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BADILA v. ROMANIA - 31725/04 [2011] ECHR 1514 (4 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1514.html
Cite as:
[2011] ECHR 1514
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THIRD
SECTION
CASE OF BĂDILĂ v. ROMANIA
(Application
no. 31725/04)
JUDGMENT
STRASBOURG
4
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 Badila 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 Marialena
Tsirli,
Deputy Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31725/04)
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 Aurel Badila (“the applicant”), on 14 June
2004.
The
Romanian Government (“the Government”) were represented
by their Agent, Mr Razvan-Horatiu Radu, of the Ministry of Foreign
Affairs.
3. The
applicant complained, in particular, of the material conditions of
detention in different prisons in which he had been detained and of
the alleged lack of adequate medical treatment for his diseases.
On
4 May 2007 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 1960 and lives in Giurgiu.
He was detained from 21 March 2002 until 20 March 2009, when he was
released from Giurgiu Prison.
He
was convicted of attempted rape and sentenced to seven years of
imprisonment.
A. Conditions of detention
During
the applicant’s seven years of detention he has been held in a
number of different detention centres. Starting from 24 April 2002 he
was detained in Giurgiu Prison, except the periods in which he was
detained in Jilava Prison or hospitalised in Rahova Prison Hospital.
As
the applicant was a party to different proceedings before the
Bucharest courts, he was detained in Jilava Prison in the periods
between 25 January and 29 March 2003, 23 August 2003
and 17 January 2004, 14 August and 9 October 2004, and 7
and 10 January 2008.
Moreover,
as the applicant needed special medical treatment, he was
hospitalised in Rahova Prison Hospital for the periods between 17 and
24 April 2004, 26 June and 3 July 2004, 24 July and 7 August
2004, and 4 and 11 March 2006.
1. The applicant’s description of the conditions
of his detention
In
respect of the three establishments in which he had been detained,
the applicant alleged that he had been kept in overcrowded cells, in
poor conditions of hygiene. In addition, he described the situation
in each of the establishments, as detailed further below.
(a) Giurgiu Prison
According
to the applicant, in Giurgiu Prison he was underfed and detained in a
damp cell.
He
alleged that the temperature in the cell in winter had been very low.
In
a letter addressed to the Court in July 2005, he maintained that
often there had been no water – either for drinking or for the
toilet. In a letter dated 4 June 2007 he also claimed that there had
been a lack of water.
He
further alleged that there had been no television, radio or any other
source of information at the detention centre.
The
applicant was transported on several occasions between prison and the
domestic courts, where he had been summoned to appear at public
hearings. He travelled in vans transporting large numbers of
prisoners in cramped conditions and without any ventilation.
(b) Jilava Prison
The
applicant was detained in Jilava Prison in 2003 and 2004 for
the periods specified above in paragraph 8. He was again
transferred to this prison on 7 October 2008, when he occupied cell
no. 311 in Section III.
Here,
in cells originally planned for twenty-four prisoners,
fifty prisoners were being detained.
He
complained that the cell was not heated in winter and that therefore
it was very cold.
He
also complained that there was a lack of running water. With respect
to the drinking water, he claimed that it was of very poor quality.
He
alleged that there were bugs and rats in the cell.
The
opportunity to exercise outdoors was limited to one ten–minute
walk per day, and there were days without any outdoor activity.
The
quality of food was also very poor, meat being a rarity.
(c) Medical ward of Rahova Prison
The
applicant complained that while he was hospitalised in Rahova Prison
he had to share his bed with another prisoner, even after he had
undergone a surgical intervention.
2. The Government’s description of the conditions
of the applicant’s detention
The
Government provided official information, submitted by the National
Prison Administration (“NPA”), concerning the size of and
the facilities in the cells that the applicant had occupied during
his detention, as well as the general conditions of detention in the
three establishments.
(a) Giurgiu Prison
According
to a letter dated 23 August 2007 addressed to the Romanian Government
by the Giurgiu Prison Administration, at that time the applicant was
placed in cell no. B 228. It had six beds and accommodated five other
detainees, each having his own bed. The surface area of the cell was
21.76 square metres. However, there was no information concerning the
surface area of the cell and the number of prisoners occupying it for
the period of detention before 2007.
The
temperature in the cell was adequate, as the cell was connected to
the city heating network.
The
applicant was allowed three hours of outdoor exercise per day between
8 and 11 a.m. The prison owned two buses and three microbuses for the
transport of prisoners from the prison to the courts for hearings.
