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THIRD
SECTION
CASE OF RĂDUCANU v. ROMANIA
(Application
no. 17187/05)
JUDGMENT
STRASBOURG
12 June
2012
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 Răducanu v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Nona
Tsotsoria,
Kristina Pardalos, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17187/05) 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 Nicolae Răducanu
(“the applicant”), on 29 April 2005.
- The
applicant was represented by Ms Nicoleta Tatiana Popescu, a lawyer
practising in Bucharest and by APADOR-CH (the Association for the
Defence of Human Rights in Romania – the Helsinki Committee),
an association based in Bucharest. The Romanian Government
(“the Government”) were represented successively by
their Agent, Mr Răzvan-Horaţiu Radu and their
co-Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.
- As
Mr Corneliu Bîrsan, the judge elected in respect of Romania,
had withdrawn from the case (Rule 28 of the Rules of Court), the
President of the Chamber appointed Mrs Kristina Pardalos to sit as ad
hoc judge (Article 26 § 4 of
the Convention and Rule 29 § 1 of the Rules of Court).
- The
applicant alleged, in particular, that the material conditions of
detention in Ploieşti Prison and the lack of adequate medical
care for the venous thromboses in his legs had breached his rights
guaranteed by Article 3 of the Convention.
- On
15 June 2010 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 1958 and lives in Ploieşti, Romania.
Criminal proceedings opened against the applicant
- On
27 February 1997 the Prahova Prosecutor’s Office brought
criminal proceedings against the applicant for first degree murder
following the death of a third party whom the applicant had stabbed.
- On
4 March 1997 the applicant was detained pending trial at the Prahova
Police Department.
- On
6 June 1997 the Prahova Prosecutor’s Office committed the
applicant for trial before the Prahova County Court on charges of
first degree murder.
- By
a judgment of 7 October 1997 the Prahova County Court convicted the
applicant and sentenced him to twenty-two years’ imprisonment
on the basis of documentary, testimonial, expert and forensic
evidence. The applicant appealed against the decision.
- By
a judgment of 13 January 1998 the Ploieşti Court of Appeal
dismissed the applicant’s appeal on the merits and upheld the
judgment of 7 October 1997. The applicant allegedly appealed on
points of law (recurs) against the judgment to the Court of
Cassation.
- On
11 February 1998 the Registry of the Court of Cassation informed
the applicant, following his enquiry, that there was no file
concerning him pending before the said court. The judgment of
13 January 1998 was final.
Conditions of detention in Ploieşti Prison and medical
treatment
- On
19 March 1997 the applicant was detained in Ploieşti Prison. The
applicant served his prison sentence in that prison until
2 December 2008 when he was transferred to other prison
facilities in Romania; he did not return to Ploieşti Prison.
- Between
19 March 1997 and 2 December 2008 the applicant was
transferred repeatedly from Ploieşti Prison to other prison
facilities for medical examinations and treatment or in order to
appear before domestic courts. For example, he spent time in Colibaşi
Prison Hospital (from 19 May to 4 June 2004), Jilava
Prison Hospital (from 10 to 20 November 2000; 26 January
to 13 February 2001; 18 October to 21 November 2005;
6 to 17 July, 21 to 31 August, 7 September to
13 November, and 14 to 20 December 2007; and from 4 to
17 March 2008) and Rahova Prison Hospital (from 29 March
to 6 April, 14 to 20 June, and 11 to 17 October 2005;
22 to 28 August 2006; and from 19 to 22 February 2008).
- According
to his medical file, between 4 March 1997 and
1 October 2010 the applicant was examined and was provided
treatment and a special diet for various medical conditions including
venous thromboses in civilian hospitals and in Ploieşti, Jilava,
Rahova, Dej, Colibaşi and Mărgineni Prison Hospitals.
- According
to a record made on 10 November 2000 in the applicant’s
medical file by the examining doctor, he had been suffering from
venous thromboses for four years and had received treatment for the
condition.
