CASE OF ALI v. ROMANIA (No. 2)

THIRD SECTION

CASE OF ALI v. ROMANIA (No. 2)

(Application no. 30595/09)

JUDGMENT

STRASBOURG

15 October 2013

FINAL

15/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ali v. Romania (no. 2),

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Luis López Guerra,
Nona Tsotsoria,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 24 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 30595/09) 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 Syrian national, Mr Ahmad Ali (“the applicant”), on 27 May 2009. He was represented before the Court by Ms C. Boghina, a lawyer practising in Bucharest.

2. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs.

3. The applicant alleged in particular that the conditions under which he had been transferred from Rahova Prison to Jilava Prison on 2 December 2008, and the material conditions of his detention in Jilava Prison had breached his rights guaranteed by Article 3 of the Convention.

4. On 14 March 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1962.

6. On 21 February 2002, the Bucharest County Court convicted the applicant of drug trafficking and sentenced him to thirteen years’ imprisonment. The judgment was upheld by the Supreme Court of Justice, which dismissed an appeal by the applicant on 15 May 2003.

7. The applicant started serving his sentence in Rahova Prison. On 2 December 2008 he was transferred to Jilava Prison. He remained in prison until his release on probation on 6 July 2010.

1. The transfer from Rahova Prison to Jilava Prison

8. The circumstances of the applicant’s transfer from Rahova Prison to Jilava Prison are in dispute between the parties.

(a) The applicant’s account

9. On 2 December 2008, the applicant, with seventy other detainees, was transferred from Rahova Prison to Jilava Prison. The applicant was informed about his transfer only that morning and he was allowed only ten minutes to take some personal belongings.

10. The detainees were kept in the reception area of Rahova Prison from 8.30 a.m. until 3.30 p.m. without water or food. The transfer to Jilava Prison took until 9.30 p.m. There they were again kept in the reception area of the prison without water or food until 3.30 p.m. the next day, when they were sent to their new cells. The applicant stated that they were kept without water or food for a day and a half.

11. Because he was transferred under these conditions, the applicant could not take with him his clothes, personal papers, books and other objects for personal use, among which were his Koran and prayer mat. The money from his account was transferred from Rahova Prison to Jilava Prison only six weeks later, leaving the applicant without the means to buy water, toiletries or telephone cards.

(b) The Government’s account

12. The applicant was transferred from Rahova Prison to Jilava Prison with sixty‑one other inmates on 2 December 2008. They were kept in the reception area of Rahova Prison between 10.35 a.m. and 4.45 p.m.

13. The Government alleged that the reception area of Rahova Prison had toilets where the applicant could also get drinking water. They also submitted that the detainees had received food while waiting to be transferred.

14. The luggage of all the transferred detainees was subjected to inventory and sealed.

15. The applicant’s money was sent on 5 December 2008 and received at Jilava Prison on 10 December 2008.

2. The conditions of detention in Jilava Prison

16. The applicant and the Government disagreed as to most aspects of the conditions of detention.

(a) The applicant’s account

17. The applicant alleged that the cells occupied by him were overcrowded. There were four tiers of bunk beds, the bottom level being used for the detainees’ personal possessions. However, the applicant did not indicate the number of detainees in the cell.

18. The applicant also complained of unsatisfactory sanitary conditions and poor quality of food. He claimed that the temperature in the cells in winter was too low. He also alleged that there were rats and parasites in the cells. The toilet fittings were defective. The prison had no designated eating area, and the detainees were forced to eat in their cells, where there was no furniture other than the beds. The water seemed to be infested with worms and had a strange colour and taste. Also, the detainees did not have water between 10 p.m. and 6 a.m. The smell in the cells was appalling, and difficult to bear in summer due to the lack of hygiene.

(b) The Government

19. The applicant was detained in Jilava Prison between 2 December 2008 and 6 July 2010.

20. Between 2 and 8 December 2008 the applicant was detained in cell no. 509, measuring 42.39 sq. m, which he shared with twenty other inmates.

21. Between 8 December 2008 and 28 January 2010 the applicant was detained in cell no. 113, measuring 24.86 sq. m, which he shared with seven or eight other inmates.

22. Between 28 January and 6 July 2010 the applicant was detained in cell no. 111, measuring 24.86 sq. m. The cell was occupied by between four and eight detainees.

