FOURTH SECTION

CASE OF MIHĂILESCU v. ROMANIA

(Application no. 11220/14)

JUDGMENT

STRASBOURG

14 February 2017

This judgment is final but it may be subject to editorial revision.

In the case of Mihăilescu v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Paulo Pinto de Albuquerque, President,
	Iulia Motoc,
	Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 24 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 11220/14) 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 Gabi-Ainăld Mihăilescu (“the applicant”), on 22 January 2014.
2.  The applicant sought and obtained leave to present his own case (see Rule 36 § 2 of the Rules of the Court). The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.
3.  On 11 July 2014 the complaints concerning the applicant’s material conditions of detention in Iaşi Prison and the alleged lack of a personal care assistant in Iaşi and Rahova Prisons were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1971 and is currently serving a prison sentence in Vaslui Prison.
5.  In 2012 the applicant was convicted of human trafficking and sentenced to ten years’ imprisonment.
6.  He was detained in several detention facilities. However, in the present application he only complained about the conditions of his detention in Iaşi Prison and about the fact that he had not been assigned a personal care assistant in Rahova and Iaşi Prisons between 2 April 2013 and 30 January 2014.
Section 1.01	A.  The applicant’s conditions of detention in Iași Prison
7.  The applicant was detained in Iaşi Prison on several occasions, for a period of almost ten months: between 2 and 16 August 2013, 3 September 2013 and 11 March 2014, 14 March and 6 June 2014, as well as from 27 June and 4 July 2014.
(a)	1.  The applicant’s account
8.  The applicant alleged that he had been kept in conditions of poor hygiene in overcrowded cells. He had shared a cell of twenty‑nine square metres with seventeen other detainees. Moreover, he submitted that he had shared his cell with smokers despite the fact that he was a non‑smoker. The food had also been of very poor quality.
(b)	2.  The Government’s account
9.  According to the information provided by the National Prison Administration and forwarded to the Court by the Government, the applicant was held in the following cells:
- cells E 4.3, E 6.2. and E 6.7., all measuring 33.33 sq. m, containing twenty‑six beds (that is, 1.2 sq. m per bed), occupied by twenty to twenty‑six detainees;
- cell E 7.5., measuring 17.48 sq. m, containing three beds (that is, 5.8 sq. m per bed), occupied by one to three detainees;
- and cell E 8.10, measuring 17.48 sq. m, containing eight beds (that is, 2.1 sq. m per bed) and occupied by four to eight detainees.
10.  The Government did not provide any information concerning either the exact number of detainees who had occupied the cells or the time spent by the applicant in each of the above-mentioned cells.
11.  The detainees were provided with cleaning materials and personal hygiene products and they were responsible for cleaning the cells. Specialist contractors carried out work to eradicate rodents and insects whenever it was considered necessary. The detainees were entitled to two showers per week.
12.  The applicant received a special diet for his medical condition (see paragraph 13 below).
Section 1.02	B.  Assistance for the applicant in Iaşi and Rahova Prisons
13.  On 29 October 2013 a medical commission issued a certificate attesting that the applicant had been classified as a person with a permanent, severe physical disability on account of his visual impairment. The medical commission granted the applicant the right to a personal care assistant.
(a)	1.  The applicant’s account
14.  The applicant alleged that no special arrangements had been made for him as a person with severe visual impairment in Iaşi and Rahova Prisons between 2 April 2013 and 30 January 2014.
15.  Moreover, he contended that he had not been assigned a personal care assistant and had been permanently subjected to humiliating and degrading remarks from his cellmates, the same people to whom he had to appeal for assistance. As he had had no personal assistant he had not been able to benefit from daily walks and had been dependent on the other inmates to be moved around the prison.
16.  He had only received assistance from inmates in the facility in exchange for cigarettes and money. The inmates had refused to help him unless they were paid. The administration had not taken any steps to rectify the situation.
17.  The applicant submitted copies of several requests he had lodged with the prison authorities on 21 May, 21 November and 23 December 2013 and on 20 February 2014 respectively, by which he had asked to be assigned a personal assistant. In each of his requests he had indicated the name of the co-detainee he had preferred to be assigned to him. All these requests were dismissed on the ground that the co-detainees indicated by the applicant could not assist him because they had been subject to disciplinary sanctions.
(b)	2.  The Government’s account
18.  The Government submitted that the administration of both prisons had made diligent efforts to comply with the standards imposed by the Court. Moreover, in 2013 the authorities in Iaşi Prison had refurbished cell E 4.3 (see paragraph 9 above) to accommodate the needs of detainees with disabilities, including those of the applicant.
19.  The Government contended that the medical certificate on his disability had been issued only on 29 October 2013 (see paragraph 13 above) because the applicant had failed to submit the documents requested by the special commission for disabled persons. They further argued that even before the medical certificate had been issued, the prison authorities had on 9 August 2013 allowed a request lodged by the applicant on 7 August 2013 to be assigned a personal care assistant. They had assigned him an inmate, M.D., who had been sharing the applicant’s cell. He had assisted the applicant until 16 August 2013, when the latter had been admitted to the medical unit of Dej Prison. In the medical unit the applicant had been assisted by a co-detainee with whom he had shared the room. The Government did not provide any information about the co-detainee in question.
