CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 11 février 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s39E5096F { margin-top:0pt; margin-bottom:14pt; text-align:center } .s490D418E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sB0AFCFB { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s45D7798B { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; font-family:Arial; font-style:italic } .sE782BD72 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .s1CBB6184 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .s93F51629 { margin-top:0pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; font-size:10pt } .s6FC64B9D { width:2.78pt; font:7pt 'Times New Roman'; display:inline-block } .sDDE17727 { margin-top:14pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; font-size:10pt } .s1D4E86C8 { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt; text-align:justify } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD8BF637E { margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sE96E219C { margin-left:7.35pt; margin-bottom:6pt; font-weight:normal; font-style:italic } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s7FFD71C1 { width:29.8pt; display:inline-block } .s1863C7A8 { width:149.78pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION DECISION Application no. 23690/15 Tiberiu MUREȘAN against Romania   The European Court of Human Rights (Fourth Section), sitting on 11   February   2020 as a Committee composed of:   Faris Vehabović, President,   Iulia Antoanella Motoc,   Carlo Ranzoni, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to the above application lodged on 6 June 2015, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Tiberiu Mureșan, is a Romanian national, who was born in 1962 and lives in Bonț. He was represented before the Court by Ms   F.E. Bota, a lawyer practising in Gherla. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms S.-M. Teodoroiu, from the Ministry of Foreign Affairs. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 26 June 2012 the applicant was detained in Gherla Prison because he was suspected of attempted murder. 5.     On 17 September 2012 the Cluj County Court convicted the applicant for attempted murder and sentenced him to six years’ imprisonment. 6.     In July 2014 the applicant was transferred to Bistrița Prison pending the end of his sentence. 7.     On 22 November 2016 the applicant was released from prison.   The material conditions of detention (a)    The applicant’s account 8.     The applicant submitted that the cells as well as the bathroom, feeding and walking areas in Gherla and Bistrița Prisons were overcrowded. Also the cells lacked sufficient air and had bunk beds. Moreover, the food in the two prisons was poor. 9 .     The applicant further stated that in Gherla Prison he shared his cell which measured 30 square meters with forty-six detainees even if it had only forty-five beds. Also, in Bistrița Prison, prior to January 2015 he shared two cells, one which measured 25 and the other which measured 15   square meters, with forty-five and six detainees, respectively. (b)    The Government’s account (i)   Gherla Prison 10.     The applicant was detained in Gherla Prison from 25 July 2012 to 31   July   2013, 7 August to 6 December 2013 and 11 December 2013 to 29   July   2014. 11.     The Government contended that while in Gherla Prison, the applicant was placed in cells with bunk beds. For most of the period spent in Gherla Prison, the applicant had been placed in cells affording him less than 2.5   square meters of personal space; however, for several days, namely, from 25 July to 13 August 2012 and from 23 to 29 July 2014 he had between 5.19 and 6.01 square meters of personal space. Furthermore, the rooms were well ventilated and the hygiene conditions were appropriate. The quality of food was adequate. (ii)   Bistriţa Prison 12.     The applicant was transferred to Bistriţa Prison on 29 July 2014, and he stayed there until 20 November 2014, and then from 15 to 22   January, 6   to 16 February, 13 March to 27 July 2015, 11 August 2015 to 14   April   2016, 4 May to 14 July and 5 August to 22 November 2016, when he was released. 13 .     The Government submitted that while in Bistriţa Prison, as of January   2015, thus following to the applicant’s cerebral vascular accident (see paragraph 17 below), he had been placed in cells affording him an average of 7 square metres of personal space, except for two short periods of five days (namely, between 6 and 11 February) and six days, respectively (from 4 to 10 May), when he was placed in cells where he had less than 3   square meters of personal space. The quality of food was good and the cells were naturally ventilated. 14.     The Government therefore contended that save for the two short periods mentioned above, the applicant was detained in appropriate conditions starting with November 2014 (including therefore the period spent in Dej Prison Hospital). (iii)   Dej and Rahova Prison Hospitals 15.     The Government indicated that the applicant has not complained of the conditions of detention in Dej and Rahova Prison Hospitals, where the applicant was hospitalised for intermittent periods of time between 2013 and 2015. The applicant’s medical conditions 16 .     From 6 to 11 December 2013 the applicant was hospitalised in the Dej Prison Hospital. According to his discharge papers, he was diagnosed with high blood pressure (second degree) with a high risk of silent ischemia and with acute chronic gastritis. He was provided with medical treatment and was recommended a specific diet as well as a regular monitoring of his blood pressure. 