Delia Ferri and Andrea Broderick have collaborated on several recent publications, including the first textbook on International and European Disability Law and Policy: Texts, Cases and Materials (Cambridge University Press, 2019), and the first Research Handbook on EU Disability Law (Edward Elgar Publishing, 2020).
On 14 January 2021, the ECtHR released its ruling in the case of Kargakis v. Greece (press release available in English). The case centres on the conditions of pre-trial detention of Mr. Kleanthis Kargakis in Diavata Prison, the lack of an effective remedy to complain about those conditions and the length of judicial review proceedings. Taking into account the fact that Mr. Kargakis is a person with disabilities and having regard to the duration of his imprisonment, the Strasbourg Court held that the conditions in which he was detained amounted to a violation of Article 3 ECHR, containing the prohibition of inhuman and degrading treatment. The Court also found that Greece breached Article 13 ECHR, which enshrines the right to an effective remedy, on account of the fact that the domestic court did not adequately examine the conditions of detention and health issues experienced by the applicant.
The ruling in Kargakis v. Greece is noteworthy due to the Court’s finding that the pre-trial detention conditions in Diavata Prison exceeded the threshold of suffering inherent to the deprivation of liberty because the prison facilities were not adapted to the needs of people with disabilities. While the Strasbourg Judges did not explicitly discuss Greece’s international law obligations to provide generalised accessibility measures and individualised reasonable accommodation, the ECtHR acknowledged the rights of detainees with disabilities to an accessible place of detention. In that sense, the decision fits neatly into a long line of previous cases, such as Price v. UK, Z.H. v. Hungary and Grimailovs v. Latvia, in which the Court has recognised the general duty of Contracting Parties to the ECHR to provide accessible prison settings, alongside the obligation to take all ‘reasonable steps’ to address the individual needs of detainees with a disability. Unfortunately, the Court did not refer to, or incorporate into its reasoning in Kargakis v. Greece, the UN Convention on the Rights of Persons with Disabilities (CRPD). In that regard, the decision constitutes a missed opportunity to foster convergence between the ECHR and the CRPD.
Summary of the Facts
The applicant, Mr. Kleanthis Kargakis, a person with diabetes and a wheelchair user, was prosecuted for having attempted to assist a foreign national to leave the country without the latter having submitted himself to the relevant controls (§ 4). When initially placed in detention in January 2013, Mr. Kargakis informed the relevant authorities about his health conditions, namely that he had a history of diabetes and heart disease, and that he had previously had a stroke. Furthermore, the prison psychiatrist diagnosed the applicant with depression and placed him under psychiatric care. On 24 January 2013, Mr. Kargakis was brought to hospital for a suspected stroke. He was discharged on 6 February 2013, with strict recommendations as to his diet and the prison environment. Following his transfer to Diavata Prison, Mr. Kargakis was hospitalised again for emergency care in March 2013 (§ 12-15).
After having been placed in detention, Mr. Kargakis appointed an attorney to represent him for the purpose of filing an appeal against the detention warrant. However, that appeal was never filed because the attorney was disbarred (§ 16). On 18 February 2013, the applicant lodged an appeal against his detention, in which he highlighted his health issues and his disability, attaching all relevant medical documentation (§ 17). Further to his appeal, Mr. Kargakis requested an accelerated examination of the pleas and, once again, highlighted his health issues and the fact that his conditions of detention were inadequate (§ 20). In April 2013, the request of the prosecutor that the detention order against the applicant be lifted and replaced by alternative measures was endorsed by the domestic judge, and Mr. Kargakis was released. However, at the end of the proceedings, the applicant was sentenced to five years’ imprisonment.
Mr. Kargakis lodged an application with the ECtHR on 17 April 2013, alleging that he had to share a small cell of approximately 20m² with four other prisoners in Diavata Prison. He complained that the cell was unhygienic, and most importantly for present purposes, he alleged that the cell was not adapted to the needs of people with disabilities (§ 28). He stated that neither the toilets nor the showers were adapted to those needs, and that he could not avail of special assistance to use non-adapted facilities. Mr. Kargakis also maintained that there were several sub-standard conditions of hygiene in the prison. Furthermore, he complained that the food was unsuitable for people with diabetes (§ 29). The applicant also submitted that he could not access the courtyard with his wheelchair, and that the prison did not have a canteen, meaning that inmates were forced to eat on their beds. On the whole, Mr Kargakis claimed that his conditions of detention contributed to the worsening of his state of health as a person with disabilities The Greek government, by contrast, maintained that Diavata Prison was suited to the needs of persons with disabilities, and that detainees had the opportunity to participate in several cultural and leisure activities (§ 31-37).
