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THIRD
SECTION
CASE OF ONACA v. ROMANIA
(Application
no. 22661/06)
JUDGMENT
STRASBOURG
13 March
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 Onaca v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago
Quesada,
Section Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22661/06) 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
Nicolae Ioan Onaca (“the applicant”), on
26 May 2006.
- The
applicant was represented by Mr K. S. Kolozsi, a
lawyer practising in Oradea. 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respect of Romania, had withdrawn from the case (Rule 28 of the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 Mr Mihai
Poalelungi to sit as ad hoc judge (Article 26 § 4
of the Convention and Rule 29 § 1 of the Rules of
Court).
- Relying
on Article 3 of the Convention, the applicant alleged that he
received inhuman treatment from 28 November 2005 to 31 January 2006
while imprisoned in the Bihor Investigation Service detention
facility.
- On
28 January 2010 the President of the Third Section decided to
communicate the complaint concerning the alleged inhuman conditions
in which the applicant was detained. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 1).
- The
applicant and the Government each submitted observations on the
merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Oradea.
- On
28 November 2005 the applicant was placed in the custody of the
Prosecutor’s Office attached to the Bihor County Court, accused
of receiving a bribe while working as a sub-officer at the Romanian
border with Hungary.
- On
29 November 2005 the prosecutor ordered the applicant to be remanded
in custody for fifteen days. Subsequently, the applicant’s
pre trial detention was periodically extended by the Bihor
County Court until 1 August 2006, when the applicant was
released from prison.
- The applicant was detained on the premises of the
Bihor Investigation Service detention facility (Arestul Preventiv
al Inspectoratului de Poliţie
Bihor) between 28 November 2005 and 31 January 2006.
- On
31 January 2006, the applicant was transferred to Oradea Maximum
Security Prison, where he was detained until 1 August 2006.
A. Applicant’s description of the conditions of
detention
- The
applicant complained about the conditions of detention on the
premises of the Bihor Investigation Service detention facility. He
claimed that he shared a cell with five other detainees and that the
toilet was in the middle of the cell, offering no privacy.
- The
cell also had no source of natural light, but was lit only by
artificial light.
- The
applicant also alleged that the cell was not heated even when the
outside temperature reached minus twenty degrees and that hot water
was only available for ten minutes per week for all six detainees.
- Furthermore,
the applicant, a non-smoker, was detained with inmates who smoked
cigarettes all day long inside the cell. He claimed that his health
had worsened because of the conditions in which he had been kept.
Thus, his ulcer had worsened and, although he had had no previous
history of asthma, in a medical report of 6 January 2006, it was
recorded that he was now suffering from asthma and bronchial
hyperactivity.
- He
also claimed that there had been no television or any other source of
information at the detention centre.
- The
opportunity to exercise outside was limited to one ten–minute
walk per day, in a twelve square metre space, with the
other five detainees. Furthermore, he contended that he was not
permitted to exercise outside at all for the period between
23 December 2005 and 6 January 2006.
- The
applicant contended that he had had no visits from or telephone
conversations with his family until 27 December 2005. On
21 December 2005 the applicant wrote a letter of complaint to
the Chief Prosecutor’s Office in this respect and only
then were visits permitted.
B. The Government’s description of the conditions
of detention
- The
Government provided official information, submitted by the prison
authorities, concerning the facilities of the cell that the applicant
had occupied during his detention.
- He
stayed in a cell that accommodated five other detainees, each having
his own bed. However, the Government did not state what the area of
the cell was.
- The
cell had a loudspeaker allowing the detainees to listen to the radio.
The toilet and a basin were installed in a corner of the cell.
The applicant was allowed at least thirty minutes of outdoor
exercise per day, with the exception of Saturdays and Sundays.
Bathing was once a week for thirty minutes. The temperature in the
cell was adequate, as the cell was connected to the city heating
network. Natural light and ventilation were provided by two windows.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
domestic legislation on the execution of sentences, in particular
Emergency Ordinance 56/2003 (“Ordinance 56/2003”)
and Law no. 275/2006, is described in Petrea v. Romania,
no. 4792/03, §§ 21 23, 29 April 2008.
(Both laws are applicable not only to the detainees sentenced to
prison but also to the detainees on remand).
- The
relevant legal provisions of Law 349/2002 concerning prevention and
combat of the effects of tobacco consumption are described in Florea
v. Romania, no. 37186/03, § 29, 14 September 2010.
III. COUNCIL OF EUROPE DOCUMENTS
- 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
Bragadireanu v. Romania (no. 22088/04, §§ 73-75,
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 its June 2006
visit to Romania, the CPT expressed concern about the conditions of
detention at the Bihor Investigation Service detention facility.
According to this report, the cells were equipped only with
beds, the toilets were in the cell without any separation from the
rest of the cell, and the detainees did not receive any personal
hygiene products.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions of detention in the Bihor
Investigation Service detention facility (Arestul Preventiv al
Inspectoratului de Poliţie
Bihor) between 28 November 2005 and 31 January 2006.
He relied in substance 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.”
A. Admissibility
- The
Government raised a preliminary objection of non exhaustion of
domestic remedies in so far as the applicant had not complained to
the authorities about the conditions of his detention on the basis of
Ordinance no. 56/2003.
- The
applicant made no comments on this point.
- In
the case of Lăutaru v. Romania (no. 13099/04,
§ 84, 18 October 2011), the Court considered
that no effective remedy was available for the complaints concerning
the general conditions of detention.
- It
also notes that in so far as it concerns the conditions of detention,
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant made no further comments on this point.
- The
Government contended that the authorities had made all the necessary
efforts in order to ensure for the applicant adequate conditions of
detention and medical care.
- The
Court refers to the principles established in its case-law regarding
the conditions of detention (see, for instance, Kudła v. Poland
[GC], no. 30210/96, § 94, ECHR 2000-XI;
Mouisel v. France, no. 67263/01, § 40,
ECHR 2002-IX; and Serban v. Moldova, no. 3456/05,
§§ 75-77, 4 October 2005).
- The
Court observes that the parties disagreed as to the specific
conditions of the applicant’s detention. However, there is no
need for the Court to establish the truthfulness of each and every
allegation, since it considers that those facts that are not in
dispute give it sufficient grounds to make substantive conclusions on
whether the conditions of the applicant’s detention amounted to
treatment contrary to Article 3 of the Convention.
- It
also reiterates 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 these allegations. A
failure on a Government’s part to submit such information
without a satisfactory explanation may give rise to the drawing of
inferences as to the well foundedness of the applicant’s
allegations (see Kokoshkina v. Russia, no. 2052/08, § 59,
28 May 2009).
- In
respect of the living space afforded to the applicant in the
detention facility, the Government averred that the number of
prisoners per cell had not exceeded that of beds per cell. However,
they did not provide any information as to the area of the cell that
would allow the Court to establish what surface was allocated to each
detainee.
- As
the Court could not establish with certainty how much living space
was afforded to the applicant in the Bihor Investigation Service
detention facility, it will take into account other aspects of the
applicant’s conditions of detention in order to establish
whether they were in conformity with the requirements of Article 3
of the Convention.
- In
cases where the overcrowding was not so severe as to raise in itself
an issue under Article 3 of the Convention, the Court noted other
aspects of the physical conditions of detention as relevant to its
assessment of compliance with that provision. Such elements included,
in particular, privacy when using the toilet and compliance with
basic sanitary requirements.
- In
the instant case it is not contested that the toilet and the basin
were in the same cell (see paragraph 25).
- To
this aspect should be added that there were smokers and nonsmokers
in the same cell. The Government did not deny that some of the
applicant’s fellow detainees smoked heavily in the cell. The
Court had already analysed this aspect in the above-mentioned case of
Florea and observed that no consensus existed among the member
States of the Council of Europe with regard to protection against
passive smoking in prisons.
However, it noted that a law enacted in June 2002 prohibited
smoking in hospitals, and the Romanian courts had frequently held
that smokers and non-smokers should be detained separately. Moreover,
from the analysis of a forensic report submitted by the applicant, it
appears that the applicant was clinically healthy at the time of his
arrest in 2004, while at the time of drafting the report on
6 January 2006 he was suffering from bronchial asthma.
Therefore, the applicant being a non-smoker, the Court cannot rule
out that his detention in a small cell with smokers has contributed
to his bronchial asthma (see Pavalache v. Romania, no.
38746/03, §§ 89 and 90,
18 October 2011).
- Even
if the size of the cell alone did not raise an issue under the
Convention, the lack of walks outside or other physical exercise in
the open air on Saturdays and Sundays, does warrant criticism.
- In addition, when corroborating the parties’
allegations on the sanitary conditions with the CPT reports, the
Court can but conclude that the applicant was deprived of the
opportunity to maintain adequate physical hygiene in prison since hot
water was available only once a week for all six detainees.
- When
assessing the conditions of detention, their cumulative effects
should be considered as well as the applicant’s specific
allegations (see Dougoz v. Greece, no. 40907/98,
§ 46, ECHR 2001-II).
- Although
in the present case there is no proof that there was a positive
intention to humiliate or debase the applicant, the Court finds that
the fact that the applicant was deprived of the opportunity to
maintain adequate physical hygiene and that he was obliged to live,
sleep and use the sanitary and other facilities in a restricted space
with five other detainees, among whom there were smokers, were
themselves sufficient to cause distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention,
and to arouse in him feelings of fear, anguish and inferiority
capable of humiliating and debasing him.
There
has accordingly been a violation of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 8 of the Convention, the applicant complained that he
was denied family visits and telephone conversations while detained
in the Bihor Investigation Service detention facility until
27 December 2005. The Court notes that the applicant wrote
a letter of complaint in this respect to the Chief Prosecutor’s
Office only on 21 December 2005 and then visits and
telephone conversations were permitted. It also notes that such
complaint was not raised for the period between 28 November and 21
December 2005. It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the
Convention for non exhaustion of domestic remedies.
- With
regard to the rest of the complaints raised by the applicant under
Article 6 §§ 1, 2 and 3, Article
5 § 2, Article 8 and Article 2 of
Protocol No. 1 of 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 did not request a specific amount in respect of the
incurred damages, but he requested the amount that is normally
granted by the Court in similar cases.
- The
Government submitted that the conclusion of a violation of the
Convention Articles would suffice to compensate for the
non pecuniary damage allegedly incurred.
- The
Court finds that the conditions in which the applicant was detained
must have caused him serious physical discomfort and mental suffering
which cannot be compensated for by the mere finding of a violation.
Ruling on an equitable basis, it therefore awards the applicant
EUR 6,000 in respect of non-pecuniary damage.
B. Default interest
- The
Court considers it appropriate that the default interest 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 complaint under Article 3
concerning the conditions of detention 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 the
Bihor Investigation Service detention facility;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000
(six thousand euros), plus any tax that may be chargeable, in respect
of non pecuniary damage, to be converted into the respondent
State’s national currency at the rate applicable on the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount, at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points.
Done in English, and notified in writing on 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Section
Registrar President
