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THIRD
SECTION
CASE OF MAZÂLU v. ROMANIA
(Application
no. 24009/03)
JUDGMENT
STRASBOURG
12
June 2012
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 Mazâlu v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24009/03) 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 Petru
Mazâlu (“the applicant”), on 25 June 2003.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu.
- 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respect of Romania, had withdrawn from the case (Rule 28 of the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).
- The
applicant complained about the conditions of his detention in the
Iaşi police station cells and in Iaşi High-Security Prison.
He complained specifically of overcrowding, and alleges that the
permanent artificial lighting in the cell damaged his eyesight.
- On
13 December 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Iaşi.
A. First set of criminal proceedings against the
applicant
- The
applicant was sentenced in 1992 to ten years’ imprisonment for
damage to community property (avut obştesc). By a final
decision of 7 September 1993 the Constitutional Court
declared unconstitutional the provisions of the Criminal Code
referring to crimes against community property.
- On
27 August 1996 the Prosecutor General lodged a request to have the
proceedings against the applicant reopened, on the basis that
his conviction was based on provisions declared
unconstitutional. By a final decision of 23 September 1997 the
Supreme Court of Justice granted the request to reopen the
proceedings, quashed the previous conviction, changed the legal
qualification of the offences committed by the applicant and
sentenced him to four months’ imprisonment for fraud, ordering
his immediate release from prison. At that time he had already
served fifty four months of the original sentence.
- On
10 May 2002 the applicant lodged an action in damages against the
Ministry of Finance, asking for compensation because he had been
imprisoned for fifty-four months, while the final decision of 1997
reduced his sentence to only four months’ imprisonment.
- By
a final decision of 20 December 2004, the High Court of
Cassation and Justice dismissed his action on the basis of the
provisions of Articles 504 and 505 of the Code of Criminal
Procedure (CCP), which limited the right to be paid compensation
solely to acquittal or a decision of the prosecutor not to pursue
criminal proceedings. Taking into account that the applicant had not
been acquitted, the domestic courts concluded that he did not qualify
for payment of compensation on the basis of the provisions of the CCP
as in force at that time, and dismissed his claim in this respect.
B. Second set of criminal proceedings
- The
applicant was arrested on 28 March 2001 on suspicion of fraud. He was
committed for trial on 20 June 2001. By a final decision of
16 January 2003 he was found guilty and was sentenced to
three years and eight months’ imprisonment. The domestic
courts, after reviewing evidence, including witness statements, a
financial report and the applicant’s statements, concluded that
the applicant had caused harm to different private companies by
issuing cheques without the funds to cover them. The applicant was
represented by a lawyer of his own choosing throughout the
proceedings. In his appeal on points of law he complained that no
evidence had been adduced in his favour. The appellate court reviewed
the decisions of the lower courts and concluded that they had
assessed the factual situation correctly and identified that the
applicant had committed the offence, and that his requests to adduce
evidence in his favour had been allowed.
C. Conditions of detention
- The
applicant had been detained in connection with the second set of
proceedings from 28 March 2001 until 19 March 2004, when he
was released conditionally.
- According
to him, he was detained in the Iaşi
police station cells until 25 June 2001, when he was
transferred to Iaşi High Security Prison.
The applicant’s description of the conditions of his
detention
- The
applicant complains mainly of overcrowding and unsatisfactory
sanitary conditions. He alleges that during his entire detention he
had to share a bed with other prisoners, mostly dangerous criminals.
(a) Iaşi police station
- According
to the applicant, in Iaşi police station he occupied cell 20.
It had eight beds and was occupied by ten detainees. The surface area
of the cell was 14.2 square metres.
- He
complained that the cell had no toilet. The detainees went to the
toilets twice a day, at 6 a.m. and 8 p.m. respectively. The rest of
the time the detainees had to use a bucket.
- He
alleged that he had been allowed to walk outside the cell for twenty
minutes each day.
- He
also complained that there was no running water.
- He
further complained that the cell had no natural light. It had a small
window with a grille.
(b) Iaşi prison
- The
applicant alleged that between 25 June 2001 and 18 May 2003
he had been placed in several cells: cells 72 and 74 (when he refused
to eat), 95, 4 and 51.
- He
alleged that cells 4 and 51, where he spent most of his time while in
detention, had no natural light. He claimed that when he had
complained to the prison authorities about the lack of natural light
he had been transferred to cell 95, which he shared with murderers
and paedophiles.
- He
further complained that these cells had more detainees than beds.
According to the applicant the cells had a surface area of
32.3 square metres and were occupied by up to forty-five
detainees.
- He
acknowledged that he had refused the twenty minute outdoor walks
and therefore he had been disciplinarily punished on 31 October 2002.
He justified his attitude by the pain caused to his eyes by natural
light.
2. The Government’s description of the
applicant’s conditions of detention
(a) Iaşi police station
- According
to the information provided by the Iasi Inspectorate of Police to the
Romanian Government, the applicant was placed in cell 20. Each
detainee had his own bed. However, there was no information
concerning the surface area of the cell and the number of prisoners
occupying it for the relevant period of detention.
