In the case of Vartic v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
JosepCasadevall, President,
AlvinaGyulumyan,
EgbertMyjer,
JánŠikuta,
InetaZiemele,
LuisLópez Guerra,
KristinaPardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 19 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
12152/05) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by aMoldovan national, Mr Ghennadii Vartic (“the applicant”), on
30 March 2005.
The Romanian Government (“the Government”) were
represented by their Agent, Mrs Irina Cambrea, of the Ministry of Foreign
Affairs.
The applicant complainedin particular about the
physical conditions of detention in two different prisons in Romania.
On 8 July 2010the Court decided to give notice of
the application to the Government. On the same date the Moldovan Government
were informed of their right to intervene in the proceedings in accordance with
Article 36 § 1 of the Convention and Rule 44 § 1 b, but they did not
communicate any wish to avail themselves of this right.
The Court decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
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respect of Romania, had withdrawn from the case (Rule 28 of the Rules of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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1973 and is currently
detained in Jilava Prison.
A. The applicant’s arrest and conviction
On 30 January 1996 the applicant was arrested on
suspicion of murder.
On 3 November 1998 the Bucharest Regional Court
sentenced the applicant to twenty years’ imprisonment for murder.
On 14 April 1999 Bucharest Appeal Court allowed
an appeal by the prosecution and increased the applicant’s sentence to
twenty-five years’ imprisonment.
On 28 October 1999, before the Supreme Court
(now the Court of Cassation), the applicant orally withdrew his appeal, as can
be seen from the court decision. According to that decision, the applicant was
assisted by an officially assigned lawyer but not by an interpreter. The
decision of 14 April 1999 became final.
B. The applicant’s conditions of detention in Jilava
and Rahova prisons
The applicant was detained in the following
prisons:
-
from 9 May 1996 until 19 April 1998 he was detained in Jilava Prison;
-
from 19 April to 30 April 1998 he was detained in the hospital of Jilava Prison;
-
from 30 April to 12 May 1998 he was detained in Rahova Prison;
-
from 12 May 1998 until 9 February 1999 he was detained in Jilava Prison;
-
from 9 February 1999 until 21 February 2009 he was detained in Rahova
Prison;
-
from 21 February 2009 until 2011 he was detained in Giurgiu Prison;
-
since 2011 he has been detained in Jilava Prison.
The parties disagreed as to the conditions of
detention in Jilava and Rahova prisons.
1. The applicant’s account
The applicant alleges that while he was in
Jilava Prison there were sixty people in one cell, and two or three people had
to share each bed. He was moved on numerous occasions to different cells, which
were all overcrowded.
The water was contaminated and had worms in it, and the food
was of very poor quality. This caused the applicant’s hospitalisation for ten
days in April 1998 for enterocolitis.
The heating was very low in winter and there was no ventilation
in summer. Half the showers were not working and this, coupled with the
overcrowding, made it very difficult to take a shower.
The applicant alleges that the cells in Rahova
Prison were overcrowded. There were always twelve or thirteen detainees for
every ten beds and occasionally people had to sleep on the floor. He alleges
that to have a bed in the cell detainees had to pay, or else use force.
2. Statements by the applicant’s cellmates
In a written statement signed by Mr T.X.L., a
cellmate of the applicant ‘in 1996-97 in Jilava Prison, Mr T.X.L. wrote that
the inmates were hungry and that he and the applicant had eaten snakes, cats
and dogs.
A statement signed by B.S.A. alleged that the
drinking water and the food at Jilava Prison contained worms and that there
were cockroaches in the cells.
3. The Government’s account
The Government argued that, in relation to the
conditions of detention in Jilava Prison, it could not give any information
concerning the dimensions of the cells, the number of beds and the available
space.
The Government presented a written statement
from the National Prison Authority (hereafter NPA) arguing that the food
provided in Jilava Prison was fresh and respected the rules of hygiene and
standards on calorie intake.
The Government acknowledged that the detained
persons were regularly searched in order to remove prohibited items such as
snakes, cats and dogs. The Government contended however that on no occasion did
the applicant introduce such things into his cell.
