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THIRD
SECTION
CASE OF LĂUTARU v. ROMANIA
(Application
no. 13099/04)
JUDGMENT
STRASBOURG
18 October
2011
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 Lăutaru v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13099/04)
against Romania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Romanian
national, Mr Iulian Lăutaru (“the applicant”), on
9 February 2004.
2. The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu. The applicant was
granted leave to represent himself in the proceedings before the
Court.
3. The
applicant alleged, in particular, that the material conditions of
detention in Colibaşi Prison, lack of adequate medical care,
constant psychological pressure from the authorities to withdraw his
complaints concerning the conditions of detention, and failure of the
prison authorities to provide him with stamps for his letters to the
Court, breached his rights guaranteed by Articles 3, 8 and 34 of the
Convention.
- On
15 September 2009 the President of
the Third Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Băbeni,
Vâlcea.
- On
1 March 1999 the applicant was detained pending trial in Colibaşi
Prison.
- By
a decision of 9 June 1999 the Vîlcea County Court convicted the
applicant of murder and sentenced him to seventeen years’
imprisonment. The decision became final on 4 February 2000 by a
judgment of the Court of Cassation. The applicant served out his
sentence in Colibaşi Prison.
1. The material conditions of detention
(a) The applicant
- The
applicant stated that the cells were squalid and overcrowded and the
smell was unbearable because of the dirty sanitary facilities.
- His
clothes and bedding were full of lice, which caused him blisters and
wounds because he had to scratch constantly.
- Between
January and March 2002 he shared cell 316 with six other detainees
and no heating was provided in the cell.
- During
the summer the water was cut off between 7 a.m. and 11 p.m.
although the temperature in the cell was above 40 degrees Celsius.
Also, the detainees were supplied with water from insanitary plastic
containers.
- The
window grille was fitted with a net which prevented proper
ventilation and made breathing in the cell extremely difficult as a
result of the overcrowded conditions. Also, the electricity was cut
off between 9 a.m. and 4 p.m.
- At
unspecified times in 2005 the applicant shared a cell with T.I., a
fellow inmate who was HIV-positive and who cut his fingers several
times. However, in spite of the increased danger of infection the
cell and the food receptacles were not disinfected.
- Lastly,
the food contained impurities and waste and he also complains that
there were no activities.
(b) The Government
- Between
February 2001 and May 2003 the Colibaşi Prison authorities
initiated a general reconstruction and maintenance programme for
detention Sections II, III and IV of the prison. Because of these
works the detainees were relocated from one section to another, which
might have caused overcrowding in the cells.
- The
reconstruction and maintenance programme resulted in the building of
two new prison Sections, no. 6 and no.7. They included cells 612 and
711. Each of the cells was equipped with eight beds, two sinks with
mirrors and shelves, a bathtub and a separate toilet. Each cell
measured 17.2 sq. m. The rooms were 3.05 metres high. The
lavatory measured 5.77 sq. m, the toilet room 1.57 sq. m. and
the storage room 1.65 sq. m. The window of each of the rooms was 1.20
x 1.20 metres with panes of glass, hermetically sealed. The storage
and the toilet room were each equipped with a 0.6 x 0.6-metre window.
- Cells
203 and 205 located in Section II of the prison are identical and are
each equipped with thirty-six beds, six sinks fitted with mirrors and
shelves, six shower baths and four separate toilets. Each cell was
57.85 sq. m in area and 4.2 m high, the lavatory was 8.55
sq. m., the toilet room was 1.02 sq. m and the storage room was 10.83
sq. m. The shower baths and toilets were located in a 7.83 sq. m.
separate room. The cells each had three windows of 1 x 1.5 m,
hermetically sealed. The shower, toilet and lavatory rooms each had
0.6 x 0.6 m windows.
- Cell
423, in which the applicant was also detained, was renovated to
European standards and was not overcrowded, according to prison
records. Nor did the records indicate that any of the other prison
cells were overcrowded.
- No
information could be provided in respect of the number of detainees
sharing cells with the applicant or whether the applicant had had to
share a room with an HIV-positive detainee, on the ground that the
relevant documents had been removed from the archives and destroyed
following the expiry of the statutory time-limit for archiving such
information.
- The
cells, the sanitary facilities and the main rooms of the prison
underwent maintenance work at least once a year. The metal beds and
the windows were repaired at the same time. Drinking water was
continuously available: it was cut off only when maintenance work had
to be done, and hot water for bathing was available twice a week.
- Heating
was supplied for six and a half hours a day. After this hot air was
circulated by pumps for another four to five hours.
- The
quality of the ingredients used to prepare food was checked daily by
the prison warden, the prison doctor and a designated prisoner, and
the applicant was provided with a special diet appropriate to his
medical condition.
- According
to the documents available in the applicant’s prison file he
was involved in a number of social reintegration activities with
positive results, and was rewarded fifty-five times with extended
visitation rights, packages and revocation of disciplinary sanctions.
He took part in poetry, logic, football, chess and table tennis
contests and had poems and essays published in the prison paper.
- On
15 March 2006 the applicant’s right to daily exercise was
extended by one hour to a total of three hours on a psychiatrist’s
advice.
