CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 février 2013

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ROMANIA   (Application no. 16117/02)           JUDGMENT   The version was rectified on 15 May 2013 under Rule 81 of the Rules of the Court   STRASBOURG   12 February 2013   FINAL   12/05/2013   This judgment has become final under Article   44   §   2 of the   Convention. It may be subject to editorial revision. In the case of Austrianu v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Ján Šikuta,   Luis López Guerra,   Nona Tsotsoria,   Kristina Pardalos,   Johannes Silvis, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 22 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   16117/02) 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 Eugeniu Costel Austrianu (“the   applicant”), on 2   April   2002. 2.     The applicant, who had been granted legal aid, was represented by Mrs   D.   O.   Hatneanu [1] and Mrs R. Stăncescu-Cojocaru, lawyers practising in Bucharest. He was also assisted by APADOR-CH (the Association for the Defence of Human Rights in Romania – the Helsinki Committee), a non ‑ governmental organisation based in Bucharest. The Romanian Government (“the Government”) were represented by their   Agent, Mr   Răzvan-Horaţiu Radu. 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     As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad   hoc   judge (Article   26   §   4 of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 that he had been subjected to ill ‑ treatment in violation of Article 3 of the Convention and that the authorities had not carried out a prompt and effective investigation of that incident. Relying on Article   6   §   1 of the Convention he claimed that three final decisions rendered by domestic courts had not been enforced. Under Article   8 he claimed that the prison authorities opened two letters addressed to him by the Court. He alleged that the confiscation of his religious audio tapes and cassette tape player by the prison authorities had infringed his freedom of religion guaranteed by Article 9 of the Convention. Relying on Article   14 in conjunction with Article 9 of the Convention he contended that he had been treated as a member of the Orthodox faith even though he had informed the prison authorities that he was a Baptist. 5.     On 26 March 2008 the President of the Third Section decided to communicate the complaints raised by the applicant under Articles   3,   6   §   1,   8 and   9, taken alone and in connection with Article   14. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29   §   1). 6.     On 3 September 2009 the President of the Third Chamber decided to ask for additional observations from the parties concerning the admissibility and merits of the application. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1964 and lives in Lereşti. 8.     On 5 November 1992 the applicant was arrested by the police on suspicion of having murdered his father. 9.     By a judgment delivered by the Argeş County   Court on 24   September   1993, he was convicted of murder and sentenced to twenty ‑ seven years’ imprisonment. 10.     He served his sentence mainly in Colibaşi Prison. 11.     On 14 December 2005 he was released from prison. A.     The incident of 9 December 1998 1.     The alleged ill-treatment to which the applicant was subjected by prison guard S.N. 12.     On 3 December 1998 prison guards S.N. and L.D. carried out a search in the applicant’s cell following his self-intoxication with medicines. 13.     As stated in the prosecutor’s decision of 29   June   1999, on 9   December   1998 the applicant claimed that certain personal objects had been stolen. Prison guards S.N. and L.D went into his cell. The applicant accused them of stealing four boxes of coffee during the search. As he became aggressive, prison guard S.N. immobilised and repeatedly hit him with a truncheon in order to calm him down. However, instead of calming down he became more aggressive, so he was handcuffed and taken to cell   no.   57. This version of events was not contested by the applicant. 14.     On the same day, prison guard S.N. drafted a report stating that he had been forced to use a truncheon against the applicant because of his   aggressive behaviour. 15.     On 17 December 1998 the applicant was examined by a doctor at the Argeş Forensic Laboratory. The forensic report drafted after the examination stated that the applicant had been hit with a hard object, probably on 9 December 1998, causing him injuries that needed eight or nine   days of medical treatment. It noted the existence of an ecchymosed yellow ‑ purplish zone on his hip and his left thigh, as well as a one ‑ centimetre ‑ long scratch on his left fist. As a result of the aggression, his   tympanum was broken. 2.     Investigation into the alleged ill-treatment 16.     On 23 December 1998 the applicant filed a criminal complaint concerning the incident with the Bucharest Military Prosecutor’s Office ( Parchetul Militar Bucureşti ). 17.     The chief doctor of Colibaşi prison gave a statement on 13   January   1999. He stated that the applicant had been involved in the incident of 9 December 1998 because of his mental illness. The applicant and S.N. were questioned on 19   January   1999. 18.     On 14 June 1999 a criminal investigation was initiated against prison guard S.N. for abusive behaviour. 19.     