FOURTH SECTION

CASE OF DĂSCĂLESCU v. ROMANIA

(Application no. 24125/09)

JUDGMENT

STRASBOURG

17 January 2017

This judgment is final. It may be subject to editorial revision.

In the case of Dăscălescu 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 6 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24125/09) 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 Gigel Dăscălescu (“the applicant”), on 27 April 2009.
2.  The applicant, who had been granted legal aid, was represented by Ms D.-O. Hatneanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms  C. Brumar, of the Ministry of Foreign Affairs.
3.  The applicant alleged, in particular, that the conditions of his detention in Arad Prison had been inhuman and in breach of Article 3 of the Convention.
4.  On 21 March 2014 the complaint under Article 3 of the Convention was 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
5.  The applicant was born in 1966 and lives in Valea Călugărească.
6.  In 1993 the applicant was sentenced to twenty years’ imprisonment for homicide. Between 24 November 2004 and 12 November 2008 he was serving his sentence in Arad Prison.
Section 1.01	A.  Conditions of detention
7.  The applicant alleged that, between 24 November 2004 and 2 October 2008, while he had been under a closed prison regime in Arad Prison, he had been taking his daily three hours of exercise in outside yards which lacked access to toilets or running water. At certain times there were as many as fifty prisoners in one recreation yard. Especially during the hot days of summer the situation could have been described as inhuman and humiliating, because he had been forced to satisfy his physiological needs together with other prisoners along the fences of the yard, in the same place where they were supposed to walk and breathe fresh air.
Section 1.02	B.  Complaints lodged by the applicant before the domestic authorities
8.  The applicant alleged that he had on numerous occasions asked the Arad Prison administration to provide sanitary facilities and running water in the recreation yards. His requests had been consistently ignored or had received the reply that renovation works were planned for the future.
9.  On 4 June 2008, the applicant lodged a new complaint asking the prison authorities to equip the recreation yards with running water and toilets. The prison authorities noted on the applicant’s request that in fact he had been allowed to take water with him during his daily exercise and he had also been able to go to his cell in order to satisfy his physiological needs during this time. They further noted “At the moment renovation works are under way in the yards.”
10.  On 16 July 2008 the post-sentencing judge in Arad Prison rejected a complaint on the same matter lodged by the applicant. The judge held that Law no. 276/2006 on the execution of sentences did not provide for the right to have access to sanitary facilities and water during the prisoners’ daily outside exercise.
11.  Relying on the provisions concerning the prisoners’ right to daily exercise set forth by Law no. 276/2006 as well as the provisions of Article 3 of the Convention, the applicant made a complaint against the above-mentioned decision before the Arad District Court. He also sought compensation for non-pecuniary damage in respect of the inhuman treatment he had been suffering during his daily exercise since 24 November 2004 in Arad Prison. The Arad Prison administration maintained before the court that the law did not provide for an obligation to equip the recreation yards with sanitary facilities.
12.  In a final judgment of 28 October 2008 the Arad District Court found that the applicant had indeed been deprived of access to a toilet and drinking water during daily exercise, and that this was in breach of Article 48 of Law 275/2006, which regulates prisoners’ right to daily exercise. The court based its decision on witness statements as well as on information submitted by the prison authorities. In view of the evidence before it, the court allowed the applicant’s complaint and ordered the Arad Prison authorities to ensure the applicant’s right to daily exercise in a yard provided with sanitary facilities and drinking water. The applicant’s request for damages was rejected as out of time, since it had not first been raised before the post-sentencing judge.
13.   In the meantime, on 23 October 2008 the post-sentencing judge in Arad Prison had studied another complaint lodged by the applicant in respect of another alleged breach of his rights. In this context the post-sentencing judge held that he was not competent in law to deal with the applicant’s request for compensation for non-pecuniary damage.
Section 1.03	C.  Subsequent developments
14.  On 2 October 2008 the applicant was placed under a semi-open detention regime, because his prison term was approaching its end. He was moved to a different prison wing, where the recreation yard was provided with both toilets and drinking water.
15.  On 12 November 2008 the applicant was conditionally released from prison.
16.  In a letter dated 2 June 2014, submitted by the Government, the National Administration of Prisons mentioned that the recreation yards of Arad Prison could not technically be equipped with sanitary facilities because the prison lacked a sewage collection and disposal system. At the time the letter was sent, running water had been made available in all yards.
Article II.	II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS
17.  Excerpts from the relevant provisions concerning the rights of detainees, namely Law no. 275/2006 on the enforcement of sentences, are quoted in Iacov Stanciu v. Romania (no. 35972/05, §§ 113‑16, 24 July 2012).
18.  The provisions concerning the competence of the post-sentencing judge as set forth by Law no. 275/2006 at the relevant time are the following:
Article 38
The exercise of the rights of individuals sentenced to imprisonment
“... (2) Prisoners may complain before the post-sentencing judge about decisions taken by prison authorities in the enforcement of the rights provided by the current chapter ...
(5) The post-sentencing judge is to resolve the complaint in a reasoned judgment within ten days of receipt, and is to adopt one of the following solutions:
