CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 octobre 2024

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border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sB853CD26 { font-family:Arial; font-size:8pt } .s5E00BDDA { width:18.46%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s79757CC7 { width:15.78%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FOURTH SECTION CASE OF APOSTOLESCU AND OTHERS v. ROMANIA (Applications nos. 2188/21 and 9 others – see appended list)             JUDGMENT   STRASBOURG 24 October 2024   This judgment is final but it may be subject to editorial revision. In the case of Apostolescu and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Anne Louise Bormann , President ,   Sebastian Răduleţu,   Mateja Đurović , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 3 October 2024, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Romania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.     The Romanian Government (“the   Government”) were given notice of the applications. THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants complained of the inadequate conditions of their detention. THE LAW JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE   3 OF THE CONVENTION 6.     The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention. 7.     In applications nos. 5767/21 and 14710/21 the Government raised a preliminary objection concerning the loss of the victim status by the applicants for the periods of detention specified in the appended table because they were afforded adequate redress based on Law no. 169/2017 amending and completing Law no. 254/2013 on the execution of sentences for those specific periods of detention. 8.     The Court notes that the domestic remedy introduced in respect of inadequate conditions of detention in Romania and applicable until December 2019 was held to be an effective one in the case of Dîrjan and Ştefan v.   Romania ((dec.), nos. 14224/15 and 50977/15, §§ 23-33, 15 April 2020). This remedy was available to the applicants in these applications, and they were, indeed, afforded adequate redress for certain periods of detention (for details see the appended table). 9.     Therefore, the Court accepts the Government’s objection and finds that these parts of applications nos. 5767/21 and 14710/21 are incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 10.     The Government submitted that the applicant in application no.   7197/21 had failed to comply with the six-month time-limit rule set out in Article 35 § 1 of the Convention, because he had lodged his application with the Court on 19 January 2021, whereas he had been released from detention on remand on 30 June 2018. 11 .     The Court observes that in application no. 7197/21 the applicant complained about the conditions of detention he was held in from 16 May to 30   June 2018 in the Buzău County Police Station. Furthermore, the Court notes that, the applicant had availed himself of an action for liability in tort, which had not enabled him to have the violation of the Convention acknowledged in full and to receive adequate and sufficient compensation. The final domestic decision was issued on 5 June 2020 and served to the applicant on 20 July 2020, that is, well before the date identified by the Court as being the date from which the domestic remedy in question could be considered effective. 12.     As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Ananyev and Others v. Russia, nos.   42525/07 and 60800/08, § 93, 10 January 2012, §   72). 13.     In other words, when it is clear from the outset that the use of a remedy cannot be considered effective for an applicant’s complaints, the use of that remedy cannot interrupt the running of the six-month time-limit. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Court considers that it may be appropriate for the purposes of Article 35 § 1 to take as the start of the six-month period the date when the applicant first became or ought to have become aware of those circumstances (see, amongst many others, Norkin v. Russia (dec.), no. 21056/11, § 11, 5   February 2013, §§ 15‑16). 14.     The Court considers that by the time the applicant had availed himself of an action for liability in tort, the domestic case-law on compensation for non-pecuniary damage sustained in relation to poor conditions of detention had developed significantly since the Rezmiveş and Others v. Romania pilot judgment (nos. 61467/12 and 3 others, 25 April 2017) and had been consolidated with the judgement delivered on 19   February 2020 by the High Court of Cassation and Justice (see Polgar v. Romania , no. 39412/19, § 38, 20 July 2021). 15.     