THIRD SECTION

CASE OF EPISTATU v. ROMANIA

(Application no. 29343/10)

JUDGMENT

STRASBOURG

24 September 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Epistatu v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Alvina Gyulumyan,
	Corneliu Bîrsan,
	Ján Šikuta,
	Luis López Guerra,
	Nona Tsotsoria,
	Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 3 September 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 29343/10) 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 Cristian Epistatu (“the applicant”), on 6 May 2010.
2.  The applicant was represented by Ms S.C. Huiduc, a lawyer practicing in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3.  The applicant alleged in particular that the material conditions of detention in Jilava Prison and the facts that he was forced to abandon his last year of high school in order to serve his prison sentence and that the Romanian prison authorities did not allow him to complete his high school education in prison, breached his rights guaranteed by Articles 3 and 2 of Protocol No. 1 to the Convention.
4.  On 24 May 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1990 and lives in Bucharest.
A.  Criminal proceedings opened against the applicant
6.  On 19 December 2008 the Bucharest Prosecutor’s Office indicted the applicant, who was a final-year high-school student at the time, on the basis of medical, forensic, documentary and witness evidence, for attempted aggravated murder, and referred his case to the Bucharest County Court.
7.  By a judgment of 12 March 2009 the Bucharest County Court convicted the applicant and sentenced him to five and a half years’ imprisonment. The applicant appealed against the judgment.
8.  By a judgment of 9 November 2009 the Bucharest Court of Appeal dismissed the applicant’s appeal as ill-founded. The applicant appealed on points of law (recurs) against the judgment.
9.  By a final judgment of 5 March 2010 the Court of Cassation dismissed the applicant’s appeal on points of law as ill-founded.
B.  Access to education in prison
10.  At the time of his incarceration the applicant had completed eleven years of education and was enrolled in the twelfth at a high school which trained students to become skilled workers in various industries, including the food industry.
11.  On 29 April 2010 the applicant’s father asked the warden of Rahova Prison on behalf of the applicant to allow his son to complete his last year of high school, which he had had to abandon after his imprisonment, or alternatively to allow him to attend classes which would teach him a trade or profession.
12.  On 11 May 2010 the Rahova Prison warden informed the applicant’s father that his son’s circumstances would be examined by the prison’s work commission on the basis of the prison’s requirements.
13.  On 5 July 2010, with the applicant’s consent, the applicant’s father asked the Rahova Prison authorities to allow his son to be transferred to Craiova Prison. He argued, inter alia, that his son wished to be transferred in order to be able to complete his high-school education, because following a private discussion with the warden of Rahova Prison he had been notified that Rahova Prison did not have the resources to set up such a course.
14.  According to the Government, following a request received from the applicant on 21 September 2009, the Rahova Prison authorities informed him that it was not possible to arrange high-school courses at that time. In addition, the applicant’s request of 28 July 2011 addressed to the Jilava Prison authorities to be enrolled in courses for twelfth-grade high-school students was granted, but immediately afterwards the applicant requested a transfer to Bistriţa Prison. The documents submitted by the Government to the Court in support of their arguments do not provide any further information.
15.  From 2010 to 2012 the applicant enrolled in and took part in several sporting, artistic, religious and literary competitions, as well as several training and educational programmes set up by the domestic prison authorities.
16.  On 9 June 2011 and 6 October 2011 the applicant stated to the Court that he had repeatedly asked the wardens of Craiova, Rahova and Jilava Prisons either to be allowed to complete his last year of high school or to be allowed to work. According to him, all his requests were refused because the prison authorities were temporarily unable to arrange classes for final‑year high-school students, vocational courses were full, and there were no vacancies for work.
17.  From 25 June to 25 September 2012 the applicant was enrolled in and attended a course set up by the Bistriţa Prison authorities, training detainees to become skilled workers in the food industry.