20.  After the applicant had returned to Iaşi Prison he had lodged a request to be assigned a personal care assistant. On 22 April 2014 the prison authorities had assigned him an inmate, whom the applicant had refused.
Section 1.03	C.  The applicant’s domestic complaints
21.  The applicant lodged several complaints on the basis of Law no. 275/2006 on the execution of sentences with the post-sentencing judge.
22.  In 2013 the applicant lodged three complaints concerning an infringement by the administration of the Rahova Prison of his right to have a personal care assistant. He stated that he had not been assigned a person to assist him although he was suffering from a severe visual impairment.
23.  The complaints were joined and examined together by the post‑sentencing judge on 14 June 2013. The judge noted that the prison doctor’s opinion was that the applicant was not entitled to a personal assistant. It further noted that on 9 May 2013 the prison authorities had appointed a commission of specialists, which had examined the applicant. The commission had found that owing to his visual impairment the applicant encountered difficulties in eating, maintaining his hygiene and in alerting prison staff or other co-detainees in case of need. It had therefore recommended a set of steps to be taken, which included closely monitoring the applicant. Subsequently, a detainee, C.F., sharing the applicant’s cell, had been assigned to support him in his daily activities. The post-sentencing judge dismissed the applicant’s complaints on the grounds that the steps taken by the prison authorities had been sufficient.
24.  In his application to the Court, the applicant contended that assigning him C.F. had been useless because the latter had refused to provide him with any help. The applicant produced a handwritten statement by C.F., dated 20 June 2013, in which the latter had stated that he had not helped the applicant because the prison authorities had refused to consider his activity as a personal care assistant as work that should be remunerated.
Article II.	II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW
25.  Excerpts from the relevant domestic legislation and international reports on prison conditions are given in the case of Iacov Stanciu v. Romania (no. 35972/05, §§ 113-129, 24 July 2012).
26.  The relevant provisions of international law governing the detention of disabled detainees are set out in Semikhvostov v. Russia (no. 2689/12, §§ 42-46, 6 February 2014) and Topekhin v. Russia (no. 78774/13, §§ 54‑58, 10 May 2016).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
27.  The applicant complained about the conditions of his detention in Iaşi Prison. He complained mainly of overcrowding, the poor quality of the food, the lack of proper hygiene and the non-segregation of smokers from non‑smokers. He also stated that despite the fact that his medical condition required direct and constant assistance from another person, he had not been assigned a personal care assistant in Rahova and Iaşi Prisons.
He relied 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.”
Section 3.01	A.  Admissibility
28.  The Government submitted that the applicant had failed to exhaust domestic remedies as he had not complained to the competent domestic authorities about the alleged exposure to smoke in Iaşi Prison.
29.  The applicant did not comment on this point.
30.  The Court recalls that in other cases against Romania concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal actions suggested by the Government did not constitute an effective remedy (see, for instance, Toma Barbu v. Romania, no. 19730/10, §§ 48-53, 30 July 2013). The Court does not see any reasons to conclude otherwise in the present case.
31.  It therefore rejects the Government’s plea of non‑exhaustion of domestic remedies.
32.  Lastly, the Court notes that the application 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.
Section 3.02	B.  Merits
(a)	1.  Submissions by the Government
33.  The Government, referring to the description of the detention conditions (see paragraphs 9-12 above), submitted that that they had been in line with the requirements of the Convention. The applicant had had an individual sleeping place and had been afforded sufficient living space. Moreover, they contended that in cells E 8.10 and E 7.5 the applicant had on occasions been afforded 4.4 sq. m and 5.8 sq. m respectively.
34.  They argued that the conditions of detention had corresponded to the specific needs of the applicant. He had been assisted by inmates specifically assigned to him by the facility’s administration for that purpose, he had received the necessary medical care and the facility’s personnel had monitored his condition closely.
(b)	2.  The Court’s assessment
(i)	(a)  General principles
35.  The Court reiterates that Article 3 of the Convention requires the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method in which the measure is enforced do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012).
36.  Taking into account the important role played by the minimum personal space per detainee in a multi-occupancy setting in the assessment of the detainees’ conditions of detention, the Court will further refer to its principles concerning prison overcrowding.
37.  In Muršić v. Croatia [GC] (no. 7334/13, §§ 136-141, 20 October 2016) the Court clarified and summarised these principles as follows:
(i)  the Court confirmed the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention;
(ii)  when the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space;
(iii)  the strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:
- the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor;
- such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities;
- the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention.
