THIRD SECTION

CASE OF TODIREASA v. ROMANIA (No. 2)

(Application no. 18616/13)

JUDGMENT

STRASBOURG

21 April 2015

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 Todireasa v. Romania (no. 2),
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Luis López Guerra,
	Ján Šikuta,
	Dragoljub Popović,
	Johannes Silvis,
	Valeriu Griţco,
	Iulia Antoanella Motoc, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 31 March 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 18616/13) 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 Gheorghe Costică Todireasa (“the applicant”), on 18 February 2013.
2.  The applicant, who had been granted legal aid, was represented by Ms A. Trifescu, a lawyer practising in Piatra Neamţ. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
3.  The applicant alleged, in particular, that the conditions of detention in Bacău, Iaşi, Galaţi, Brăila, and Vaslui Prisons, where he had been held since August 2010, had been inhuman.
4.  On 20 November 2013 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1959 and lives in Piatra Neamţ.
6.  On 27 November 2001 the applicant, an administrator in a small commercial company, started serving a seventeen-year prison sentence for fraud and tax evasion.
7.  From 10 August 2010 to 22 April 2014, when he was conditionally released, the applicant was detained in Bacău, Iaşi, Galaţi, Brăila, and Vaslui Prisons.
A.  Material conditions of detention
1.  The applicant’s account
8.  According to the applicant, the detention conditions in Bacău, Iaşi, Galaţi, Brăila, and Vaslui Prisons amounted to physical and psychological torture. His detailed description of the conditions, common to all those prisons, is set out below:
–  overcrowding: in Bacău Prison, he was briefly held from 10 to 13 August 2010 in the old detention block in a cell measuring 12 sq. m with fifteen other prisoners; in Iaşi Prison, in a cell measuring 24 sq. m with twenty-seven other prisoners; in Galaţi Prison, in a cell measuring 15.2 sq. m with thirteen other prisoners; and in Brăila Prison, in a cell measuring 20 sq. m with fifteen other prisoners;
–  inadequate heating in the winter and inadequate insulation of the windows. In the prisons of Iaşi and Galaţi there were no glass panes in the toilet window. In addition, in Galaţi Prison the toilet had no door. The applicant alleged that he contracted rheumatic fever and skin lesions on his hands owing to the cold he had endured;
–  defective sanitary installations/no proper bathrooms: the cells were usually provided with an area where two sinks, a shower and a toilet were installed. In Iaşi and Brăila Prisons there was no shower, he had to wash in the sink or carry water and wash himself in the toilet if he wanted privacy. Hot water was provided twice a week for a period of only two hours, in which there was not always time for everyone to wash;
–  presence of bed bugs and other parasites: in Bacău and Iaşi Prisons he could not sleep at night because of bed bugs falling on him from the upper bed. No disinfection was ever carried out by the prison authorities and in Bacău and Iaşi Prisons the detainees were not even allowed to bring in their own disinfectants from outside;
–  the prisons had no place specially designed for eating. He was forced to eat in the cells, most of which did not have the requisite furniture – there were no chairs or tables, and the distance between the bunk beds was such that he could not sit up straight on his bed;
–  insufficient daylight in the cells and electricity provided only for a few hours during the day and evening, so that he was forced to read and write in the dark most of the time;
–  dirty and worn-out mattresses and sheets;
–  very poor quality food;
–  in Vaslui Prison there was so much dampness that there was always water on the floors.
9.  In addition, the applicant alleged that the inhuman conditions of his detention had been aggravated by his constant and unnecessary transfers between prisons and between various cells in the same prison. He also alleged that on numerous occasions he had had to share his cell with mentally ill detainees who sometimes acted strangely, terrifying him or making his life unbearable.
2.  The Government’s account
10.  The Government submitted that all of the prisons mentioned by the applicant had adequate natural and electric lighting and ventilation, and that the windows had never been covered by spare beds. All of the prisons had a central heating system providing adequate heating in the winter. All of the cells in which the applicant had been held had had the requisite furniture.
11.  The specific details submitted by the Government with respect to the prisons in question are set out below.
(a)  Bacău Prison
12.  The applicant was held in the old detention block of Bacău Prison until 13 August 2010 in cell no. 117, which measured 27.12 sq. m and accommodated eleven prisoners (2.46 sq. m of personal space).