- During
his detention he was repeatedly given other responsibilities, such as
editing material for the prison newspaper, acting as representative
for cells 316 and 610, keeping attendance records, and distributing
newspapers and magazines. He was rewarded four times for dedication.
2. The right to correspondence with the Court
- On
24 November 2003 the applicant addressed a request to the authorities
of Colibaşi Prison for a stamp to be put on a letter which he
intended to send to the European Court of Human Rights (“the
Court”) and which contained his application.
- On
26 November 2003 the authorities refused to stamp the applicant’s
letter, on the ground that the applicant had had the necessary amount
of money in his account but had spent it all before the date of his
request for a stamp.
- The
written refusal of the prison authorities reads as follows:
“I propose not to approve the detainee’s request,
because he had the necessary amount of money but spent it on
shopping. The last remaining money in the account was spent four days
before he made the request”.
- On
4 December 2003, the applicant requested a copy of his written
application for a stamp.
- On
13 December 2003 the authorities of Colibaşi Prison dismissed
his request as unsubstantiated, on the ground that an application
could have been lodged with the Court only after exhaustion of the
available domestic remedies and within six months of the final court
decision. Also, if the applicant brought proceedings before the Court
they would provide it with all the pertinent documents.
- On
3, 19 and 27 May and 9 June 2004 the applicant addressed requests to
the Colibaşi Prison authorities for photocopies of documents,
including various complaints and court judgments; the requests were
refused. He asked to be informed in writing of the reason for the
refusal but did not receive any answer. After repeated requests and
complaints he was provided with the requested photocopies on 25 June
2004.
- The
applicant’s requests for stamps and envelopes, made on 22 July,
18 September and 28 October 2003, 26 January, 12 October and
9 November 2004, and 23 February, 15 June and 3 October 2007,
were granted and the applicant was provided with the requested items.
Also, the applicant’s requests lodged with the prison
authorities on 19 December 2006, 15 February and 3 October
2007, and 21 January 2008, for copies of documents to be
posted to the Court, were approved and the documents were mailed.
- From
September 2006 to date the applicant lodged twenty requests with the
prison authorities for copies of various documents. They were all
granted.
3. Medical treatment
- The
applicant stated that while in detention he developed a liver and
stomach condition, kidney failure and chronic laryngitis as a result
of the conditions of detention, bad food and impure drinking water.
He acknowledges that he received some treatment for his condition,
however the treatment lacked consistency and eventually it was
stopped. He stated that although his family helped him finance the
required treatment his health was permanently damaged. He also stated
that his requests for medication had been refused, the reason given
being lack of funds.
- On
24 January 2003 the applicant brought proceedings before the Argeş
County Court seeking to be released from his sentence on medical
grounds.
- By
a judgment of 25 March 2003 the Argeş County Court dismissed the
applicant’s action on the ground that according to the medical
expert report in the file the applicant’s medical condition,
including his liver condition, could be treated in a prison hospital.
There is no evidence in the file that the applicant appealed against
this decision.
- According
to the applicant’s medical file, from the date of his
imprisonment he was regularly examined by doctors, his health was
monitored and he was prescribed and administered medication during
the course of his detention.
- On
11 May 2004 the Colibaşi Prison authorities drafted a medical
report concerning the applicant’s general state of health.
According to the report the applicant was suffering from a liver and
kidney condition, although he had been declared clinically healthy at
the time of his imprisonment on 1 March 1999. His illness could
however be treated in the prison hospital and the applicant had been
provided with treatment prescribed by specialist doctors. From March
2003, when he was diagnosed with the liver condition, he was provided
with adequate food for his illness. The report stated that, although
the applicant’s disease was discovered after he had been
detained, the exact moment he contracted it could not be established.
According to the report the applicant was suffering from chronic
diseases which were continuing to progress, often without symptoms.
Diagnosis would have been possible only by thorough medical
examination, which had not been done at the time of his imprisonment.
Lastly, the report concluded that the applicant’s illness had
been caused by a number of external factors, including lack of
adequate nourishment and alcohol consumption prior to his
imprisonment and was not connected with the food he received in
detention.
- In
view of his state of health, on 25 February 2004 the applicant lodged
a request with B.G., the judge responsible for the execution of
sentences, for a water heater so that he could prepare herbal teas in
his cell. His request was dismissed on 26 February 2004 on the ground
that the specialist doctor had not recommended that the applicant use
herbal tea as part of his treatment.
- On
25 May 2006 the Argeş Commission for People with Disabilities
diagnosed the applicant with a Category 2 disability on account of
his pulmonary fibrosis.
- On
26 May 2006 the applicant brought proceedings before the Argeş
County Court seeking release from his prison sentence on medical
grounds.
- By
a judgment of 28 November 2006 the Argeş County Court dismissed
the applicant’s action, on the ground that he had twice refused
to have a medical expert assessment and afterwards he had withdrawn
his request. There is no evidence in the file that the applicant
appealed against the judgment.