- The
cell was fitted with clean toilets and had natural lighting and
adequate ventilation.
Iaşi prison
- According
to the information submitted by the National Prison Administration
(“the NPA”) and the Iaşi Prison Administration, the
applicant shared cell 27 with inmates with no previous convictions,
serving sentences less severe than ten years’ imprisonment.
- The
surface area of the cell was 33.3 square metres. However, there was
no information concerning the number of prisoners occupying it for
the relevant period of detention.
- They
also alleged that the cell had natural lighting and good ventilation.
It had a supply of running and drinking water.
- According
to the Government the prison had its own electric and heating
facilities. The detainees could take a shower at least once a week.
- The
Government claimed that the applicant used to participate in
entertainment and sport activities. However, on the ground that the
applicant refused to take the daily walk and to participate in
recreation activities, he was sanctioned with a reprimand on
31 October 2002.
D. The applicant’s medical condition
- The
applicant alleged that his eyesight had been seriously impaired as a
result of his detention in cells with neon light on permanently. He
claimed that at the time of his arrest he had 2.5 dioptres in both
eyes, while after twenty months of detention he had 3 dioptres in his
right eye and 5 dioptres in his left eye. He submitted in this
connection a medical certificate issued by the hospital of the Iaşi
Prison on 15 November 2002 attesting to that statement.
- The
Government maintained that according to the applicant’s medical
record, he had been “healthy and fit for work” when he
was placed in Iaşi Prison. They also admitted that the applicant
has since been under medical surveillance for simple hypermetropy and
presbyopia. They also submitted that on 15 November 2002 the
applicant had been diagnosed with chronic conjunctivitis and simple
hypermetropia and on 7 July 2003 with ophthalmological
haemorrhage.
- According
to the applicant’s medical file, from the date of
his imprisonment he was regularly examined by doctors and was
prescribed and administered medication during the course of his
detention.
E. The applicant’s complaints concerning the
conditions of his detention
- The
applicant lodged a civil action in damages against the Romanian State
for the worsening of his eyesight. His claims were dismissed by the
Iaşi County Court in a first-instance judgement of
27 January 2003 as unsubstantiated. From the information
available in the case file it appears that the applicant lodged an
appeal, but no information is available as to the final outcome of
the case. According to the Government, the applicant did not continue
the proceedings.
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 56 of 27 June 2003
(“Ordinance 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 implementing measures taken by prison authorities in
connection with their rights.
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
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
Court notes that there are no CPT reports for Iaşi High Security
Prison. However, the Romanian Helsinki
Committee visited this prison on 20 June 2004. The
report issued following this visit shows that
the prison was overcrowded; that the courtyard where the detainees
had their hour’s daily exercise was not protected in any way
from sun or rain, and that relations between the detainees and the
authorities were rather tense.
- The
CPT report issued in April 2004, following a visit from 16 to
25 September 2002 to different police detention centres,
including the one at Iaşi, indicates that the cells had very
little natural light, that they were overcrowded, and that numerous
inmates had to share a bed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions of his
detention in Iaşi police station and in Iaşi High-Security
Prison. He mainly complained of overcrowding and unsatisfactory
sanitary conditions. He also alleged that the permanent artificial
lighting in the cells had damaged his eyesight. 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.”
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
Ordinance no. 56/2003. The Government considered the
ordinance an efficient, sufficient and accessible remedy. They also
submitted that the civil proceedings for damages brought by the
applicant had been suspended due to his failure to sustain his
action.
- The
applicant disagreed.
(b) The Court’s assessment
- The
Court notes that the applicant’s complaint concerns the
material conditions of his detention and, in particular,
overcrowding, lack of natural lighting and poor sanitary facilities
for the period between 28 March 2001 and 19 March 2004.
It further observes that Ordinance 56/2003, described by the
Government as an effective remedy, entered into force in June 2004,
after the applicant had been released from prison.
- Moreover,
the Court notes 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 did not constitute effective remedies
(see Petrea v. Romania, no. 4792/03, §§ 36
and 37, 29 April 2008; Eugen Gabriel Radu v. Romania,
no. 3036/04, § 23, 13 October 2009; Cucolaş v.
Romania, no. 17044/03, § 67, 26 October 2010;
Dimakos v. Romania, no. 10675/03, § 38,
6 July 2010; and Lăutaru v. Romania, no.
13099/04, § 84, 18 October 2011).
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
applicant reiterated that he had been held in unstable conditions,
that the cells had been overcrowded 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. He also argued
that the Romanian Government had failed to submit to the Court any
information with regard to the cells where he had been detained, the
period of time he had spent in each cell and the number of detainees
occupying the cells he was in. The applicant further claimed that his
eyesight has been seriously impaired as a result of his detention in
cells where there was neon light on permanently.
- The
Government, referring to the description of the detention conditions
in the information provided by the NPA, contended that the domestic
authorities had taken all necessary measures to ensure adequate
conditions of detention. They further contested the allegation that
the applicant had been held in overcrowded cells.