C.  Conditions of detention in Jilava Prison
1.  The applicant
18.  On 9 June 2011 the applicant stated to the Court that the conditions of detention in Jilava Prison were inhuman and degrading. He contended that he was detained in Section VI in cell 601, which was overcrowded. The said room was 40 sq. m in area and contained twenty-seven beds and twenty-seven detainees. The room was squalid and was infested with rats, lice and bedbugs. During his detention in Jilava Prison he was diagnosed with and treated for scabies. He was also repeatedly bitten by bedbugs. The detention cell lacked heating in the winter and was extremely hot in the summer. The applicant was suffering from constant headaches and dizzy spells in the summer because of the overcrowded conditions, the high temperatures and the lack of ventilation and air in the room. Nor did he have access to any sporting, cultural and educational activities.
19.  On 18 July 2011 the applicant stated to the Court that on 21 January 2009 he was diagnosed with gastroenteritis, which he stated was caused by the poor food in Jilava Prison and the prison’s drinking water which was infested with bacteria. He also submitted a copy of his medical file attesting that between 21 and 29 January 2009 and on 4 January 2011 he had been diagnosed and treated for gastroenteritis and scabies.
2.  The Government
20.  The applicant was detained in Jilava Prison from 7 to 21 January and 29 January to 6 February 2009, 2 September to 25 October 2010 and 28 October 2010 to 25 August 2011.
21.  From 7 to 21 January and 29 January to 6 February 2009 the applicant was detained in cells 308, 601 and 604. The size of the cells was 27.42, 31.21 and 13.5 sq. m respectively, and the number of inmates in the cells was of between eighteen and nineteen, twenty and between three and thirteen, respectively.
22.  From 2 September to 25 October 2010 as well as from 28 to 31 October 2010 the applicant was detained in cell 504. The size of the cell was 32.9 sq. m and the number of inmates ranged from fourteen to seventeen.
23.  From 1 November 2010 to 1 March 2011 the applicant was detained in cell 201. The size of the cell was 27.26 sq. m and the number of inmates ranged from twenty to twenty-three.
24.  From 2 to 17 March, as well as from 7 May to 19 August 2011, the applicant was detained in cell 601. The number of inmates was sixteen to eighteen.
25.   From 18 March to 6 May 2011 the applicant was detained in cell 604. The number of inmates was ten to twelve.
26.  From 19 to 25 August 2011 the applicant was detained in cell 603. The size of the cell was 12 sq. m and the number of inmates was eight to nine.
27.  In all the detention cells the applicant was provided with his own bed. The detention cells were fitted with shelves for storing luggage, two tables and at least two wooden benches or chairs. Waste was removed and the sanitary facilities and the prison premises were cleaned daily. The inmates were provided with cleaning materials, waste baskets and rubbish bags. The cells were cleansed of bugs and vermin by specialised companies every quarter or as often as it was needed. The detainees’ clothes and underwear were washed weekly on request.
28.  Cold water was permanently available, except during the short periods of time when maintenance work was carried out, while hot water was available twice a week. Drinking water was tested monthly and was of good quality.
29.  The cells had windows for ventilation. In hot weather the doors were also left open.
30.  Heating was provided from November to March on the basis of a pre-approved schedule, except for brief periods when the prison’s heating system was malfunctioning. During the applicant’s detention the basic temperature was a constant 21 degrees Celsius. 
31.  All the cells in which the applicant was detained were renovated in 2010 and 2011.
II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS
32.  Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006 on the execution of prison sentences (“the Prison Sentences (Execution) Act”, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 21-23, 29 April 2008); Gagiu v. Romania (no. 63258/00, § 42, 24 February 2009); and Măciucă v. Romania (no. 25763/03, § 14, 26 May 2009).
33.  Excerpts from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) on prison conditions are given in the case of Bragadireanu v. Romania (no. 22088/04, §§ 73-75, 6 December 2007); Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009); and Iacov Stanciu v. Romania (no. 35972/05, §§ 116-129, 24 July 2012).