- According
to a medical expert report of 23 July 2007 carried out by the Argeş
Pension Rights Office, the applicant was diagnosed with pulmonary
fibrosis and a personality disorder. According to the medical report
the applicant had been an employee of the Oltchim Chemical Plant in
Râmnicu-Vâlcea and had repeatedly been exposed to toxic
fumes. For two years prior to the date of the report the applicant
had been experiencing several symptoms of pulmonary fibrosis,
including, inter alia, the sensation of a constricted thorax
and physical anaemia.
- On
29 August 2007 the Argeş Pension Rights Office issued a decision
concerning the applicant’s ability to work on the basis of the
findings of the medical expert report of 23 July 2007. According to
the decision the applicant was suffering from a Category 2 work
disability.
- A
medical examination was carried out on 9 December 2009.
Between 17 May 2007 and 9 June 2009 the applicant was hospitalised
five times in Colibaşi Prison Hospital and he received treatment
for his medical problems. Also, at the time of the examination he had
been prescribed neuroleptic treatment, which he was refusing to take.
He was also suffering from a Category 3 work disability.
4. Complaints against the prison administration
concerning the material conditions of detention and the refusal of a
stamp
- During
2004 and 2006 the applicant made numerous complaints concerning
conditions of detention, including allegations of poor medical
treatment.
- On
4 February 2004 the applicant brought proceedings against the
authorities of Colibaşi Prison as a result of the prison
authorities’ refusal to issue him with a stamp for an envelope
addressed to the Court, the quality of the food, overcrowding, lack
of proper diet and lack of treatment for his medical conditions. He
relied on Government Emergency Ordinance 56/2003 on the
execution of prison sentences.
- On
26 February 2004 the National Prison Authority investigated the
applicant’s complaints lodged on 4 February 2004 and found,
inter alia, that the applicant’s requests from 24
November and 4 December 2003 had been dismissed by reasoned
decisions. Moreover, from 12 April 2002 the applicant had been
detained in the new Section IV of the prison, which had been opened
in April 2002 and built in accordance with European norms.
Furthermore, from 6 June 2002 the applicant had been detained in
cell 423 and the available statistical data showed that no
overcrowding had been recorded in that cell since 2 March 2003. The
report does not contain details of the number of detainees housed in
cell 423, the size of the cell or the conditions in it prior to 2
March 2003.
- On
15 April 2004 the applicant was allegedly told to report to
General B. of the former General Prisons Authority and forced to
state that he would withdraw his complaint against the Colibaşi
Prison authorities on the ground that the applicant was now
requesting to be transferred to another prison in order to work.
- The
applicant’s statement reads as follows: “ state that
before the Piteşti District Court I have a case against the
Colibaşi Prison authorities concerning ill-treatment, illness
caused by very poor food and refusal to provide me with a stamp for a
letter addressed to the Court, on the ground that I had money. I
withdraw my complaints for the following reasons: the food has
improved and I want to be transferred to Mărgineni Prison in
order to work in the factory, as I have a long sentence and I want to
earn money”. In July, October and December 2004 the applicant
was transferred three times to Mărgineni Prison to attend
hearings in proceedings he was a party to.
- On
29 April 2004 the Piteşti District Court acknowledged that the
applicant had withdrawn his complaint.
- On
26 April 2004 the applicant was informed, following a letter
addressed by him to the Romanian President, that his complaint about
the conditions of his detention had been forwarded to the National
Prisons Authority for investigation. The latter informed the
applicant that his complaints had not been upheld.
- The
applicant stated that he was constantly under threat and
psychological pressure from the prison administration. In particular,
Captain C.A. (head of Section IV of the prison) and Lieutenant
N.A. (head of the re-education department) repeatedly threatened him
with serious consequences if he continued to lodge complaints about
the conditions of his detention. There is no evidence in the file
that the applicant lodged any complaints against C.A. and N.A.
- On
22 March 2006 the applicant lodged a criminal complaint with the
Argeş Prosecutor’s Office against the Colibaşi Prison
authorities, alleging torture and inhuman treatment on account of the
conditions of detention. He argued that the food was inadequate for
his medical condition; the cells were overcrowded, poorly lit and
cold, with no running water during the summer, and that the transport
conditions were inadequate. After evidence was heard from him the
Argeş Prosecutor’s Office informed the applicant on 18
April 2006 that his complaint had been referred to the National
Prisons Authority.
- On
23 May 2006 the National Prisons Authority informed the applicant
that his complaints had not been upheld. Nevertheless, the applicant
stated that the National Prisons Authority had failed to hear him and
to carry out an inspection of his cell and of the prison wing.
- Numerous
similar complaints were also sent to various other authorities, such
as the Romanian Parliament and the Human Rights Committee of the
Romanian Chamber of Deputies; several letters were sent to members of
the above-mentioned committee and the Delegation of the European
Commission in Romania. The applicant’s complaints were referred
to the National Prisons Authority, which did not uphold any of the
allegations.