The Government argued that drinking water was
provided at all times, except on days when the system was being repaired, or
during the summer when it was not functioning properly. On such occasions the
water supply was stopped for a short period of time.
The Government argued that reports have shown that the water
was of good quality.
Detainees could shower each week in a room with
nineteen to twenty-three showers. Every cell was allotted fifteen to thirty
minutes for this.
Heating was provided on a preapproved schedule,
with the exception of days when the heating system was being repaired. From
1999 there was heating from 1 November to 31 March.
Because of malfunctions in the heating system the temperature
of the water going through the water heater was 30ºC.
The Government contended that the applicant
could participate in sport, cultural and entertainment activities and that he
had the opportunity to work.
The Government stated, in connection with the
conditions of detention in Rahova Prison, the applicant’s cell was 26.5 sq. m,
of which the toilet had 1.78 sq. m; the bathroom’s area was 6.48 sq. m, the
luggage storage area was 0.6 sq. m and the food space was 1.2sq. m.
The applicant’s room had a window measuring 1.44sq. m and two
windows of 0.72sq. m each in the toilet and in the food area.
Light was provided by light bulbs at night.
Each room had ten beds, a table, chairs, a television table, a
clothes hanging space, a luggage storage area and a food area.
There were never more than ten people in one cell.
The Government argued that during his detention
in Rahova Prison the applicant was diagnosed with hepatitis. As a result his
diet was prescribed by the doctors and beef was substituted for pork.
A room next to the cell provided constant cold
water and warm water according to a schedule. Warm water was available twice a
week, for two hours each time, from 12 noon until 2 p.m. and from 5 p.m. to 7
p.m.
There was unlimited access to drinking water and to the toilet.
The cell was heated for eight hours a day,
maintaining a temperature of 18ºC.
The Government argued that from 2007 the
detainees had the opportunity to exercise for half an hour each day and to
enjoy outdoor sport activities. The schedule for these activities was approved
by the director of the prison.
No evidence was provided as to the precise nature of the
exercise or outdoor sport activities enjoyed by the applicant.
The Government submitted that the applicant took
part in cultural activities. They provided documents from which it appeared that
he was registered in 2007 and 2008 to attend computer classes, Romanian
language classes and table tennis lessons for several months of the year.
The Government argued that no incidents
concerning the applicant’s right to correspondence were identified after 2002.
II. RELEVANT DOMESTIC LAW
Government Emergency Ordinance 56 of 27June2003
(“Ordinance no. 56/2003”) regarding certain rights of convicted persons states,
in Article 3, that convicted persons have the right to bring legal
proceedings before the court of first instance concerning the implementing
measures taken by the prison authorities in connection with their rights.
Ordinance no. 56/2003 has been repealed and replaced by Law no. 275 of
20 July 2006, which has restated the content of Article 3 mentioned
above in Article 38, which provides that a judge shall have jurisdiction over
complaints by convicted persons against the measures taken by the prison
authorities (see also Petrea
v. Romania, no. 4792/03, §§ 21-23,
29 April 2008).
III. DOCUMENTS CONCERNING THE SITUATION IN JILAVA
AND RAHOVA PRISONS
The relevant findings and recommendation of the
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (“the CPT”) are described in Bragadireanu v. Romania
(no. 22088/04, §§ 73-76, 6 December 2007) and Artimenco
v. Romania (no. 12535/04, §§ 22-23, 30 June
2009). In particular, the Court notes that in the report on the 2002-2003
visits the CPT expressed concerns about the limited living space available to
prisoners and the insufficient space provided by the regulations in place at
that date. It also noted that prisoners were sometimes obliged to share a bed
and that the toilets were not sufficiently separated from the living space.
With regard to Jilava Prison, excerpts from the
CPT’s findings following the visits of 1999 and 2006 are given in the case of Eugen
Gabriel Radu v. Romania(no. 3036/04, §§14-17, 13 October 2009). In particular, the
CPT expressed concern about the restricted living space, as the number
of detainees was more than twice the prison’s capacity, the shortage of beds, the lack of adequate separation between the toilets
and the living space in the cells, and described the conditions as “lacking
privacy” and “an affront to human dignity”.