17 .     From 20 November 2014 to 15 January 2015 the applicant was hospitalised for the second time in the Dej Prison Hospital. According to his discharge papers, he was diagnosed with left Sylvian ischemic cerebral vascular accident, paralysis on the right side of his body, moderate loss of his ability to speak, high blood pressure (third degree) with a very high risk of hypercholesterolemia and latent syphilis. Similarly to his previous hospitalisation, he was prescribed and provided with a specific medical treatment, including neurological and cardiology check-ups, and he was recommended a specific diet. 18.     From 16 February to 13 March 2015 the applicant was hospitalised for the third time in Dej Prison Hospital. According to his discharge papers, he was diagnosed with high blood pressure (third degree) with very high risk, a condition post left Sylvian ischemic cerebral vascular accident, paralysis on the right side of his body, moderate loss of his ability to speak, hypercholesterolemia under treatment and latent syphilis. The scheme for medical treatment was similar to the ones mentioned above (see paragraphs   16-17 above). Proceedings opened by the applicant before the domestic authorities 19 .     On 16 March and 19 April 2015 the applicant lodged two separate criminal complaints against Gherla and Bistrița Prisons and their doctors before the Cluj District Court and the Bistrița County Court, respectively. He argued that the absence of adequate medical treatment in prison and the passivity of the prisons’ medical staff resulted in him becoming ill and being diagnosed with several illnesses during his detention. Also the Bistrița Prison authorities denied him the necessary treatment and a form of transport for disabled persons and placed him in a normal cell and not in the infirmary. 20.     On 23 March 2015 the Cluj District Court referred the applicant’s criminal complaint to the Bistrița Prosecutor’s Office. 21 .     On 27 March 2015 the Bistrița Prosecutor’s Office returned the applicant’s criminal complaint of 16 March 2015 to him on the ground that it was incomplete and lacked precision. In particular, the prosecutor’s office informed the applicant that his complaint did not comply with the formal requirements, as it did not indicate the name of the alleged perpetrators, the exact date when the alleged crime was committed, the circumstances thereto as well as the evidence relied on. Moreover, it advised the applicant to also complain before the post-sentencing judge. 22 .     On 29 April 2015 the Bistrița County Court returned the applicant’s criminal complaint of 19 April 2015 to him and informed him to refer his complaint to a criminal investigation body because the court was not competent to carry out the criminal investigation. 23 .     In his application form the applicant stated that because of his total paralysis on the rights side of his body he no longer had the necessary material and physical resources to pursue other remedies. Relevant domestic law 24.     Excerpts from the relevant legal provisions concerning the rights of detainees, namely Laws nos. 275/2006 and 254/2013 are given in the cases of Iacov Stanciu v. Romania (no. 35972/05, §§ 116-19, 24 July 2012), and Verdeş v. Romania (no. 6215/14, § 36, 24 November 2015). COMPLAINTS 25.     Relying in substance on Article 3 of the Convention the applicant complained that he was subjected to inhuman and degrading treatment on account of the material conditions of detention in Gherla and Bistrița Prisons. 26.     Invoking in substance the aforementioned Article of the Convention the applicant further complained that because of the inadequate conditions of detention and the lack of adequate medical care and assistance he developed a serious heart disease during his detention, became paralysed and was left with serious speech, thinking and moving impediments. Moreover, the domestic courts have refused to pursue his complaints or to fulfil their lawful duty to refer them to the relevant domestic authorities in order to investigate and remedy the issues raised by him. THE LAW Material conditions of detention 27.     The applicant complained of the conditions of his detention in Gherla Prison and Bistriţa Prison. He referred essentially to: overcrowding; a lack of adequate ventilation and lighting; and the poor quality of the food. 28.     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.” 29.     The Court notes that according to the Government’s submissions, which were not contested by the applicant, he was detained in Gherla Prison until 29 July 2014. He was transferred to Bistriţa Prison, where he stayed until 20 November 2014, when he was hospitalised in Dej Prison Hospital, until 15 January 2015. Returned to Bistriţa Prison on 15 January 2015, the applicant was placed in cells affording him in average 7 square meters of personal space, save for two short and inconsecutive periods totalling eleven days, when he had less than 3 square meters of personal space (see paragraph 13 above). 30 .     The Court considers that in view of their very short duration, these latter periods cannot be considered as having brought about significant changes to the applicant’s detention conditions, which appear to have been adequate, starting with January 2015. 31 .     