- On
18 June 2006 the applicant lodged a complaint with the Piteşti
County Court against the Colibaşi Prison authorities about
inhuman and degrading conditions of detention. The applicant
complained that the overcrowded conditions, inappropriate food, lack
of appropriate medical treatment, lack of drinking water during the
day, extreme heat in his cell, overcrowded conditions of transport to
court hearings and lack of exercise had damaged his health. Further,
he argued that he had been forced to abandon his Christian Orthodox
religion on the ground that he was not allowed to attend religious
services in the prison’s Orthodox church.
- By
a final judgment of 27 September 2007 the Piteşti District Court
decided, on the basis of the provisions of Law no. 275/2006 (“the
Execution of Sentences Act 2006”), to refer the applicant’s
case to the judge responsible for the execution of sentences attached
to Colibaşi Prison.
- On
26 September 2007 the prison authorities proceeded to investigate the
applicant’s complaints of 18 June 2006 in respect of the
conditions of detention. They visited cell 204, where the applicant
was detained, and according to the record of the visit drafted on the
same day they found that the cell measured 10.02 m long by 5.65 m
wide and 4.23 m high. The room had forty-five beds and housed
thirty-six detainees. The authorities also found that eight detainees
had attested to the quality of the food between January and September
2007.
- On
6 November 2007 the applicant was heard by the judge responsible for
the execution of sentences attached to Colibaşi Prison. At the
hearing the applicant signed a declaration stating that he would like
to withdraw his complaint of his own free will and without being
pressured to do so.
- In
his letter of 25 January 2008, the applicant informed the Court that
prior to his hearing before the judge responsible for the execution
of sentences he had been contacted by the prison warden and
threatened with serious consequences if he failed to withdraw the
complaint. Lastly, at the hearing before the judge he was allegedly
under psychological pressure from the judge himself, to state in
writing that he wished to withdraw the complaint. There is no
evidence in the file that the applicant lodged any complaints against
the prison warden or the judges responsible for the execution of
sentences.
- On
18 March 2008 the applicant lodged a complaint with the judge
responsible for the execution of sentences attached to the Colibaşi
Prison concerning the detention conditions in cell 205, where he was
detained at the time. He claimed that the room did not have the
necessary facilities for the detainees to store their food and
personal belongings, the volume of air for each detainee was
insufficient and the room was infested with cockroaches as a result
of the poor state of hygiene.
- On
19 March 2008 the applicant was summoned before the judge responsible
for the execution of sentences attached to Colibaşi Prison for a
hearing in respect of his complaints. In a written statement
submitted to the judge the same day, the applicant withdrew his
complaint without giving any reasons.
- On
24 March 2010 the National Prisons Authority dismissed the
applicant’s complaint concerning his inability to work
addressed to the President of Romania and referred it to the National
Prisons Authority for investigation. The National Prisons Authority
grounded their decision on the medical report of 8 December 2009
classifying the applicant as unfit to work on account of his medical
condition.
- In
a letter of 20 May 2011 the applicant informed the Court that he has
been released from Colibaşi Prison on 14 May 2011.
5. Other proceedings
- By
a final judgment of 12 November 2004 the Vâlcea County Court
dismissed as ill-founded the action brought by the applicant against
third parties seeking to contest the enforcement of the award of
civil damages granted by the domestic courts to third parties
following the applicant’s conviction for murder. The court held
that the enforcement proceedings had been lawful.
- By
a final judgment of 13 July 2005 the Court of Cassation dismissed as
ill-founded the applicant’s action seeking a stay of execution
of his sentence for family reasons, citing a need to supervise one of
his daughters, as she was exhibiting inappropriate social behaviour
and had dropped out of school. On the basis of a social investigation
and expert reports the court found that the applicant’s
daughters had been placed under the care and supervision of the
applicant’s parents, where they were being properly looked
after. The court ruled that continuing with the execution of the
applicant’s sentence would not have any consequences for his
family, as the applicant had abandoned his daughters in 1997 after
the death of their mother and had moved in with another woman, whom
he later murdered. The Court ruled that the applicant had neither the
child-rearing skills nor the moral authority to contribute to the
improvement of his daughter’s upbringing.
- On
an unspecified date in 2005 the applicant brought a second set of
proceedings seeking a stay of execution for family reasons.
- By
a judgment of 21 February 2006 the Piteşti Court of Appeal
dismissed the applicant’s action on the ground that according
to the social assessment carried out by the authorities the
applicant’s family did not have any material or health-related
problems, his daughters were being properly cared for by the
applicant’s mother, and his younger daughter had started going
to school again and was a good student. There is no evidence in the
file that the applicant appealed against the judgment.
- By
a final judgment of 18 January 2006 the Vâlcea County Court
dismissed as ill-founded the applicant’s criminal complaint
with civil claims brought against the journalist M.D. for insult
following a press article written by the third party reporting the
murder committed by the applicant. The domestic court held that the
third party had informed the general public in an objective and
professional way about the crime committed by the applicant and had
relied on the evidence produced by the preliminary investigation
carried out by the police, without referring to any false or
compromising statements. Also, the applicant had been convicted of
the crime reported in the article, and sentenced by a final court
judgment after a public criminal trial. Furthermore, the third party
exercised her right to freedom of speech understood in the context of
the freedom of the press and observed the citizens’
constitutional right to be informed about events with a major social
impact.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of Law no. 23/1969 on the execution of sentences
(“the Execution of Sentences Act 1969”) are described in
Năstase-Silivestru v. Romania, (no.