- Forensic
medical reports produced by the Mina Minovici Forensic Institute and
by the Prahova County Forensic Medical Service on 14 May 2001
and 17 July 2003 respectively stated that the applicant was
suffering from venous thromboses in his legs, an acute ulcer for
which no surgery was recommended, and antisocial personality
disorder. They concluded that these conditions could be treated in
prison hospitals.
- The
forensic medical reports produced by the Târgovişte County
Forensic Medical Service and by the Mina Minovici Forensic Institute
on 3 November 2004 and 30 November 2005
respectively noted that the applicant was suffering inter alia
from peripheral vascular disease and chronic venous thromboses. They
concluded that he could be treated in prison hospitals, and
consequently, his temporary release from prison on medical grounds
was unjustified. The report of 3 November 2004 recommended
that the peripheral vascular disease be monitored in a cardiovascular
clinic if the applicant’s medical condition so required.
- In
a letter of 12 June 2006 to the Court the applicant stated,
inter alia, that he was in danger of losing his legs. He
argued that he had become ill after he was detained because of the
poor food and inappropriate detention conditions
in Ploieşti Prison. In addition, he contended that the
conditions of detention in Prahova Police Department were inhuman,
but he failed to provide any additional information.
- In
a letter of 18 September 2006 to the Court the applicant
stated that on an unspecified date in 1999 he had developed
thromboses in his legs. The applicant alleged that he had developed
the condition on account of the detention conditions in Ploieşti
Prison, in particular the lack of physical exercise, overcrowding,
lack of water and poor nutrition. He also informed the Court that the
lack of medication had aggravated his condition and that although he
had been transferred several times from Ploieşti Prison to
civilian and prison hospitals across the country for treatment and
surgery, the lack of medicines and budget to pay for the medical
expenses had made it impossible for him to be treated.
- In
the same letter of 18 September 2006 the applicant
contended that his condition had reached the final stage of
development and that his legs might have to be amputated.
- The
forensic medical reports produced by the Prahova County Forensic
Medical Service and by the Mina Minovici Forensic Institute on 24 May
and 9 August 2007, respectively, stated that the applicant
was suffering from inter alia chronic venous thromboses in his
legs. The reports concluded that he could be treated both in prison
and civilian hospitals and that his medical condition could not
justify his temporary release from prison.
- On
14 September 2011 the Government informed the Court that on
6 September 2011 there were a total of 578 beds in Ploieşti
Prison for 619 detainees, resulting in an occupancy rate of 107.09%.
Proceedings seeking temporary release from prison
- On
an unspecified date the applicant brought proceedings against the
Ploieşti Prison authorities seeking temporary release from
prison on account of his family situation.
- By
a judgment of 20 January 1999 the Prahova County Court
dismissed the applicant’s action on the ground that he could
not provide for his family in the short period of time allowed by law
for staying the execution of a sentence and the State could provide
support for his family if needed. The applicant’s appeal and
appeal on points of law against the judgment were dismissed as
ill-founded by the Ploieşti Court of Appeal on 1 March 1999
and by the Court of Cassation on 30 June 1999 respectively.
- On
an unspecified date in 2003 the applicant brought proceedings against
the Ploieşti Prison authorities seeking temporary release from
prison on medical grounds.
- By
a judgment of 17 December 2003 the Ploieşti Court of
Appeal dismissed the applicant’s action on the ground that
according to the forensic medical reports available in the file his
medical problems could be treated in prison hospitals. It does not
appear from the evidence available in the file that the applicant
appealed on points of law (recurs) against the judgment.
- On
30 August 2004 the applicant brought proceedings against
the Mărgineni Prison authorities seeking temporary release from
prison on medical grounds.