Two of the applicant’s co-detainees were heard by the investigating prosecutor. They stated that the applicant had been repeatedly hit by prison guard S. N. Two other prison guards stated that the use of force by their   colleague S.N. had been brought on by the applicant’s violent behaviour. 20.     In his written statement, S.N. admitted that he had used the truncheon with excessive force to calm the applicant down, without previously trying to use other means. 21.     On 29 June 1999 the military prosecutor decided to discontinue the investigation against prison guard S.N. and ordered him to pay an administrative fine amounting to one million Romanian lei (“RON”), equivalent to 30 United States Dollars (“USD”). The decision referred to the applicant’s medical condition and noted that agent S.N. had used the truncheon with excessive force and broken the applicant’s tympanum. However, taking into account the specificity of S.N.’s activity as a prison guard and the need to solve difficult situations in prison, it found that the acts committed by S.N. could not be classified as an offence. 22.     According to the applicant, the military prosecutor’s decision was never communicated to him. Although the Government contended that the decision was communicated to the applicant they did not submit any evidence in this respect. 23.     As the applicant did not receive any reply from the military prosecutor, on 23 February 2000 he sent a letter to the chief military prosecutor making reference to the incident of 9   December   1998 and asking for a criminal investigation against prison guard S.N. It appears from the file that the applicant did not receive any reply to this letter. B.     The applicant’s state of health 24.     When the applicant was arrested in 1992, he was diagnosed with unstable personality disorder. 25.     The expert report drafted by Argeş Forensic Laboratory on 9   November   1995 concluded that the applicant suffered from polymorphic psychopathy and loss of discernment. It recommended the applicant’s hospitalisation in a psychiatric establishment, in accordance with Article   114 of the Criminal Code. Based on the conclusions of that report, the applicant was granted a suspension of the execution of his   punishment for the period between 28 February and 8   August   1996. 26.     Another expert report drafted by the same forensic laboratory on 24   July   1997 stated that the applicant suffered from the same disease – polymorphic psychopathy – and concluded that he needed to be under the supervision of a psychiatric unit belonging to the prison sanitary network. 27.     Four months later an expert report drafted by the Bucharest Forensic Institute concluded that the applicant suffered from sociopathy, and that he could be treated in the prison medical network. 28.     Two other reports, drafted on 17   September and 20   November   1998, stated that the applicant suffered from paranoid schizophrenia and recommended his admission to a specialised psychiatric unit in the prison network for supervision and treatment. 29.     A new expert report, drafted on 5 April 1999, recommended his   hospitalisation in Poiana Mare psychiatric hospital. Consequently, the applicant lodged a request for a stay of execution of his prison sentence. On 11   May   1999 his request was dismissed by the Argeş County   Court on the ground that the report had not stated that the applicant’s medical condition could not be treated in the prison hospital. 30.     Two subsequent reports, drafted on 14   March   2001 and 26   March   2002 respectively, stated that the applicant had been diagnosed with pyloric stenosis (a complication of a duodenal ulcer, characterised by the stricture of the pyloric canal and manifested by vomiting after each meal) and dyspeptic ulcer syndrome (ulcer syndrome characterised by epigastric pains and burning sensations). They recommended the medical treatment offered by the prison hospitals. 31.     A report prepared by the hospital of Colibaşi prison on 21   May   2004 stated that the applicant had served a large part of his prison sentence in the prison’s hospital. Moreover, from the analysis of the documents submitted by the Government it appears that the applicant was hospitalised in the Bucharest prison hospital: -   between 16 November and 4 December 1992, on the ground that he suffered from a personality disorder; -   between 1 November and 2 December 1997, for examination by a psychiatric doctor because he was refusing to eat; -   between 20 March and 7 April 1998, for treatment of his   polymorphic psychopathy; -   between 16 and 24 April 1998, for refusing to eat and for treatment of his polymorphic psychopathy; -   between 19 August and 19 October 1999 because he had been diagnosed with Gausser syndrome; -   between 6 July and 10 July 2000 because he was in a coma and had a high fever; -   between 29 March and 17 April 2002 and between 19 July and 7   August   2002, for treatment of his polymorphic psychopathy; -   between 29 June and 7 July 2004 for treatment of his duodenal ulcer, polymorphic psychopathy and lumbar discopathy; -   and between 21 October and 2 November 2005, for obesity and insufficiency of peripheral circulation. 32.     Furthermore, in 2000 the applicant was hospitalised three   times in the Colibaşi prison hospital for treatment of his chronic gastric ulcer. In   2002 he was again hospitalised in the same hospital for treatment of his   pyloric stenosis. 