74785/01, §§ 23-25, 4 October 2007).
- The
Government’s Emergency Ordinance. 56 of 25 June 2003
regarding the rights of prisoners states, in section 3, that
prisoners have the right to bring legal proceedings before a court
concerning measures taken by prison authorities in connection with
their rights. Ordinance 56/2003 has been repealed and replaced by Law
no. 275 of 20 July 2006 (“the Execution of Sentences Act
2006”), which has restated the content of section 3
mentioned above in its Article 38, which provides that a judge shall
have jurisdiction over complaints by convicted prisoners against
measures taken by prison authorities (see also Petrea v. Romania,
no. 4792/03, §§ 21-23, 29 April 2008).
1. Civil Code
73. Articles
998 and 999 of the Civil Code provide that any person who has
suffered damage can seek redress by bringing a civil action against
the person who has intentionally or negligently caused that damage.
2. Case-law of the domestic courts
- The
Government submitted three final judgments (of 31 January 2006
and 21 March and 31 July 2007) delivered by the Bucharest District
Court, one final judgment (of 12 April 2005) delivered by the Arad
District Court, and one judgment (of 31 March 2005) delivered by the
Giurgiu District Court, concerning proceedings brought by detainees
against Rahova, Arad and Giurgiu Prisons on the basis of Emergency
Ordinance 56/2003, seeking court orders for adequate medical
treatment, treatment during transfer to courts, for accommodation
with non-smoking detainees, visiting rights and stomatological
treatment. There is nothing in the file to indicate whether the
judgment of 31 March 2005 of the Giurgiu District Court was final.
- Relying
on the provisions of the domestic legislation concerning the
execution of prison sentences and the evidence available in the
files, the domestic courts allowed the detainees’ claims.
III. REPORTS ON THE CONDITIONS OF DETENTION IN ROMANIAN
PRISONS
- The
relevant findings and recommendations of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) are described in
Bragadireanu v. Romania (no. 22088/04, §§
73-76, 6 December 2007), and Artimenc v. Romania
(no. 12535/04, §§ 22-23, 30 June
2009).
- The
CPT report published on 11 December 2008, following a visit to
different police detention facilities and prisons in Romania
conducted from 8 to 19 June 2006, indicated overcrowding as a
persistent problem. The same report concluded that in the light of
the deplorable material conditions of detention in some of the cells
of the establishments visited, the conditions of detention could be
qualified as inhuman and degrading.
In
the same report, the CPT declared itself gravely concerned by the
fact that a lack of beds remained a constant problem, not only in the
establishments visited but at national level, and that this had
remained the case since its first visit to Romania in 1999. The CPT
also welcomed the changes introduced in domestic legislation
providing for personal space of 4 sq. m for each prisoner.
The CPT therefore recommended that the Romanian authorities take the
necessary measures to ensure compliance with this requirement, as
well as to ensure that each detainee had his or her own bed.
- There
is no CPT report concerning Colibaşi Prison. However, a Romanian
NGO, APADOR-CH (Association for the Defence of Human Rights in
Romania – the Helsinki Committee) visited this establishment on
26 April 2007. The report prepared following this visit
indicated that, on the basis of the information submitted by the
authorities, it could be ascertained that the total cell area was
1,170 sq. m., a quarter of the minimum area recommended by the
European Committee for the Prevention of Torture and Inhumane or
Degrading Treatment (CPT), which is 4 sq. m per detainee. As regards
the prison’s
lavatories they were in rather poor condition in the
areas visited – in a bad state of repair, unhygienic, not
working properly, and so on.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the physical conditions of his detention
and of a lack of adequate medical treatment in Colibaşi Prison.
He alleged, in particular, overcrowding, unhygienic sanitary
facilities, lice, extreme cold during winter, lack of running water
and lack of activities. Moreover, he complained that at the time he
was imprisoned he had been clinically healthy but that during
detention he had been diagnosed with various conditions and with a
Category 2 disability. Furthermore, he stated that he had not been
treated adequately and his repeated requests for medicines had been
refused, with lack of funds given as the reason. He relied on Article
3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Complaint concerning the material conditions of
detention
1. Admissibility
(a) The parties’ submissions
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies, in so far as the applicant had not complained to
the authorities of the conditions of his detention on the basis of
Emergency Ordinance no. 56/2003 and subsequently on the basis of the
Execution of Sentences Act 2006, or he had repeatedly withdrawn his
complaints. They argued that the remedy was effective having regard
to the five domestic court judgments submitted before the Court (see
Relevant domestic law and practice, §§ 74-75). In addition,
they submitted that the applicant could have lodged a general tort
law action on the basis of Articles 998-999 of the Romanian Civil
Code seeking to establish the prison authorities’ liability for
the difficult conditions of detention. They argued that the latter
remedy was also efficient, sufficient and accessible.
- The
applicant disagreed.