- By
a judgment of 11 February 2005 the Ploieşti Court of
Appeal dismissed the applicant’s action against the Mărgineni
Prison authorities seeking temporary release from prison on the
ground that according to the forensic reports available in the file
his medical condition could be treated in prison hospitals. Moreover,
although the problems with his legs required check-ups in civilian
cardiovascular clinics, the Mărgineni Prison authorities could
take the applicant to those check-ups whenever his state of health
required it. It does not appear from the evidence available in the
file that the applicant appealed on points of law against the
judgment.
- On
an unspecified date in 2005 the applicant brought proceedings against
the Ploieşti Prison authorities seeking temporary release from
prison on medical grounds.
- By
a judgment of 5 September 2005 the Ploieşti Court of
Appeal dismissed the applicant’s action against the Ploieşti
Prison authorities seeking temporary release from prison for medical
reasons on the ground that the applicant had withdrawn his request
after he had been notified of the conclusion of the medical forensic
report produced in his case. It does not appear from the evidence
available in the file that the applicant appealed on points of law
against the judgment.
- On
an unspecified date in 2005 the applicant brought proceedings against
the Ploieşti Prison authorities seeking temporary release from
prison on medical grounds.
- By
a judgment of 27 March 2006 the Ploieşti Court of
Appeal dismissed the applicant’s action on the ground that the
detailed medical examinations he had undergone between 19 October
and 30 November 2005 at Bucharest Prison Hospital and at
the C.C. Iliescu Institute for Cardiovascular Diseases, as well as
the forensic report produced by the Mina Minovici Forensic Institute,
had established that his medical condition could be treated in prison
hospitals. The applicant did not lodge an appeal on points of law
against the judgment.
- On
an unspecified date in 2006 the applicant brought proceedings against
the Ploieşti Prison authorities seeking temporary release from
prison on account of his family situation.
- By
a final judgment of 11 May 2006 the Prahova County Court
dismissed the applicant’s action on the ground that his
allegation that his family lacked any income was contradicted by the
social services’ report available in the file.
- On
unspecified dates in 2007 and 2008 the applicant brought two more
sets of proceedings against the Ploieşti Prison authorities
seeking temporary release from prison on medical grounds. He argued,
inter alia, that his medical problems could not be
treated in prison hospitals and that he needed to be released so he
could have access to adequate treatment in civilian hospitals.
- By
a final judgment of 18 February and a judgment of
27 November 2008 respectively, the Ploieşti Court of
Appeal and the Prahova County Court dismissed the applicant’s
actions on the ground that according to the forensic medical reports
produced on 24 May 2007 by the Prahova County Forensic
Medical Service and on 9 August 2007 by the Mina Minovici
Forensic Institute the applicant could be treated in prison
hospitals. It does not appear from the evidence available in the file
that the applicant appealed against the judgment of 27 November 2008.
Other proceedings
- On
unspecified dates in 2003, 2004 and 2008 the applicant contested the
enforcement of the judgment of 13 January 1998 on the
grounds that the domestic authorities had influenced the witnesses
against him, that he had committed the offence of which he had been
convicted under special attenuating circumstances, and that the
sentence he had received was disproportionately high in relation to
the seriousness of the offence.
-
The applicant’s actions were dismissed by final judgments of
the Prahova County Court on 13 January 2003 and
27 March 2008 and of the Ploieşti Court of Appeal on
23 February 2004 on the ground that the reasons raised by
him were not among those recognised by law for contesting the
enforcement of a judgment.
- On
an unspecified date in 2004 the applicant brought proceedings against
the governor of Ploieşti Prison contesting the ten days he was
made to spend in isolation as a disciplinary measure.
- By
a final judgment of 8 April 2004 the Prahova County Court
allowed on the merits the applicant’s action against the
governor of Ploieşti Prison and reduced his punishment to seven
days in isolation.
- By
final judgments of 6 and 20 April 2004 the Ploieşti
District Court dismissed the criminal proceedings brought by the
applicant against third parties for abuse of trust on the ground that
the parties had reconciled.