33.     The applicant refused to eat on seven occasions. C.     The practice of religion in Colibaşi Prison 34.     According to the information submitted by the applicant, he was of Baptist confession. While in detention, he had attended a Baptist seminar at the “Source of Light-Europe” Institute. 35.     On 29 November 2002 P.G., the general manager of the national civil assistance centre for prisons “Hope for the Future” ( Speranţa pentru viitor ), addressed a letter to the Colibaşi prison authorities stating that the applicant had been monitored by their advice and social reintegration service. The manager expressed his concern about the confiscation by the prison authorities of a small radio-cassette player awarded to the applicant for good results obtained while attending the “Christian moral education” programme. 36.     By a letter dated 24 December 2002 the prison management informed the applicant that according to the applicable law prisoners only had the right to have battery-operated radios and television sets. They added that, on request, he could listen to his audio cassettes on the cassette player belonging to the prison’s cultural and education department. D.     Censorship of the applicant’s correspondence with the Court and alleged lack of access to documents 37.     On 20 November 2002 the applicant informed the Registry of the Court that he had sent two letters for which he had not received any acknowledgement of receipt. He expressed suspicion that the prison staff were obstructing his right of recourse to the Court. He specified that one of the letters contained photocopies of the decisions rendered by the Supreme   Court of Justice and the criminal complaints filed against the prison authorities. 38.     On 22 January 2004 the applicant asked the prison authorities to provide him with photocopies of the documents requested by the Court. He enclosed the letters sent by the Court’s Registry on 1   and 9   December   2003. E.     Enforcement of final decisions concerning the applicant 1.     Decision of 22 April 1997 39.     In 1996 the applicant had been sentenced to three months’ imprisonment for a minor offence. For the same offence he had been ordered to pay a fine of RON 100,000 (equivalent to USD   3). As he had executed both punishments he lodged a request for the return of the sum paid as a fine. 40.     By a final decision of 22 April 1997, the Câmpulung District   Court allowed his request and ordered the return of the money. 41.     According to the applicant, on 4 June 2003 he lodged a request for the enforcement of the decision of 22   April   1997. 2.     Decision of 8 February 2001 42.     By a decision of 8 February 2001 the Argeş District Court pronounced the divorce of the applicant and his wife and awarded custody of their two minor children to the paternal grandmother. It also ordered the mother to pay a monthly sum towards the children’s maintenance. 43.     The applicant alleged that on 12 February 2004 he had lodged a criminal complaint against his former wife for failure to pay the monthly allowance, but had received no reply from the authorities. He also complained about the passivity of the authorities in enforcing that decision. 3.     Decision of 10 December 2001 44.     On 3 January 2000 the applicant lodged a civil action for the partition of the inheritance left by his father. By a decision of 10   December   2001 the Câmpulung District Court allowed his action in part, allocating him a house and other movable assets. 45.     The applicant lodged a request for the enforcement of the decision. By a letter dated 28 March 2003, the bailiff M. informed him that he had to pay the enforcement fees. According to information supplied by the Government, the applicant had submitted a new request for the enforcement of the decision in January 2006. The enforcement had subsequently been finalised in June   2006. II.     RELEVANT DOMESTIC LAW AND PRACTICE 46.     The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor statutes are set out in Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004) and Dumitru Popescu v.   Romania (no. 1) , (no. 49234/99, §§ 43-46, 26   April   2007). In paragraphs 43-45 of the judgment in Dumitru   Popescu   (no.   1) there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article   278 of the Code of Criminal Procedure and Article   278 1 introduced by Law   no.   281/24 of June 2003 applicable from 1   January   2004, “Law   no.   281/2003”). 47.     Government Emergency Ordinance no. 56 of 27   June   2003 (“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 measures taken by the prison authorities to implement their rights. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A.     Allegation of ill-treatment of the applicant on 9   December   1998 and absence of an effective investigation 48.     The applicant complained about the ill-treatment to which he was subjected by prison guard S.N. on 9 December 1998 and the alleged ineffectiveness of the ensuing investigation. 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 49.     The Government considered that the applicant had not exhausted domestic remedies in so far as he had not contested the prosecutor’s decision of 29 June 1999. Furthermore, the Government pointed out that in lodging his application on 2 April 2002, the applicant had not complied with the six ‑ month time-limit from the date of the prosecutor’s decision of 29   June   1999. 