Therefore, the Court concludes that the applicant could have reasonably considered in 2019 that a civil action for damages in relation to conditions of detention had some prospect of success. Noting that the final domestic decision was served on the applicant on 20 July 2020 (see paragraph   11 above) and the application to the Court was introduced less than six months thereafter, namely on 19 January 2021. It follows that the Government’s preliminary objection must be dismissed. 16.     The Government further argued that the applicants had failed to exhaust the available effective remedies for the complaints about the inadequate conditions of their detention, as an action in tort was an effective remedy for grievances similar to those of the applicants, allowing them to have the violation of the Convention acknowledged, either explicitly or in substance, and to receive adequate and sufficient compensation at the domestic level, and invited the Court to declare these applications inadmissible. 17.     The Court recalls that in Polgar judgment, cited above, §§ 94-96, it held that an action in tort, based on Articles 1349 and 1357 of the Romanian Civil Code, as interpreted consistently by the national courts, had represented since 13 January 2021 an effective remedy for individuals who considered that they had been subjected to inadequate conditions of detention and who were no longer held in conditions that were allegedly contrary to the Convention (see also Vlad v. Romania (dec.), no. 122/17, §§   30-33, 15   November 2022). 18.     The Court notes that, in applications nos. 35659/21 and 52374/21 the applicants were transferred after 13 January 2021 for periods longer than eight   days (see, mutatis mutandis , Cloşcă and Others v. Romania , nos.   54609/15 and 2 others, §§ 11 and 13, 8 October 2020) to detention facilities about which they did not raise any complaints. Subsequently, they were transferred to detention facilities where they had been held again in conditions that were allegedly contrary to the Convention (see the appended table for further details). 19.     Since the applicants temporarily ceased to be held in conditions of detention that were allegedly contrary to the Convention after the moment when the tort action had been considered as representing an effective remedy (see, mutatis mutandis, Polgar , § 96, and Vlad , § 23, both cited above), but did not inform the Court of having brought such an action before the domestic courts in respect of their detention (i) from 21 January 2020 to 11 November 2021, as regards the applicant in application no.   35659/21, and (ii) 23 June 2021 to 29 September 2022, as regards the applicant in application no.   52374/21, the Court accepts the Government’s objection and finds that the applicants’ complaints related to these periods of detention must be dismissed for failure to exhaust domestic remedies. 20.     As regards the remaining applicants, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies, because they cannot be reproached for not having exhausted the tort action domestically, since they were either released before 13 January 2021 when the civil tort action became an effective remedy (see Polgar, §§ 94-99; a   contrario, Vlad , §§ 30-33, both cited above) or are still in detention and have continuously been suffering from inadequate conditions and cannot bring their grievances to the attention of the domestic courts through an effective remedy. 21.     Moreover, the Government considered the complaints related to the periods in which the applicants had a living space of more than 3 sq. m to be manifestly ill-founded. 22.     The Court notes that the relevant principles of its case-law in relation to overcrowding were set out in Muršić v. Croatia [GC], no.   7334/13, §§   96 ‑ 101, 20 October 2016, and that a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate conditions of detention. The details of the applicants’ detention are indicated in the appended table. The length of an individual’s detention under specified conditions must also be taken into account (see, for example, Story and Others v. Malta , nos. 56854/13 and 2 others, §§ 112-113, 29 October 2015). Since the applicants complained before the Court of other aspects of inappropriate conditions of detention (see appended table for further details), the objection raised by the Government must be dismissed. 23.     Turning to remaining periods of the applicants’ detention as specified in the appended table, the Court notes that the applicants were kept in detention in poor conditions. The Court reiterates in particular that 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 and may disclose a violation, both alone or in conjunction with other material aspects of detention (see Muršić , cited above, §§ 122-41, and Ananyev and Others , also cited above, §§ 149-59). 24.     In the leading case of Rezmiveș and Others , cited above, the Court already found a violation in respect of issues similar to those in the present case. 25.     Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention, as described in the appended table, were inadequate. 26.     These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 27.     Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Rezmiveş and Others, cited above), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints concerning the inadequate conditions of detention for the periods specified in the appended table admissible and the remainder of the applications inadmissible; Holds that these complaints disclose a breach of Article   3 of the Convention concerning the inadequate conditions of detention during the periods indicated in the appended table; Holds (a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 24 October 2024, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.     Viktoriya Maradudina   Anne Louise Bormann   Acting Deputy Registrar   President APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no. Date of introduction Applicant’s name Year of birth Representative’s name and location Facility Start and end date Duration Sq. m per inmate Specific grievances Amount awarded for pecuniary and non ‑ pecuniary damage and costs and expenses per applicant (in euros) [1]     2188/21 16/12/2020 Adrian APOSTOLESCU 1980       Bucharest-Rahova Prison 07/08/2019 to 21/10/2020 1 year(s) and 2 month(s) and 15 day(s) 3.06-4.60 m² lack of fresh air, lack of or insufficient electric light, lack of or insufficient natural light, infestation of cell with insects/rodents, poor quality of potable water, inadequate temperature, mouldy or dirty cell 3,000     5767/21 15/02/2021 Anghel-Cristian CHELU 1985       Craiova-Pelendava Prison 23/12/2019 pending More than 4 year(s) and 5   month(s) and 12 day(s) 2.91-2.98 m² overcrowding, infestation of cell with insects/rodents, mouldy or dirty cell 3,000     7197/21 19/01/2021 Ionel Ginel VOICU 1977       Buzău County Police Station 16/05/2018 to 30/06/2018 1 month(s) and 15 day(s) 4.1-6.25 m² passive smoking, inadequate temperature, lack of fresh air, lack of or insufficient natural light, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents 1,000     14710/21 04/03/2021 Claudiu-Laurenţiu JIVOIN 1985   Cezara-Maria Nichita-Costescu   Arad Prison 22/10/2018 to 05/08/2019 9 month(s) and 15 day(s)   Timișoara Prison 24/12/2019 to 22/10/2020 9 month(s) and 29 day(s) 2.02-2.27 m² overcrowding (save for 22/10/2018-05/08/2019 and 19/05/2020-07/08/2020), inadequate temperature, lack of fresh air, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air 3,000     35659/21 05/07/2021 Remus TUDOR 1966   Mihai Alexandru Stoicescu Constanța Giurgiu Prison 27/11/2021 pending More than 2 year(s) and 5   month(s) 2.90 m² overcrowding (save for 29/11/2021-10/03/2022, 02/06/2022-17/08/2022, 26/08/2022 ‑ 08/08/2023), infestation of cell with insects/rodents, lack of or insufficient quantity of food, bunk beds 3,000     35744/21 05/01/2022 Marian NĂNĂUC 1971       Aiud, Rahova and Mioveni Prisons 27/05/2021 to 31/07/2023 2 year(s) and 2 month(s) and 5 day(s) 1.82-2.44 m² overcrowding (save for 27/05/2021-23/06/2021, 11/01/2022-25/01/2022, 28/06/2022-17/08/2022, 06/09/2022-30/09/2022), lack of or insufficient natural light, lack of or insufficient electric light, lack of fresh air, mouldy or dirty cell 3,000     52374/21 09/05/2022 József NÉMET 1973       Codlea Prison 03/02/2023 pending More than 1 year(s) and 4   month(s) and 1 day(s) 2.16-2.71 m² overcrowding, mouldy or dirty cell, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air 3,000     59206/21 29/11/2021 Petru ROTARIU 1970       Iași and Botoșani Prisons 24/02/2021 pending More than 3 year(s) and 2   month(s) and 3 day(s) 1.84-2.85 m² overcrowding (save for 24/02/2021-18/03/2021, 01/04/2021-03/04/2021 and 26/10/2021-27/10/2021), mouldy or dirty cell, no or restricted access to shower, lack of fresh air, lack of or insufficient natural light 3,000     59613/21 27/12/2021 Gheorghe POPESCU 1982       Drobeta-Turnu Severin Prison 27/01/2021 pending More than 3 year(s) and 3   month(s) 2.20-2.89 m² overcrowding (save for 27/01/2021-04/02/2021 and 14/09/2022-22/09/2023), inadequate temperature, bunk beds, lack of privacy for toilet, mouldy or dirty cell, lack or inadequate furniture, lack of or insufficient quantity of food, infestation of cell with insects/rodents 3,000   61622/21 28/02/2022 Alexandru-Nicușor VLAD 1986       Bucharest-Rahova and Bucharest-Jilava Prisons; Bucharest-Jilava Prison Hospital 11/10/2021 pending More than 2 year(s) and 6   month(s) and 16 day(s) 1.7-2.54 m² overcrowding (save for 11/10/2021-26/10/2021 and 05/11/2021-12/11/2021), mouldy or dirty cell, infestation of cell with insects/rodents, lack of fresh air, poor quality of potable water, poor quality of food, lack of or poor quality of bedding and bed linen 3,000   [1] Plus any tax that may be chargeable to the applicants.