- On
an unspecified date in 2005 the applicant brought proceedings seeking
conditional release on account of the fact that he had served the
amount of his sentence lawfully required to qualify for conditional
release and that his medical condition did not allow him to continue
serving his sentence.
- By
a judgment of 19 July 2005 the Ploieşti District Court
dismissed the applicant’s action for conditional release on the
ground that he had not served the amount of his sentence lawfully
required to quality for conditional release. The applicant appealed
on points of law against the judgment.
- By
a final judgment of 24 August 2005 the Prahova County Court
dismissed the applicant’s appeal on points of law against the
judgment of 19 July 2005 on the ground that he had
expressly withdrawn his appeal.
- By
an interlocutory judgment of 26 January 2009 the judge
responsible for the execution of prison sentences attached to
Mărgineni Prison dismissed on the merits the applicant’s
action contesting the decisions of the Ploieşti and Mărgineni
Prison Commissions on the Execution of Prison Sentences, delivered on
17 June and 19 December 2008 respectively, not to
change the applicant’s detention regime from a closed one to a
semi-open one. The applicant’s appeal against the interlocutory
judgment was dismissed as ill-founded by a final judgment of the
Dâmboviţa District Court on 19 March 2009.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of Law no. 23/1969 on the execution of
sentences are described in Năstase-Silivestru v. Romania,
(no. 74785/01, §§ 23-25, 4 October 2007).
- Government
Emergency Ordinance no. 56 of 25 June 2003 regarding
the rights of prisoners stated, in section 3, that prisoners had the
right to bring legal proceedings before a court concerning measures
taken by prison authorities in connection with their rights.
Emergency Ordinance no. 56/2003 was repealed and replaced by Law
no. 275 of 20 July 2006 on the execution of sentences.
It restates 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;
Gagiu v. Romania, no. 63258/00, § 42,
24 February 2009; and Măciucă v. Romania,
no. 25763/03, § 14, 26 May 2009).
Civil Code
49. 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.
Case-law of the domestic courts
- The
Government submitted approximately one hundred and fourteen judgments
delivered by the domestic courts across the country in respect of
proceedings brought by detainees against various prison facilities on
the basis of Emergency Ordinance no. 56/2003 and Law
no. 275/2006 seeking adequate medical treatment, better
treatment during transfer to courts, non smoking accommodation,
confidentiality of correspondence, stamps and envelopes, the
discontinuance of disciplinary actions taken against them, visiting
rights, conjugal visits, dental treatment, religious rights, adequate
hygiene conditions, appropriate diets, a prohibition on welding beds
to the floor, extended exercise rights, washing, working rights,
access to a personal computer and telephone conversations.
- Approximately
one hundred and four of the judgments submitted by the Government
were final and approximately twenty of them allowed in full or in
part the actions lodged by the detainees by relying on the provisions
of the domestic legislation concerning the execution of prison
sentences and the evidence available in the files. The actions
allowed by the domestic courts mainly concerned disciplinary
proceedings opened against detainees, access to adequate medical
treatment, visiting rights, the right to petition, the right to
confidentiality of correspondence, the right to daily physical
exercise (final judgment of 19 June 2007 of the Arad
District Court), the right to wash twice a week (final judgment of
7 October 2008 of the Arad District Court), the
organisation of properly ventilated designated smoking areas (final
judgment of 27 June 2008 of the Piteşti District
Court) and the right to dental treatment.
