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You are here: BAILII >> Databases >> European Court of Human Rights >> CONSTANTIN TUDOR v. ROMANIA - 43543/09 - Chamber Judgment [2013] ECHR 559 (18 June 2013)
URL: http://www.bailii.org/eu/cases/ECHR/2013/559.html
Cite as: [2013] ECHR 559
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    THIRD SECTION

     

     

     

     

     

     

    CASE OF CONSTANTIN TUDOR v. ROMANIA

     

    (Application no. 43543/09)

     

     

     

     

     

     

     

     

    JUDGMENT

     

     

     

    STRASBOURG

     

    18 June 2013

     

     

     

    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 Constantin Tudor v. Romania,

    The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

              Josep Casadevall, President,
              Alvina Gyulumyan,
              Ján Šikuta,
              Luis López Guerra,
              Nona Tsotsoria,
              Kristina Pardalos,
              Johannes Silvis, judges,
    and Santiago Quesada, Section Registrar,

    Having deliberated in private on 28 May 2013,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE


  1.   The case originated in an application (no. 43543/09) 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 Constantin Aurelian Tudor (“the applicant”), on 28 April 2009.


  2.   The applicant, who had been granted legal aid, was represented by Mr A. Grigoriu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented successively by their Agent, Mr Răzvan-Horaţiu Radu, and their co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs.


  3.   As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the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).


  4.   The applicant alleged, in particular, that the material conditions of his detention in Jilava Prison and a lack of adequate medical care for his spinal disc hernia had breached his rights guaranteed by Article 3 of the Convention.


  5.   On 2 September 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

    6. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE


  6.   The applicant was born in 1975. He is currently detained in Rahova Prison.


  7.   By a final judgment of 28 September 2004 the Court of Cassation sentenced the applicant to twelve years’ imprisonment for human trafficking.

    8. A.  The material conditions of detention

    1.  The applicant


  8.   On 20 February 2008 the applicant was detained by the Bucharest Police Department after being returned from Turkey, where he had fled in 2002, and started serving his prison sentence.


  9.   In his initial letter addressed to the Court on 28 April 2009 the applicant expressly stated that his rights guaranteed by Article 3 of the Convention had been breached in so far as, inter alia, he had been quartered (cazat) in Jilava Prison, a penitentiary notorious as a place of torture and physical and mental terror because of inhuman and degrading detention conditions. He further contended that his assertions had already been proved before the Court in the case of Bragadireanu v. Romania, no. 22088/04, 6 December 2007, and that they were supported by successive reports of the European Committee for the Prevention of Torture (CPT).

    10. 2.  The Government


  10.   The applicant was detained in Jilava Prison between 10 March and 25 September 2008, as well as between 2 October and 2 December 2008.


  11.   Between the second part of March and the first part of June 2008 the applicant was detained in cell no. 614 measuring 42.75 sq. m, which he shared with between 19 and 20 other inmates.


  12.   Between the second part of June and the first part of September 2008 the applicant was detained in cell no. 502 measuring 13.50 sq. m, which he shared with between 3 and 6 other inmates.


  13.   For the last two days of September 2008, as well as between the second part of November and the first day of December 2008, the applicant was detained in cell no. 611 measuring 42.39 sq. m. The occupancy rate of the cell was 5 inmates for the last two days of September 2008 and between 7 and 10 for the remainder of the period spent by the applicant in Jilava Prison.


  14.   In respect of the hygiene conditions, the Government submitted that every year the prison administration signed contracts for rodent and pest control with specialised companies. Disinfection of the detention rooms was carried out at least once every three months. Moreover, the quality of the drinking water was examined regularly by the prison administration with the aid of a specialised laboratory. Furthermore, the applicant had been provided with a special food diet approved by the prison doctor, which was prepared and served in accordance with the required hygiene conditions. The food was fresh and of good quality.


  15.   Since 2006 significant rehabilitation work had been carried out by the prison authorities. The heating network, the sewerage and the water supply systems had been repaired. Some sections of the prison and detention rooms had also been modernised.