A
schedule approved by the prison authorities had ensured
the availability for prisoners of a shower twice a week.
The
prisoners had access to a room where they could watch television.
They could also read newspapers as the prison had a subscription to
the newspaper Adevărul.
The
prison authorities sent copies of the applicant’s requests for
copies from his medical and criminal files which were allowed
(containing the written confirmation by the applicant that he had
received the copies). Most of them were dated 2006 and 2007.
It
also appears that in December 2006 the applicant received copies of
the Romanian Constitution and of the laws concerning the rights and
obligations of prisoners. In 2007 he received a certificate attesting
to his lack of revenue, to be sent to the Court in order to
obtain legal aid.
(b) Jilava Prison
In
Jilava Prison, the applicant had been placed for the period between
14 August 2004 and 9 October 2004 in cell no. 611. It had a surface
area of 43.70 square metres. The cell had twenty-seven beds. The
average number of prisoners occupying the cell for the period between
14 August 2004 and 7 September 2004 had been between
thirty-three and forty.
The
cell was equipped with two squat toilets connected to the water
network and was separated from the rest of the room by a wall.
Fresh
air had been able to come in through the windows in the cell and
toilet area.
The
prisoners had been allowed to take one hot shower per week in
communal bathrooms available in each section of the prison.
The
applicant had been allowed to walk outside the cell for
thirty minutes each day.
Disinfection
of the cells was carried out periodically. According to the documents
provided by the prison authorities, such disinfection of the
applicant’s cell was carried out on 6 January and 24 June 2004.
According
to the information provided by the prison authorities, the applicant
made a request for stamps, which he needed for his correspondence
with the Court, on 8 September 2004. The applicant’s request
could not be satisfied as he was transferred to Giurgiu Prison
the next day. On 6 September 2004 the applicant requested
copies from his medical file. The authorities asked him to submit a
written request.
Although
the applicant was hospitalised a few times in the medical ward of
Rahova Prison, the Government provided information only in respect of
the period between 24 July and 7 August 2004. They mentioned that the
prison hospital had ninety beds and that at the time the applicant
was hospitalised there were only eighty-seven prisoners being
detained.
B. Medical care in prison
In
July 2002 the applicant had an anal abscess. He alleged that, due to
lack of medical treatment, it aggravated and became a fissure close
to the intestinal ring that caused him intense physical pain.
Therefore, he was hospitalised in the medical ward of Jilava Prison
for the period between 23 July and 3 August 2002. The doctors
considered that a surgical intervention was not necessary.
In
March 2004, following a hunger strike, the applicant was examined by
a medical expert. He concluded that the applicant must undergo a
surgical operation because of the anal fissure. For this reason, the
applicant was hospitalised this time in the medical ward of Rahova
Prison for the period between 17 April and 24 April 2004. There he
underwent a surgical operation for haemorrhoids, but not for anal
fissure.
42. The
applicant alleged that he had not received the medical treatment
which had been prescribed by doctors as the prison or prison pharmacy
did not have the medicine he needed.
The
Government sent the applicant’s medical file, along with a
letter from the Prison Service dated 8 October 2007, which detailed
the medical care that the applicant had received in prison.
From the information submitted by the Government, it
appears that the applicant received treatment for his various medical
conditions. It also appears that from 17 until 24 April 2004, he was
hospitalised in Rahova Prison Hospital where he was examined by the
prison doctors. As a result of the medical treatment with antibiotics
and the anti-inflammatory medication that he received, his anal
fissure was improving and the doctor considered that it did not
require a surgical intervention.
From
26 June to 3 July 2004 the applicant was hospitalised again in the
Rahova Prison Hospital. A surgical intervention was recommended, but
the applicant left the hospital at his own request. However, he
underwent a surgical intervention when he was again hospitalised on
24 July 2004. He left the hospital on 7 August 2004, as his health
significantly improved after the operation.
He
was hospitalised again in the medical ward of Jilava Prison from 23
October to 20 November 2004.
His medical supervision continued throughout 2005,
2006 and 2007. He underwent ophthalmological, orthopaedic and
neurological check-ups, was periodically seen by specialist doctors,
and received the prescribed medicines through the prison pharmacies.
Between
the periods during which he was hospitalised, the applicant was
detained in Giurgiu and Jilava Prisons.