The Judgment of the Court
In the Chamber judgment in this case, the Court first rejected the claims of inadmissibility raised by the Greek Government, and held that Mr Kargakis was, in fact, a victim for the purpose of Article 34 ECHR. It proceeded to unanimously rule that there was a violation of Article 3 ECHR, read in conjunction with Article 13. However, the Strasbourg Court did not agree with the applicant’s claim that there was a breach of Article 5(4) ECHR. That Article embodies the right to a speedy decision on the lawfulness of one’s detention. Given that the proceedings before the national court were adequate in light of the particular complexity of the case, the ECtHR found that a breach of Article 5(4) had not been established.
In order to satisfy the threshold for inhuman or degrading treatment or punishment – and thereby to fall within the ambit of Article 3 ECHR – a victim must show that their suffering attains a minimum level of severity. It is worth recalling that, in assessing whether this level had been reached, the Strasbourg Court has consistently indicated in its previous case law that it takes into account all circumstances of the case, including the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (Z.H. v. Hungary, § 28). In other decisions, the Court has noted that Article 3 ECHR requires Contracting Parties to ‘ensure that prisoners are detained in conditions which are compatible with respect for human dignity, [and] that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention’ (Grimailovs v. Latvia, § 150).
The Court’s finding of a breach of Article 3 ECHR in Kargakis v. Greece stemmed from the unsuitable and egregious conditions of detention to which the applicant had been subjected in Diavata Prison. While the Strasbourg Judges did not comment on certain aspects of the applicant’s claim due to a lack of objective evidence, they focused on Mr. Kargakis’ specific allegations that were uncontested by the Greek Government. The Court took particular account of the fact that the exercise yard at the penitentiary facility was not adapted to the needs of people with disabilities and that the applicant’s food supply at the prison was not tailored to his requirements as a diabetic. Furthermore, the ECtHR expressed concern that the applicant was exposed to smoke, in breach of medical orders, by being forced to share his cell with prisoners who smoked (§ 75). Accordingly, the Court found that the applicant had been subjected to an ordeal whose severity had exceeded the inevitable degree of suffering in detention, thereby giving rise to a violation of Article 3 ECHR. In arriving at this finding, the Court had particular regard to the applicant’s disability and the duration of his imprisonment.
With regard to the applicant’s claim under Article 13 ECHR, the Court recalled that even if Contracting Parties enjoy a certain margin of appreciation in complying with their obligations under the Convention, the remedy required by Article 13 must be “effective” both in practice and in law (Mc Glinchey and others v. UK, § 62). In finding a violation of that Article, the ECtHR ruled that the judicial authorities at the domestic level had failed to carry out any analysis of the conditions of detention and the health issues encountered by the applicant. In doing so, they essentially ignored the plea of the public prosecutor, who had underlined the degree of disability and serious cardiological problems experienced by the applicant. In the Court’s view, the domestic judicial authorities also did not take into account the prosecutor’s plea that the prolongation of the applicant’s detention could prove fatal because of the poor conditions prevailing in Greek prisons (§ 82). Taking these circumstances into account, the ECtHR considered that the outcome of the appeal brought by the applicant on the basis of the relevant national legislation did not provide the applicant with an appropriate remedy (§ 83).