34.  Section 65 of the Prison Sentences (Execution) Act provides, inter alia, that prisons organise primary, secondary and high-school courses. These courses are set up and held according to the rules set out by the Ministry of Education and Research together with the Ministry of Justice, using teaching personnel provided by the local school inspectorate and paid for from the budget of the local administration.
35.  Rule 175 of the Rules of Enforcement of the Prison Sentences (Execution) Act states, inter alia, that prison authorities, depending on the resources available to the institution, must organise educational and psychological support.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
36.  The applicant complained that the material conditions of detention in Jilava Prison amounted to inhuman and degrading treatment. He alleged, in particular, overcrowding, squalor, rats, bedbugs, lice and scabies infestations, lack of ventilation, lack of heating in the winter and extremely high temperatures in the summer. He also complained that the food was poor, the drinking water was infested with bacteria and that he did not have access to sporting, cultural and educational activities. 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.”
A.  Admissibility
1.  Non-exhaustion of domestic remedies
37.  The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained to the domestic authorities under the Prison Sentences (Execution) Act about the conditions of his detention. They argued that the remedy under that Act was effective, having regard to the domestic jurisprudence already sent by them in other previous cases.
38.  The applicant disagreed.
39.  The Court notes that the applicant’s complaint concerns the material conditions of his detention, in particular overcrowding, lack of heating, poor and inadequate nutrition and poor hygiene conditions. In this regard, it notes that in recent applications lodged against Romania concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal action suggested by the Government does not constitute an effective remedy (see Lăutaru v. Romania, no. 13099/04, § 85, 18 October 2011, and Leontiuc v. Romania no. 44302/10, § 50, 4 December 2012).
40.  The Court therefore concludes that the domestic case-law referred to by the Government does not indicate how the action they proposed under this Act could have afforded the applicant immediate and effective redress for the purposes of his complaint (see, mutatis mutandis, Marian Stoicescu v. Romania, no. 12934/02, § 19, 16 July 2009).
41.  It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the conditions of his detention in Jilava Prison.
2.  Six months
42.  The Court notes that according to the Government’s submissions, which were not contested by the applicant, he was detained in Jilava Prison until 6 February 2009 and then from 2 September to 25 October 2010 and from 28 October 2010 to 25 August 2011. At the same time it notes that the applicant lodged his complaints before the Court on 9 June and 18 July 2011.
43.  The Court notes in the present case that the applicant complained exclusively about the conditions of detention in Jilava Prison and not about conditions in any other detention facilities to which he may have been transferred between 6 February 2009 and 2 September 2010 and from 25 to 28 October 2010. Consequently, having regard to the date he lodged his complaint before the Court, the length of the applicant’s detention in Jilava Prison, the duration of the applicant’s transfers and the fact that he returned to Jilava Prison each time, the Court considers that it can conclude that the complaint lodged by the applicant in respect of the material conditions of detention in the said prison prior to 6 February 2009 cannot be considered a continuing situation. However, it notes that his transfer of 25 October 2010 did not bring about significant changes to the conditions of his detention, and that therefore there was a continuing situation in respect of the period of detention between 2 September 2010 and 25 August 2011 (see, mutatis mutandis, Eugen Gabriel Radu v. Romania, no. 3036/04, § 24, 13 October 2009).
44.  It therefore dismisses the applicant’s complaint about the conditions of detention in Jilava Prison in respect of the detention period prior to 6 February 2009, because it was introduced too late.
45.  Lastly, the Court notes that the applicant’s complaint concerning the conditions of detention in Jilava Prison from 2 September 2010 to 25 August 2011 is not manifestly ill-founded within the meaning of Article 35 § 3 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
46.  The applicant submitted that the conditions of his detention were inappropriate.
47.  The Government, referring to their description of the conditions of detention submitted to the Court (see paragraphs 20-31 above), contended that the domestic authorities had taken all necessary measures to ensure adequate conditions of detention, and that the applicant’s complaint was therefore groundless.