13.  There were no insect infestations in the prison in 2010.
(b)  Iaşi Prison
14.  The applicant was held in Iaşi Prison for one year and two months, from 13 August 2010 to 24 September 2010 and from 26 March 2013 to 22 April 2014. During those periods he was placed in three different cells measuring from 19.3 sq. m to 33.3 sq. m, which he shared with seven and twenty-five other prisoners respectively (2.41 sq. m to 1.2 sq. m of personal space).
15. The cells had their own bathroom containing two toilet cabins and a sink. Cold water was available permanently. Inmates had access to the common shower area twice per week.
16.  The block occupied by the applicant during the second period in which he stayed in that prison had been renovated in January 2012. Hence, the cells had been provided with showers, and hot water was available daily for two hours. Television sets had also been installed in the cells. A 
self-service canteen was created where prisoners could eat their meals in proper conditions.
17.  As regards the presence of insects, the problem was known by the prison administration who explained that it had been caused by the high number of prisoners and their failure to maintain adequate hygiene. Disinfection operations were conducted at least twice per year, within the limits of the budget.
18.  The Government submitted two statements written and signed by the applicant on 12 September 2013 and 27 January 2014, in which he had declared that he was satisfied with the conditions of detention in the recently renovated block of Iaşi Prison.
(c)  Galaţi Prison
19.  The applicant was held in Galaţi Prison for two years and one month, from 24 September 2010 to 23 October 2012. During that period he was placed in four different cells measuring approximately 24 sq. m, which accommodated twelve to fifteen prisoners (1.6 to 2 sq. m of personal space).
20.  The cells had their own bathrooms with a toilet and shower. Cold water, which was also used for drinking, was available daily from 6.30 to 8.30 a.m., 2 to 4.30 p.m. and 6.30 to 9 p.m. Prisoners had access to hot showers twice per week for one hour, depending on the number of prisoners and the heating capacity of the central heating system.
21.  Cleaning products were provided monthly within the limits of the budget. The mattresses were renewed in August 2012.
22.  Food was usually provided in accordance with the regulations but budgetary limitations meant that certain products were sometimes missing.
(d)  Brăila Prison
23.  The applicant was held in Brăila Prison for almost four months, from 23 October 2012 to 19 February 2013.
24.  The applicant was placed in a cell measuring 21.73 sq. m together with twelve other prisoners (1.6 sq. m of personal space). The cell had three rows of bunk beds totalling fifteen places.
25.  Access to hot showers was possible twice per week. The provision of personal hygiene products was sometimes reduced for budgetary reasons. Heating and food were provided in accordance with the legal norms. Prisoners were served their meals in their cells.
26.  The applicant’s cell had two television sets on which prisoners could watch programmes during certain time slots.
27.  The prison administration ensured the prisoners’ access to a daily walk and sports activities.
28.  General disinfection operations were conducted four times in the course of 2012 and twice in 2013. The Government submitted that the prison had not allocated any funding for disinfectants in the budget for 2013 and had thus had to attract outside sponsorship to cover that cost.
(e)  Vaslui Prison
29.  The applicant was detained in Vaslui Prison for one month and seven days, from 19 February to 26 March 2013. During that period he was placed in three different cells measuring 14.75 sq. m, which he shared with two to five other prisoners (personal space ranging from 2.95 sq. m to 4.91 sq. m).
30.  Renovated cells were “put in use” on 1 May 2012 and new mattresses, pillows and sheets were distributed on the same date. The cells were equipped with the requisite furniture and a television set. They also had a bathroom with a toilet, a shower, a sink and a window. Cold water was available permanently and hot water twice per week for two hours.
31.  Hygiene products were distributed monthly, but the statutory quantities could not be respected due to budgetary limitations. In 2013 prisoners were given washing powder ten times, soap and toilet paper nine times and chlorine eight times.
32.  Food was prepared in accordance with the legal standards, in a fully renovated area. Prisoners were served their meals in their cells.