50.     The applicant contended that at the relevant time there was no effective remedy and therefore compliance with the six-month rule should be analysed with regard to the moment when he had become aware of the ineffectiveness of the remedy. He also submitted that no negligence on his   part could be identified in the present case since after his hearing by the military prosecutor on 19 January 1999 he had lodged petitions with the General Prosecutor and the Minister of Justice reiterating the facts of his   case. Moreover, as no decision had been communicated to him after the said hearing, he had not been able to complain to the courts about the way in which the investigation was carried out. Besides, he had been in prison at the time of the events and had consequently had limited access to legal and procedural information and specialised legal counsel. (b)     The Court’s assessment 51.     In respect of the Government’s objection of non-compliance with the six ‑ month time-limit, the Court notes that the Government did not submit evidence that the prosecutor’s decision of 29 June 1999 was communicated to the applicant. The latter could thus not be considered negligent for lodging his application with the Court only on 2   April   2002 (see Georgescu   v.   Romania , no. 25230/03, § 80-82, 13   May   2008 , and Hüseyin   Karakaş v. Turkey (no.   2) , no. 69988/01, 22   June   2006). 52.     It is true that the applicant did little to keep abreast of the course of the investigation. However, it is not unreasonable for the applicant to have believed that the investigation into his allegations of ill ‑ treatment was taking a long time and was still on-going. Therefore the applicant cannot be considered to have been negligent. 53.     Lastly, the Court considers it reasonable to assume that the applicant preferred to wait for the outcome of the domestic proceedings before lodging his complaint with the Court, in particular in so far as the outcome might have had a bearing on the Court’s examination of the allegations of ill ‑ treatment. 54.     As to the Government’s plea of non-exhaustion, the Court notes that the complaint to the courts about the prosecutor’s decision became an effective remedy according to the Convention’s standards on 1   July   2004, when Law   no.   281/2003 amending the right of access to court became applicable (see Dumitru Popescu (no.1) , cited above, §§   43-45). However, the six ‑ year lapse of time between the date when the alleged ill ‑ treatment occurred and the date when the appeal became possible renders the remedy ineffective in this particular case (see Dumitru Popescu (no.   1) , cited above, §   56). 55.     For all these reasons, the Court dismisses the Government’s preliminary objections. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     The parties’ submissions 56.     The applicant contended that the violence to which he had been subjected by prison guard S.N. amounted to ill-treatment prohibited by Article   3 of the Convention. He pointed out that he had been examined by a doctor only a few days after the incident. He further contested the number of days indicated by the forensic report as necessary for his recovery, claiming that he had needed between eighty and ninety days of medical treatment. He emphasised that the ill-treatment was inflicted by a state agent acting in his   official capacity and therefore engaged the State’s responsibility. 57.     In respect of the lack of an effective investigation the applicant claimed that after his questioning by a military prosecutor on 19   January   1999 no other steps had been taken. He contended that except for his statement and the medical report issued on 17   December   1998, the authorities had not gathered any other evidence. 58.     Referring to Bursuc v. Romania , (no. 42066/98, 12   October   2004), he stressed that the Court had already found that an investigation conducted by a military prosecutor did not meet the standard of independence required by the Convention. 59.     The Government did not contest the existence of the injuries caused by prison guard S.N., but they argued that his reaction had been triggered by the applicant’s insults and aggressive behaviour. They also admitted that the prison officer’s intervention using the truncheon was excessive. However, the national authorities had concluded that the violence used against the applicant had not attained the gravity of a crime. Moreover, the prison guard had been punished with an administrative fine. 60.     As to the investigation conducted by the authorities, the Government submitted that it had been effective and thorough. Regarding the independence of the military prosecutor who conducted the investigation, they submitted that the witnesses had been heard by the Piatra   Neamţ criminal investigation department. They also argued that the applicant had not been awarded damages for the ill-treatment because he had not lodged a civil action for damages. (b)     The Court’s assessment (i)     Concerning the alleged ill-treatment 61.     The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article   3 (see Labita   v.   Italy [GC], no. 26772/95, § 120, ECHR   2000 ‑ IV). 62.     Notwithstanding its subsidiary role in assessing evidence, the Court reiterates that where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see Cobzaru   v.   