    16. B.  Medical treatment


  16.   On 23 September 2000 and 9 September 2002 the applicant was hospitalised in the psychiatric unit of the Săpunari Hospital and was diagnosed with organic personality syndrome. He was prescribed treatment for his condition.


  17.   On an unspecified date in 2006 the applicant was diagnosed with spinal disc hernia. The examining doctor recommended that the applicant undergo surgery.


  18.   Between 13 March and 2 December 2008 the applicant was subjected to several other medical examinations - both in prison and in civilian hospitals - that confirmed the above-mentioned diagnoses, and he was prescribed treatment with various medicines. The prison authorities provided him with the prescribed treatment for his organic personality syndrome and his spinal disc hernia.


  19.   On 21 August 2008 the applicant filed a request with the prison doctor to be allowed to be examined in connection with his spinal disc hernia at the A.D. private clinic at his own expense.


  20.   On 1 September 2008 the doctor, M.M., granted the applicant’s request and indicated that he was scheduled for a nuclear magnetic resonance (NMR) scan at the E. private clinic.


  21.   On an unspecified date the applicant was taken to the E. clinic for the NMR, but the scan was not carried out because of his excessive weight, which could have damaged the machine.


  22.   On 22 September 2008 the applicant was taken to the H. private clinic, where the NMR scan was carried out free of charge.


  23.   On 6 October 2008 the applicant was examined in respect of his spinal disc hernia by doctor G.V., a specialist neurosurgeon from Bagdasar Hospital in Bucharest, and was recommended treatment with Tramadol, Famotidina and Movalis. An appointment was made for a re-examination of his condition.


  24.   On 31 October 2008 doctor G.V. re-examined the applicant in respect of his spinal disc hernia. He recommended that the treatment with Tramadol and Famotidina be continued and that the applicant be monitored in the infirmary prior to his surgery.


  25.   According to information submitted by the Government on 12 December 2008, the applicant refused to be admitted to the Rahova prison infirmary and on 15 December 2008 the Bagdasar Hospital informed the prison authorities by telephone that the applicant’s surgery had been temporarily postponed.


  26.   On 19 December 2008 the applicant’s surgery was re-scheduled by doctor G.V. for 9 March 2009.


  27.   According to the information submitted by the Government, on an unspecified date the applicant informed the prison doctor that his family had contacted doctor G.V. and asked him to re-schedule his surgery for 24 June 2009. The applicant’s statement was confirmed by doctor G.V. by telephone.


  28.   On 16 April 2009 the applicant was re-examined by doctor G.V. in respect of his spinal disc hernia. He was recommended treatment for twenty-one days and his surgery was scheduled for 24 June 2009.


  29.   According to the applicant’s medical file, his medical condition continued to be examined and monitored by specialist doctors in private and prison hospitals.


  30.   On 29 June 2009 the applicant was taken to Rahova Prison Hospital for a neurosurgical examination. However, the neurosurgeon was absent and his examination had to be re-scheduled for a later date.


  31.   On 14 July 2009 the applicant was examined by doctor C.S., a specialist neurologist working for the Bucharest Prison Hospital. According to her report, the applicant was suffering from lumbar pain. She prescribed treatment and recommended an urgent neurosurgical examination in respect of his condition.


  32.   Between 13 August and 14 December 2009 the applicant’s medical condition was regularly examined in both prison and private hospitals. On 24 August and 30 September 2009 the medical reports produced in respect of his conditions recorded that the applicant’s general state of health was good.


  33.   On 14 January 2010 the applicant was temporarily released from prison, as required by the final judgment of 11 December 2008 (see paragraph 43, below), and in March 2010 he was operated on for spinal disc hernia.


  34.   On 15 April 2010 the applicant returned to prison after his spinal disc hernia surgery.


  35.   On 26 April 2010 the Mina Minovici Forensic Medical Institute produced a forensic report in respect of the applicant’s medical condition. It concluded that after the spinal disc hernia the applicant needed physiotherapy for his recovery, which could be provided in prison hospitals.


  36.   Between April 2010 and 16 December 2010 the applicant’s medical conditions were monitored regularly by prison hospitals. According to the medical records drawn up on 16 December 2010 by the Rahova Prison doctor, his general medical condition was good.