Substantive Protection of the Rights of Detainees with Disabilities but still Playing it Safe
The principal merit of the ruling in Kargakis v. Greece lies in the Court’s recognition that prison settings should be adapted to the needs of persons with disabilities. Thereby, the ECtHR accorded substantive protection to the rights of the applicant in this case. As noted above, the case follows the Court’s previous jurisprudence in that regard. In a long line of cases spanning approximately two decades, the ECtHR has not hesitated in finding a violation of Article 3 ECHR, among other rights, in circumstances where domestic authorities have failed to take into account the special needs and circumstances of detainees with a disability in institutional settings (among others, D.G. v. Poland). In Vincent v. France, the Court held that the confinement of a paraplegic prisoner in a cell that was not adapted to his disability amounted to a violation of Article 3 ECHR (§ 103). Moreover, in Engel v. Hungary, the ECtHR held that the detention of a paraplegic individual in an inaccessible cell where he ‘was left at the mercy of his cellmates in receiving assistance to relieve himself, bathe and get dressed or undressed’ amounted to a violation of Article 3 ECHR (§ 27).
In a similar vein, the Strasbourg Court has consistently ruled that inadequate conditions of detention expose prisoners to health risks or deteriorate their existing health conditions, and the ruling in Kargakis v. Greece sits well with a consolidated strand of Strasbourg case law to that effect (e.g. Florea v. Romania, commented on in this blog, and Ilaşcu and Others v. Moldova and Russia). In essence, therefore, the case of Kargakis v. Greece does not significantly depart from the Court’s previous case law on the rights of detainees with disabilities in terms of the outcome and substance of protection guaranteed to the applicant.
Negligible Evolution in the Theorisation and Understanding of the Rights of People with Disabilities
Notwithstanding the clear protection afforded to Mr. Kargakis by the ECtHR, it can be argued that the Court “plays it safe”. In fact, the ECtHR has not taken any evident steps forward in this case when compared with the case of Price v. UK, decided 20 years earlier. It is particularly noteworthy that, in Kargakis v. Greece, the ECtHR refrains from engaging with key concepts in the disability context, such as those of “inherent dignity”, “accessibility” and “reasonable accommodation”.
Inaccessible detention facilities impact on the inherent dignity of persons with disabilities. The concept of “dignity” has underpinned some of the ECtHR’s case law related to detainees with disabilities, as far back as in Price v. UK. In that case, the Court made a finding of degrading treatment contrary to Article 3 ECHR on account of several conditions of detention that had the effect of impairing the self-worth of the applicant with a disability. These included the fact that she was ‘unable to go to the toilet or keep clean without the greatest of difficulty’ (Price v. UK,§ 30). While the Court did not mention the concept of “dignity” explicitly in that case, it arrived at its conclusion despite what it viewed as the lack of a ‘positive intention to humiliate or debase’ the applicant(Price v. UK, § 30). An overt reference to the concept of “dignity” can be found in Grimailovs v. Latvia, where the Court found that placing the applicant, who was a wheelchair user, in facilities where he could not ‘properly wash and use the toilet, even if only for a limited period of time’ could hardly be considered to ensure respect for his human dignity (§ 159; see also § 161). By contrast, in Kargakis v. Greece, the Court did not engage at all with the concept of “dignity”, either explicitly or implicitly, which seems an oversight given the impossibility of the applicant to use the toilet facilities and the exercise yard at the prison.
In its judgment in Kargakis v. Greece, the ECtHR also fails to mention the concept of “reasonable accommodation”, despite the obvious relevance of that concept to the substance of the case and to the finding of a breach of Article 3 ECHR. In the context of Kargakis v. Greece, the notion of “reasonable accommodation” would entail tailored modifications to the penitentiary facilities where required in the particular circumstances outlined by the applicant. This omission on the part of the Court is regrettable given that the Strasbourg Judges had, in fact, engaged with the concept of “reasonable accommodation” in other decisions, such as in the above-mentioned case of Z.H. v. Hungary. Furthermore, the clear link between reasonable accommodation in institutional settings and the prohibition of inhuman and degrading treatment has been recognised by the former UN Special Rapporteur on Torture, Manfred Nowak, who observes that ‘the lack of reasonable accommodation in detention facilities may increase the risk of exposure to neglect, violence, abuse, torture and ill-treatment’ (Nowak, § 38).
A Missed Opportunity for Convergence with the CRPD
What is perhaps most notable about the case of Kargakis v. Greece is that the Strasbourg Court reached its conclusions without a single reference to the CRPD, which Greece has ratified. This oversight by the Court is discordant in light of the fact that, in its case law outside the scope of application of Article 3 ECHR, the Court views the CRPD as representing ‘a European and worldwide consensus’ on the rights of persons with disabilities (Glor v. Switzerland § 53).