2.  The Court’s assessment
48.  The Court reiterates that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure 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 Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII, and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).
49.  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 Karalevičius v. Lithuania, no. 53254/99, 7 April 2005).
50.  The Court has frequently found a violation of Article 3 of the Convention on account of the lack of personal space afforded to detainees in Romanian prisons (see, among others, Coman v. Romania, no. 34619/04, § 59, 26 October 2010; Lăutaru, cited above, § 102; and Onaca v. Romania, no. 22661/06, § 41, 13 March 2012).
51.  In the case at hand, the Government failed to put forward any argument that would allow the Court to reach a different conclusion.
52.  Even if the Court accepted that the occupancy rate put forward by the Government was accurate, it notes that the applicant’s living space for the time he spent in Jilava Prison was consistently below the minimum surface of 4 sq. m. recommended by the CPT for cells occupied by groups of detainees (see paragraphs 21-26 above).
53.  The Court further notes that the applicant’s description of overcrowding corresponds to the findings of the CPT report in respect of Romanian prisons (see paragraph 34 above).
54.  The Court concludes that the conditions of his detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3.
There has accordingly been a violation of Article 3 of the Convention in respect of the conditions of the applicant’s detention in Jilava Prison.
55.  Taking this finding into account, the Court does not consider it necessary to examine the remaining issues of his complaint concerning the conditions of detention.
II.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION
56.  The applicant complained that his right to education was breached in so far as he was forced to abandon his last year of high school in order to serve his prison sentence and the Romanian prison authorities did not allow him to complete his high-school education in prison. He relied on Article 2 of Protocol No. 1 to the Convention, which reads as follows:
“No person shall be denied the right to education ...”
Admissibility
1.   The parties’ submissions
57. Drawing on the principles established by the Court’s case-law, in particular the “Belgian linguistic case” judgment of 23 July 1968, Series A no. 6, § 3; Durmaz and Others v. Turkey (dec.), nos. 46506/99, 46569/99, 46570/99 and 46939/99, 4 September 2001; Natoli v. Italy [decision], no. 26161/95; X. v. the United Kingdom [decision], no. 5962/72; and Leyla Şahin v. Turkey [GC], no. 44774/98, ECHR 2005-XI, the Government contended that Article 2 of Protocol No. 1 to the Convention was not applicable to the applicant’s case, given that the domestic legal requirements in respect of prison education were not met in the absence of the required minimum number of students. They argued that the applicant had already completed the compulsory education requirement of ten school grades by the time of his incarceration, and that therefore the essence of his right to education had not been impaired. In addition, following his request of 21 September 2009 addressed to the Rahova Prison authorities to be allowed to continue his high-school studies, he was informed by the authorities that he could not do so at that time. Even if he had been transferred to a detention facility for young people and minors, the authorities would have been under a duty to enrol him unconditionally only in courses that would have allowed him to complete the minimum number of school years required by law. Also, following his request of 28 July 2011, the Jilava Prison authorities granted his request to be enrolled on courses for senior high-school students, but the applicant applied for a transfer to Bistriţa Prison, where he was enrolled on and attended a course training skilled workers for the food industry and which was in line with the studies undertaken by the applicant prior to his incarceration. Moreover, an obligation on the State to arrange a course for the applicant would have imposed an excessive financial burden on the authorities.
58.  The Government also submitted that the applicant had failed to exhaust the available domestic remedies, as he had failed to raise his complaint before the judge charged with the execution of prison sentences or the domestic courts. The Prison Sentences (Execution) Act allowed him such a remedy, and his complaint would have enabled the domestic authorities to examine his claim.
59.  Lastly, the Government contended that the applicant’s claim was unfounded, given that the alleged interference with his right to education did not affect its essence, was prescribed by law, pursued a legitimate aim, and was proportionate.