33.  No disinfection was necessary in the applicant’s cell during the time he spent in Vaslui Prison.
B.  Health care
1.  The applicant’s account
34.  The applicant alleged that while in detention he had developed various diseases as a result of the poor conditions in which he had been held. He alleged that the prison doctors had not provided him with adequate medical treatment and that all of the prisons had lacked medicines. More specifically, the prison infirmary had been open only once a week; whenever he had had a cold, an infection or even for the rheumatic fever he contracted in prison, he had usually been given only aspirin, as other medicines had never been available at the prison infirmary. In addition, he had suffered from toothache and other associated aches and pains and, despite repeatedly asking, he had never been taken to a dentist or given any painkillers, even when he finally developed a tooth infection and suffered pain for several consecutive weeks.
2.  The Government’s account
35.  On 22 July 2010 the applicant was examined at the Bacău Prison infirmary and was diagnosed with lumbago. He received one tube of Diclofenac cream.
36.  On 28 August 2013 the applicant was admitted to Iaşi Military Emergency Hospital and was diagnosed with osteoarthritis of the hands, chronic tetany (a neurological syndrome consisting of painful muscular spasms and cramps) and lower back pain. He was released with the recommendation to avoid effort, exposure to cold and dampness, and was prescribed symptomatic medication. On 30 September and 29 October 2013 the applicant received a total of ten anti-inflammatory tablets.
37.  With respect to the dental care available to the applicant, the Government submitted that he had been examined and diagnosed, and had undergone treatment such as extractions, fillings and dental pulp extirpations on numerous occasions. On all those occasions he had also received appropriate treatment with antibiotics and pain killers.
38.  Lastly, the Government submitted that no complaints concerning any alleged lack of adequate medical treatment had ever been lodged by the applicant during his detention.
II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS
39.  Excerpts from the relevant provisions concerning the rights of detainees, namely Law no. 275/2006 on the enforcement of sentences, are quoted in Iacov Stanciu v. Romania (no. 35972/05, §§ 113‑16, 24 July 2012).
40.  Excerpts from the relevant parts of the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT” ), as well as its reports concerning Romanian prisons, are quoted in Iacov Stanciu (cited above, §§ 121-27).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
41.  The applicant complained, under Article 3 of the Convention, of inhuman and degrading treatment on account of the material conditions of his detention and the lack of adequate medical care in the various prisons where he had been detained as from August 2010. In particular, he complained of severe overcrowding, poor hygiene and the presence of bedbugs and other parasites, inadequate heating, poor quality of food, defective sanitary installations and a lack of hot or cold running water, lack of appropriate furniture and improper conditions for eating his meals, and dirty and worn out mattresses and sheets. He further complained of inadequate health care.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
42. The Government raised an objection of non-exhaustion of domestic remedies with respect to the applicant’s complaints concerning the quality of food, the presence of insects, the inadequate heating during the winter, as well as the lack of adequate medical treatment. More specifically, they submitted that the applicant had not complained before the post sentencing judge or any other domestic authority about those specific issues. They contended that Law no. 275/2006 on the enforcement of sentences offered the applicant immediate redress for the types of complaints in question, as proved by the increasing number of judgments in that respect already submitted by the Government in other applications currently pending before the Court.
43.  The applicant maintained that the quality of food, the presence of parasites, the inadequate heating during the winter, as well as the lack of adequate medical treatment were elements of the material conditions of detention that had been subject to budgetary limitations. Hence, as already held by the Court in numerous cases (see, for example, Marian Stoicescu v. Romania, no. 12934/02, 16 July 2009; Cucu v. Romania, no. 22362/06, 13 November 2012; and Lăutaru v. Romania, no. 13099/04, § 85, 18 October 2011), the legal avenue suggested by the Government did not constitute an effective remedy.
44.  The Court notes that the quality of food, the presence of insects and inadequate heating during the winter are indeed elements of the material conditions of detention which usually depend on the allocated budget. The information submitted by the Government on the material conditions of detention in the current case leads to the same conclusion (see paragraphs 17, 21, 22, 28 and 31 above). In addition, the Government did not mention what specific measures had been taken by the prison authorities in order to remedy the shortcomings allegedly identified following complaints lodged by prisoners in previous cases.