- Six
of the judgments submitted by the Government addressed the issue of
overcrowding. All six judgments dismissed the detainees’
complaints in respect of overcrowding for the following reasons: they
were detained in cells of five and six people measuring 18.8 sq. m
and 21.76 sq. m respectively (final judgments of
10 March 2009 and 3 March 2008 of the Bucharest
and Giurgiu District Courts respectively); the cell met the minimum
legal requirement of 6 cubic metres per person (final
judgment of 2 October 2007 of the Bucharest District
Court); the courts could not hold the prison administration liable in
respect of overcrowding taking into account the size of the prison
and the large number of detainees housed there (final judgment of
12 May 2010 of the Bucharest District Court); the detainee
was sharing a cell with twelve other inmates and the domestic
legislation did not provide for a minimum number of square metres
that had to be ensured for a group of detainees (final judgment of
17 September 2010 of the Bistriţa District Court); and
the detainee was subject to the prison’s internal rules
harmonised with the decision of 11 January 2006 of the
Committee of Ministers of the Council of Europe (final judgment of
4 September 2007 of the Bucharest District Court).
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 Artimenco 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,
including Ploieşti, 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 respect of Ploieşti Prison the report stated that detainees’
living space was restricted to 1.5 sq. m per person and
that some of them had to share a bed. The cells were poorly
ventilated and measures had to be taken to remedy the low standards
of kitchen hygiene and detainees’ complaints concerning poor
nutrition. Detainees had access to thirty minutes of physical
exercise per day, half the recommended one hour, and the shower
facilities were unacceptable.
- 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
welcomed the changes introduced in domestic legislation providing for
personal space of 4 sq. m (8 cubic meters) 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.
THE LAW
I. PRELIMINARY OBSERVATION
- The
Government submitted that in the applicant’s letters of
12 June 2006 (received by the Court on 14 June 2006)
he had briefly mentioned his poor state of health and given further
details only in his letter of 18 September 2006 (received
by the Court on 22 September 2006). On both occasions,
however, he had failed to complain of a violation of Article 3
of the Convention and had not informed the Court that he wanted to
raise such a complaint. In any event, the Government contended that
if the Court considered that the applicant had lodged a complaint
under Article 3 of the Convention, the date that complaint had
been lodged before the Court was 12 June 2006 and not
29 April 2005.
- The
applicant did not submit observations on this point.
- The
Court reiterates that since it is master of the characterisation to
be given in law to the facts of the case, it does not consider itself
bound by the characterisation given by an applicant or a government.
By virtue of the jura novit curia principle, it has, for
example, considered of its own motion complaints under Articles or
paragraphs not relied on by those appearing before it. A complaint is
characterised by the matters alleged in it and not merely by the
legal grounds or arguments relied on (see, mutatis mutandis,
Powell and Rayner v. the United Kingdom,
21 February 1990, § 29, Series A no. 172;
Guerra and Others v. Italy, 19 February 1998,
§ 44, Reports of Judgments and Decisions 1998 I;
and Eugenia Lazăr v. Romania, no. 32146/05,
§ 60, 16 February 2010).
- In
the present case, the Court notes that in his letter of 12 June 2006
the applicant, for the first time, referred expressly to his poor
state of health and considered the inappropriate detention conditions
responsible for his condition (see paragraph 19 above).
Moreover, in his letter of 18 September 2006 he reiterated
his statement and provided additional details about the conditions of
detention in Ploieşti Prison and the general lack of adequate
medical treatment for the venous thromboses in his legs (see
paragraph 20 above). In these circumstances and having regard to
the wording of the applicant’s letters, the Court considers
that, although he did not expressly state it, the applicant lodged a
complaint concerning the material conditions of detention in Ploieşti
Prison and the general lack of adequate medical treatment for the
venous thrombosis in his legs and that he relied in substance on
Article 3 of the Convention.
- However,
the Court shares the Government’s view that the date of
introduction of the said complaint before it was 12 June 2006.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the physical conditions of his detention
in Ploieşti Prison and of the general lack of adequate medical
treatment for the venous thromboses in his legs. He alleged, in
particular, overcrowding, a lack of water, a lack of physical
exercise and poor nutrition. Moreover, he complained that during
detention he had been diagnosed with venous thrombosis in his legs
and that he had not been treated adequately because of a lack of
medicines and budget to pay for the medical expenses. He relied in
substance 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 in
Ploieşti Prison
1. Admissibility
a) Non-exhaustion of domestic remedies
(i) Submissions of the parties
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies, in so far as the applicant had not complained to
the authorities about the conditions of his detention on the basis of
Emergency Ordinance no. 56/2003 and subsequently on the basis of
Law no. 275/2006. In addition, they pointed out that the
applicant could have lodged a general tort law action on the basis of
Articles 998-999 of the Romanian Civil Code seeking compensation
for the alleged damage. The Government considered both remedies to be
effective, sufficient and accessible.