C. Complaints concerning the conditions in prison and
medical care
On an unspecified date the applicant lodged a criminal
complaint against Dr D.V. of Rahova Prison Hospital who had operated
on him whilst he was in detention. He alleged that he had been
subjected to a surgical intervention which had not been necessary.
The prosecutor’s office decided not to initiate a criminal
investigation. The applicant did not appeal against that decision.
On
an unspecified date the applicant also lodged a criminal complaint
against Dr I.C. of Jilava Prison. He alleged that his medical file
had been stolen. On 10 November 2004 the prosecutor’s office
decided not to initiate an investigation on the ground that no
offence had been committed. As appears from the documents submitted
by the parties, the applicant did not file any appeal against that
decision.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Execution of Sentences Act
(Law no. 23/1969) are set out in paragraphs 23 and 25 of
the Court’s judgment in the case of Năstase-Silivestru
v. Romania (no. 74785/01, 4 October 2007).
The
Government’s Emergency Ordinance no. 56 of 27 June 2003
(“Ordinance no. 56/2003”) regarding the rights of
prisoners states, in Article 3, that prisoners have the right to
bring legal proceedings before a court of first instance concerning
the implementing measures taken by the prison authorities in
connection with their rights. Ordinance no. 56/2003 has been repealed
and replaced by Law no. 275 of 20 July 2006, which has
reproduced the content of Article 3 mentioned above in its section
38, which provides that a judge has 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).
The
Government submitted to the Court copies of judicial decisions
delivered by the domestic courts concerning the application of
Ordinance no. 56/2003 and Law no. 275/2006 in practice. The decisions
mainly concern complaints lodged by prisoners in respect of
disciplinary sanctions imposed on them by prison authorities, an
alleged lack of adequate medical treatment, breaches of their rights
to receive visits, to correspondence, to the confidentiality of
telephone conversations, to have walks outside their cell, and the
right to be placed in a non-smoking cell.
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 the Court’s
judgments in the cases of Bragadireanu v. Romania
(no. 22088/04, §§ 7376, 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 Jilava Prison) 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 four square metres 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. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Complaint concerning the material conditions of
detention
The
applicant complained of the material conditions
of his detention in Giurgiu and Jilava Prisons and in Rahova Prison
Hospital. 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.”
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
Article 267 of the Criminal Code, nor had he lodged a civil action
for damages before Ordinance no. 56/2003 entered in force and,
subsequently, on the basis of that Ordinance. The Government
considered both remedies to be efficient, sufficient and accessible.
The
Government submitted a set of domestic decisions in support of their
observations.
The
applicant did not submit any observations in this respect.
(b) The Court’s assessment
The
Court notes that the applicant’s complaint concerns the
material conditions of his detention and, in particular, overcrowding
and poor sanitary facilities. In this connection, it observes that in
recent applications against Romania concerning similar complaints it
has already found that, given the specific nature of this type of
complaint, the legal actions indicated by the Government, including
the civil action in damages, did 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 domestic decisions submitted by the
Government in support of its plea of non-exhaustion relate to
specific rights of prisoners, such as the right to medical assistance
or the right to receive visits, but they do not relate to structural
issues, such as overcrowding.
The Court therefore concludes that these decisions do
not indicate how the legal actions proposed by the Government 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.
Noting further that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and that it is not inadmissible on any other grounds, the
Court concludes that it must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
The
Government, referring to the description of the detention conditions
in the information provided by the NPA (see paragraphs 24-27 above),
contended that the domestic authorities had taken all necessary
measures in order to ensure adequate conditions of detention. They
further contested the allegation that the applicant had been held in
overcrowded cells. They stressed that the quality of water and food
in the prisons had been adequate, as had been found by the relevant
authorities.
The
applicant contested the Government’s submissions and reiterated
that he had been held in precarious conditions, that the cells had
been overcrowded, the food of poor quality and that the conditions
had not been conducive to maintaining proper hygiene. He referred to
the CPT reports of that time as confirming his allegations.
(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 other authorities, Alver
v. Estonia, no. 64812/01, 8 November 2005).
An extreme lack of space in a prison cell weighs
heavily as a factor to be taken into account for the purpose of
establishing whether impugned detention conditions were “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 three square metres 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 other authorities, Lind v. Russia, no.
25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no.
37213/02, § 50-51, 21 June 2007; Andrey Frolov v. Russia,
no. 205/02, §§ 47-49, 29 March 2007; and
Labzov v. Russia, no. 62208/00, § 44, 16 June
2005).