45.  In this regard, the Court agrees with the applicant that in recent applications lodged against Romania concerning similar complaints it has already analysed such submissions from the Government and found that, given the specific nature of this type of complaint, the legal avenues suggested by the Government did not constitute an effective remedy (see, for example, Leontiuc v. Romania, no. 44302/10, § 50, 4 December 2012, and Necula v. Romania, no. 33003/11, §§ 32-39, 18 February 2014).
46.  The Court therefore concludes that the Government have not demonstrated how the legal actions suggested could have afforded the applicant immediate and effective redress for the purposes of his complaint (see, mutatis mutandis, Marian Stoicescu, cited above, § 19).
47.  The Court therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaints concerning the physical conditions of his detention, in particular the quality of food, the presence of insects and the inadequate heating during the winter.
48.  As regards the applicant’s complaint concerning the lack of adequate medical treatment, the Court has already acknowledged the existence of an effective domestic remedy available for such complaints (see Petrea v. Romania, no. 4792/03, § 35, 29 April 2008). The Court observes that the applicant did not lodge a complaint in that respect before the competent authorities. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
49.  The Court notes that the remainder of the application concerning the material conditions of the applicant’s detention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
50.  The applicant contested the Government’s submissions and reiterated that he had been held in precarious conditions, that the cells had been overcrowded and unheated during the winter, the quality of food had been very poor, and the conditions of detention had not been conducive to maintaining proper hygiene. He further alleged that he had contracted various diseases as a result of the lack of heating during the winter and the persistent dampness in the cells.
51.  As for the statements submitted by the Government in which the applicant had declared that he was satisfied with the conditions of detention in Iaşi Prison, the latter alleged that, after he had lodged the current application, he had been called into the warden’s office and forced, under threat of making his detention conditions worse, to write and sign the statements in question. He further submitted that, in the event that the Court decided to take those statements into consideration, they should be interpreted as stating that only in the newly renovated area of the prison were the conditions better. However, the problem of overcrowding and poor hygiene had persisted.
52.  Referring to the information submitted on the general conditions of detention (see paragraphs 10-33 above) and without contesting the overcrowding, the Government contended that the domestic authorities had taken all necessary measures to ensure that the applicant’s conditions of detention were adequate. Lastly, they asked the Court to take into account the fact that on two occasions, on 12 September 2013 and 
27 January 2014, the applicant had given written statements that he was satisfied with the conditions of detention in Iaşi Prison.
2.  The Court’s assessment
53.  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 execution of the measure of detention 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).
54.  When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).
55.  The Court notes that, in addition to overcrowding, other aspects of the physical conditions of detention are relevant for its assessment of compliance with Article 3 (see Ostrovar v. Moldova, no. 35207/03, § 89, 13 September 2005; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; and Iacov Stanciu, cited above, § 169). The Court has found that the following conditions of detention raise an issue under Article 3 of the Convention: lack of appropriate furniture in the cells; poor sanitary facilities, such as a limited number of toilets and sinks for a large number of detainees; sinks in cells providing only cold water for a wide range of needs (personal hygiene, washing clothing and personal objects, cleaning the toilets); limited access to hot showers; and poor sanitary conditions in general, including the presence of cockroaches, rats, lice and bedbugs (see Iacov Stanciu, cited above, § 175).
56.  Turning to the present case, the Court notes that the applicant complained of the inhuman conditions in which he had been detained for a period of three years and eight months in Bacău, Iaşi, Galaţi, Brăila, and Vaslui Prisons, from August 2010 until his release on 22 April 2014.
57.  The Government acknowledged the overcrowding in all of the detention facilities in which the applicant had been held. More specifically, the statistics provided by the Government in reply to the applicant’s allegations of overcrowding show that most of the time the applicant’s personal space was significantly less than three square metres. The Court points out that those figures were even lower in reality, given that the cells also contained beds and other items of furniture. This state of affairs in itself raises an issue under Article 3 of the Convention (see Flămînzeanu v  Romania, no. 56664/08, §§ 92 and 98, 12 April 2011; Iacov Stanciu, cited above, § 173; and Cotleţ v. Romania (No. 2), no. 49549/11, § 34, 1 October 2013).