- The
Government submitted a set of domestic decisions in support of their
observations (see paragraphs 50-52 above). They further
submitted that the Court had implicitly recognised that a general
tort law action represented an effective remedy in its decision in
Stan v. Romania ((dec.), no. 6936/03, 20 May 2008).
- The
applicant disagreed.
(ii) The Court’s assessment
- The
Court notes that the applicant’s complaint concerns the
material conditions of his detention, in particular, overcrowding and
poor nutrition. 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; and Lăutaru
v. Romania, no. 13099/04,
§ 84, 18 October 2011).
- The
Court further notes that the final domestic decisions submitted by
the Government in support of their plea of non-exhaustion relate
mainly to specific rights of prisoners, such as the right to medical
assistance or the right to receive visits. Among the domestic
decisions submitted by the Government only six of them relate to
structural issues such as overcrowding and they were all dismissed
without additional consideration of the point the detainees relied
upon concerning the lack of individual space.
- The
Court also notes that although two of the judgments submitted by the
Government allowed actions brought by detainees in respect of
physical exercise and washing rights, they remain isolated examples
and fail to prove with any certainty the existence of an effective
remedy in this respect (see mutatis mutandis Melnitis
v. Latvia, no. 30779/05, § 53,
28 February 2012).
- 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 Ploieşti
Prison.
b) Six months
(i) Submissions of the parties
- The
Government submitted that the applicant’s complaint about the
material conditions of detention in Ploieşti Prison in respect
of the period prior to 11 October 2005, when the applicant
was transferred to Rahova Prison Hospital, had been introduced too
late. They therefore proposed that this part of the application be
declared inadmissible.
- The
applicant disagreed.
(ii) The Court’s assessment
- The
Court notes that it has already examined the application of the
six-month rule in similar cases (see Seleznev v. Russia,
no. 15591/03, § 35, 26 June 2008). By
relying on relevant case-law, it established that it would not
consider detention conditions as a continuous situation in
circumstances where the complaint concerned an episode, treatment or
a particular detention regime attached to an established period of
detention. On the other hand, the situation would be considered
continuous where the complaint concerned general issues and detention
conditions that remained similar in spite of the detainee’s
transfer (see Seleznev, cited above, § 36).
- The
Court notes in the present case that the applicant complained about
the detention conditions in Ploieşti Prison. In particular, he
complained of overcrowding, a lack of water and poor nutrition. It
also notes that on 11 October 2005 the applicant was
transferred to prison hospitals, where he spent approximately one
month and two weeks (until 30 November 2005). He did not
complain about the material conditions of detention in those
hospitals. However, having regard to the length of the applicant’s
detention in Ploieşti Prison, the relative short duration of the
applicant’s transfer to prison hospitals and the fact that he
returned to Ploieşti Prison after his transfer, the Court cannot
conclude that his transfer on 11 October 2005 brought
significant changes to his detention conditions and that there was
therefore no continuous situation (see mutatis mutandis Eugen
Gabriel Radu, cited above, § 24).
- It
therefore rejects the Government’s preliminary objection that
the applicant’s complaint about the material conditions of
detention in Ploieşti Prison in respect of the period prior to
11 October 2005 was introduced too late.
- Lastly,
the Court notes that the applicant’s complaint concerning the
material conditions of detention in Ploieşti Prison 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
Submissions of the parties
- The
applicant, by relying on the CPT’s findings and recommendations
following its visit to Ploieşti Prison in 2006, argued that the
material conditions of detention, in particular overcrowding, poor
nutrition, lack of water and lack of physical exercise, amounted to
inhuman and degrading treatment.