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 physical conditions of detention as
being 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 the
possibility of using the toilet in private. Thus, even in cases where
a larger prison cell was at issue – measuring in the range of
three to four square metres per inmate – the Court has found a
violation of Article 3 because the space factor was coupled with
an established lack of ventilation and lighting (see, for example,
Babushkin v. Russia, no. 67253/01, § 44,
18 October 2007; Ostrovar v. Moldova,
no. 35207/03, § 89, 13 September 2005; and Peers
v. Greece, no. 28524/95, §§ 70-72, ECHR
2001-III) or lack of basic privacy in a prisoner’s everyday
life (see, mutatis mutandis, Belevitskiy v. Russia,
no. 72967/01, §§ 73-79, 1 March 2007;
Valašinas, cited above, § 104; Khudoyorov
v. Russia, no. 6847/02, §§ 106 and 107, ECHR
2005 X; and Novoselov v. Russia, no. 66460/01,
§§ 32 and 40-43, 2 June 2005).
The
key issue in the case at hand is the assessment by the Court of the
living space afforded to the applicant in the detention centres where
he was held, in particular in Giurgiu and Jilava Prisons where the
applicant spent most of his time.
The
Court notes that, even at the occupancy rate indicated by the
Government, the applicant’s personal space seems to have been
consistently below four square metres, which falls short of the
standards imposed by the Court’s case-law (see Marian
Stoicescu, cited above, §§ 13 and 24, and Orchowski
v. Poland, no. 17885/04, § 122, ECHR 2009 ...). Thus,
taking as a point of reference the figures indicated by the
Government, during the period he spent in Jilava Prison in 2004 the
applicant had less than one square metre available to him as personal
space. For the rest of the period he spent in Jilava, the Government
did not provide any information. In 2007 in Giurgiu Prison, the
applicant had 3.6 square metres available to him on average, whereas
for the rest of the period between 2002 and 2007, the Government did
not provide any information. The Court also notes that there is no
information provided by the Government concerning the space available
to the applicant in Rahova Prison Hospital.
The
Court further observes that the applicant spent most of his detention
in Giurgiu Prison. Even though there are no CPT reports concerning
this specific establishment, the Court has recently analysed the
material conditions of detention in this prison for periods of time
which overlap with the period in which the applicant was detained
there (see Iamandi v. Romania, no. 25867/03, §§
56-62, 1 June 2010 and Bragadireanu v. Romania, no. 22088/04,
§§ 92-98, 6 December 2007). In both judgments, the Court
concluded that the applicants had been held in overcrowded cells,
providing them with less than three square metres of personal space,
and that they had been deprived of the possibility of maintaining
adequate bodily hygiene in prison. In the light of the information
submitted by the Government in the instant case in respect of the
arrangements for showers, and in the light of its findings in the
Iamandi and Bragadireanu cases cited above, the Court
cannot but conclude that the applicant was also deprived of the
possibility of maintaining adequate bodily hygiene.
Moreover,
the applicant’s description of the overcrowding, in particular
in Jilava Prison, corresponds to the findings made by the CPT (see
paragraph 55 above).
The
Court thus considers that the applicant’s situation resulting
from insufficient personal space was further exacerbated by poor
hygiene conditions.
The
Court has frequently found a violation of Article 3 of the Convention
on account of the 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; and Iamandi and
Bragadireanu, cited above).
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 part of the complaint concerning the poor
quality of food and water available to the applicant in prison.
B. Complaint concerning the lack of adequate medical
treatment
Relying
in substance on Article 3 of the Convention, the applicant complained
of an alleged lack of adequate medical treatment for his health
problems.
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 lack of adequate medical treatment, on the
basis of Article 267 of the Criminal Code before Ordinance no.
56/2003 entered in force, and subsequently on the basis of that
Ordinance.
The
applicant did not submit any observations in this respect.
(b) The Court’s assessment
The
Court notes that in the case of Petrea, cited above, it
concluded that before the entry into force of Ordinance no. 56/2003,
on 27 June 2003, there had been no effective remedy for
situations such as the one complained of by the applicant. However,
after that date, persons in the applicant’s situation had an
effective remedy in relation to their complaints concerning an
alleged lack of medical treatment, even if their applications had
already been pending before the Court at the relevant date (see
Petrea, cited above, §§ 3536). 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
Ordinance no. 56/2003, the applicant should have lodged a
complaint with the domestic courts about the alleged lack of medical
treatment.