  37.   On 3 August 2010 the applicant refused to be hospitalised in Rahova Prison Hospital and he requested to be taken to civilian hospitals for his post-surgical recovery treatment.


  38.   In a letter of 13 January 2011 the Rahova Prison authorities informed the Government that the applicant had been provided free of charge with the medical treatment prescribed by doctors for the entire time he was detained in that prison.

    39. C.  Proceedings against the domestic authorities in respect of the material conditions of detention and lack of medical care


  39.   On 13 October 2008 the applicant lodged a complaint with the judge responsible for the execution of prison sentences in respect of the conditions of detention in Jilava Prison and a lack of adequate medical care. The applicant also claimed compensation. He complained of inhuman and degrading treatment because: (i) the prison cells were infested with vermin; (ii) the quality of the food and drinking water was poor; (iii) proper facilities for personal and food hygiene were lacking; and (iv) the cells lacked furniture and the general living conditions of the detainees were poor. On 15 October 2010, at the hearing before the judge responsible for the execution of prison sentences, the applicant stated that his complaint concerned a lack of medical care for his spinal disc hernia and insufficient medical treatment for his organic personality syndrome.


  40.   By a decision of 23 October 2008 the judge responsible for the execution of sentences dismissed the applicant’s complaint. The judge held that the Jilava Prison authorities had taken the necessary steps to combat the vermin infestation of the cells as they had signed pest control contracts with a number of companies and the cells were disinfected at least once every three months. Moreover, the judge held that the applicant’s complaints concerning the poor quality of the food and drinking water and the lack of food and personal hygiene facilities were unfounded, as: (i) the food at the prison was prepared and stored on the basis of guidelines set by the Ministry of Justice; (ii) the quality of the drinking water had been found to comply with legal requirements according to an expert report of the Apa Nova water testing laboratory; (iii) the applicant had access to the prison facilities necessary to ensure his personal hygiene; and (iv) he was under an obligation to clean and air his room in accordance with the daily schedule for detainees. The judge also held that there was no evidence that the general living conditions for detainees as provided for in Law No. 275/2006 had not been met in the applicant’s case. Finally, the judge held that the applicant was being provided with adequate medical care. He was kept under medical surveillance, was prescribed the medical treatment that the doctors considered appropriate for his medical condition and, in addition, his request to be treated at A.D.’s natural private clinic at his own expense had been examined according to the relevant legal provisions. The judge also rejected the applicant’s claim for compensation, finding that the applicant could not bring a claim for compensation on the basis of the procedure provided for by Law No. 275/2006 and that he therefore had to bring separate proceedings seeking compensation. The applicant appealed against the judge’s decision.


  41.   On an unspecified date in 2008 the applicant brought proceedings in the Bucharest County Court seeking temporary release from prison on medical grounds. The domestic court ordered an expert forensic report in respect of the applicant’s medical condition.


  42.   According to the expert forensic report produced by the Mina Minovici Medical Forensic Institute on 28 November 2008, the applicant was suffering from, inter alia, a spinal disc hernia which required surgery and specialised post-surgery recovery. Consequently, the forensic expert report recommended the discontinuance of the applicant’s prison sentence for three months on the ground that the applicant’s spinal disc hernia could not be operated on in a prison hospital.


  43.   By a final judgment of 11 December 2008 the Bucharest County Court allowed the applicant’s action seeking his temporary release from prison on medical grounds and ordered his immediate release.


  44.   On 12 December 2008 the Rahova Prison authorities informed the Bucharest District Court that the applicant could not be released as the Bucharest Court of Appeal had issued a separate arrest warrant in his name on 17 December 2005 in a separate set of proceedings concerning human trafficking.


  45.   On 19 December 2008 the Bucharest County Court informed the Rahova Prison authorities that the applicant’s pre-trial detention on the basis of the arrest warrant of 17 December 2005 had been extended by an interlocutory judgment of 18 December 2008. It does not appear from the evidence in the file that the applicant appealed against the interlocutory judgment of 18 December 2008.