(b) The Court’s assessment
- 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 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 Kudła v. Poland [GC], no. 30210/96, §
94, ECHR 2000-XI).
- The
Court further 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 applicant’s
allegations (see Khudoyorov v. Russia, no. 6847/02,
§ 113, ECHR 2005 X (extracts); and Seleznev v. Russia,
no. 15591/03, § 41, 26 June 2008).
(i) The applicant’s conditions of
detention
- The
Court has frequently found a violation of Article 3 of the
Convention on account of the lack of personal space afforded to
detainees (see, among others, Răcăreanu v. Romania,
no. 14262/03, § 49, 1 June 2010; Dimakos
cited above, § 49; and Lăutaru, cited above,
§ 102).
In
the case at hand, the Government failed to put forward any argument
that would allow the Court to reach a different conclusion.
- The
Court further notes that the applicant’s description of the
overcrowding corresponds to the findings made by the CPT reports.
- In
the light of the above, the Court considers that the conditions of
the applicant’s detention caused him suffering which exceeded
the unavoidable level of suffering inherent in detention and which
attained the threshold of degrading treatment prescribed by
Article 3.
There
has accordingly been a violation of Article 3 of the Convention in
this respect.
(ii) The applicant’s alleged
impairment of eyesight
- The
Court notes that the parties disagreed in respect of the applicant’s
allegation that the lack of natural light in the cells in which he
had been detained had impaired his eyesight. The Government submitted
that the cells in Iaşi Police Station and Iasi High Security
Prison had natural light and the applicant had been under permanent
medical surveillance and treatment for his ophthalmological
conditions. They also stressed that the applicant’s visual
impairment in prison could be considered in direct connection to his
age, as when he was medically examined in 2002 he was 51 years
old.
- The
Court observes that according to the applicant’s submission he
already wore glasses when he started his detention in 2001. In the
absence of a clear indication in the applicant’s medical record
of a causal link between the conditions of detention and the
impairment of his eyesight the Court cannot establish with certainty
that his allegation was proved. Moreover, the applicant was
permanently under medical surveillance and was receiving medical
treatment for his conditions.
- Therefore,
having regard to the above considerations, the Court can conclude
that there has been no violation of Article 3 in this respect.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Complaints concerning the first set of proceedings
- The
applicant raised several complaints concerning the pre-trial
detention, the outcome of the proceedings and the alleged judicial
error in connection with the first set of criminal proceedings. The
Court notes that he lodged his application with the Court on
25 June 2003, while the proceedings were terminated by a
final decision delivered on 23 September 1997. It follows
that these complaints have been introduced out of time and must be
rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
B. Complaints concerning the civil proceedings in damages (final
decision of 17 December 2004)
- Relying
on Article 5 of the Convention the applicant complained that he had
not been awarded damages for his alleged illegal detention during the
period 1993-96, making reference to the civil proceedings in damages
he had brought in this connection. The Court notes that the national
law in force at that time limited the right to be paid compensation
solely to acquittal. Taking into account that the applicant had not
been acquitted it follows that he should have lodged his complaint
with the Court within six months of the date his sentence was
reduced to four months’ imprisonment and he became aware
that there was no effective remedy. The final decision reducing his
sentence was delivered on 23 September 1997, while he only
lodged his action in damages against the Ministry of Finance on
10 May 2002 and addressed the Court on 14 June 2005.
It
follows that these complaints have been introduced out of time and
must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
C. Other complaints
- With
regard to the rest of the complaints raised by the applicant under
Articles 5, 6, 7, 8 and 14 of the
Convention and Article 1 of Protocol No. 12
and Article 2 of Protocol No. 1 to the
Convention, 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 these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
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 2,500,000 euros (EUR) in total in respect of
pecuniary and non pecuniary damage.
- The
Government put forward that the applicant did not quantify or justify
the claims in respect of pecuniary damages. They considered that the
request for non-pecuniary compensation was excessive and that the
conclusion of a violation of the Convention Articles would suffice to
compensate for the non-pecuniary damage allegedly incurred.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant suffered distress as
a result of the conditions of his detention. It therefore awards him
EUR 7,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 2,500 for costs and expenses incurred
before the Court.
- The
Government claimed that the applicant had not submitted documents to
support his claims.
- 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. 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 100 for the
proceedings before the Court.
C. Default interest
- 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
- Declares the complaints concerning the
conditions of detention and the impairment of the applicant’s
eyesight 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 in Iaşi police station and Iaşi high security
prison;
- Holds that there has been no violation of
Article 3 of the Convention in connection with the impairment of
the applicant’s eyesight;
- Holds
(a) that
the respondent State is to pay to the applicant, within three months
of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, which are to be to be converted into the respondent State’s
national currency at the rate applicable on the date of settlement:
(i) EUR 7,500
(seven thousand five hundred euros) in respect of non pecuniary
damage, plus any tax that may be chargeable,
(ii) EUR 100
(one hundred euros), plus any tax that may be chargeable
to the applicants, in respect
of costs and expenses;
(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;
- Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