(b) The Court’s assessment
- The
Court notes that the applicant’s complaint concerns the
material conditions of his detention, in particular, inter alia,
overcrowding and poor sanitary facilities. In this respect, it notes
that in recent applications lodged against Romania and concerning
similar complaints it has already found that, given the specific
nature of this type of complaint, the legal actions suggested by the
Government, including a general tort law action, do not constitute
effective remedies (see Petrea, cited above, § 37; Eugen
Gabriel Radu v. Romania, no. 3036/04, § 23, 13
October 2009; Iamandi v. Romania, no. 25867/03,
§ 49, 1 June 2010; Cucolaş v. Romania, no. 17044/03,
§ 67, 26 October 2010; Ogică v.
Romania, no. 24708/03, § 35, 27 May 2010; and
Dimakos v. Romania, no. 10675/03, § 38, 6 July
2010).
- The
Court further notes that the five domestic decisions submitted by the
Government in support of its plea of non-exhaustion, of which only
four are final, relate to specific rights of prisoners, such as the
right to medical assistance or the right to receive visits, but that
they do not relate to structural issues, such as overcrowding.
Moreover, the Government have not submitted any domestic court
judgments supporting their argument that a general tort law action on
the basis of Articles 998-99 of the Romanian Civil Code seeking to
establish the prison authorities’ liability for the difficult
conditions of detention would have been effective.
- The Court therefore concludes that the judgments
submitted by the Government do not indicate how the legal actions
proposed by them could have afforded the applicant immediate and
effective redress for the purposes of his complaint (see, mutatis
mutandis, Marian Stoicescu v. Romania, no. 12934/02,
§ 19, 16 July 2009, and Ogică v. Romania, cited
above, § 35).
- It
therefore rejects the Government’s plea of non-exhaustion of
domestic remedies in respect of the applicant’s complaint
concerning the material conditions of detention in Colibaşi
Prison.
- Finally,
the Court notes that the applicants’ complaint concerning the
material conditions of detention is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) The parties’ submissions
- The
Government, referring to their description of the detention
conditions submitted before the Court (paragraphs 15-25 above),
contended that the domestic authorities had taken all necessary
measures to ensure adequate conditions of detention and that the
applicant’s complaint was groundless. They further stressed
that there was no evidence in the file that the applicant had been
pressured by the prison authorities to withdraw his complaints, and
that in any event he had failed to lodge any complaints against the
prison authorities in this regard. Lastly, they argued that the
applicant did not submit any relevant evidence to support his
assertion that he was subjected to physical or mental ill-treatment
during his detention.
- The
applicant disagreed. He argued that the Romanian Government had
failed to submit to the Court any information with regard to the
cells where he had been detained, the period of time he had spent in
each cell and the number of detainees occupying the cells he was in.
Moreover, they also failed to submit any copies of their daily report
on the quality and quantity of the food, or of their reports
concerning the disinfection of the detention cells.
(b) The Court’s assessment
- The
Court reiterates that Article 3 enshrines one of the most fundamental
values of democratic societies. The Convention prohibits in absolute
terms torture and inhuman or degrading treatment or punishment,
irrespective of the victim’s conduct (see Labita v. Italy
[GC], no. 26772/95, § 119, ECHR 2000-IV).
- Measures
depriving a person of his liberty may often involve an inevitable
element of suffering or humiliation. Nevertheless, the suffering and
humiliation involved must not go beyond the inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment.
- In
the context of prisoners, the Court has already emphasised in
previous cases that a detained person does not, by the mere fact of
his incarceration, lose the protection of his rights guaranteed by
the Convention. On the contrary, people in custody are in a
vulnerable position and the authorities are under a duty to protect
them. Under Article 3 the State must ensure that a person is detained
in conditions which are compatible with respect for his 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 Valašinas v.
Lithuania, no. 44558/98, § 102, ECHR 2001 VIII,
and Kudła v. Poland [GC], no. 30210/96, § 94,
ECHR 2000-XI).
- 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 others, Alver v. Estonia,
no. 64812/01, 8 November 2005).
- A serious lack of space in a prison cell weighs
heavily as a factor to be taken into account for the purpose of
establishing whether detention conditions described are “degrading”
from the point of view of Article 3 (see Karalevičius v.
Lithuania, no. 53254/99, 7 April 2005).
- In previous cases where applicants had at their
disposal less than 3 sq. m of personal space, the Court has
found that the overcrowding was so severe as to justify of itself a
finding of a violation of Article 3 of the Convention (see, among
many others, Lind v. Russia, no. 25664/05, § 59,
6 December 2007; Kantyrev v. Russia, no. 37213/02, §
50-51, 21 June 2007 and Brânduşe v. Romania,
no. 6586/03, § 50, CEDH 2009 (extracts)).
- By
contrast, in other cases where the overcrowding was not so severe as
to raise in itself an issue under Article 3 of the Convention, the
Court has noted other aspects of the physical conditions of detention
as relevant for its assessment of compliance with that provision.
