyprus from 8 to 17 December 2004. As regards allegations of ill-treatment at the hands of other prisoners, the report noted as follows: “59. The CPT is also concerned by several allegations received by the delegation that prison staff threatened inmates with transfer to Block 4 (the maximum security unit) and used one or more prisoners accommodated in Block 4 as a means of maintaining control over other inmates. In this connection, one prisoner interviewed by the delegation claimed that, on 17   October 2004, he had been severely beaten by fellow inmates and subsequently placed in Block 4. A criminal investigation had apparently only been initiated after the prisoner concerned succeeded in bringing the matter to the attention of the Minister of Justice and Public Order, who transmitted the case to the competent authority. A similar case was brought to the delegation’s attention by an official report of the Office of the Commissioner for Administration. It would appear that, on 18 July 2003, one of the alleged perpetrators (I.C.) of the above-mentioned assault had severely beaten another inmate; the latter had required hospital treatment as a result. The Commissioner for Administration found that the case had not been investigated thoroughly by the establishment’s management and added that ‘the inexcusable delay in investigating such a serious incident gives good reason to suspect preferential treatment vis-à-vis I.C.’. 60. It would be entirely unacceptable for prison staff to threaten prisoners in the above-mentioned manner as a means of control, let alone place prisoners at risk of assault from fellow inmates. The CPT wishes to emphasise that the duty of care which is owed by the prison authorities to prisoners in their charge includes the responsibility to protect them from other prisoners who might wish to cause them harm. In particular, prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The CPT recommends that the Cypriot authorities take the necessary steps with a view to preventing inter-prisoner violence, in the light of the above remarks. 61. The diligent examination by prison management of all information which may come to its attention regarding possible ill-treatment of prisoners by staff or inter-prisoner violence (whether or not that information takes the form of a formal complaint) and, if necessary, the instigation of proceedings, is also essential. Indeed, the lack of an appropriate response by prison management can foster a climate in which those minded to ill-treat prisoners can quickly come to believe –   and with very good reason   – that they can do so with impunity. The delegation gained the impression that the management of Nicosia Central Prisons was reluctant to adopt a proactive approach in this respect ...” 42.     The report also commented on measures of confinement in use in Cypriot prisons. It observed the following: “62. The CPT must also express concern about the potential duration of measures involving the segregation of prisoners for disciplinary reasons (confinement to a special isolation cell for a period of up to sixty days and confinement to their own cell for up to ninety days), and the fact that inmates undergoing segregation for disciplinary reasons were deprived of outdoor exercise throughout their sanction (cf. paragraph 91) . ... 86. ... The disciplinary penalties include confinement to a special isolation cell for up to 60 days, with simultaneous loss of contact with the outside world (correspondence, visits and telephone calls), or confinement to a personal cell for up to 90 days. The CPT has serious reservations as to the maximum possible periods of disciplinary confinement; it considers that they should be substantially reduced ... The CPT also wishes to stress that a disciplinary punishment should never involve a total prohibition on contact with the outside world. Further, under no circumstances should visits between a prisoner and his/her family be withdrawn for a prolonged period ... ... 88. The CPT also pays particular attention to any prisoner held, for whatever reason, under conditions akin to solitary confinement . Under the terms of Section 151 of the Prisons Regulations, the director can order the confinement or isolation of a prisoner for such a period as he deems necessary for the purpose of: maintenance of order; protection of the interests of the prisoner himself or of other prisoners; violent behaviour; discipline. In this respect, the observations made by the delegation identified important lacunae as regards the guarantees which should surround such a measure. Indeed, no provision is made for those guarantees within the Prisons Regulations themselves. 89. The CPT wishes to stress that the principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned. In particular, all forms of solitary confinement should be as short as possible. Further, they should be surrounded by certain guarantees. A prisoner in isolation or confinement or in respect of whom such a measure is extended, should be informed in writing of the reasons therefor (it being understood that there might be reasonable justification for withholding specific details related to security from the prisoner) and should be given an opportunity to express his views on the matter and have the right to appeal to an authority outside the prison establishment concerned against the imposition or extension of the measure. Further, the application of the measure should be fully re-examined at regular intervals (at least every three months). In addition, all such measures should be properly entered in a specific register. ... The CPT recommends that the Cypriot authorities review the provisions of the Prisons Regulations relating to isolation and confinement, in the light of the above principles. It also recommends that a special register be kept of all isolation/confinement measures, recording the identity of the prisoner, the reasons for the measure, the date and time of the commencement and end of the measure, the deciding authority and the precise place(s) where the prisoner concerned has been accommodated. 