Romania , no. 48254/99, § 65, 26   July   2007). 63.     In the present case the Court notes that the applicant has been able to produce sufficiently strong evidence supporting the fact that he was subjected to the use of force by a police officer. In particular, the applicant produced a medical certificate delivered a few days after the incident attesting that he had incurred injuries. He filed a criminal complaint against the police officer whom he accused of having hit him first, but the proceedings had been discontinued on the ground that his acts could not be classified as an offence. 64.     The Court further notes that there had been an official admission of violence against the applicant. In this connection, the Court observes that the prison guard explained his conduct as an attempt to calm down the applicant but he admitted that his intervention was excessive. Even the military prosecutor who decided to discontinue the investigation held that prison guard S.N. had used the truncheon with excessive force and broken the applicant’s tympanum (see §   21). 65.     In the light of the above and on the basis of all the material placed before it, the Court considers that the injuries inflicted on the applicant by the prison guard were sufficiently serious to amount to ill ‑ treatment within the scope of Article   3. Accordingly, there has been a violation of Article   3 of the Convention under its substantive head. (ii)     Concerning the alleged inadequacy of the investigation 66.     In cases of wilful ill-treatment by State agents in breach of Article   3, the Court has repeatedly found that two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see, inter alia , Krastanov   v.   Bulgaria , no.   50222/99, § 48, 30 September 2004; Çamdereli v. Turkey , no.   28433/02, §§   28-29, 17 July 2008; and Vladimir Romanov v. Russia , no.   41461/02, §§   79 and 81, 24 July 2008). Secondly, an award of compensation to the applicant is required where appropriate (see Vladimir   Romanov , cited above, §   79). 67.     In determining whether the national authorities carried out a thorough and effective investigation against those responsible, in compliance with the requirements of its case-law, the Court has previously taken into account several criteria. Firstly, important factors for an effective investigation, viewed as a gauge of the authorities’ determination to identify and prosecute those responsible, are its promptness (see, inter   alia , Selmouni   v.   France [GC], no. 25803/94, §§ 78-79, ECHR   1999 ‑ V, and Nikolova and Velichkova v. Bulgaria , no. 7888/03, §   59, 20   December   2007) and its expedition (see Dedovskiy and Others v.   Russia , no.   7178/03, § 89, 15 May 2008). In addition, the outcome of the investigations and of the ensuing criminal proceedings, including the sanction imposed and the disciplinary measures taken have been considered decisive. 68.     The Court notes in the present case that criminal investigations against the prison guard S.N. were opened five months after the applicant’s questioning on 19 January 1999 (see paragraph 18 above). It further notes that the prosecutor decided to discontinue the investigation after two   weeks. 69.     In the Court’s opinion, the issue is consequently not so much whether there was an investigation, since the parties did not dispute that there had been one, but whether it was conducted diligently, whether the authorities were determined to identify and punish those responsible and, accordingly, whether the investigation was “effective”. 70.     From the outset, the Court notes that the military prosecutor was called upon to investigate acts of ill-treatment allegedly committed by a prison guard. The Court has already established in similar circumstances that the applicable law at the material time made the hierarchical and institutional independence of the military prosecutor doubtful (see Barbu   Anghelescu, cited above, §§ 40-30 and 70, 5   October   2004; Dumitru   Popescu (no.   1), cited above, §§ 74-78; and Melinte   v.   Romania , no.   43247/02, §§ 23-30, 9   November   2006). 71.     These doubts are reflected in the present case by the way the investigation was conducted. 72.     The Court points out that both the prison authorities and the military prosecutor were informed of the applicant’s psychiatric history from the time of his arrest. Even assuming that the applicant’s injuries were inflicted by the prison guard because of the applicant’s behaviour and mental problems, as the prosecutor concluded, the Court cannot but notice that far from exonerating the authorities from any responsibility in the case, this fact shows their negligence. 73.     The Court further observes that although the military prosecutor held that S.N. had used his truncheon against the applicant with excessive force, he was sanctioned with a very modest fine. The Court reiterates in this connection that it is not its task to rule on the degree of individual guilt (see Öneryıldız   v.   Turkey [GC], no. 48939/99, § 116, ECHR   2004-XII, and Nachova and Others   v.   