  46.   By a final judgment of 14 January 2009 the Bucharest District Court dismissed the applicant’s appeal against the decision of the judge responsible for the execution of sentences dated 23 October 2008, upholding the decision and finding that there was no evidence that the applicant’s rights as a detainee had been breached.


  47.   On 19 February 2009 the applicant was subjected to a psychiatric evaluation in the Jilava Prison Hospital. The medical report confirmed that the applicant’s organic personality syndrome had improved.


  48.   By final interlocutory judgments of 13 March, 29 May, 3 June, 29 July, 24 August, 12 November and 15 December 2009 the Bucharest Court of Appeal dismissed the applicant’s actions seeking the discontinuance of the pre-trial detention ordered against him on 17 December 2005. By a final interlocutory judgment of 29 May 2009 the Bucharest Court of Appeal also dismissed the applicant’s request for the suspension of the proceedings on medical grounds. Neither of the parties has provided the Court with the reasoning part of the interlocutory judgments delivered by the Bucharest Court of Appeal.


  49.   On 13 January 2010 the Bucharest Court of Appeal informed the Rahova Prison authorities that following its interlocutory judgment delivered on the same day, the applicant’s pre-trial detention ordered on the basis of the arrest warrant issued on 17 December 2005 had been revoked and the applicant had been placed under an obligation not to leave town.

    50. II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW


  50.   Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006, are given in the cases of 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).


  51.   Excerpts from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) on prison conditions are given in the case of Bragadireanu v. Romania ( no. 22088/04, §§ 73-75, 6 December 2007).


  52.   The relevant parts of the report of the Romanian Helsinki Committee of 12 June 2008 in respect of the detention conditions in Jilava Prison read as follows:

    53. “... the basement of the old part of the prison building was completely flooded with waste water ... Consequently, rats and cockroaches (and bed bugs according to some detainees) have infested the cells in that part of the building. Moreover, most cells were also infested with lice, mainly due to worn out bed mattresses. No delousing operation could be effective as long as the mattresses were not replaced ... The prison management claimed it had engaged several pest control companies, which all gave up after taking note of the situation in the prison. Another notorious problem was the extremely poor water quality (muddy and filled with impurities) - unfit for drinking and risky even for washing ... In terms of detention space, the total area of detention space was 3034.81 sq. m, while the population was 1460, meaning 2.08 sq. m of available detention space per detainee, half of the minimum norm recommended by the CPT ... The kitchen area was totally unhygienic and the food quality was poor ...”

    THE LAW

    I.  PRELIMINARY OBSERVATION

    A.  The parties’ submissions


  53.   The Government submitted that in their view the applicant had not complained in concrete terms before the Court about the material conditions of his detention in Jilava Prison and they asked the Court not to examine that part of the applicant’s complaints. Moreover, they argued that that part of the applicant’s complaints was inadmissible as incompatible ratione personae because the applicant did not claim to be the victim of a violation of his rights guaranteed by Article 3 of the Convention. They contended that while the applicant had made a general statement that the conditions of his detention were inappropriate, he had never referred expressly to overcrowding or the hygiene conditions in prison. Moreover, the fact that the applicant might have raised these issues before domestic courts did not imply that he wished to raise a similar complaint before the Court. In his application before the Court the applicant had failed to provide details about the conditions of detention he had been faced with personally and had been content to refer to the conditions of detention described by a different applicant in a separate case. Thus, had he desired to lodge a distinct complaint before the Court with regard to the material conditions of his detention, he should have complained of and described his own conditions and not confined himself to noting that such conditions were common knowledge.


  54.   The applicant disagreed.

    55. B.  The Court’s assessment


  55.   The Court reiterates that since it is master of the characterisation to be given in law to the facts of a 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 and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, § 29, 21 February 1990, Series A no. 172).


  56.   The Court notes that in his letter of 28 April 2009 the applicant expressly stated that his rights guaranteed by Article 3 of the Convention had been breached because of, inter alia, the inhuman and degrading conditions of detention in Jilava Prison where he was detained. While it is true that he did not provide a detailed description of the conditions of detention and he did not expressly refer to overcrowding and lack of hygiene conditions he supported his assertions concerning the conditions he was detained in by referring to the Court’s finding in the case of Bragadireanu and to successive CPT reports.