There is no CPT report concerning Rahova
Prison. However, a Romanian NGO, APADOR-CH (Association for the Defence of
Human Rights in Romania – the Helsinki Committee) visited
this establishment on 13 February 2009. The report prepared following this
visit indicated, based on the information submitted by the authorities, that
the average personal space for prisoners was 2.77 sq. m. The overcrowding was
obvious when visiting individual cells: one of the cells visited, measuring 18
sq. m accommodated eleven prisoners, even though it had only ten beds. As
regards the prison’ food, the report indicated that only one detainee had
complained about its quality and that many prisoners preferred to eat the food
they received from home or that they bought from the shop.
Following visits in June 2006 to several prisons
in Romania, the CPT published a report on 11 December 2008, in which it stated,
inter alia:
“70. (...)
the Committee isgravelyconcernedthat the lackof bedsremainsan
ongoing problemnot onlyin the establishments visited, but also at the national level, and has been sincethe
firstvisit to Romaniain 1995.Itis high time thatmajor stepsare taken toput an
endto this unacceptable situation. TheCPT calls upon
theRomanian authoritiesto take decisive priority action to ensure that thateach
inmatehoused in aprisonhas a bed.
However, the Committee welcomes the fact that shortly after the
visit in June 2006, the official standard of living space per inmate in the
cell was increased from 6 cubic metres (which amounted to an area of about 2
square metres per detainee) to 4 sq. m or 8 cubic metres. The CPT recommends
that the Romanian authorities take the necessary steps to meet the standard of
4 sq. m of living space per inmate in shared cellsin all prisons in Romania.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the conditions of
his detention in Jilava and Rahova prisons were in breach of Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government stated that the complaint about
the conditions of detention in Jilava and Rahova prisons before 9 February 1999
should be rejected as out of time.
The Court reiterates that Article 35 § 1 of the
Convention permits it to deal with a matter only if the application is lodged
within six months of the date of the final decision in the process of exhaustion
of domestic remedies. It also reiterates that in cases where there is a
continuing situation, the six-month period runs from the cessation of that
situation (see Koval
v. Ukraine (dec.), no. 65550/01, 30 March 2004). In the instant
case, during the period of his detention the applicant was held in two prisons
and was transferred between them several times.
The Court then notes that it has previously held
that where the applicant’s transfer from one facility to another did not in any
way change his circumstances there was a continuous situation (see Seleznev
v. Russia, no. 15591/03, § 36, 26 June 2008).
The Court observes that the applicant
consistently complained about the conditions of detention in Jilava and Rahova
prisons, which seem to be substantially identical. His complaints do not relate
to any specific event but concern the whole range of problems regarding the
sanitary conditions, the temperature in the cells, overcrowding and so on,
which he suffered during the entire period of his detention. It follows that
the applicant’s detention in Jilava and Rahova prisons can be regarded as a
continuous situation. Accordingly, the Court dismisses the Government’s objection.
The Court notes that this complaint 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.
B. Merits
The Government, referring to the description of
the conditions of detention in the information provided by the NPA (paragraphs
18-30 above), 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. They stressed
that the quality of water and food in the prisons had been adequate, as had
been shown by the relevant authorities.
The applicant submitted that the cells had at
all times been severely overcrowded, that there was a serious lack of water to
drink and for showering, and that the food was poor and unhygienic.
The Court reiterates that Article 3 enshrines
one of the most fundamental values of democratic societies. The Convention
prohibits in absolute terms torture and inhuman or degrading treatment or
punishment, irrespective of the victim’s conduct (see Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV).
When assessing conditions of detention, account
has to be taken of the cumulative effects of these conditions, as well as of
specific allegations made by the applicant (see Dougoz v. Greece,
no. 40907/98, § 46, ECHR 2001-II). The length of the period for which
a person is detained in the particular conditions also has to be considered
(see, among others,Alver v. Estonia, no. 64812/01,
8 November 2005).
46. An extreme lack of
space in a prison cell weighs heavily as a factor to be taken into account for
the purpose of establishing whether detention
conditions are “degrading” within the meaning of view of
Article 3 (see Karalevičius
v. Lithuania, no. 53254/99, 7 April 2005).