The Court therefore concludes that the applicant’s transfer of 20   November   2014 brought about significant changes to the conditions of his detention, and that therefore there was not a continuing situation in respect of the period of detention prior to and respectively subsequent to 20   November   2014 (see by way of contrast Seleznev v.   Russia , no.   15591/03, §§ 34-36, 26 June 2008 and Mihai Laurenţiu Marin v.   Romania , no. 79857/12, § 30, 10 June 2014). 32.     Therefore, having regard to the fact that the material conditions of the applicant’s detention starting with January 2015 have significantly changed compared to those relevant for the period prior to 20   November   2014, the Court considers that the complaint lodged by the applicant in respect of the material conditions of detention in the said prisons must be assessed twofold, namely firstly in respect of the period prior to 20 November 2014, which can be considered as a continuing situation, and secondly in respect of the period starting with January 2015. 33.     The Court further notes that the applicant lodged his application with the Court on 6 June 2015. 34.     The Court therefore finds that the applicant’s complaint about the conditions of detention in Gherla Prison and Bistriţa Prison in respect of the detention period prior to 20 November 2014 is inadmissible as being out of time, having been lodged more than six months after the moment when the applicant’s detention conditions significantly changed (see also paragraphs   30-31 above).   35.     At the same time, in view of the factual submissions from the parties referring both to the question of personal space, and to the quality of food and the ventilation in the cells (see paragraphs 9 and 13 above), as well as to its own relevant case-law on the matter (see Muršić v. Croatia [GC], no.   7334/13, § 140, 20 October 2016) the Court finds that the conditions of detention in Bistriţa Prison in the period starting with January 2015 did not fall foul of the requirements under Article 3 of the Convention. 36.     It follows that the applicant’s complaint in respect of the above ‑ mentioned detention period must be rejected as manifestly ill ‑ founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Allegedly inadequate medical treatment and assistance The parties’ submissions 37 .     The Government argued that the applicant had not exhausted domestic remedies, since he had failed to address his complaints relating to the inadequate medical treatment and assistance before the post-sentencing judge. He filed two criminal complaints, invoking generally that he did not receive appropriate treatment and that the conditions in prison were degrading. The domestic authorities sent back his complaints, indicating that he needed to make them clearer, by indicating who was responsible and for what criminal act. Also, they indicated that a complaint before the post ‑ sentencing judge would probably be more appropriate, in view of his complaints. However, he did not file such a complaint, allegedly on account of his disability, or, allegedly for fear of repression in prison. 38.     The Government submitted that in accordance with the Court’s case ‑ law ( Petrea v. Romania , no. 4792/03, 29 April 2008) the complaint before the post-sentencing judge was an adequate and effective remedy to afford the applicant redress in respect of the alleged breaches. 39.     The applicant argued that the remedy indicated by the Government could not be considered as effective in his situation, having regard also to the fact that he had already complained before the domestic authorities without any positive outcome. The Court’s assessment 40.     With regard to Romania, the Court has already found that a complaint lodged on the basis of the provisions of Law no. 275/2006 with the post-sentencing judge is an effective remedy in cases dealing with specific problems deriving from detention, such as, inter alia , an individual detainee’s access to medical assistance (see Petrea , cited above, §§   36-37; Coman v. Romania , no. 34619/04, § 45, 26 October 2010 and Oancea v.   Romania , (dec.), no. 7291/09, §§ 25-28, 17 June 2014). 41.     The Court takes the view that the remedy referred to by the Government was an effective one for the applicant’s complaints relating to the inadequate medical assistance. It further notes that the applicant lodged two complaints of this kind before the domestic authorities (see paragraph   19 above). However, both the Prosecutor’s Office and the Bistriţa County Court indicated to the applicant that having regard to the manner in which they had been formulated, his complaints could not be examined, either as they did not comply with the formal requirements or for lack of jurisdiction, respectively (see paragraphs 21 and 22 above). 42.     Without any objective justification (see paragraphs 23 and 37 above), the applicant failed to reformulate his complaints in an adequate manner and address them to the post-sentencing judge, as indicated by the Prosecutor’s office. This would have allowed the judge to seek information from the prison authorities and hospitals, to assess the case and, if necessary, to order the administration to take concrete steps in order to set right his situation. 43.     Consequently, the Court finds that the applicant did not exhaust the domestic remedies available to him and that the Government’s preliminary objection must be allowed. 44.     It follows that this complaint must be declared inadmissible under Article   35   §§   1 and 4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 5 March 2020.   Ilse Freiwirth   Faris Vehabović   Deputy Registrar   President