The
Court notes that the applicant lodged a criminal complaint about the
surgical intervention to which he had been subjected (only on the
ground that it was not necessary), but he did not lodge any complaint
about the lack of adequate medical treatment on the basis of
Ordinance no. 56/2003. Therefore, it follows that the part of the
complaint concerning the alleged lack of medical treatment after 27
June 2003 should be rejected for nonexhaustion of domestic
remedies.
As
for the period before the entry into force of Ordinance no. 56/2003,
the Court finds no evidence in the file of any other potential breach
of the applicant’s right to receive treatment. In particular,
it notes that he formulated his complaint about the alleged lack of
medical treatment in very general terms, without allowing for any
specific determination of when the alleged interference with his
right could have occurred. Furthermore, his statements are
contradicted by the medical records and, in his observations in reply
to those formulated by the Government, he did not make any additional
submissions that would allow the Court to substantiate the complaint.
Therefore,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they 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 complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 10 OF THE
CONVENTION
Relying on Article 8 of the Convention, the applicant
complained that his right to respect for his correspondence had been
infringed owing to the alleged difficulties he had encountered in
obtaining paper, stamps and envelopes in order to lodge his
application with the Court. Under Article 10 of the Convention, he
complained about the difficulties which he had allegedly encountered
in obtaining copies of his medical and criminal file from the prison
authorities. Under the same Article he claimed that while in prison
he had not had access to public information, as he could not watch
television, listen to the radio or read any newspapers.
Article
8 of the Convention reads, as far as relevant, as follows:
“1. Everyone has the right to respect for ...
his correspondence.”
Article
10 of the Convention reads, as far as relevant, as follows:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers ....”
Admissibility
1. The parties’ submissions
The
Government submitted that the applicant’s requests for paper,
stamps and envelopes, as well as for copies of his medical and
criminal file, were always allowed, according to the information
obtained from the prison authorities. In respect of his access to
information as provided by televisions, radio and newspapers, they
maintained that the applicant had had continuous access to all these
sources of information, as evidenced by the documents submitted by
the prisons in which he was detained.
They
requested that the Court reject the complaint as manifestly
illfounded.
The
applicant did not submit any comments in this respect.
2. The Court’s assessment
The
Court has already found that, before the entry into force of
Ordinance no. 56, no effective remedy for alleged violations of the
right to respect for one’s correspondence was available (see
Petra, § 38, and Năstase-Silivestru,
§§ 47-54, judgments cited above). However, as from
June 2003, Ordinance no. 56 introduced an appeal before the
courts against any act of the prison authorities. This also includes
the infringement of prisoners’ right to information, which is
guaranteed by the Ordinance.
The
Court also notes that the applicant did not substantiate any of his
allegations of interference with his right to respect for his
correspondence and to receive information for the period before the
entry into force of Ordinance no. 56.
Therefore,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they 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 complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and
4 of the Convention.
As
regards the period after June 2003, the applicant did not lodge any
complaint on the basis of the Ordinance concerning his alleged
difficulties in obtaining all the material he needed in order to
lodge his application with the Court, or to submit the requested
documents to the latter. Neither did he complain about his alleged
lack of access to public information. Moreover, on the basis of the
information received from the prison authorities, the Court notes
that the applicant’s requests for copies of different documents
from his medical and criminal file were allowed.
It
follows that the complaints concerning the alleged infringement of
the applicant’s right to respect for his correspondence under
Article 8, and the alleged breach of his right to access to
information under Article 10, should be rejected for non-exhaustion
of domestic remedies in so far as they concern the period after the
entry into force of Ordinance no. 56.
III. 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 500,000 euros (EUR) in respect
of nonpecuniary damage for the suffering caused to him by the
conditions of detention in the three prison establishments, and for
the health conditions he developed as a result of his detention.
The
Government considered that the amount requested by the applicant was
exorbitant, and that the conclusion of a violation of the Convention
would suffice to compensate him for the non-pecuniary damage
allegedly suffered.
The
Court finds that the conditions in which the applicant was detained
must have caused him serious physical discomfort and mental suffering
which cannot be compensated for by the mere finding of a violation.
Ruling on an equitable basis, it therefore awards the applicant EUR
6,000 in respect of non-pecuniary damage.
B. Default interest
The
Court considers it appropriate that the default interest 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 the conditions
of detention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
3 of the Convention on account of the conditions of detention;
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 6,000 (six thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage, to be
converted into Romanian lei, 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 4 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Casadevall Deputy Registrar President