38.  Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Helhal v. France, no. 10401/12, § 50, 19 February 2015; and Zarzycki v. Poland, no. 15351/03, § 102, 12 March 2013).
39.  The Court has also held that detaining a disabled person in a prison where he could not move around and, in particular, could not leave his cell independently, amounted to degrading treatment (see Vincent v. France, no. 6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed contributed to its finding that the conditions of detention amounted to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010).
(ii)	(b)  Application of the above principles to the present case
40.  The Court will start by examining the issue of the personal space afforded to the applicant for the period of almost ten months during which he was detained in Iaşi Prison.
41.  The Court observes that the information provided by the Government in reply to applicant’s allegations of overcrowding were based on occupancy of the available beds, and not on surface area per detainee. However, the Court notes from the material at its disposal that the personal space available to detainees in Iaşi Prison was consistently less than three square metres. Much of the cell areas were taken up by beds (see paragraph 9 above).
42.  In light of the above considerations, the Court finds that a strong presumption of a violation of Article 3 of the Convention arises in the present case on account of the fact that the applicant was detained in cells in which he disposed of less than 3 sq. m.
43.  Accordingly, the Court must have regard to other relevant factors capable of rebutting such presumption, namely the possibility of sufficient freedom of movement and out-of-cell activities, which could have alleviated the situation created by the scarce allocation of personal space (see Muršić, cited above, § 160).
44.  In this connection, the Court considers that the conditions of the applicant’s detention cannot be assessed in isolation from his severe disability. The Court notes that according to the applicant’s allegations, not contested by the Government, the premises of the facility were not adapted for visually impaired people (see paragraph 14 above).
45.  Under these circumstances the Court notes that the applicant was not able to move about freely within the detention facility, but was confined to his cell, which seriously aggravated his conditions of detention.
46.  The Court further observes that a special commission in Rahova Prison had examined the applicant and recommended a set of measures to be taken, including the assignment of a personal care assistant (see paragraph 13 above).
47.  As regards the assignment of a personal care assistant, the Court notes that the parties made conflicting submissions. While the Government submitted that the applicant had been assisted by fellow inmates assigned by the prison administration (see paragraphs 19 and 20 above), the applicant contended that those inmates had refused to carry out their tasks, asking to be paid for that additional activity (see paragraph 16 above).
48.  Even assuming that the applicant permanently benefitted from the assistance of fellow inmates especially assigned to help him, the Court is particularly concerned about the quality of their assistance, as they were neither trained nor had the necessary qualifications to provide such assistance.
49.  The Court has already found a violation of Article 3 of the Convention in circumstances where prison staff felt that they had been relieved of their duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, with first aid (see Semikhvostov v. Russia, no. 2689/12, § 85, 6 February 2014, Mircea Dumitrescu v. Romania, no. 14609/10, §§ 59-65, 30 July 2013, and Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). It is clear that in the present case the help offered by the applicant’s fellow inmates did not form part of any organised assistance by the State to ensure that the applicant was detained in conditions compatible with respect for his human dignity. It cannot therefore be considered suitable or sufficient.
50.  In the light of all circumstances mentioned above, the Court is convinced that the conditions of the applicant’s detention, exacerbated by his severe sight impairment, amounted to “inhuman and degrading treatment” within the meaning of Article 3 of the Convention.
51.  Accordingly, there has been a violation of this provision.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
52.  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.”
Section 4.01	A.  Damage
53.  The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage and EUR 480,000 in respect of non-pecuniary damage. He argued that the amount claimed for pecuniary damage was intended to cover the cost of the assistance he had received from his fellow inmates.
54.  The Government submitted that there was no causal link between the alleged violations and the pecuniary damage claimed by the applicant. Moreover, the amount in respect of non-pecuniary damage was unjustified and excessive.
55.  The Court observes that the applicant has failed to demonstrate the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, having regard to all the circumstances of the present case, the Court accepts that the applicant must have suffered non-pecuniary damage, which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable thereon.
Section 4.02	B.  Costs and expenses
56.  The applicant did not claim the reimbursement of the costs and expenses incurred either before the domestic courts or before the Court. Therefore, the Court is not called upon to make an award in this respect.
Section 4.03	C.  Default interest
57.  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 application admissible;

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, EUR 7,500 (seven thousand five 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 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Andrea Tamietti	Paulo Pinto de Albuquerque
	Deputy Registrar	President