58.  The applicant’s allegations concerning the poor quality of food, the presence of parasites and the inadequate heating were not strongly refuted by the Government, who merely declared that the quality of food and the carrying out of disinfection operations had sometimes been affected by the budget. As regards the provision of heating during the winter, the Government merely submitted that it had been adequate, without providing any information in respect of cell temperature during the wintertime (compare Praznik v. Slovenia, no. 6234/10, § 9, 28 June 2012; and Jirsák v.  the Czech Republic, no. 8968/08, § 70, 5 April 2012, where the respective Governments were able to provide information concerning the temperature in the cells occupied by the applicants).
59.  In respect of the two statements in which the applicant declared that he was satisfied with the conditions in Iaşi Prison, the Court has previously held, in a case involving similar statements, that the applicant’s position might be particularly vulnerable when he is held in custody with limited contacts with his family or the outside world (see Enache v. Romania, no. 10662/06, § 68, 1 April 2014). Moreover, the Government did not contest the overcrowding and the presence of insects, even in the newly renovated area of Iaşi Prison (see paragraphs 14 and 17 above), and the applicant confirmed his intention to maintain his complaints at least about those two elements of his conditions of detention (see paragraph 51 above). Consequently, the Court is prepared to accept as credible the applicant’s explanation as to the circumstances in which the statements in question were given and decides not to take them into consideration.
60.  The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to prisoners and unsatisfactory sanitary conditions in the prisons in question in the current case (see Enaşoaie v. Romania, no. 36513/12, 4 November 2014; Mihăilescu v. Romania, no. 46546/12, 1 July 2014; Olariu v. Romania, no. 12845/08, 17 September 2013; Colesnicov v. Romania, no. 36479/03, 21 December 2010; and Dimakos v. Romania, no. 10675/03, 6 July 2010).
61.  In the case at hand the Government have failed to put forward any argument or information that would allow the Court to reach a different conclusion. Not only do the above conditions not satisfy the European standards established by the CPT (see paragraph 40 above), but the cumulative effect of overcrowding in large-capacity – and sometimes also insalubrious – dormitories, poor quality food and poor hygiene conditions can prove detrimental to the prisoners (see also, mutatis mutandis, Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002-VI).
62.  As well as the insufficient personal space, poor quality food, unacceptable hygiene conditions such as those described above, and inadequate heating, the applicant’s situation was further exacerbated by his numerous transfers during detention. In the course of his detention period of three years and eight months, the applicant was transferred six times between various detention facilities and was moved twelve times from one cell to another within the same prison.
63.  The foregoing considerations are sufficient to enable the Court to conclude that all the above-mentioned cumulative conditions of the applicant’s detention caused him harm that exceeded the unavoidable level of suffering inherent in detention and thus reached the minimum level of severity necessary to constitute degrading treatment within the meaning of Article 3 of the Convention.
There has accordingly been a violation of Article 3 of the Convention.
64.  Taking this finding into account, the Court does not consider it necessary to examine the remaining parts of the applicant’s complaint concerning the material conditions of his detention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
65.  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
66.  The applicant claimed 77 million euros (EUR) in respect of pecuniary and non-pecuniary damage. Without providing any supporting documents, he submitted that his claim for pecuniary damage was to compensate for the amount his family had spent on food, clothes and personal hygiene products, which they had had to provide him during his detention as well as for the amount he will spend on medical treatment for the diseases acquired in detention.
67.  The Government argued that the applicant had not submitted any evidence in support of his claim for pecuniary damage and that it should therefore be dismissed. They further argued that the sum claimed by the applicant in respect of non-pecuniary damage was excessive.
68.  The Court shares the Government’s view that the applicant has not submitted any documents to support the amount claimed for pecuniary damage. Consequently, it finds no reason to award him any sum under that head.
69.  The Court considers, however, that the applicant must have suffered distress as a result of the physical conditions of his detention. Consequently, making an assessment on an equitable basis, the Court awards him EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B.  Costs and expenses
70.  The applicant did not claim any costs or expenses.
C.  Default interest
71.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 3 of the Convention concerning the physical conditions of the applicant’s detention starting in August 2010 in Bacău, Iaşi, Galaţi, Brăila, and Vaslui Prisons admissible, and the remainder of the application, namely the complaint under Article 3 of the Convention concerning the lack of adequate medical treatment, inadmissible;

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

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Josep Casadevall
	Registrar	President