Such elements have included, in particular, the availability of
ventilation, access to natural light or air, adequacy of heating
arrangements, compliance with basic sanitary requirements and ability
to use the toilet in private. Thus, even in cases where a larger
prison cell was at issue – measuring in the range of 3 to
4 sq. m per inmate – the Court has found a violation
of Article 3 because the space factor was coupled with an established
lack of ventilation, lighting or appropriate hygiene conditions (see,
for example, Babushkin v. Russia, no. 67253/01,
§ 44, 18 October 2007; Ostrovar v. Moldova, no. 35207/03,
§ 89, 13 September 2005; Peers v. Greece, no.
28524/95, §§ 70-72, ECHR 2001-III; Flamînzeanu
v. Romania, no. 56664/08, § 98, 12 April 2011,
not final and Iamandi v. Romania, no. 25867/03, §§ 59-61,
1 June 2010), or lack of basic privacy in a prisoner’s
everyday life (see, mutatis mutandis, Belevitskiy v.
Russia, no. 2967/01, §§ 73-79, 1 March 007;
Valašinas, cited above, § 04;
Khudoyorov v. Russia, no. 847/02, §§
06 and 107, ECHR 2005 X (extracts); and Novoselov v. Russia,
no. 66460/01, §§ 32, 40-43, 2 June 2005 and Iamandi,
cited above, § 61).
- The
Court observes that Convention proceedings, such as the present
application, do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he
who alleges something must prove that allegation) because in certain
instances the respondent Government alone have access to information
capable of corroborating or refuting these allegations. A failure on
a Government’s part to submit such information without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of the applicant’s allegations (see
Kokoshkina v. Russia,
no. 2052/08, § 59, 28 May 2009).
- The
focal point in the case at hand is the assessment by the Court of the
living space afforded to the applicant in Colibaşi Prison, where
the applicant spent most of his sentence.
- The
Court notes that the applicant did not contradict the Government’s
submissions on the size of the cells. What is contested between the
parties is the real occupancy of those cells: while the Government
submitted that the cells were not overcrowded, the applicant
disagreed.
- However,
even at the occupancy rate put forward by the Government, the
applicant’s living space for the approximately eleven years he
spent in Colibaşi Prison seems to have been consistently below
3 sq. m and sometimes even below 1.6 sq. m (see paragraph
59 above), which falls short of the standards imposed by the Court’s
case-law (see Kokoshkina, cited above, § 62, and
Orchowski v. Poland, no. 17885/04, § 122, ECHR 2009
(extracts)). The Court further underlines that, in reality, these
figures are even lower, taking into account that the cells also
contained various items of furniture. The amount of outdoor exercise
claimed by the Government to have been available to the applicant,
cannot compensate, in this case, for the severe lack of personal
space (see, a contrario, Sulejmanovic v. Italy,
no. 22635/03, §§ 8-49, 16 July
2009).
- Moreover,
the applicant’s description of the overcrowded conditions
corresponds to the general findings by the CPT in respect of Romanian
prisons (see paragraphs 76-77 above).
- Furthermore,
the Court considers that, in comparing each party’s claims
regarding the sanitary conditions with the findings of the CPT
reports in respect of overcrowded prison facilities and the findings
of the report of the national branch of the Helsinki Committee in
respect of Colibaşi Prison (see paragraph 78 above), it can only
conclude that the applicant was also deprived of the ability to
maintain adequate bodily hygiene in prison.
- The Court has frequently found a violation of Article
3 of the Convention on account of lack of personal space afforded to
detainees and unsatisfactory sanitary conditions (see, in particular,
Ciorap v. Moldova, no. 12066/02, § 70, 19
June 2007; Kalashnikov v. Russia, no. 47095/99, §§ 97
et seq., ECHR 2002-VI; Petrea, cited above, §§ 49-50;
Răcăreanu v. Romania, no. 14262/03, §§
49-52, 1 June 2010 and Ali v. Romania, no. 20307/02,
§ 83, 9 November 2010).
In
the case at hand, the Government failed to put forward any argument
that would allow the Court to reach a different conclusion.
- Even
though in the present case there is no indication that there was a
positive intention to humiliate or debase the applicant, the Court
concludes that the conditions of his detention caused him suffering
that exceeded the unavoidable level of suffering inherent in
detention and that attained the threshold of degrading treatment
proscribed by Article 3.
There
has accordingly been a violation of Article 3 of the Convention.
- Taking
into account this finding, the Court does not consider it necessary
to examine further the remaining issues of his complaint concerning
the material conditions of detention.
B. Complaint concerning the alleged lack of medical
treatment
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies, in so far as the applicant had not complained or
pursued his complaints before domestic courts in respect of the lack
of adequate medical treatment in Colibaşi Prison on the basis of
Emergency Ordinance no. 56/2003 and subsequently on the basis of the
Execution of Sentences Act 2006.
- The
applicant disagreed and argued that he had been constantly pressured
by the prison authorities to withdraw his complaints.
- The
Court has already had the opportunity to examine a similar objection
raised by the Government in the case of Petrea, cited above.
It concluded that before the entry into force of Emergency Ordinance
no. 56/2003, on 25 June 2003, there had been no effective remedy
for the situation complained of by the applicant. However, after that
date, those in the applicant’s situation had had an effective
remedy for their complaints of lack of medical treatment, even if
their applications were already pending with the Court at the
relevant date (see Petrea, cited above, §§ 35-36).