- The
Government submitted that the records concerning the cells in which a
person was imprisoned are preserved only for two years. Moreover, the
cells of Ploieşti Prison had been renumbered and the entire
prison had been reorganised. Consequently they could provide only
general information in respect of the applicant’s conditions of
detention.
- They
argued that in Ploieşti Prison the applicant had been detained
in cells measuring 33.22 sq. m. Each cell had at least one
window, two sinks with running cold water, and a toilet and shower
separated by walls and a door. The cells also had a storage area for
food. Detainees could wash once a week and from 2006 this increased
to twice a week. Warm water was available based on a set schedule.
Physical exercise was organised in accordance with the law, taking
into account the detainees’ detention regimes. Detainees had
access to social and educational activities, and psychological
counselling. The food was prepared in accordance with the legally
approved quality norms and the quality of the food was assessed daily
by the prison’s doctor, the duty officer and a representative
of the detainees. Lastly, they contended that the prison had not been
overcrowded for the period the applicant was detained there.
The Court’s assessment
(i) Relevant principles
- The
Court reiterates that under Article 3 of the Convention, 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).
- 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, Kalashnikov v. Russia, no. 47095/99,
§§ 97 et seq., ECHR 2002-VI; Ciorap v. Moldova,
no. 12066/02, § 70, 19 June 2007; Lind
v. Russia, no. 25664/05, § 59,
6 December 2007; Kantyrev v. Russia,
no. 37213/02, §§ 50-51, 21 June 2007;
Brânduşe v. Romania, no. 6586/03, § 50,
7 April 2009; 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).
- 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, and Lăutaru,
cited above, § 96).
(ii) Application of the above principles
to the present case
- The
Court has frequently found a violation of Article 3 of the
Convention on account of the lack of personal space afforded to
detainees, as well on account of the lack of physical exercise and
poor nutrition (see, among others, Coman v. Romania,
no. 34619/04, § 59, 26 October 2010;
Lăutaru, cited above, § 102
and Onaca v. Romania, no. 22661/06, § 41,
13 March 2012).
- In
the case at hand, the Government failed to put forward any argument
that would allow the Court to reach a different conclusion.
- The
Court further notes that the applicant’s description of the
overcrowding, lack of physical exercise and poor nutrition
corresponds to the findings made by the CPT report
in respect of Ploieşti Prison (see paragraph 54
above).
- 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
in respect of the material conditions of the applicant’s
detention in Ploieşti Prison.
- Taking
this finding into account, the Court does not consider it necessary
to examine the remaining issues of his complaint concerning the
material conditions of detention.
B. Complaint concerning the alleged lack of medical treatment for
venous thromboses
Admissibility
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies, in so far as the applicant had not complained
before domestic courts in respect of the lack of adequate medical
treatment for the venous thromboses in his legs on the basis of
Emergency Ordinance no. 56/2003 and subsequently on the basis of
Law no. 275/2006.
- The
applicant disagreed and argued that the remedies indicated by the
Government were ineffective.
- 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 about by the applicant.
However, after that date, others in the applicant’s situation
had had an effective remedy in respect of their complaints of a lack
of medical treatment, even if their applications were already pending
with the Court at the relevant time (see Petrea, cited above,
§§ 35-36).
- The
Court sees no reason to depart in the present case from the
conclusions it reached in Petrea.
- In
respect of the period prior to the entry into force of Emergency
Ordinance no. 56/2003 the Court notes that, in spite of the
applicant’s allegations, the available
material does not indicate that the applicant was denied medication
necessary for his condition or that there was a lack of budget
to pay for the medical expenses. Moreover,
there is no indication in the file that the venous thromboses in his
legs became more serious between March 1997 and June 2003.
Furthermore, according to the applicant’s medical file,
he was examined regularly by prison and civilian doctors, his
condition was monitored and he was regularly prescribed and
administered medication during his detention.
