CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2016

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ROMANIA   (Application no. 80529/13)                 JUDGMENT     STRASBOURG   21 June 2016     FINAL   21/09/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Eze v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   András Sajó, President,   Vincent A. De Gaetano,   Boštjan M. Zupančič,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Iulia Motoc,   Gabriele Kucsko-Stadlmayer, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 17 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 80529/13) 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 Nigerian national, Mr Iwuchukwu Chinagolu Eze (“the applicant”), on 16   December 2013. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3.     Relying on Article 3 of the Convention, the applicant alleged that the conditions of detention in Rahova Prison were inhuman and degrading. Invoking in substance Article 9 of the Convention, he alleged that, as a Muslim, he was not provided with an appropriate diet in prison, namely one without pork, while he was also not allowed to receive food from his family. 4.     On 16 September 2014 the above-mentioned complaints were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1981 and is currently detained in Giurgiu Prison. 6.     On 30 December 2010 the applicant was detained pending trial, on suspicion of drug-trafficking offences. Subsequently, he was sentenced to thirteen years’ imprisonment. 7.   The applicant was detained in Rahova Prison from: 17 July 2012 to 23   July 2013; 25 July to 17 October 2013; 31 October 2013 to 12   May   2014; and 14 May to 28 July 2014. 8.     The applicant was in Rahova Prison Hospital for medical tests and treatment from: 23 to 25 July 2013; 17 to 31 October 2013; and 12 to 14   May 2014. 9.     On 28 July 2014 the applicant was transferred to Giurgiu Prison, where he remains to date. A.     Conditions of detention and the authorities’ alleged failure to segregate smokers from non-smokers 1.     The applicant 10.     In his letters to the Court the applicant stated that he had been detained in overcrowded cells in Rahova Prison. He had had to share a cell measuring twenty-four square metres with nine other detainees. The furniture and the ten beds in the cell had taken up part of the available living space. Consequently, each detainee had been limited to only half a square metre of living space. 11.     The applicant stated that, even though he was a non-smoker and had been assigned to a non-smoking cell, the prison authorities had also detained inmates who smoked all the time in that cell. He had complained to the prison authorities about it, but they had ignored his complaints. According to him, this problem had lasted until 30 April 2013. 12. The applicant also stated that some of the detainees who had occasionally shared the cell with him had had contagious diseases, such as hepatitis and human immunodeficiency virus (HIV), or had been drug addicts. Also, some of them had suffered from psychological problems and the prison authorities had been aware of their medical conditions. These detainees had either represented a hazard for the other inmates in the cell, or had not allowed them to rest properly. 13.     The applicant further stated that warm water in the shower had only been available two days a week for ninety minutes for all ten detainees in the cell. Also, during the summer, running water had only been available six hours a day and not at all during the night, even if the detainees had needed to use the toilet. 2.     The Government 14.   The National Prisons Agency informed the Government that the applicant had been detained in cells 2.31, 3.9, 3.10, 3.34, 3.44, 3.48, 5.36 and 6.9 during his incarceration in Rahova Prison. The cells measured between 18.8 and 24.6 square metres, excluding the bathroom and toilet areas. He had shared these cells with nine other detainees at most. The applicant had had his own bed and at no time during his detention had the number of detainees exceeded the number of beds available in the cells. 15.     Each cell had a window measuring 1.44 square   metres. The food storage area within the cells also had a window measuring 0.72 square metres. All the aforementioned windows were fitted with bars and metal nets, but allowed for sufficient natural light and ventilation in order to comply with the relevant international standards. 16.     The cells had bathrooms with two sinks and a shower. The toilets had natural ventilation, namely windows measuring 0.72 square metres, and were separated from the rest of the bathroom by a door. 17.     Detainees had permanent access to sanitary facilities. Running water was always available, while warm water was available twice a week for one and a half hours, between 12 p.m. and 1.30 p.m. and between 5 p.m. and 6.30 p.m. Also, detainees were provided with protection against sexually transmitted diseases. 18.     The cells and the sanitary facilities also had artificial light and were fitted with radiators. Heating was available intermittently, depending on the outdoor temperature. During the cold season, the temperature in the cells would be 19˚C. 19.     Cells had furniture, in particular, bunk beds, small tables, small benches and television stands. 20.     The prison authorities issued inmates with cleaning materials, and detainees cleaned the cells themselves. Upon their incarceration, and thereafter on a monthly basis, inmates were issued with personal hygiene products and disinfectants. They were also allowed to buy these products from the prison shop if necessary. Detainees were allowed to wash their underwear and bedlinen in the prison laundry room weekly. 21.     