The CRPD endorses a human rights model of disability, which views disability as a social construct, resulting from the interaction between various barriers in society and people with impairments, in line with the Preamble of the CRPD. By that token, the human rights model acknowledges human differences and respects impairment as part of human diversity (CRPD Committee, General Comment 6, § 9). Of particular note in Kargakis v. Greece is the fact that the ECtHR did not mention two of the key obligations in the CRPD that seek to give effect to the human rights model of disability. Specifically, the Court missed out on the opportunity to refer to the progressive obligation, provided for in Article 9 CRPD, to make facilities and environments accessible. It also did not refer to the immediate, individualised reasonable accommodation duty contained in Articles 5(2) and 14(2) CRPD, the latter of which explicitly requires States Parties to ensure the provision of reasonable accommodation to detainees with disabilities.
Furthermore, Kargakis v. Greece can be viewed as a missed opportunity to refer to the jurisprudence of the CRPD Committee and to the Committee’s Guidelines on Article 14 CRPD (CRPD Committee, § 17 and § 18) in the context of relevant international law. The Committee has had the opportunity to discuss unsuitable conditions of detention in its views on individual communications in X v. Argentina, and in Al Adam v. Saudi Arabia. In the former case, which presents some affinity to that under discussion, the author of the individual communication, Mr. X, suffered a stroke in pre-trial detention, which caused various impairments. He was then transferred to an inaccessible prison hospital, unsuited to the needs of a person with a disability. The accommodations made by the prison authorities were essentially insufficient because the bathroom was too small and could not be accessed using a wheelchair. The author also alleged that there was a lack of individual assistance and sub-standard conditions of detention. The CRPD Committee upheld the claims of the applicant, and ruled that Argentina had failed to fulfil its obligation to provide individualised reasonable accommodation under Article 14(2) CRPD and its duty to provide general accessibility measures under Article 9 CRPD. The CRPD Committee’s jurisprudence and soft law documents, such as the Committee’s Guidelines related to detainees with disabilities, could serve to guide the ECtHR when dealing with similar breaches of the rights of prisoners with disabilities, thereby enhancing the analytical framework of the Strasbourg Court’s case law.
Notably the substance of the ECtHR’s case law on the ill-treatment of prisoners with disabilities has been viewed as an example of convergence between the ECHR and the human rights model of disability in the CRPD, as we have outlined elsewhere. However, as we have also indicated previously, Z.H. v. Hungary is the only decision delivered by the Strasbourg Court to date in which the convergence between the two legal systems of international law is made explicit, in that the Strasbourg judges overtly incorporated the CRPD in its reasoning. The Court’s ruling in Kargakis provided an opportune moment for the ECtHR to enrich its case law on detainees with a disability by drawing on relevant principles of international law. Unfortunately, however, the Court did not seize the opportunity in this case. This contrasts with the Court’s approach in other areas of its case law, such as the right to education (e.g. Stoian v. Romania, commented on in this blog) and the prohibition of discrimination (Guberina v. Croatia, also reviewed in this blog), where the ECtHR incorporates relevant provisions of the CRPD into its analytical framework.
Prisoners with disabilities are confronted with manifold barriers that hinder their inherent dignity and impair the exercise of their rights on an equal basis with others. Inaccessible detention settings result in a level of suffering and hardship for detainees with disabilities over and above that experienced by prisoners without disabilities. While Kargakis v. Greece certainly fits neatly within the ECtHR’s previous case law in this area, the Court fails to engage with key concepts in the context of disability, most notably those of “dignity”, “reasonable accommodation” and “accessibility”, all of which are concepts that somewhat underpinned the Court’s findings in previous case law. What is most regrettable about the Court’s ruling in Kargakis v. Greece is that the Strasbourg Judges do not mention the CRPD once in the course of their judgment. By not engaging with the substance of CRPD rights and obligations that are highly relevant to the facts in this case, the Court has missed another vital opportunity to draw on the CRPD as an interpretive guide to ECHR rights, thereby foregoing the opportunity to deepen the understanding of the rights of detainees with disabilities.