60.  The applicant disagreed, and argued that the domestic authorities had failed to take any action to enable the applicant to finish his studies.
2.  The Court’s assessment
61.  The Court finds that it is not necessary to examine the Government’s objections as the complaint is in any event inadmissible for the following reasons.
62.  The Court reiterates that the fact that applicants were only prevented from continuing in full-time education during the period corresponding to their lawful detention after conviction by a court cannot be construed as a deprivation of the right to education within the meaning of Article 2 of Protocol No.1 to the Convention (see Durmaz and Others, cited above, and Georgiou v. Greece (dec.), no. 45138/98, 13.1.2000, unreported; application no. 23938/94, Eur. Comm. HR, decision of 23.10.95, unreported).
63.  In addition, the said Convention provision cannot be understood as imposing an obligation on the prison authorities to set up ad hoc courses for applicants (see Natoli v. Italy, no. 26161/95, Commission decision of 18 May 1998, unreported).
64.  In the instant case the applicant was forced to abandon his full-time high-school education only after he was detained following a lawful conviction by a competent court and following criminal proceedings that do not appear arbitrary. In addition, during his detention the applicant’s requests to be enrolled in and allowed to finish his high-school education were examined by the prison authorities, and he was informed that the prison facilities did not have the resources to arrange the courses requested by him at the time. The Court observes that the reasons provided did not fall outside the legal framework regulating the provision of courses for detainees.
65.  Moreover, the Court notes that during his detention the applicant was allowed to enrol in and attended several sporting, artistic, religious and literary competitions, as well as attending a number of training and educational programmes in prison. Furthermore, it appears that as soon as the prison authorities provided courses or training programmes fitting the applicant’s requests and educational profile he was allowed to enrol and was not prevented from attending.
66.  In the light of the above, the Court cannot conclude that the Romanian prison authorities have failed to comply with the obligations enshrined in Article 2 of Protocol No. 1.
67.  It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
68.  The applicant complained under Article 6 of the Convention that the criminal proceedings opened against him were unfair, in so far as the domestic courts had wrongfully assessed the evidence, misinterpreted the applicable legal provisions, and lacked impartiality.
69.  The Court has examined this complaint as submitted by the applicant. However, having regard to all the material in its possession, and in so far as it falls within its jurisdiction, the Court finds that this complaint does 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.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
70.  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
71.  The applicant claimed non-pecuniary damages. He did not submit a quantified amount in respect of his claim, however he argued that it should be calculated with 50,000 euros (EUR) as a base amount.
72.  The Government asked the Court to examine the applicant’s claim in the light of amounts awarded in similar cases. 
73.  The Court notes that it has found a violation of Article 3 in the present case. In these circumstances, making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non‑pecuniary damage.
B.  Costs and expenses
74.  The applicant also claimed 2,805 lei (RON) (approximately EUR 620) for costs and expenses incurred before the Court, in particular legal fees and translations. He submitted copies of invoices attesting to the payment of the claimed amount.
75.  The Government contended that the invoices attesting to the translation of documents did not show that the translated documents concerned correspondence with the Court, and that the applicant should be awarded only the costs and expenses he had actually incurred.
 76.  The Court reiterates that in order for costs and expenses to be reimbursed under Article 41 it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006).
77.  In the present case, having regard to the above criteria, the documents submitted by the applicant and the date of the invoices for translations which were issued after the application was communicated to the parties, the Court awards the applicant the entire amount he claimed for costs and expenses.
C.  Default interest
78.  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 the complaint under Article 3 concerning the material conditions of detention in Jilava Prison from 2 September 2010 to 25 August 2011 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention on account of overcrowding;

3.  Holds that there is no need to examine the remaining issues raise by the complaint under Article 3 of the Convention in respect of the material conditions of detention;

4.  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, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 620 (six hundred and twenty euros), plus any tax that may be chargeable, in respect of costs and expenses;
(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago Quesada	Josep Casadevall
	Registrar	President