  57.   The Court further notes that in the case of Bragadireanu it found a violation of Article 3 of the Convention in respect of the conditions of detention the applicant was held in on account of overcrowding and lack of hygiene conditions (see Bragadireanu, cited above, § 97). Moreover, successive CPT reports, also referred to in the case relied on by the applicant, when examining the conditions the detainees were housed in, repeatedly stressed overcrowding and the lack of hygiene as constant problems of the conditions of detention in Romanian prisons (see Bragadireanu, cited above, § 75).


  58.   In the light of the above, and having regard to the wording of the applicant’s letter of 28 April 2009 concerning the inhuman and degrading conditions he was held in, the Court considers that it is reasonable to consider that the applicant did lodge a complaint concerning the material conditions of his detention in Jilava Prison, in particular regarding overcrowding and lack of hygiene conditions. The Court also notes that he expressly claimed that he was directly affected by the alleged violation.


  59.   Therefore, the Court dismisses the Government’s preliminary objection.

    60. II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION


  60.   The applicant complained about the material conditions of his detention in Jilava Prison, in particular, overcrowding and lack of hygiene conditions, and of a lack of adequate medical treatment in prison for his spinal disc hernia. He relied on Article 3 of the Convention, which reads as follows:

    61. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

    A.  Complaint concerning the material conditions of detention

    1.  Admissibility

    (a)  The parties’ submissions


  61.   The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained before the domestic authorities under Law no. 275/2006 of the conditions of his detention, or he had withdrawn such a complaint. They argued that the remedy under that Law was effective, having regard to the jurisprudence already sent by them in previous cases such as, inter alia, Lăutaru v. Romania (no. 13099/04, § 74, 18 October 2011).


  62.   The applicant disagreed.

    63. (b)  The Court’s assessment


  63.   The Court notes that the applicant’s complaint concerns the material conditions of his detention, in particular, overcrowding and poor hygiene conditions. In this regard, it notes that in recent applications lodged against Romania concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal action suggested by the Government does not constitute an effective remedy (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 Lăutaru, cited above, § 85).


  64.   The Court therefore concludes that the domestic case-law referred to by the Government does not indicate how the legal action 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, cited above, § 35).


  65. .  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 Jilava Prison.


  66. .  Lastly, the Court notes that the applicant’s complaint concerning the material conditions of detention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

    67. 2.  Merits

    (a)  The parties’ submissions


  67.   The applicant submitted that the conditions of his detention were inappropriate.


  68.   The Government, referring to their description of the detention conditions submitted before the Court (see paragraphs 10-15 above), contended that the domestic authorities had taken all necessary measures to ensure adequate conditions of detention and that the applicant’s complaint was groundless.

    69. (b)  The Court’s assessment


  69.   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 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).


  70.   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 the detention conditions described are “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 39, 7 April 2005).


  71.   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 the allegations. A failure on the 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).


  72.   The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees and unsatisfactory hygiene conditions (see, in particular, Kalashnikov v. Russia, no. 47095/99, § 98, ECHR 2002-VI; Ciorap v. Moldova, no. 12066/02, § 70, 19 June 2007; Petrea, cited above, §§ 49-50; and Ali v. Romania, no. 20307/02, § 83, 9 November 2010).


  73.   In the case at hand, the Government has failed to put forward any argument that would allow the Court to reach a different conclusion.


  74.   Moreover, the applicant’s submissions in respect of the overcrowded and unhygienic conditions corresponds to the general findings by the CPT in respect of Romanian prisons (see paragraph 51 above) and to the findings of the report of the Romanian Helsinki Committee in respect of Jilava Prison (see paragraph 52 above).


  75.   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.

    76. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in Jilava Prison.

    B.  Complaint concerning the alleged lack of medical treatment

    1.  Admissibility

    (a)  The parties’ submissions


  76.   Relying on the Court’s case-law, 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 a lack of adequate medical treatment in prison on the basis of Law no. 275/2006. They further argued that lodging one complaint concerning one medical event did not satisfy the requirements of the rule of exhaustion of domestic remedies.