a) to allow the complaint and order the cancellation, revocation or amendment of the decision taken by the prison authorities;
b) to reject the complaint if it is ill-founded.”
19.  Excerpts from the relevant parts of the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), as well as their reports concerning Romanian prisons, are also quoted in Iacov Stanciu (cited above, §§ 121-27). In a report drafted on the occasion of its 2014 visit to Romania and published on 24 September 2015, the CPT mentioned, among other issues, the following findings in respect of Arad Prison: poor sanitary installations, vermin infestation and lack of any protection from the sun or bad weather in the recreation yards.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
20. The applicant complained of inhuman conditions of his detention in Arad Prison. He also complained that he had been unable to obtain compensation in this respect.
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
21.  The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained sooner to the authorities of the conditions of his detention on the basis of Emergency Ordinance no. 56/2003 and subsequently Law no. 275/2006 on the execution of sentences.
22.  In addition, they submitted that the applicant could have lodged a civil claim on the basis of Articles 998-99 of the former Romanian Civil Code, seeking to establish the prison authorities’ liability for the specific situation in which he found himself. Bringing a claim under Law no. 275/2006, which provided for an effective remedy for the applicant’s complaint, constituted a preliminary and mandatory step to be taken before instituting the above-mentioned proceedings and in order for any claim for damages to be granted. They further argued that the applicant was familiar with this procedure since he had already brought before the civil courts in 2007 an action for damages based on the above civil code provisions. In this respect the Government submitted a judgment by which the Arad County Court rejected on 27 October 2009 the applicant’s request for compensation for non-pecuniary damage for excessive delays in the examination of a set of criminal proceedings against him. The Arad County Court concluded in that judgment that the applicant had not lodged the request against the right authorities.
23.  The applicant contested these arguments and held that he had brought the situation to the prison authorities’ attention throughout his entire detention period but he had been constantly told that his request involved renovation works which were planned for the future. Therefore, having in mind that toilets were never installed in the yards, not even after the renovation works – as indicated by the National Administration of Prisons’ letter of 2 June 2014 - in the applicant’s opinion, it is clear that any complaint made at any other time would have had the same outcome.
24.  The applicant further alleged that the Government had not proved that there was existing well-established case-law in respect of complaints involving material conditions of detention with financial implications such as the one raised by him. In addition, relying on the Court’s findings in the case of Iacov Stanciu (cited above, §§ 197-98) the applicant submitted that requiring a prisoner to go through several sets of court proceedings in order to obtain separately the recognition of a violation of the Convention and compensation for such a violation would be too burdensome.
25.  The Court notes from the outset in the instant case that the applicant’s complaint, more specifically the lack of sanitary facilities and running water in the yards of the Arad Prison, falls within the sphere of the material conditions of his detention. In this regard, it observes that in previous applications lodged against Romania concerning similar complaints about material conditions of detention it has already found that, given the specific nature of this type of complaint, the legal actions suggested by the Government in the current case did not constitute an effective remedy (see Leontiuc v. Romania, no. 44302/10, § 50, 4 December 2012; Macovei v. Romania, no. 28255/08, § 23, 22 October 2013; and Necula v. Romania, no. 33003/11, § 38, 18 February 2014).
26.  In addition, the Court notes that the applicant brought proceedings before the Romanian judicial authorities under Law no. 275/2006, raising his specific complaint. However, his complaint was dismissed by the post‑sentencing judge who considered, along with the prison authorities, that there was no legal obligation to equip the recreation yards as requested by the applicant.
27.  In this context, and taking into consideration the statement by the prison authorities that it was not technically possible to install toilets in the wing where the applicant was held at the relevant time, the Court considers, along with the applicant, that any requests that he could have made at any time throughout his detention period would have received the same negative answer. The Court also observes that although the applicant had lodged a complaint on 4 June 2008 it was only on 2 October 2008, when his prison regime automatically changed owing to his imminent release, that he had been moved to a section of the prison which had a properly equipped recreation yard.
28.  As regards the possibility of bringing a separate civil action under Articles 998-99 of the former Romanian Civil Code with a view to claiming damages, the Court notes that the Government failed to submit any examples of domestic case-law capable of verifying the efficiency of such a course of action in a case similar with the current one (compare, inter alia, Leontiuc, cited above, § 83). The judgment of 27 October 2009 of the Arad County Court relied on by the Government does not concern the issue of material conditions of detention. Moreover, the Court has already found that in case of complaints about the material conditions of detention a separate civil action for tort did not constitute an effective remedy (see Florea v. Romania, no. 37186/03, §§ 37-45, 14 September 2010). The Court also held that a civil action for damages based on the Romanian general tort law requires proof of negligence on the part of the person complained against (see, among others, Lazariu v. Romania, no. 31973/03, §§ 88 and 89, 13 November 2014). In this context and having in mind that the post‑sentencing judge already considered that there was no legal obligation to equip the recreation yards as requested by the applicant (see paragraph 10 above), the Court is not convinced about the prospects of success of such an action in the specific situation of the current case.