In accordance with domestic regulations, each year the applicant had received two toothbrushes, twelve tubes of toothpaste, twelve rolls of toilet paper, twelve bars of soap and twelve disposable razors. 22.     Different products and methods were used to disinfect cells and remove pests, and such work was carried out by either the prison or specialist firms. Disinfection was carried out daily, according to the characteristics of each area of the prison. The operations carried out to disinfect and remove pests from the applicant’s cell were preventive, and neither he nor the other inmates sharing his cell had requested them. However, no rats or mice had ever been found in the detention cells in Rahova Prison. 23.     Detainees’ diets were determined according to several criteria, including, inter alia , their health and religion. Ingredients had to meet the quality criteria set out by law and had to have quality certificates provided by suppliers. Food was cooked hygienically in the prison kitchen, and stainless steel cooking utensils and equipment were used. Food quality and quantity was also checked by a detainee representative before it was distributed. 24.     The National Prisons Agency finally informed the Government that, during his detention, the applicant had not raised complaints in respect of the conditions of detention. B.     The applicant’s diet 1.     The applicant 25.     In his letters to the Court the applicant stated that, as a Muslim, the prison authorities had not offered him an appropriate diet, namely food which did not contain pork. Moreover, when his visitors had brought him food from home, the prison authorities had only allowed him to receive canned food, fruits and vegetables. Although he had complained to the prison authorities about the inappropriate diet, his complaints had been ignored. 2.     The Government 26.     The National Prisons Agency informed the Government that, during his detention in Rahova Prison, the applicant had been provided with a diet appropriate for Muslims, and any pork had been replaced with beef. 27.     In Rahova Prison, a detainee of a particular faith could ask the prison administration to allow him to buy the food he wanted from the prison shop. 28.     During his detention the applicant had been visited on several occasions, but had only received one parcel. 29.     The applicant had been allowed to practise his religion in his cell, and had taken part in various religious activities organised by the prison’s orthodox chaplain. He had never asked to receive religious objects, even though he had a lawful right to ask for them. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW 30.     Excerpts from the relevant domestic legislation and international reports on prison conditions are given in the case of Iacov   Stanciu   v.   Romania (no.   35972/05, §§ 116-29, 24 July 2012). 31.     The relevant parts of the reports concerning prison conditions, issued by the Romanian Helsinki Committee following their visits to, inter alia , Rahova Prison, are quoted in Iacov Stanciu (ibid., §§ 146-58). 32.     Excerpts from Law no. 275/2006 on the serving of prison sentences, which concern the rights of detainees to practise their religion in prison, appear in the case of Sanatkar v. Romania (no. 74721/12, § 14, 16   July   2015). The aforementioned Law was repealed by Law no. 254/2013 on the serving of prison sentences, which entered into force on 1   February   2014. Article 50 of Law no. 254/2013 provides that the prison authorities must ensure the appropriate conditions for the preparation, distribution and serving of food by, inter alia , respecting a detainee’s faith. Article 56 provides, inter alia , that detainees may complain to a post ‑ sentencing judge about measures taken by the prison authorities in respect of their rights within ten days of becoming aware of the impugned measure. The judge’s decision may be challenged before the domestic courts within five days of notification. 33.     Following a visit from 5 to 16 September 2010 to a number of detention facilities in Romania, including Rahova Prison, the Committee for the Prevention of Torture (CPT) expressed concerns over the limited living space available to prisoners and the insufficient space specified by the regulations in place at that time in its report (CPT/Inf (2011) 31) published on 24 November 2011. 34.     Excerpts from the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006, concerning the approach to be adopted by prison medical personnel where detainees are suspected of having contagious diseases appear in Dobri v. Romania , no. 25153/04, § 29, 14   December 2010. THE LAW I.     PRELIMINARY OBJECTION ON THE BASIS OF ABUSE OF THE RIGHT OF INIVIDUAL APPLICATION A.     The parties’ submissions 1.     The Government 35.     The Government submitted that the application had to be dismissed as abusive. They argued that, with regard to the alleged refusal of the prison authorities to provide him with an appropriate diet, the applicant had based his application on false information. 36.     The Government contended in particular that, according to the documents provided by the National Prisons Agency, the applicant had been given a special diet, which was only given to sick detainees and members of religious minorities. The diet consisted of three meals per day which contained no pork or salt. Also, the food for the members of religious minorities was prepared separately from the food of the other detainees. Therefore, the applicant’s allegations had been misleading. 2.     The applicant 37.     The applicant did not submit any observations on this point.   B.     The Court’s assessment 38.     The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it is knowingly based on untrue facts (see Popov v. Moldova (no. 1) no.   74153/01, § 48, 18   January 2005, and Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006). 