90.   Further, although the application of isolation/confinement for a prolonged period can be necessary in exceptional cases for reasons related to good order and safety, the CPT considers that the application of such a measure for disciplinary purposes is unacceptable; the use of isolation/confinement for such purposes should be governed exclusively by Sections 153 to 162 of the Prisons Regulations. The CPT recommends that the Cypriot authorities amend the Prisons Regulations accordingly.” 43.     As regards the conditions of the cells and the possibility of outdoor exercise for prisoners confined to their cells, the report found as follows: “91. Material conditions in the cells used for administrative separation or disciplinary purposes (16 cells in Block 8) were adequate. However, from the information received by the delegation during the visit, it emerged that prisoners in isolation or confined to their cells do not benefit from outdoor exercise , sometimes for extended periods. In particular, from an official investigation by the Office of the Commissioner for Administration, it emerged that one prisoner had been placed in confinement in Block 4 for 47 days without benefiting from outdoor exercise. Such a situation is unacceptable. The CPT recommends that the Cypriot authorities immediately take the necessary steps to ensure that all prisoners placed in an isolation cell or confined to their cells, for whatever reason, benefit from at least one hour of outdoor exercise each day.” 44.     In respect of contact with family and friends, the report noted: “92. The CPT wishes once again to underline the importance for prisoners of being able to maintain good contact with the outside world. Above all, they must be given the opportunity to safeguard their relationships with their family and friends, and especially with their spouse or partner and their children. The continuation of such relations can be of critical importance for all concerned, particularly in the context of prisoners’ social rehabilitation. The guiding principle should be to promote contact with the outside world; any restrictions on such contacts should be based exclusively on security concerns of an appreciable nature or considerations linked to available resources. 93. Under the terms of the Prisons Regulations, in principle all prisoners (both remand and sentenced) have the right to receive up to six one-hour visits every month. In addition, a certain degree of flexibility is possible, for example, when the visitors concerned are family members living abroad. The CPT welcomes these arrangements. ... 95. Telephones have been installed within the prisons, one in each block for use by prisoners from 08.00 a.m. to 2.30 p.m. This is in principle a very positive development. However, apart from in Block 4, which was only accommodating approximately ten prisoners, access to the telephone was rarely straightforward given the number of prisoners involved.” 45.     Finally, as regards communication of complaints to the Ombudsman, the report stated: “ 98.   During the visit carried out in December 2004, the delegation observed that, in response to the recommendation made by the CPT in its report on the 2000 visit, locked boxes had been installed, in which prisoners could put complaints for the attention of the Commissioner for Administration.” B.   Extracts from Recommendation (Rec(2006)2) of the Committee of Ministers to Member States on the European Prison Rules, adopted on 11 January 2006 (“European Prison Rules”) “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2     There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3     The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4     The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5     Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6     Such measures shall be applied to individuals and not to groups of prisoners. 53.7     Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 70.1     Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. ... 70.3     If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 46.     The applicant complained under Article 3 of the Convention about the conditions of his solitary confinement for a period of 47 days. Article 3 provides as follows:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 1. The parties’ submissions 47.     The Government contended that the application should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies. Citing the judgment of the Court in Azinas v. Cyprus [GC], no.   56679/00, §   39, ECHR 2004 ‑ III, they argued that the applicant could have filed a recourse to the Supreme Court under Article 146 of the Cypriot Constitution challenging the legality of the order for his solitary confinement and the conditions thereof, including the prohibition on family visits and the monitoring of his correspondence. They submitted that in the context of such proceedings, the applicant could have argued that the confinement and conditions violated his rights under Articles 3 and 8 of the Convention, and the corresponding articles of the Cypriot Constitution. Moreover, he could have applied for the suspension of his confinement and the restrictions on family visits pending the final outcome of the recourse. 48.     The Government further submitted that the