  77.   The applicant disagreed. He argued that he had complained before the domestic authorities about the lack of adequate medical treatment in prison and that he was not required to use the same remedy repeatedly.

    78. (b)  The Court’s assessment


  78.   The Court finds that it is not necessary to examine the Government’s preliminary objection because it considers that the applicant’s complaint is in any event inadmissible for the following reasons.


  79.   The Court reiterates that while Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX, and Kudła, cited above, §§ 93-94).


  80.   The Court notes at the outset that the applicant was diagnosed with spinal disc hernia and was recommended surgery two years prior to his detention (see paragraph 17 above). Therefore, it does not consider that the applicant’s medical condition was caused by his detention, or that the authorities can be held responsible for it (see, mutatis mutandis, Viorel Burzo v. Romania, nos. 75109/01 and 12639/02, § 81, 30 June 2009).


  81.   With regard to the medical treatment received by the applicant, the Court notes that the authorities made efforts to meet the applicant’s health needs by regularly taking him to prison or civilian doctors, including specialist doctors, or by hospitalising him in civilian and prison hospitals. Moreover, the Court observes that the applicant was prescribed medical treatment designed to alleviate his condition and that that treatment was provided to him on a regular basis. Furthermore, it does not appear from the evidence in the file that the required medical treatment was not available to him free of charge.


  82.   While it is undisputed that the domestic courts ordered his temporary release because his spinal disc hernia could not be operated on in a prison hospital, the Court notes that the prison authorities were forced to delay his release on account of a separate arrest warrant issued in his name on 17 December 2005. It also notes that although the applicant’s temporary release and surgery were delayed by almost a year, he remained under constant medical supervision and treatment. Moreover, it does not appear from the evidence in the file that his medical condition deteriorated or became more serious over that period. In this context, the Court observes that although on 14 July 2008 the doctor treating the applicant recommended an urgent neurological examination in respect of his condition, the subsequent medical reports confirmed that he was in a good general state of health.


  83.   The Court further notes that after the arrest warrant of 17 December 2005 was revoked, the prison authorities released the applicant immediately. In addition, following his surgery and return to prison he had access to post-surgical recovery treatment and remained under constant medical supervision. Furthermore, his medical condition remained good, as confirmed by the medical report of 16 December 2010.


  84.   Having regard to the above, the Court considers that the applicant’s situation in the particular circumstances of the present case did not attain the minimum level of severity required under Article 3 of the Convention.

    85. It follows that this part of his complaints is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

    III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION


  85.   Relying on Article 3 of the Convention, the applicant complained of a lack of sufficient medical care in prison for his organic personality syndrome. Invoking Article 6 § 1 of the Convention, the applicant complained that the proceedings concerning his complaint in respect of the conditions of detention in Jilava Prison had been unfair in so far as the Bucharest District Court had improperly assessed the evidence, misinterpreted the applicable legal provisions, and lacked impartiality, and in so far as his claim for compensation was concerned, the judge responsible for the execution of prison sentences had dismissed it without providing reasons for his decision.


  86.   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 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 application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

    87. IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION


  87.   Article 41 of the Convention provides:

    88. “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


  88.   The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.


  89.   The Government considered the sum claimed by the applicant to be excessive and argued that there was no causal link between the alleged violation and the damages sought. They submitted that a finding of a violation would constitute sufficient just satisfaction in the case.


  90.   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 the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage.

    91. B.  Costs and expenses


  91.   The applicant did not claim any costs and expenses.

    92. C.  Default interest


  92.   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.

    93. FOR THESE REASONS, THE COURT UNANIMOUSLY

    1.  Declares the complaint concerning Article 3, in so far as it concerns the material conditions of the applicant’s detention in Jilava Prison, admissible, and the remainder of the application 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 of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the respondent State’s national currency at the rate applicable on 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 18 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Santiago Quesada                                                                Josep Casadevall
           Registrar                                                                              President

     

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