- Consequently,
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.
- In
respect of the period after the entry into force of Emergency
Ordinance no. 56/2003 and subsequently of Law no. 275/2006,
the applicant should have lodged complaints of a lack of medical
treatment with the domestic courts. His repeated requests for
temporary release do not satisfy these conditions (see Răcăreanu
v. Romania, no. 14262/03, § 41, 1 June 2010).
- It
follows that the applicant’s complaint concerning a lack of
adequate medical treatment is manifestly ill-founded for the
detention period prior to the entry into force of Emergency Ordinance
no. 56/2003 and of Law no. 275/2006, and is inadmissible
for non-exhaustion of domestic remedies for the detention period
after the entry into force of the above-mentioned domestic
legislation. Consequently, it must be rejected in accordance with
Article 35 §§ 1, 3 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention about the
material conditions of detention while he was in the custody of the
Prahova Police Department. Moreover, he complained under Articles 6
§§ 1 and 3 (d) of the Convention that the
criminal proceedings brought against him for murder had been unfair
in so far as the witnesses for the prosecution had mostly been
relatives of the victims, the domestic courts had misinterpreted the
applicable legal provisions and lacked impartiality, and he had not
been able to have witnesses examined in his defence. Lastly, the
applicant complained in substance under Article 8 of the
Convention that he had been unable to contact his family while he was
in the custody of the Prahova Police Department.
- 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 20,000 euros (EUR) in respect of
non pecuniary damage.
- The
Government considered the sum claimed by the applicant to be
excessive. They submitted 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 and having regard to the particular circumstance of
the case, the Court awards the applicant EUR 9,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,403 for the costs and expenses
incurred before the Court by his representatives, to be paid directly
to them as follows: (i) the applicant submitted a contract for
legal assistance concluded with his lawyer, Ms Nicoleta Tatiana
Popescu, and a detailed document indicating that the lawyer worked
fifty-four and a half hours in preparing the case, the hourly fee for
each type of activity and the precise dates when the work was done.
The total fees requested by the lawyer amounted to EUR 6,103;
(ii) APADOR-CH (the Association for the Defence of Human Rights
in Romania – the Helsinki Committee) also requested
EUR 300 for technical support and correspondence.
- The
Government disputed the number of hours spent by the applicant’s
representatives on the present case and contended that they were
excessive given the lawyer’s substantial experience and the
reduced complexity of the case. They further submitted that the
applicant had not submitted any proof in support of the
correspondence fees he claimed and that the Helsinki Committee had
repeatedly provided support in similar cases.
- The
Court reiterates that in order for costs and expenses to be
reimbursed under Article 41, it must be established that they
were actually and necessarily incurred and are reasonable as to
quantum (see, for example, Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco
v. Moldova, no. 41088/05, § 176,
11 July 2006). In accordance with Rule 60 § 2
of the Rules of Court, itemised particulars of all claims must be
submitted, failing which the Chamber may reject the claim in whole or
in part.
- In
the present case, having regard to the above criteria, the itemised
list submitted by the applicant, the familiar nature of the issue
dealt with, and the work of the lawyer from 29 July 2010
when she took over the case until today, the Court awards the
following amounts: EUR 2,000 to Ms Nicoleta Tatiana Popescu
and EUR 150 to the Romanian Helsinki Committee, to be paid
separately into a bank account indicated by each of the applicant’s
representatives.
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
Ploieşti 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, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement:
(i) EUR 9,000
(nine thousand euros) to the applicant, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,150
(two thousand one hundred and fifty euros), plus any tax that may be
chargeable, in respect of costs and expenses, into a bank account
indicated by each representative as follows:
(a) EUR 2,000
(two thousand euros) to Ms Nicoleta Tatiana Popescu; and
(b)
EUR 150 (one hundred and fifty euros) to the Romanian Helsinki
Committee;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
