FOURTH SECTION

CASE OF FAUR v. ROMANIA

(Application no. 11501/09)

JUDGMENT

STRASBOURG

21 June 2016

This judgment is final but it may be subject to editorial revision.

In the case of Faur v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Krzysztof Wojtyczek, President,
	Iulia Motoc,
	Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 31 May 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 11501/09) 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 Nistor Isai Faur (“the applicant”), on 27 March 2006.
2.  The applicant, who had been granted legal aid, was represented by Ms A.I. Rabotka, a lawyer practising in Arad. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.
3.  Relying on Article 3 of the Convention, the applicant alleged that he had been subjected to inhuman and degrading treatment on account of the material conditions of his detention, including the non-segregation of smokers and non-smokers, in Arad and Timişoara Prisons.
4.  On 19 June 2013 the application was communicated to the Government.
THE FACTS
5.  The applicant was born in 1966 and is currently detained in Arad.
6.  By a final decision of 21 March 2001 the Arad District Court convicted the applicant of rape of a minor and sentenced him to thirteen years’ imprisonment. The applicant’s detention started on 21 January 2001 and lasted until 24 May 2011, when he was released from prison on probation. On 11 July 2013 the applicant was again detained, following a new conviction for the rape of two girls who were minors, and was incarcerated in Colibaşi Prison.
A.  The applicant’s account
7.  In his letters to the Court, the applicant contended that in Arad and Timişoara Prisons he had been kept in overcrowded cells.
8.  Despite the fact that he was a non-smoker, he had had to share a cell with smokers. He lodged several complaints with the domestic authorities in this respect, claiming that he had health problems because of the smoke he had inhaled from his inmates’ cigarettes. By a final decision of 12 April 2005, the Arad County Court allowed one of the applicant’s complaints and ordered the placement of the applicant in a non-smoking cell. From the information submitted by the applicant it is not clear whether that decision was enforced, but based on his written observations it could be inferred that he had been placed in a non-smoking cell.
9.  Moreover, the applicant alleged that he had been transferred from one prison to another or from prison to court in vans with detainees who smoked.
B.  The Government’s account
10.  The applicant was mostly detained in Arad Prison, where he spent more than eight years. The prison authorities took into account the fact that the applicant had been convicted of the rape of a minor and for most of his stay he had therefore been placed alone in an individual cell of 10.40 square metres.
11.  The applicant was detained in Timişoara Prison on several occasions, for five hundred and sixty days in total. On these occasions he was detained in the medical unit of the prison or in cells used for transit.
According to the information provided by the National Prison Administration and forwarded to the Court by the Government, the applicant was held in the following cells:
- cell no. 1 measuring 19.69 square metres, containing eight beds (that is 2.46 square metres per bed);
- cell no. 6 measuring 19.78 square metres, containing three beds (that is 6.59 square metres per bed);
- cell no. 7 measuring 17.71 square metres containing three beds (that is 5.90 square metres per bed);
- cell no. 12 measuring 7.60 square metres containing three beds (that is 2.53 square metres per bed);
- cell no 35 neasuring 20.84 square metres containing ten beds (that is 2.08 square metres per bed);
- cell no. 45 measuring 46. 22 square metres containing nineteen beds (that is 2.43 square metres per bed);
- and cell no. 66 measuring 21.16 square metres containing nine beds (that is 2.35 square metres per bed).
12.  The Government did not provide any information concerning either the number of the detainees who had occupied the cells or the time spent by the applicant in each of the above-mentioned cells.
13.  The Government submitted that both prisons mentioned by the applicant had adequate natural and electric lighting and ventilation. Both prisons had a central heating system providing adequate heating in the winter. All of the cells in which the applicant had been held had had the requisite furniture.
14.  Cold water had always been available and hot water was available daily according to a schedule approved by the prison authorities.
15.  Concerning the hygiene in the cell, the Government submitted that prisoners had been responsible for cleaning the cells and were provided with cleaning products by the prison administration.
16.  The applicant had been transferred between the prison facilities in vehicles fitted with windows, lights, heating and sunroofs. These vehicles had had between sixteen and thirty-eight seats. Smoking was strictly prohibited during transfers, and the applicant had anyway been transported separately from smokers.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
17.  The applicant complained about the overcrowding in Arad and Timișoara Prisons. He also complained that, despite being a non‑smoker, he had had to share his cell and the prison vans with smokers. 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.  The parties’ submissions
18.  Firstly, the Government contended that the applicant had abused the right of individual application. They argued that the applicant had intended to mislead the Court as regards his complaint of overcrowding in Arad Prison. In particular, the Government noted that in Arad Prison, where the applicant served most of his sentence (more than eight years out of ten years and three months), he had been detained in an individual cell.