An outline of the Court’s case-law under Article
3 of the Convention in connection with conditions of detention can be found in
a number of judgments concerning Romania (see, in particular,
Măciucă v. Romania, no. 25763/03, 26 May 2009; Ali v. Romania, no. 20307/02, 9 November 2010; Goh v. Romania, no. 9643/03, 21 June 2011; and Bădilă
v. Romania, no. 31725/04, 4 October 2011).
The key issue in the case at hand is the
assessment by the Court of the living space afforded to the applicant in the
two establishments concerned. The Court notes that the applicant did not contradict
the Government’s submissions on the size of the cells. What is contested
between the parties is the actual occupancy of those cells: while the
Government submitted that the number of prisoners in a cell was always inferior
or equal to the cell’s designated occupancy, the applicant claimed that in
Jilava Prison there were sixty detainees in one cell and that very often two or
three people had to share one bed. The same was true for Rahova Prison, where
twelve or thirteen people had to share ten beds.
The Court notes that the Government could not
provide any information concerning the years spent by the applicant in Jilava
Prison. The Court keeps in mind the findings of the CPT in this respect (see §
33).
As to the eleven years spent by the applicant in Rahova Prison,
it appears that he had around 2.9 sq. m available to him on average.
The Court concludes thus that the applicant’s personal space
seems to have been consistently below 3 sq. m, which falls short of the
standards imposed by the Court’s case-law (see Marian Stoicescu v. Romania, no. 12934/02, §§ 13 and 24, 16 July 2009, and Orchowski v.
Poland, no. 17885/04, § 122, ECHR 2009-... (extracts)).
The applicant’s situation was further
exacerbated by the fact that he could not take a shower often enough and had to
share a bed with other detainees, taking turns to sleep.
The Court has frequently found a violation of
Article 3 of the Convention on account of the lack of personal space afforded
to detainees and unsatisfactory sanitary conditions (see, in particular, Ciorap v. Moldova, no. 12066/02, §
70, 19 June 2007; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Răcăreanu v. Romania, no. 14262/03, § 49, 1 June 2010).
In the case at hand, the Government failed to put forward any
argument that would allow the Court to reach a different conclusion.
Even though in the present case there is no
indication that there was an intention to humiliate or debase the applicant,
the Court concludes that the conditions of his detention caused him suffering
which exceeded the unavoidable level of suffering inherent in detention and
which attained the threshold of degrading treatment proscribed by Article 3.
There has accordingly been a violation of
Article 3 of the Convention on account of the conditions of the applicant’s
detention in Jilava and Rahova prisons.
Taking into account this finding, the Court does
not consider it necessary to examine further the part of the complaint
concerning the poor quality of food and water.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant raised complaints under Articles
3, 5 § 1 (c), 5 § 3, 6 §§ 1-3, 13, 8, 14, 34 and 1 of Protocol No. 12
of the Convention.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is 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 61,000 euros (EUR) in
respect of pecuniary damage and 1,540,000 EUR in respect of non-pecuniary
damage.
The Government considered that there was no
causal link between the amount requested as pecuniary damage and the subject of
the present case. The Government further considered that the amount requested
as non-pecuniary damage was exaggerated.
The Court notes that it has found a violation of
Article 3 in the present case. In these circumstances, it considers that the
applicant must have experienced a serious distress. It therefore awards him EUR
12,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 2,500 for the
costs and expenses incurred before the domestic courts and for those incurred
before the Court.
The Government contested these amounts.
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 350 covering costs under all heads.
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
1. Declaresthe complaints concerning Article
3, in so far as they refer to the material conditions of detention in Jilava
and Rahova Prisons, 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, the
following amounts, to be converted into the respondent State’s national
currency at the rate applicable on the date of settlement:
(i) EUR 12,000 (twelve thousand euros), plus any
tax that may be chargeable,in respect of non-pecuniary damage;
(ii) EUR 350 (three hundred and fifty euros), plus any
tax that may be chargeable to the applicant, 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;
4. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