39.     Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania , no. 21447/03, §§ 25-26, 2 December 2008, and Kowal v. Poland (dec.), no. 2912/11, 18   September 2012). 40.     Although the applicant’s submissions in his initial letters concerning the alleged failure of the prison authorities to provide him with an appropriate diet were inconsistent with the information provided by the Government, the Court considers that it was not established with sufficient certainty that the application was knowingly based on untrue facts, or that the applicant intended to mislead the Court (see Gross v. Switzerland [GC], no. 67810/10, § 28, 30   September   2014). 41.     It therefore rejects the Government’s plea that the application be dismissed as abusive. II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 42.     The applicant complained that the conditions of detention in Rahova Prison were inhuman and degrading. He relied on Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 43.     Although the respondent Government did not raise any objection under this head, the Court will consider proprio motu whether the applicant complied with the six-month time-limit when lodging his complaint (see   Palić v. Bosnia-Herzegovina , no. 4704/04, § 48, 15 February 2011, and Gadi   v. France (dec.), no. 45533/05, 13 January 2009). 44.     The Court notes that, according to the applicant’s own statement, the lack of separation of smokers from non-smokers during his detention ended on 30 April 2013, while he lodged his application with the Court on 16   December 2013. 45.     It follows that this part of the applicant’s complaint concerning the conditions of detention in Rahova Prison was lodged out of time, and must therefore be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention. 46.     That being so, the Court notes that the remaining part of the applicant’s complaint concerning the conditions of detention in Rahova Prison is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 47.     The applicant submitted that his complaints about the inhuman conditions in Romanian prisons were also supported by recent television shows in Romania which had touched on the issue, and which had been available on the internet. Even the director of the National Prisons Agency had confirmed that the prison conditions had been inhuman. (b)     The Government 48.     The Government, relying on the information that had been provided by the National Prisons Agency, submitted that the Romanian authorities had made diligent efforts to comply with the standards imposed by the Court, and had continued to improve the conditions of detention. 49.     The Government argued that, during his detention, the applicant had always had his own bed, and that from 28 July 2014 onwards he had been detained in cells which allowed each detainee to have living space of 3.4 to 4 square metres. 50.     The Government contended that the applicant had been provided with cleaning and personal hygiene products during his detention. Also, in the event that he had needed additional sanitary products or preferred different brands, he had had the option of purchasing these items. 51.     The Government submitted that the prison authorities provided inmates with the necessary detergents and disinfectants for sanitary and hygiene purposes. Cells were cleaned by the inmates themselves. Also, specialist firms provided pest control services whenever necessary. Moreover, detainees had the opportunity to shower at least twice a week and to wash their personal items by sending them to the laundry room. 2.     The Court’s assessment 52.     The Court reiterates that, under Article 3, the State must ensure that: a person is detained in conditions which are compatible with respect for his human dignity; the manner and method of execution of the measure of detention 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 Verdeş v. Romania , no. 6215/14, § 73, 24   November 2015, and Kudła v. Poland [GC], no. 30210/96, §   94, ECHR   2000-XI). 53.     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 Verdeş , cited above, § 74, and Dougoz v. Greece , no. 40907/98, § 46, ECHR   2001-II). 54.     A serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article   3 (see Verdeş , cited above, §   75, and Karalevičius v. Lithuania , no.   53254/99, §   39, 7 April 2005). 55.     In the instant case, the Court notes that the applicant was detained in Rahova Prison from 17   July   2012 to 28 July 2014. The Court also notes that during his detention in the prison the applicant was repeatedly transferred to Rahova Prison Hospital for medical treatment, and that he did not complain about the conditions of detention in this other facility. However, given the length of his detention in Rahova Prison and the fact that he always returned to the same prison, the Court considers that the relatively short duration of his hospital admissions (see paragraph 8 above) did not bring about significant changes to his detention conditions, and that there was therefore a continuous situation (see Seleznev v.   Russia , no.   15591/03, § 35, 26   June   2008, and Mihăilescu v. Romania , no. 46546/12, § 44, 1 July 2014). 56.     The Court further notes that, even though the Government provided information concerning the periods of the applicant’s detention, cell size and the number of inmates and beds, they did not provide precise information on the number of detainees the applicant shared his cell with on a daily basis. Even on the basis of the occupancy rate put forward by the Government, the applicant’s living space during his detention in Rahova Prison always seems to have been significantly less than that specified in the Court’s case-law, and sometimes as little as 1.88   square metres. The Court further points out that the actual figure for living space was even lower in reality, taking into account the space taken up by beds and other items of furniture (see Bahnă v. Romania , no. 75985/12, § 47, 13   November   2014). 