CASE OF ALEXANDRU MARIUS RADU v. ROMANIA
(Application no. 34022/05)
21 July 2009
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 Alexandru Marius Radu v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 30 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The incident of 9 September 2005 and subsequent proceedings
1. The criminal complaint brought by the applicant against N.M.
2. The administrative complaint against the disciplinary penalty imposed on the applicant
B. Other incidents involving the applicant during his detention in Bucharest-Jilava Penitentiary
C. Subsequent transfers of the applicant to other prisons
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In addition, the Government mentioned that prison staff were aware of the existence of disagreements between the applicant and other inmates, which had degenerated several times into spontaneous conflicts, and that the applicant had requested to be protected by the prison authority.
Despite the fact that he repeatedly requested to be transferred to another detention centre on the ground that his physical integrity was in danger, the national authorities at first rejected his requests, on the grounds that no places were available in other penitentiaries and that the criminal proceedings against him were in progress. It was only on 13 March 2006, namely six months after the violent incident involving the applicant, that the prison administration acceded to his request for protection and took steps to separate him from the detainees with whom he had disputes, while they were being transferred to the courts or during daily activities in the penitentiary.
Finally, on 22 June 2006, the authorities saw no obstacle to the transfer of the applicant to Bucharest-Rahova Penitentiary, after he had been sentenced to imprisonment by the judgment of 4 May 2006, rendered by the Bucharest County Court, and while his appeals were still pending.
The Court notes that, unlike his situation in Bucharest-Jilava Penitentiary, where disciplinary penalties were imposed on him on several occasions, even though the domestic courts subsequently annulled or mitigated those penalties, during his subsequent detention in Bucharest-Rahova Penitentiary the applicant received positive appraisal from prison staff.
46. The Court also notes that instead of promptly taking measures for the applicant's protection, the penitentiary administration, as a first step, punished him with strict solitary confinement for breach of disciplinary rules, accusing him of offences that were generally less important than those about which he was complaining.
The Court recalls that the mere feeling of stress of a detained person is not sufficient to reach the minimum level of severity in order to fall within the scope of Article 3 (see I. T. v. Romania (dec.), no. 40155/02, of 24 November 2005 ). However, it observes that in the present case, unlike in the case I.T. cited above, where the applicant feared only a potential risk of lack of medical treatment needed for a serious disease, the applicant's allegations of harassment from other prisoners concerned an actual risk and they were not properly investigated by the national authorities (see paragraph 47, above).
The Court considers that the hardship the applicant endured, in particular the constant mental anxiety caused by the threat of physical violence and the anticipation of such (see Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, § 73, 27 May 2008), must have exceeded the unavoidable level inherent in detention and finds that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention.
Finally, while recognising that it may prove difficult for prisoners to obtain evidence of ill-treatment (see mutatis mutandis Labita v. Italy [GC], no. 26772/95, § 25, ECHR 2000 IV and even more so of mere acts of harassment by other detainees (see, mutatis mutandis, Rodić and Others cited above, §§ 64 and 69-73), the Court finds a sufficient factual base in the present case to consider that there was an established threat to the applicant's physical integrity and that the existence of that threat had been brought to the attention of the authorities.
Accordingly, having also regard to the conclusion in paragraph 47 above, there has been a breach of Article 3 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 6,000 (six thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable ;
(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 ;
Done in English, and notified in writing on 21 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall