CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 juillet 2012

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clear:both } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sFCF63115 { width:173.58pt; display:inline-block }     THIRD SECTION           CASE OF RADU POP v. ROMANIA   (Application no. 14337/04)             JUDGMENT         STRASBOURG   17 July 2012   FINAL   17/10/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Radu Pop 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,   Ineta Ziemele,   Nona Tsotsoria,   Kristina Pardalos, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 26 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   14337/04) 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 Radu Pop (“the applicant”), on 15   March   2004. 2.     The Romanian Government (“the Government”) were represented by their   Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 3.     As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule   28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad   hoc judge (Article   26   §   4 of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). 4.     The applicant alleged, in particular, that he had been ill ‑ treated by police officers on 18 August 2003 and that the investigation into his   allegations of ill-treatment had been inadequate and ineffective. He also complained about the material conditions of detention in different prisons where he had been detained and a lack of appropriate medical treatment while in detention. He also claimed that his court-appointed legal ‑ aid defence counsel had not provided effective legal assistance to him in the preparation and conduct of the case before the High Court of Cassation and   Justice, with the result that he had been denied the benefit of a fair trial. 5.     On 15 June 2009 the President of the Third Section decided to give notice of the application 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 6.     The applicant was born in 1967 and is curently detained in Gherla   Prison. A.     The incident of 18 August 2003 7.     On 2 April 2003 the applicant was convicted of vandalism, assault and disturbance of public order and sentenced to 472 days’ imprisonment by a judgment rendered by the Zalău District Court. The judgment became final on 2   July   2003 when the Sălaj County Court dismissed the appeal lodged against it by the prosecutor’s office. 8.     During the criminal proceedings the applicant was detained in Satu   Mare Prison in connection with another offence he had committed, but he attended the hearings before the court of first instance. He was released from that prison on 18   May   2003. 9.     According to the information provided by the applicant, he did not attend the final hearings before the Sălaj County Court. He admitted that he had received a copy of the final decision, which had been delivered to his home on 2 July 2003, informing him that he had been convicted and sentenced to 472 days’ imprisonment. 10.     On 28 July 2003 an arrest warrant for the execution of the sentence was issued in respect of the applicant but could not be executed as he had absconded. 11.     Acting on information that the applicant was at his home in the village of Creaca, on the morning of 18 August 2003, at about 6   a.m., eight   police officers, together with the head of the local police and his   deputy, went to the applicant’s home in order to arrest him. The decision to operate in such a large number was taken on the ground that the applicant had antecedents of aggressive behaviour, his previous conviction being for assaulting a police officer. 12.     When they arrived outside the applicant’s home, the police officers ordered the applicant to surrender to custody, but he did not reply. Knowing that he was inside, an operational group composed of four police officers forced the door and entered. As it was dark in the house, police officer   L.L. did not see the applicant, who hit him on the head with a stone. While the other police officers were trying to immobilise him the applicant tried to seize an axe and, before being immobilised, he bit one of police officer H.N.’s fingers. He was handcuffed and transported by car to the Sălaj   Police   Station. 13.     The injured police officer was immediately hospitalised. According to a forensic report drafted after the events, he had suffered a cranial trauma and a fractured skull, which put his life in danger, and he needed between forty and forty-five days of medical treatment to recover. 14.     According to the applicant, he was beaten by the police both on his   arrest on 18 August 2003 and in the course of police questioning at the police station. B.     The criminal proceedings against the applicant for attempted murder and assault 15.     Following the incident, the prosecutor’s office attached to the Sălaj   District   Court initiated criminal proceedings against the applicant for attempted murder and assault. 16.     He was heard first on 19 August 2003 at the police station. He stated that he was aware that he had been sentenced to imprisonment in July   2003 for previous offences he had committed. 17.     On 13 November 2003 the applicant gave a statement to the prosecutor’s office. He stated again that he knew about his conviction and expressly refused to appoint a lawyer of his choice. On the same day a new arrest warrant relating to the new charges against him was issued. 18.     On 19 November 2003 the applicant was informed that the investigation was complete. He was invited to study the case file. He again refused to appoint a lawyer, and was assisted by a court-appointed lawyer, P.M. 19.     At the last hearing, held on 17   December   2003 before the Sălaj   County   Court, the applicant agreed to pay the victim   L.L. compensation for pecuniary and non-pecuniary damage amounting to 3,000   euros   (EUR). His lawyer, P.M., asked the court to take his   behaviour into consideration as a mitigating factor in determining his punishment. 20.     On 17 December 2003 the Sălaj County Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment, taking into account the previous non-executed sentence. The judgment was based on extensive evidence: a report drafted on 18   August   2003 immediately after the events and at the site of the incident ( raport de constatare la faţa locului ), a forensic report, the applicant’s statements, and the statements of all the police officers present during the applicant’s arrest, including those of the two victims, L.L. and H.N. 21.     The applicant appealed against the judgment. He maintained that the statements on the basis of which he had been convicted were subjective as the witnesses were colleagues of the victims. He asked to be acquitted on the ground that, on the one hand, it had not been his intent to kill the police officer and, on the other, because he had not been aware that the persons who had forced their entry into his house were police officers acting in their   official capacity. 22.     In the appeal proceedings the applicant was represented by a lawyer appointed at his request, P.P. At the hearing of 3   March   2004 the lawyer made a request for a psychiatric report in respect of the applicant. 23.     The psychiatric report, drafted on 28 April 2004, stated that the applicant suffered from a personality disorder of the impulsive type but that he retained his mental capacity for critical appreciation. 24.     On 12 May 2004 the Cluj Court of Appeal dismissed the applicant’s appeal as unfounded. It held that it could not accept the applicant’s account in respect of his alleged error as to the purpose of the police officers’ visit to his home, especially since the applicant acknowledged that he had known that an arrest warrant for the execution of an imprisonment sentence against him had been issued. It also noted that the claim of lack of intent to kill the police officer was not tenable, taking into account the circumstances under which the offence had been committed, namely, that the police officer had been struck with considerable force in a vital region of the body, the head, with an object capable of causing lethal injuries. Moreover, the forensic report confirmed that the injuries caused by the applicant had put the victim’s life in danger. 25.     The applicant lodged an appeal on points of law requesting his   acquittal and, failing that, the reduction of his sentence. 26.     The applicant was represented before the High   Court of Cassation and Justice by two court-appointed lawyers. The first one, T.B., was appointed on 7   June   2004 in order to assist the applicant at the hearing of 16   June   2004 and the other one, M.B., was appointed on 24   June   2004 and assisted him on 7   July   2004. 27.     On 7 July 2004 the High Court of Cassation and Justice dismissed the appeal as unfounded. C.     Criminal proceedings initiated by the applicant against the police officers 28.     On 5 January 2005 the applicant lodged a complaint against the police officers who had arrested him, accusing them of abuse on account of the ill ‑ treatment to which he said he had been subjected on 18   August   2003. 29.     Initially the complaint was lodged with the prosecutor’s office attached to the Sălaj County Court, which relinquished jurisdiction in favour of the military prosecutor’s office attached to the Cluj Military   Tribunal as the defendants were professional soldiers. 30.     A forensic report drafted immediately after the incident of 18   August   2003, at the prosecutor’s order, on the basis of all the medical documents stated that the applicant had suffered “cranial trauma without concussion, contusion of the nasal pyramid with secondary epistaxis, and thorax contusion without bone injuries”, and he had needed three ‑ four days of medical treatment to recover. 31.     On 15 December 2005 the prosecutor’s office decided not to initiate criminal proceedings against the police officers. It held that they had acted in self defence and that the applicant’s injuries had been incurred while they were trying to immobilise him as he had resisted arrest and been aggressive. 32.     On 16 December 2005 the applicant lodged a complaint with the Cluj   Military   Tribunal against the prosecutor’s decision. By a judgment rendered on 23 January 2007 the Tribunal relinquished jurisdiction in favour of the chief prosecutor of the Cluj military prosecutor’s office. 33.     On 27 March 2007 the military prosecutor dismissed the applicant’s complaint, upholding the decision not to initiate criminal proceedings. The applicant did not lodge any complaint against his decision on the basis of Article   278 1 of the Code of Criminal Procedure. D.     Conditions of detention 34.     Since 18 August 2003 the applicant has been held in a number of different detention centres. Initially he was detained in Zălau Police   Station and then transferred to Satu Mare, Baia Mare, Jilava and Gherla   Prisons. In respect of the establishments in which he was detained, the applicant alleged that he had been kept in overcrowded cells in poor conditions of hygiene. He claimed that there were rats and parasites in his cell. In all the prisons hot water was available only once a week. He also claimed that he received poor food and that the opportunity to take outdoor exercise was limited to one ten ‑ minute walk per day. 35.     The Government supplied the following details concerning the conditions of the applicant’s detention in each establishment: 1.     Zalău Police Station 36.     The applicant was detained in Zalău Police Station from 18   August to 11   December   2003. 37.     He was detained in cells nos.   7, 8 and   11. 38.     All three cells had a length of 4 m, a width of 3   m and a height of 3   m and were occupied as follows: cell no. 7 by six to seven   detainees, cell   no.   8 by three to six detainees and cell no. 11 by two to four   detainees. 2.     The Satu Mare Prison 39.     The applicant was detained in Satu Mare Prison during the following periods: between 11 December 2003 and 2 February 2004, 23   August   2004 and 24   January   2005, 22 March and 30 August 2005, and between 17 and 23   October   2006. The cells in which the applicant was detained were as follows: -     cell no.   8 with a surface area of 12.54 square metres and occupied by six to eleven   detainees; -     cell no.   71 with a surface area of 24.72 square metres and occupied by thirty ‑ four detainees; -     cell no.   56 with a surface area of 8.2 square metres and occupied by seven   detainees; -     cell no.   59 with a surface area of 27.78 square metres and occupied by twenty ‑ seven detainees; -     cell no   53 with a surface area of 8.2 square metres and occupied by five   detainees. 3.     The Baia Mare Prison 40.     The applicant was detained in Baia   Mare   Prison from 30   August   2005 to 1   August   2006. He was detained in cells nos.   14 and 29. Cell no.   14 had a length of 7.75 m, a width of 5.2   m and a height of 2.75   m and was occupied by between thirty-one and thirty ‑ seven   detainees. Cell no.   29 had a length of 5.2 m, a width of 3.85   m and a height of 2.9   m and was occupied by thirteen   detainees. 4.     The Jilava Prison 41.     The applicant was detained in Jilava Prison between 29   March and 13   April   2004 and again from 14 June to 23   August   2004, in cells   nos.   612 and   619. 42.     Both cells had the same dimensions, namely: a length of 9.5   m, a width of 4.5 m and a height of 3 m. The number of detainees in the first   cell was on average thirty-seven, and in the second, forty ‑ two. 5.     Gherla Prison 43.     The applicant was detained in Gherla Prison during the following periods: from 2 February to 11 March 2004, from 14 April to 14   June   2004, from 24   January to 22 March 2005, from 23   October   2006 to 29   October 2007, from 6 November to 12   November 2007, from 18   December   2007 to 25 May 2008, from 3   June   to 25   August   2008, from 16   December   2008 to 19   February   2009, from 27   February to 10   April   2009, and from 6 July 2009 until the present. 44.     In respect of Gherla prison, the Government submitted information concerning the numbers of the cells the applicant had been detained in and their surface area, but they did not submit any information on the occupancy rate of those cells. E.     Medical care in prison 45.     The diagnoses of personality disorder and chronic gastritis were made on the applicant’s arrest. 46.     From the information submitted by the Government, it appears that the applicant received treatment for his various conditions, especially for chronic gastritis, personality disorder of the unstable-impulsive type and epilepsy. It also appears that he was often admitted to the hospitals of the prisons where he was detained. Thus, he was hospitalised in the medical unit of Dej Prison between 11 and 29   March   2004, 9 and 17   October   2006, and 9 and 16   June   2009. In Jilava Prison he was hospitalised between 30   March and 13 April 2004, 30   October and 5   November   2007, 27   May and 2   June   2008, and 20 and 27   February   2009. 47.     The applicant was also examined by different specialists. Thus, he underwent psychiatric medical examinations on 9   November   2006, and 21   and 23   May   2008. He underwent surgical interventions for self ‑ inflicted injuries on 16, 17 and 18   May   2007. 48.     On 12 December 2007 the applicant was hospitalised in the medical unit of Dej   Prison after falling out of bed during an epileptic fit. On 18   December   2007 he was sent back to Gherla Prison, where he had been detained before hospitalisation. He refused to stay in the medical unit as recommended by the doctor, preferring to stay in his cell and signing a statement to that effect. 49.     He systematically refused hospitalisation and the medical treatment he was offered. In this connection, the Government submitted a copy of minutes drafted by the Gherla prison authorities (notably on 11, 14, 16 and 18   July   2008, on 27, 29 and 30 January 2009, and on 2   February   2009) noting the refusal by the applicant of his medication. 50.     Moreover, the applicant frequently refused food. 51.     On 6 November 2007 he was hospitalised in the medical unit of Dej   Prison because of the voluntary ingestion of medicines. He refused medical assistance. 52.     According to the applicant’s prison medical record, his   treatment for his various conditions was continuing. F.     The applicant’s complaints concerning the conditions of his   detention 1.     The complaint concerning the conditions of detention in Baia   Mare Prison 53.     On 10 January 2006, while detained in Baia   Mare   Prison, the applicant lodged a complaint against the prison authorities, relying on Ordinance   no.   56/2003. He requested, inter   alia , to be transferred to another   cell with fewer detainees and to be provided with a diet better suited to his medical condition. He also complained of infringements of his right of access to his prison file and of his right to respect for his correspondence, that is, the right to send applications and documents to the Court. He further complained of a lack of adequate medical treatment. 54.     The judge of the Baia Mare District Court dismissed his complaint on 9   March   2006 on the grounds that the applicant’s food was in accordance with the norms adopted by the National Administration of Penitentiaries and that the applicant’s cell was similar to other cells in the prison, only the medical unit of the prison having cells designed for fewer detainees. With regard to his right to have access to his file, the judge noted that the applicant had submitted only one request in this regard, on 23   October   2005, and that it had been granted. He also noted that the applicant’s request for copies from his file lodged on 23   December   2005 had been granted. 55.     An appeal on points of law lodged by the applicant was dismissed by the Maramureş County Court on 23   May   2006 as unfounded. 2.       The criminal complaint against the doctors of Gherla   Prison 56.     On 10 December 2007 the applicant lodged a criminal complaint with the prosecutor’s office attached to the Cluj Court of Appeal against three   doctors working for the hospital of Gherla Prison for abuse and ill ‑ treatment. He claimed that they had not provided him with the medication he needed for his epilepsy and personality disorder, causing him severe pain and mental suffering. 57.     The complaint was dismissed on 19 February 2008 on the ground that there was no evidence to support the applicant’s allegations. The applicant challenged the decision not to initiate a criminal investigation but it was upheld by the chief prosecutor on 21   March   2008. 58.     The applicant’s complaint against the prosecutor’s decision was allowed by the Cluj Court of Appeal on 15 May 2008. It held that the investigation conducted by the prosecutor had not been effective as the file had not contained enough evidence for any conclusion to be drawn. It remitted the case to the prosecutor’s office for further investigation. 59.     The prosecutor’s office appealed, claiming that the applicant’s initial complaint had been totally unsubstantiated. The High   Court of Cassation and Justice allowed the appeal on 11 September 2008, finding that the applicant had submitted no evidence justifying further investigation, his   allegations being unsubstantiated. G.     The applicant’s correspondence with the domestic authorities and the Court 60.     The Government submitted copies of several requests lodged by the applicant with different domestic authorities in order to obtain information concerning proceedings to which he was a party. They also provided the Court with copies of letters addressed by the domestic authorities to the applicant providing the requested information. 61.     According to the information provided by Baia   Mare   Prison, the applicant received stamps and envelopes for correspondence on 5, 8 and 15   June   2006. On 5 June 2006 he received copies of documents from his   personal file. 62.     According to the information submitted by Satu   Mare   Prison, the applicant received letters from the Court on 5   October   2004, 25   November 2005, 27 April and 29 June 2006, 5   April   2008, and 7   March   2009. They also stated that the letters had never been opened. 63.     The authorities of Gherla Prison maintained that the applicant had been provided with stamps and envelopes in order to send correspondence to the Romanian authorities and the Court. II.     RELEVANT DOMESTIC LAW 64.     Article   3 of Government Emergency Ordinance   no.   56 of 27   June   2003 (“Ordinance no. 56/2003”) regarding certain rights of convicted persons states that convicted persons have the right to bring legal proceedings before a court of first instance concerning 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 restates the content of the above-mentioned Article 3 in Article   38, which provides that a judge has jurisdiction over complaints by convicted persons against measures taken by the prison authorities (see also Petrea   v.   Romania , no. 4792/03, §§ 21-23, 29   April   2008). 65.     The Government submitted to the Court copies of judicial decisions delivered by the domestic courts concerning the application of Ordinance   no.   56/2003 and Law no. 275/2006 in practice. The decisions mainly concern complaints lodged by prisoners in respect of disciplinary sanctions imposed on them by the prison authorities, lack of adequate medical treatment, and breaches of their rights to receive visits, to correspondence, to the confidentiality of telephone conversations, to take walks outside their cell, and to be placed in a non-smoking cell. 66.     The relevant provisions of the Code of Criminal Procedure are set out in Dumitru   Popescu v. Romania ((no. 1) , no. 49234/99, §§   43-46, 26   April   2007), and Barbu Anghelescu v. Romania (no.   46430/99, §   40, 5   October   2004). In paragraphs   43-45 of the judgment in Dumitru   Popescu   (no.   1) , cited above, there is a description of the development of the law concerning complaints against prosecutors’ decisions (Article 278 of the Code of Criminal Procedure and Article   278 1 introduced by Law   no.   281/24   June 2003, applicable from 1   January   2004 – “Law   no.   281/2003”). III.   REPORTS ON THE CONDITIONS OF DETENTION IN ROMANIAN PRISONS 67.     The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are to be found 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). 68.     The CPT report published on 11 December 2008 following a visit to different police detention facilities and prisons in Romania (including Jilava   Prison), from 8 to 19 June 2006, indicated that overcrowding was 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. 69.     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 nationally, and that this had remained the case since its first visit to Romania in 1999. The CPT 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 LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 70.     The applicant complained under Article 3 of the Convention of ill ‑ treatment by police officers on 18 August 2003 and lack of an effective investigation into the incident. He also complained about the conditions of detention in different prisons where he had been detained, and of a lack of medical treatment. Article   3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 1.     The parties’ arguments 71.     The Government raised a preliminary objection of non ‑ exhaustion of domestic remedies and argued that for the 18 August 2003 incident the applicant should have used the appeal provided for in Article 278 1 of the Code of Criminal Procedure in order to challenge the military prosecutor’s decision not to press charges. Furthermore, for the complaint concerning the conditions of detention and the alleged lack of adequate medical treatment in all places of detention the applicant could have lodged a complaint under the provisions of Emergency   Ordinance no.   56/2003. 72.     The applicant did not submit any observation in this regard. 2.     The Court’s assessment 73.     At the outset, the Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. However, the only remedies which Article   35 of the Convention requires to be used are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Selmouni   v.   France [GC], no.   25803/94, §§   74-75, ECHR   1999-IV). 74.     In order for the exhaustion rule to come into operation, the effective remedy must exist at the date when the application is lodged with the Court. However, this rule is subject to exceptions which might be justified by the specific circumstances of each case (see Baumann v.   France , no   33592/96, §   47, 22 May 2001, and Brusco v. Italy , (dec.), no.   69789/01, ECHR   2001   IX). (a)     The incident on 18 August 2003 75.     The Court observes that Article 278 1 of the Code of Criminal Procedure provides that prosecutor’s decisions can be challenged before the domestic courts. 76.     However, the Court notes that the applicant failed to challenge the military prosecutor’s decision of 27 March 2007 not to prosecute the police officers, although he had an effective remedy at his disposal ( Stoica   v.   Romania , no. 42722/02, § 109, 4   March   2008). 77.       It follows that this part of the complaint must be rejected under Article   35   §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. (b)     The material conditions of detention 78.     The Court notes that the applicant’s complaint concerns the material conditions of his detention and, in particular, overcrowding and poor sanitary facilities. In this connection, it observes 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, including a civil action in damages, did not constitute effective remedies (see Petrea , cited above, §   37; Eugen   Gabriel   Radu v. Romania , no. 3036/04, § 23, 13   October   2009; Iamandi   v.   Romania , no. 25867/03, §   49, 1 June 2010; Cucolaş   v.   Romania , no. 17044/03, § 67, 26 October 2010; Ogică v. Romania , no.   24708/03, §   35, 27 May 2010; and Dimakos v. Romania , no. 10675/03, §   38, 6   July   2010). 79.     The Court further notes that the domestic decisions submitted by the Government in support of its plea of non-exhaustion relate to specific prisoners’ rights, such as the right to medical assistance or the right to receive visits, but they do not relate to structural issues, such as overcrowding. 80.     The Court therefore concludes that these decisions do not demonstrate how the legal actions proposed by the Government could have afforded the applicant immediate and effective redress for the purposes of his complaint (see, mutatis mutandis , Marian Stoicescu v.   Romania , no.   12934/02, § 19, 16 July 2009, and Ogică v. Romania , cited above, §   35). It therefore rejects the Government’s plea of non-exhaustion of domestic remedies. 81.     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 be declared admissible. (c)     The alleged deterioration of the applicant’s health and the alleged lack of medical treatment 82.     In the case of Petrea , cited above, the Court concluded that before the entry into force of Ordinance no. 56/2003, on 27   June   2003, there was no effective remedy for situations such as the one complained of by the applicant. However, after that date persons in the applicant’s situation had an effective remedy for complaining about lack of medical treatment. (i)     Baia Mare and Gherla Prisons 83.     Turning to the present case, the Court notes that the applicant lodged a complaint about lack of adequate medical treatment on the basis of Ordinance   no.   56/2003 on 10 January 2006. However, it notes that he made reference only to a lack of medical treatment in relation to detention in Baia   Mare   Prison (see paragraph   53). 84.     The Court also observes that the applicant lodged a criminal complaint against the doctors working for the Gherla prison hospital (see paragraph   56), claiming that they had not provided him with the medication he needed for his medical conditions. In this regard the Court is not convinced of the necessity of lodging another request on the basis of Ordinance   no.   56/2003 with largely the same object. It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the alleged lack of medical treatment while in detention in Baia Mare and Gherla Prisons. Noting further that this part of the 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 be declared admissible. (ii)     Satu Mare and Jilava Prisons 85.     The Court further notes that the applicant did not refer in the two   above-mentioned complaints to the alleged lack of proper medical treatment in Satu Mare and Jilava Prisons. 86.     It considers that the applicant should have lodged complaints with the domestic courts about the alleged lack of medical treatment in the two   above-mentioned prisons. It follows that this part of the complaint must be rejected for non ‑ exhaustion of domestic remedies. B.     Merits 1.     The material conditions of detention (a)     The parties’ submissions 87.     The applicant contested the Government’s submissions and reiterated that he had been held in precarious conditions, that the cells had been overcrowded, the food of poor quality, and that the conditions for maintaining proper hygiene had been lacking. 88.     The Government contended that the conditions of detention in all the prisons in which the applicant had been detained were adequate and did not raise an issue under Article 3 of the Convention. (b)     The Court’s assessment 89.     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). 90.     Measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, the suffering and humiliation involved must not go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. 91.     In the context of prisoners, the Court has already emphasised in previous cases that a detained person does not, by the mere fact of his   incarceration, lose the protection of his rights guaranteed by the Convention. On the contrary, people in custody are in a vulnerable position and the authorities are under a duty to protect them. Under Article   3 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 Valašinas v.   Lithuania , no.   44558/98, § 102, ECHR   2001 ‑ VIII, and Kudła v.   Poland [GC], no.   30210/96, § 94, ECHR   2000-XI). 92.     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). 93.     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 impugned detention conditions were “degrading” from the point of view of Article   3 (see Karalevičius v. Lithuania , no. 53254/99, 7   April   2005). 94.     In previous cases where applicants have had at their disposal less than three square metres of personal space the Court has found that the overcrowding was so severe as to justify of itself a finding of a violation of Article   3 of the Convention (see, among many other authorities, Iamandi   v.   Romania , no. 25867/03, §§ 59-61, 1   June   2010; Răcăreanu v.   Romania , no. 14262/03, §§ 49-52, 1   June   2010; and Flamînzeanu v.   Romania , no. 56664/08, § 98, 12   April   2011). 95.     The focal point in the case at hand is the assessment by the Court of the living space afforded to the applicant in the detention centres where he was held, namely Zalău Police Station and Baia Mare, Satu Mare, Jilava and Gherla Prisons. 96.     The Court notes that even at the occupancy rate put forward by the Government, the applicant’s living space seems to have been less than three   square metres in Zalău Police Station and Baia Mare, Satu   Mare and Jilava Prisons, which falls short of the standards imposed by the case ‑ law (see Kokoshkina , cited above, § 62, and Orchowski v. Poland , no.   17885/04, §   122, ECHR   2009   ... (extracts)). 97.     The Court further observes that despite the fact that the applicant complained about the improper sanitary facilities and the poor quality of the food, the Government did not make any submissions in this respect. 98.     In this respect the Court 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 , cited above, §   59). 99.     However, there is no need for the Court to establish the truthfulness of each and every allegation, since it considers that the overcrowding of the applicant’s cell 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. 100.     Lastly, the Court notes that the applicant was transferred many times during his detention. Such frequent transfers may increase the feelings of distress experienced by a person deprived of liberty and held in conditions which fall short of the Convention’s standards (see, mutatis   mutandis , Orchowski , cited above, § 133, and Khider v.   France , no.   39364/05, §§   110­111, 9   July   2009). 101.     In the light of the above, the Court considers that the 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 proscribed by Article   3. There has accordingly been a violation of Article 3 of the Convention. 2.     The alleged lack of proper medical treatment in Baia   Mare and Gherla Prisons (a)     The parties’ submissions 102.     The applicant did not agree with the Government’s submissions. He claimed that he had not received proper medical treatment while in detention in Baia Mare and Gherla Prisons. 103.     The Government submitted that the applicant had received constant medical treatment and that he had been hospitalised whenever it had been necessary. They further claimed that the applicant had not managed to prove his allegations concerning lack of medical treatment. b)     The Court’s assessment 104.     The Court observes at the outset that it cannot be ruled out that the detention of a person who is ill may raise issues under Article   3 (see Mouisel   v.   France , no. 67263/01, § 38, ECHR   2002-IX). Although this   Article cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their   liberty by, among other things, providing them with the requisite medical assistance (see Sarban   v.   Moldova , no. 3456/05, §   77, 4   October 2005, and Khudobin v. Russia , no.   59696/00, §   93, ECHR   2006 ‑ XII (extracts)). 105.     The Court reiterates that a lack of appropriate medical care and, more generally, the detention in inappropriate conditions of a person who is ill, may in principle amount to treatment contrary to Article   3 (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR   2000­VII). In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment (see Aerts v. Belgium , 30   July   1998, §   66, Reports of Judgments and Decisions 1998 ‑ V). 106.     The Court observes that in the present case it was not contested that the applicant had suffered from chronic gastritis both before and during his   detention. His mental state was also diagnosed as a personality or neurotic disorder. 107.     The Court further observes that the medical evidence which the Government produced shows that during his detention the applicant regularly sought, and obtained, medical treatment. He was examined by specialist doctors and frequently received psychiatric assistance. He was hospitalised in the medical unit of the prison concerned whenever it was necessary. 108.     Moreover, the Court notes that the adequacy of the medical treatment of the applicant when detained in Baia Mare and Gherla Prisons was examined by the Romanian authorities, which dismissed the applicant’s complaints. He was also regularly examined in the prison hospitals. 109.     In this connection, the Court has previously held that where domestic proceedings have taken place it is not its task to substitute its   own   assessment of the facts for that of the domestic courts and that, as a general rule, it is for those courts to assess the evidence before them (see Klaas &#x