- The
Court sees no reason to depart in the present case from the
conclusions it reached in Petrea.
- It
therefore considers that after the entry into force of Emergency
Ordinance 56/2003, the applicant should have lodged or continued
his complaints with the domestic courts about the alleged lack of
medical treatment. His two requests for early release, which in any
event the applicant did not appear to have appealed against, do not
satisfy these conditions.
- Moreover,
the Court notes that, in spite of the applicant’s allegations,
it does not transpire from the available
material that the applicant was pressured by the domestic authorities
to withdraw any of his complaints concerning lack of adequate medical
treatment, nor that he was denied medication on account of lack of
funding. It appears that, although he was a party to numerous sets of
proceedings, the applicant did not bring court proceedings against
any of the members of the prison administration who allegedly
pressured him into withdrawing his complaints. Furthermore, according
to the applicant’s medical file, he was examined
regularly by doctors, his condition was monitored and he was
prescribed and administered medication during his detention.
- Further,
the Court finds no evidence in the file of a potential breach of the
applicant’s right to receive medical treatment during detention
for the period before the entry into force of Emergency Ordinance no.
56/2003.
- It
follows that the applicant’s complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE
CONVENTION
- The
applicant complained that his right to
correspondence and his right to individual petition with the Court
had been infringed, in so far as between November and December 2003
the prison authorities refused his request for a stamp and a copy of
a document he wanted to submit to the Court. Moreover, he was
allegedly threatened by the prison authorities to induce him to
withdraw his complaint brought before domestic courts on the basis of
Emergency Ordinance no. 56/2003. He relied in
substance on Articles 8 and 34 of the Convention taken alone or
together.
- Having
regard to the applicant’s submissions and the circumstances of
the present case, the Court considers that the applicant’s
complaint must be examined under Article 34 of the Convention, taken
alone, which reads as follows:
Article 34
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies in so far as although the applicant complained
before domestic courts on the basis of Emergency Ordinance no.
56/2003 in respect of the failure of the domestic authorities to
provide him with a stamp, he eventually withdrew his complaint.
- The
applicant disagreed, and argued that he was pressured by the prison
authorities to withdraw his complaint.
- The
Court notes that from the outset the applicant was able to obtain
copies of documents in support of his application and submit them to
the Court at the early stages of his application (paragraphs 31-32,
above). Moreover, the Court notes that the domestic authorities
refused the applicant’s requests for a stamp and for a copy of
his request for a stamp on 26 November and 13 December 2003,
after the entry into force of Emergency Ordinance 56/2003 on 25 June
2003.
- Even
assuming that the prison authorities had an obligation to provide the
applicant with free stamps, the Court reiterates that in the case of
Petrea, cited above, it has already held that after the entry
into force of Emergency Ordinance no. 56/2003 those in the
applicant’s situation had an effective remedy to complain about
alleged interference with their right to correspondence with the
Court (see Petrea, cited above, § 36, and
Măciucă v. Romania, no. 25763/03, §
31, 26 May 2009). The Court notes that although the applicant brought
proceedings before the domestic courts complaining about the refusal
of the authorities to provide him with a stamp, he eventually
withdrew his complaint.
- In
respect of the applicant’s allegation that he had been
pressured by the prison authorities to withdraw his complaint, the
Court sees no reason on the basis of the evidence available in the
file to depart from its finding (see paragraph 110 above) concerning
the applicant’s identical allegation in respect of his
complaint of lack of medical treatment.
- It
follows that the applicant’s complaint should be rejected as
manifestly ill-founded on the basis of Articles 35 §§ 3 and
4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 5 § 1 (c) of the Convention
that an arrest warrant issued against him during the criminal
proceedings which ended on 4 February 2000 was unlawful. Furthermore,
he complained under Articles 6 § 1 of the Convention that the
criminal proceedings which ended on 4 February 2000 had been unfair,
as had been the outcome of the proceedings which had ended with the
final judgments of 12 November 2004, 13 July 2005 and 18
January 2006. Lastly, the applicant complained under Article 13 of
the Convention that the Vâlcea County Court had allegedly
failed to consider his appeal during the course of the proceedings
which ended with the final judgment of 12 November 2004.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as they fall within its jurisdiction, the Court finds that
these complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 50,000 euros (EUR) in respect
of damage.
- The
Government considered the sum claimed by the applicant to be
excessive and argued that there was no causal link between the
alleged violations and the damages sought. They submitted that that a
finding of a violation would constitute sufficient just satisfaction
in the case.
- The
Court notes that it has found a violation of Article 3 in the present
case. In these circumstances, the Court considers that the
applicant’s suffering and frustration cannot be compensated for
by a mere finding of a violation. Making its assessment on an
equitable basis, the Court awards the applicant EUR 16,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses.
C. Default interest
- 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
- Declares the complaint concerning Article 3, in
so far as it concerns the material conditions of detention in
Colibaşi Prison, admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 16,000 (sixteen thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into the respondent State’s national currency
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