57.     Moreover, the Court notes that the information provided to the Government by the National Prisons Agency confirmed the applicant’s claim that warm water was only available twice a week for an hour and a half. In these circumstances, given the overcrowded living conditions in the applicant’s cells, and the fact that the detainees in each cell seemed to have access to only one shower, the Court is not convinced that the situation did not prove detrimental to the applicant’s personal hygiene and hygiene in general at the prison. In this connection, the Court notes that the applicant’s submissions in this regard correspond to the findings of the Romanian Helsinki Committee and the CPT in respect of Romanian prisons in general, and in respect of Rahova Prison in particular (see paragraphs 30 and 31 above). 58.     The Court reiterates that, in relation to Rahova Prison, it has frequently found violations of Article   3 of the Convention on account of the lack of personal space afforded to detainees and unsatisfactory hygiene conditions (see Toma Barbu v. Romania , no. 19730/10, § 69, 30 July 2013, and Tirean v. Romania , no. 47603/10, § 43, 28 October 2014). 59.     In the case at hand, the Government have failed to put forward any argument that would allow the Court to reach a different conclusion. 60.     Accordingly, there has been a violation of Article 3 of the Convention. 61.     Taking this finding into account, the Court does not consider it necessary to examine the remaining issues of the applicant’s complaint concerning the conditions of his detention. III.     ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 62. The applicant complained that, while in prison, he was not provided with an appropriate diet for Muslims, namely one without pork, while he was also not allowed to receive food from his family. He relied in substance on Article 9 of the Convention, which reads: “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.” 63.     The Government submitted that the applicant’s complaint under Article 9 of the Convention was inadmissible for non-exhaustion of domestic remedies. 64.     The applicant did not submit observations on this point. 65.     The Court considers that, in the light of its finding under Article 3 of the Convention (see paragraph 60 above) concerning the main issues raised by the applicant’s detention, it is not necessary to examine either the admissibility or the merits of this complaint. IV.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 66.     The applicant raised a large number of other complaints concerning alleged breaches of his rights guaranteed by the Convention. 67.     The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 68.     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 69.     The applicant claimed that he had made his submissions before the Court in order to see if he could improve his situation, at least financially. 70.     The Government submitted that the applicant’s submissions might also have been qualified as a claim for just satisfaction. They argued that he could not be awarded pecuniary damages, because he had not expressly claimed that he had suffered pecuniary damage. In so far as the applicant’s submissions could be considered to amount to a claim for non-pecuniary damages, the Government contended that the finding of a violation would amount to sufficient just satisfaction. 71.     The Court shares the Government’s view and considers that the applicant’s submissions may also be qualified as a claim for just satisfaction. In so far as it could be considered that the applicant claimed pecuniary damages, the Court notes that he did not submit any documents in support of his claim. It therefore rejects this part of his claim. 72.     In so far as it could be considered that the applicant claimed non ‑ pecuniary damages, having regard to all the circumstances of the present case, the Court accepts that he must have suffered non-pecuniary damage, which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant 5,000   euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. B.     Costs and expenses 73.     Referring to the applicant’s submissions (see paragraph 69 above), the Government argued that he had not expressly stated that he had incurred costs and expenses. 74.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, in so far as it could be considered that the applicant claimed costs and expenses, the Court notes that he did not support his claim with any documents. Consequently, it rejects his claim for costs and expenses. C.     Default interest 75.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares part of the complaint under Article 3 of the Convention concerning the conditions of detention in Rahova Prison admissible;   2. Holds that there is no need to examine the admissibility or the merits of the complaint under Article 9 of the Convention;   3. Declares the remainder of the application inadmissible;   4.     Holds that there has been a violation of Article 3 of the Convention, as regards overcrowding and poor hygiene conditions in Rahova Prison;   5. Holds that there is no need to examine separately the merits of the complaint under Article 3 of the Convention concerning the fact that the applicant shared his cell with detainees who had contagious diseases, were drug addicts or were suffering from psychological problems;   6.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at 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;   7.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Marialena Tsirli   András Sajó   Registrar   President