Bulgaria [GC], nos. 43577/98 and 43579/98, §   147, ECHR   2005-VII), or to determine the appropriate sentence of an offender, those being matters falling within the exclusive jurisdiction of the national criminal courts. However, under Article 19 of the Convention and in accordance with the principle that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective, the Court has to ensure that a State’s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova , cited above, § 61, with further references). It follows that while the Court acknowledges the role of the national courts in the choice of appropriate sanctions for ill-treatment by State agents, it must retain its supervisory function and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed, especially when the case is not in the hands of an impartial tribunal. 74.     The Court does not overlook the fact that the military prosecutor, in determining S.N.’s sanction, took into consideration a number of mitigating circumstances. Nevertheless, imposing a fine of USD   30, cannot be considered an adequate response to a breach of Article 3, even seen in the context of the sentencing practice in the respondent State. Such punishment, which is manifestly disproportionate to a breach of one of the core rights of the Convention, does not have the necessary deterrent effect in order to prevent further violations of the prohibition of ill ‑ treatment in future difficult situations. 75.     Having regard to the above-mentioned deficiencies identified in the investigation, the Court also concludes that the State authorities failed to conduct a proper investigation into the applicant’s allegations of ill ‑ treatment. Accordingly, there has also been a violation of Article   3 of the Convention under its procedural head. B.     Complaint concerning the lack of adequate medical treatment 76.     Relying on the same article of the Convention, the applicant complained of an alleged lack of adequate medical treatment for his health problems. 1.     Admissibility (a)     The parties’ submissions 77.     The Government submitted that the applicant had not exhausted domestic remedies, as he had not lodged any complaint against the prison staff for lack of adequate medical treatment, based on Article   267 of the Criminal   Code concerning inhuman treatment and torture, or on Ordinance   no.   56/2003 after its entry into force. 78.     The applicant contested the effectiveness of the remedies indicated by the Government. He contended that Ordinance   no.   56/2003 had entered into force only on 27 June 2003, while his application had been lodged with the Court on 2 April 2002 and concerned the lack of adequate medical treatment from 1992 onwards. (b)     The Court’s assessment 79.     At the outset, the Court reiterates that 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. 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. 80.     In the case of Petrea v. Romania , (no. 4792/03, 29   April   2008), 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, since that date, persons in the applicant’s situation have had an effective remedy to complain about the alleged lack of medical treatment. 81.     The Court therefore considers that after the entry into force of Ordinance   no.   56/2003, the applicant should have lodged a complaint with the domestic courts about the alleged lack of medical treatment. It follows that the part of the complaint concerning the alleged lack of medical treatment after 27 June 2003 should be rejected for non ‑ exhaustion of domestic remedies. 82.     As to the period before the entry into force of Ordinance   no.   56/2003, between December 1992 and June   2003, the Government’s preliminary objection of non-exhaustion of domestic remedies cannot be accepted. The Court also notes that the applicant’s complaint about the lack of adequate medical treatment in prison between December   1992 and June   2003 is not manifestly ill-founded within the meaning of Article   35   §   3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     The parties’ submissions 83.     The Government contended that the applicant had been given adequate medical treatment while in prison. He had been subjected periodically to psychiatric examination and whenever necessary he had received treatment at specialist hospitals. They added that the applicant had contributed to the aggravation of his medical condition by refusing medical assistance and food on many occasions, as well as voluntarily ingesting medicines. 84.     The applicant complained that the medical care provided to him within the penitentiary system had been inadequate and that his health had deteriorated accordingly. He also maintained that the Argeş County   Court had arbitrarily dismissed his request for a stay of execution of his prison sentence on medical grounds. (b)     The Court’s assessment 85.     The Court reiterates that Article 3 imposes a positive obligation on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity and that given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR   2000 ‑ XI, and Rivière v.   France , no.   33834/03, § 62, 11 July 2006). Hence, 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   2000-VII). 86.     Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees or place them in a civil hospital, even if they are suffering from an illness which is particularly difficult to treat (see Mouisel v. France , no.   67263/01, §   40,   ECHR   2002 ‑ IX), it nonetheless imposes an obligation on the State to protect the physical well­being of persons deprived of their liberty. 87.     In the present case the question arises whether the applicant’s alleged lack of adequate medical treatment attained a sufficient level of severity to fall within the scope of Article 3 of the Convention. 