19.  Secondly, they submitted in respect of the admissibility of the case that the applicant had failed to exhaust domestic remedies through not having complained to the competent domestic authorities about the overcrowding and the alleged exposure to smoke in Timişoara and Arad Prisons and in prison vans.
20.  The applicant did not refer in his observations to the objections raised by the Government.
2.  The Court’s assessment
21.  As regards the Government’s request for the application to be declared inadmissible as an abuse of the right of petition on the grounds that the applicant complained of overcrowding in Arad Prison while he had in fact been held in an individual cell, the Court finds that it is not necessary to examine the said objection as this complaint is in any event inadmissible for the following reasons.
22.  According to the information provided by the National Prison Administration, not contested by the applicant, for most of his stay in Arad Prison the applicant had been detained alone in a cell of 10.40 square metres (see paragraph 10). This leads the Court to conclude that the complaint about overcrowding in Arad Prison is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
23.  The Court further notes that the Government also raised an objection of non-exhaustion of domestic remedies concerning the alleged non‑segregation of smokers and non-smokers in the cells as well as in the vans in which the applicant had been transported. In this respect the Court notes that in recent applications lodged against Romania concerning similar complaints the Court 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 Toma Barbu v. Romania, no. 19730, § 50, 30 July 2013). Moreover, the applicant lodged several complaints with the domestic authorities concerning his alleged exposure to passive smoking.
24.  It therefore rejects the Government’s plea of non‑exhaustion of domestic remedies in respect of this part of the applicant’s complaints.
25.  Lastly, the Court notes that the remaining complaints raised by the applicant under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
26.  The applicant reiterated that he had been held in overcrowded cells. He also argued that it was irrelevant that he had been held in a non‑smoking cell because smoking took place everywhere, even on the medical wards and without any consideration for the detainees’ illnesses.
27.  The Government contended that the domestic authorities had taken all necessary measures in order to ensure that the applicant’s conditions of detention were adequate. They also submitted that the applicant had been held in different prison cells providing between 2 and 6 square metres of living space which were cells for non-smokers. Furthermore, in Timişoara Prison he had been detained on medical wards where smoking had been prohibited.
28.  They also contended that the applicant’s allegations that he had suffered because he had been constantly exposed to smoke were untrue, as his medical records did not show that he was suffering from any disease caused by exposure to passive smoking.
29.  The Court notes that the applicant was kept in detention in Timişoara Prison in poor conditions. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It 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 taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39, 7 April 2005, and Ananyev and Others, cited above, §§ 145-147, 149).
30.  In the leading case of Iacov Stanciu v. Romania (no. 35972/05, 24 July 2012), the Court already found a violation in respect of issues similar to those in the present case.
31.  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 merits of these complaints. Having regard to its case‑law on the subject, the Court considers that in the instant case the applicant’s conditions of detention in Timişoara Prison were inadequate.
32.  The applicant also raised another complaint concerning his alleged non‑segregation of smokers and non-smokers in both prisons and in the prison vans. In the light of its findings above, the Court does not consider it necessary to examine these remaining aspects (see, Epistatu v. Romania, no. 29343/10, § 55, 24 September 2013, and Bahnă v. Romania, no. 75985/12, § 53, 13 November 2014).
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
33.  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
34.  The applicant claimed 1,000,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed 300 EUR/month until the end of his life by way of compensation for his exposure to smoke and to a toxic environment.
35.  The Government submitted that the amounts claimed were excessive and unjustified.
36.  The Court observes that in the current case it has found the respondent State to be in breach of Article 3 on account of the material conditions of detention in Timişoara Prison. It accordingly awards the applicant EUR 3,900 in respect of non-pecuniary damage.
B.  Costs and expenses
37.  The applicant also claimed EUR 1,100 for the costs and expenses incurred through the correspondence before the domestic courts and the Court.
38.  The Government argued that the applicant had not submitted any documents to justify the costs and expenses he had allegedly incurred.
39.  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, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses.
C.  Default interest
40.  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 complaints concerning the material conditions of detention in Timişoara Prison and non-segregation of smokers and non‑smokers 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 the material conditions of detention in Timişoara Prison;

3.  Holds that there is no need to examine the remaining complaint under Article 3 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 3,900 (three thousand nine hundred euros), 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 amount 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 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Krzysztof Wojtyczek
	Deputy Registrar	President