29.  Therefore, the Court considers that in the light of the circumstances of the present case the Government’s objection has to be dismissed.
30.  In conclusion, 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.  The parties’ submissions
31.  The applicant complained of poor hygiene in Arad Prison. More specifically, he alleged that he had been forced to take his daily exercise in a yard with no access to sanitary facilities and drinking water, where he had to satisfy his physiological needs together with other prisoners along the fence of the yard, and where during the summer months the smell was unbearable. He stressed that the allegations he had put forward before the Court in the present application, as well as the fact that they had breached his rights under the domestic law, had been confirmed in the judgment of 28 October 2008 of the Arad District Court. However, he had not been able to obtain compensation for this breach of his Article 3 rights.
32.  The Government contended that the applicant failed to substantiate his allegations of an alleged violation of his rights under Article 3 of the Convention. They further accepted that indeed the recreation yards in the wing where the applicant had been held were not equipped with toilets and running water. However, prisoners who needed to use the toilet were taken by the prison guards to the toilets inside their cells if they asked. In addition, prisoners were allowed to carry bottles of water with them in the yard.
(b)	2.  The Court’s assessment
33.  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 human dignity; that the manner and method of execution of the measure of detention do not subject him/her 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 Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI, and Enăşoaie v. Romania, no. 36513/12, § 46, 4 November 2014).
34.  When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II, and Todireasa v. Romania (No.2), no. 18616/13, § 54, 21 April 2015).
35. The Court also notes that, in addition to overcrowding, other aspects of the physical conditions of detention are relevant for its assessment of compliance with Article 3 (see Babushkin v. Russia, no. 67253/01, §§ 44 and 48, 18 October 2007, and Iacov Stanciu, cited above, § 169). The Court has found that the following conditions of detention raise an issue under Article 3 of the Convention: poor sanitary facilities, such as a limited number of toilets and sinks for a large number of detainees; sinks in cells providing only cold water for a wide range of needs (personal hygiene, washing clothing and personal objects, and cleaning the toilets); limited access to hot showers; and poor sanitary conditions in general (see Iacov Stanciu, cited above, § 175).
36.  Turning to the present case the Court notes that the applicant complained of poor hygiene conditions in the Arad Prison, more specifically of lack of access to toilets and running water in the recreation yards which he had been using for three years and ten months, sometimes in overcrowded conditions. This state of affairs had been confirmed by the Arad District Court on 28 October 2008 (see paragraph 12 above). Therefore, the Government’s assertion that the applicant had not substantiated his allegations cannot be taken into account.
37. The Court also observes that the lack of access to toilets in the recreation yards used by prisoners under a closed prison regime is an ongoing situation at Arad Prison (see paragraph 16 above). 
38.  Furthermore, the Court has recently found a violation of Article 3 of the Convention on account of poor hygiene conditions in Arad Prison (see Gomoi v. Romania, no. 42720/10, 22 March 2016). Moreover, allegations in respect of poor hygiene, such as the issue in the current case, correspond to the general findings by the CPT in respect of Romanian prisons.
39.  The foregoing considerations are sufficient to enable the Court to conclude that the physical conditions of the applicant’s detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment prescribed by Article 3.
There has accordingly been a violation of Article 3 of the Convention.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.  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
41.  The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage for the physical and emotional harm to which he had been subjected in Arad Prison.
42.  The Government submitted that the amount claimed was excessive.
43.  Making an assessment on an equitable basis, the Court awards the applicant the entire amount claimed in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
44.  The applicant also claimed EUR 981.59 for costs and expenses incurred before the Court, to be paid directly into his representative’s bank account. The amount represents EUR 881.59 in lawyer’s fees and EUR 100 in secretarial expenses incurred by the non-governmental organisation APADOR-CH on the basis of an agreement concluded with the applicant.
45.  The Government submitted that the amount claimed was excessive.
46.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 881 in respect of lawyer’s fees, less the sum already received under this head in legal aid (EUR 850), thus EUR 31, to be paid directly into the bank account indicated by the applicant’s representative.
Section 4.03	C.  Default interest
47.  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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 31 (thirty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly to the applicant’s representative, Ms Diana-Olivia Hatneanu;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Andrea Tamietti	Paulo Pinto de Albuquerque
	Deputy Registrar	President