CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 14 septembre 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s4BAE41EE { font-family:Arial; font-size:11pt } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s23A41E03 { width:36pt; display:inline-block } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s7015FBD8 { margin-top:14pt; margin-bottom:14pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s906CA806 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC90828B6 { font-family:Arial; font-size:11pt; text-decoration:underline } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 653 14.09.2010   Press release issued by the Registrar   Chamber judgment Not final [1]   Florea v. Romania (application no. 37186/03)     APPLICANT’S SUBJECTION TO PASSIVE SMOKING IN DETENTION WAS IN BREACH OF THE CONVENTION   Unanimously     Violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights     Principal facts The applicant, Gheorghe Florea, is a Romanian national who was born in 1949 and lives in Botoşani (Romania). He was detained from March 2002 until February 2005 in Botoşani Prison and in Târgu Ocna Prison Hospital. At the time of his imprisonment the applicant suffered from chronic hepatitis and arterial hypertension. In Botoşani Prison he had to share a cell for approximately eight or nine months with between 110 and 120 other prisoners, with only 35 beds. According to the applicant, 90% of his cellmates were smokers. He was also in the company of smokers during his three stays in the prison hospital, which were ordered because of his worsening health, and on his return from that establishment. In January 2005 the applicant was advised by his doctor to avoid smoking. In response to the complaints made by Mr Florea the Ministry of Justice acknowledged that due to overcrowding two prisoners sometimes had to share one bed and that it was impossible to separate smoking and non-smoking prisoners because of the lack of space. The National Prisons Authority indicated that the applicant had been detained in cells ranging in size from approximately 21 sq. m – with nine beds – to approximately 55 sq. m – with 35 beds – and stated that no data were kept on the number of prisoners in each cell. According to the Authority, smoking was permitted only in the toilets and the exercise yard. Similarly, in the prison hospital, statistics had been recorded only for each wing rather than by individual ward. Hence, the wing for chronically ill patients measured around 113 sq. m and was divided into two wards with between nine and 59 patients in each, with no separate areas for smokers and non-smokers. The applicant was granted conditional release on 15 February 2005. According to the National Prisons Authority, his condition had remained stable during his detention. In April 2004 the applicant lodged a claim for compensation on account of the deterioration of his health caused by being detained in cells together with prisoners who smoked and by the poor conditions of detention. His claim was dismissed by the County Court in 2006 on the ground that no causal link had been established.   Complaints, procedure and composition of the Court Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complained in particular of overcrowding and poor hygiene conditions, including having been detained together with smokers in his prison cell and in the prison hospital and being provided with a diet which was unsuited to his various medical conditions. The application was lodged with the European Court of Human Rights on 9 October 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Alvina Gyulumyan (Armenia), Egbert Myjer (Netherlands), Luis López Guerra (Spain), Judges , And also Santiago Quesada , Section Registrar     Decision of the Court   Article 3   The Romanian Government contended that the applicant had not exhausted domestic remedies as he could have lodged a complaint against the prison staff and an action for tortious liability. The Court noted that the applicant had repeatedly drawn the competent authorities’ attention to the poor conditions of detention, including the fact that there were smokers in his cell. It further observed that the Government had not indicated how the remedies referred to might have redressed the alleged conditions of detention. It therefore dismissed the Romanian Government’s preliminary objection of failure to exhaust domestic remedies.   The Court observed that, far from depriving persons of their rights under the Convention, imprisonment in some cases called for enhanced protection of vulnerable individuals. The State had to ensure that all prisoners were detained in conditions which respected their human dignity, that they were not subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that their health was not compromised.   In cases concerning prisoners’ living space, the Court had established a minimum threshold of 3 sq. m of personal space. Where the space provided was above that threshold the Court took other factors, such as standards of hygiene, into consideration. In Mr Florea’s case, given the total surface area in relation to the number of prisoners, it was clear that he had had between 1.57 sq. m and 2.36 sq. m of personal space in prison and between 1.89 sq. m and 3.63 sq. m in hospital. The Court noted that the Ministry of Justice had acknowledged that the capacity of Botoşani Prison had been exceeded and, like the Romanian courts, that there existed a systemic problem of overcrowding in the country’s prisons.   Mr Florea had therefore spent approximately three years living in very cramped conditions, with an area of personal space falling below the European standard. The Court noted, however, that the standard for personal space in communal cells in Romania had been increased in the meantime to 4 sq. m.   As to the other factors, the Court noted that Mr Florea had been confined to his cell for 23 hours a day in deplorable hygiene conditions, with the same room being used for sleeping and eating. As to the issue of passive smoking raised by the applicant, the Court observed that no consensus existed among the member States of the Council of Europe with regard to protection against passive smoking in prisons.   Unlike the applicants in some other cases [2] , Mr Florea had never had an individual cell and had to put up with his fellow prisoners’ smoking even in the Botoşani prison infirmary and on the wards for chronically ill patients of the prison hospital, against his doctor’s advice. However, a law enacted in June 2002 prohibited smoking in hospitals and the Romanian courts had frequently held that smokers and non-smokers should be detained separately.   Accordingly, the conditions of detention to which the applicant had been subjected were in breach of Article 3. In view of that finding the Court held that it was unnecessary to examine the impact of Mr Florea’s conditions of detention on his overall state of health, as no expert medical report had established the cause of his medical conditions or found that they had deteriorated in detention.   Article 41   By way of just satisfaction, the Court held that Romania was to pay Mr Florea 10,000 euros in respect of non-pecuniary damage. ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Emma Hellyer (telephone: +33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Frédéric Dolt (telephone: + 33 3 90 21 53 39) Nina Salomon (telephone: + 33 3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution. [2] Aparicio Benito v. Spain (no. 36150/03).