88.     The evidence available to the Court shows that the applicant was examined by the prison’s doctors on a regular basis and sent to prison hospitals for further examinations when considered necessary. The applicant’s claims to the contrary seem unsubstantiated in the light of his   medical record adduced in the case by the Government and uncontested by the applicant. The Court also notes that the applicant’s medical record contains doctors’ prescriptions issued during his detention, which proves that the prison authorities generally responded adequately to his medical treatment requirements. 89.     The Court recalls that on the question of whether a severely ill person should remain in detention, it is precluded from substituting the domestic courts’ assessment of the situation with its own, especially when the domestic authorities have generally discharged their obligation to protect the applicant’s physical integrity, notably by providing appropriate medical care. In the instant case, the Argeş County Court granted a stay of execution of his sentence between 28 February and 8   August   1996. On 11   May   1999 the same court refused the applicant’s request for a stay of execution of his sentence, taking the view that the care provided by the prison’s hospital was appropriate to his state of health. 90.     The Court further notes that the applicant served an important part of his prison sentence in the hospitals of Bucharest and Colibaşi prisons. 91.     In the light of the evidence before it, the Court is of the view that the national authorities fulfilled their obligation to protect the applicant’s physical well-being by monitoring his state of health carefully, assessing the seriousness of his health problems and providing him with the appropriate medical care. 92.     Therefore, in the light of the foregoing considerations the Court finds that there has been no violation of Article 3 of the Convention concerning the alleged lack of adequate medical treatment in prison. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 93.     Relying on Article 8 of the Convention, the applicant complained that the State authorities had interfered with his right to respect for his   correspondence on account of the fact that the two letters sent by the Court on 1 and 9 December 2003 respectively were delivered to him in xerox copies and opened. Article 8 of the Convention reads as follows: “1.     Everyone has the right to respect for ... his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1.     The parties’ submissions 94.     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 alleged breach of his privacy rights. They relied mainly on Article   195 of the Criminal Code and Ordinance   no.   56/2003. 95.     The applicant contested the availability of the effective domestic remedies mentioned by the Government. In respect of the remedy offered by Ordinance   no.   56/2003, he contended that it was unreasonable to expect a person diagnosed with polymorphic psychopathy and schizophrenia and without legal education to use a remedy offered by an ordinance that entered into force only five months before the events, without being informed of that option by the prison authorities. 2.     The Court’s assessment 96.     The Court has already had the opportunity to examine a similar objection raised by the Government in the Petrea case, cited above. It concluded that after the entry into force of Ordinance   no.   56/2003, on 27   June 2003, persons in the applicant’s situation did have an effective remedy to complain about the alleged interference with their correspondence and family life (see Petrea , cited above, §§   35-36, and Dimakos   v.   Romania , no. 10675/03, §§ 54-56, 6   July   2010). 97.     It observes that the two letters were allegedly opened in December   2003, five months after the entry into force of Ordinance   no.   56/2003, and there is no evidence in the file that the applicant lodged a complaint with the domestic courts about the alleged interference with his rights. It follows that this complaint should be rejected for non ‑ exhaustion of domestic remedies. III.     ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 98.     The applicant complained about the confiscation of his religious tapes and cassette tape player, which according to him amounted to an infringement of his freedom of religion as guaranteed by Article   9 of the Convention. Article 9 of the Convention reads as follows: “1.     Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.     Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 1.     The parties’ submissions 99.     The applicant submitted that the confiscation of his cassette player had infringed his right to manifest his Baptist religious beliefs. He further contended that listening to religious cassettes without a personal cassette player would have been impossible as the Colibaşi prison had no cultural ‑ educational facility with a functioning cassette player. 100.     The applicant maintained that the interference with his freedom of religion was in breach of the second paragraph of Article   9 of the Convention, and that the order mentioned by the Government to justify the confiscation could not be considered as an accessible and foreseeable law. 101.     The Government submitted that the confiscation by the prison authorities of the cassette player the applicant received from the national