23. As regards cleanliness and hygiene, the Government submitted that every year the prison authorities signed contracts for rodent and pest control with companies specialising in this work. Disinfection of the cells was carried out at least once every three months. Moreover, the quality of the drinking water was tested regularly by the prison authorities, with the aid of a specialised laboratory. Furthermore, the food was fresh and of good quality.

24. Since 2008 significant rehabilitation work had been carried out by the prison authorities. The heating system, the sewerage and the water supply systems had been repaired. Some sections of the prison and detention rooms had also been modernised.

II. RELEVANT DOMESTIC LAW

25. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006, and 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 Iacov Stanciu v. Romania, (no. 35972/05, 24 July 2012).

26. The relevant parts of the report of the Romanian Helsinki Committee of 12 June 2008 in respect of the conditions of detention in Jilava Prison read as follows:

“... the basement of the old part of the prison building was completely flooded with waste water ... Consequently, rats and cockroaches (and bed bugs according to some detainees) have infested the cells in that part of the building. Moreover, most cells were also infested with lice, mainly due to worn out bed mattresses. No delousing operation could be effective as long as the mattresses were not replaced ... The prison management claimed it had engaged several pest control companies, which all gave up after taking note of the situation in the prison. Another notorious problem was the extremely poor water quality (muddy and filled with impurities) - unfit for drinking and risky even for washing ... In terms of detention space, the total area of detention space was 3034.81 sq. m, while the population was 1460, meaning 2.08 sq. m of available detention space per detainee, half of the minimum norm recommended by the CPT ... The kitchen area was totally unhygienic and the food quality was poor ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

27. The applicant complained about the conditions under which he had been transferred from Rahova to Jilava Prison, and about the material conditions of his detention in Jilava Prison, in particular about overcrowding and poor hygiene. 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. Complaint concerning the material conditions of detention

1. Admissibility

(a) The parties’ submissions

28. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not complained before the domestic authorities under Law no. 275/2006 about the material conditions of his detention in Jilava Prison. They argued that the remedy under Law no. 275/2006 was effective.

29. The applicant disagreed.

(b) The Court’s assessment

30. The Court notes that the applicant’s complaint concerns the material conditions of his detention, in particular, overcrowding and poor hygiene. In this regard, it notes that in previous 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, § 84, 18 October 2011, and Radu Pop v. Romania, no. 14337/04, § 80, 17 July 2012).

31. It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the material conditions of detention in Jilava Prison.

32. Noting further that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds, the Court concludes that it must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

33. The applicant submitted that the conditions of his detention in Jilava Prison were inappropriate. He alleged that he was put into overcrowded cells which were infested with insects and in a poor state of hygiene. He also contended that he received bad food and the water seemed to be infested with worms and had a strange colour and taste.

34. The Government, referring to their description of the detention conditions submitted before the Court, contended that the domestic authorities had taken all necessary measures to ensure adequate conditions of detention, and that the applicant’s complaint was groundless.

(b) The Court’s assessment

35. 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 of detention 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).

36. 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, § 39, 7 April 2005).

37. The Court observes that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in certain circumstances the respondent Government alone have access to information capable of corroborating or refuting the allegations. A failure on the Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Kokoshkina v. Russia, no. 2052/08, § 59, 28 May 2009, and Lăutaru, cited above, § 96).

38. The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees and unsatisfactory levels of hygiene (see, in particular, Ciorap v. Moldova, no. 12066/02, § 70, 19 June 2007; Kalashnikov v. Russia, no. 47095/99, § 98, ECHR 2002‑VI ; Petrea v. Romania, no. 4792/03, § 84, 29 April 2008).

39. The applicant’s submissions about the overcrowded and unhygienic conditions correspond to the general findings by the CPT in respect of Romanian prisons and to the findings of the report of the Romanian Helsinki Committee in respect of Jilava.

40. The Court has already noted in Viorel Burzo v. Romania, (nos. 75109/01 and 12639/02, § 100, 30 June 2009) that the water in Jilava Prison was not drinkable, an aspect that raised a serious issue under Article 3 of the Convention. Moreover, the Court has already found violations of Article 3 of the Convention in similar cases in which the applicant cited the physical conditions of detention in Jilava Prison (see Jiga v. Romania, no. 14352/04, §§ 65-66, 16 March 2010, and Grozavu v. Romania, no. 24419/04, § 44, 2 November 2010).

41. 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.

42. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in Jilava Prison.

B. Complaint concerning the conditions under which the applicant was transferred from Rahova Prison to Jilava Prison

Admissibility

(a) The parties’ submissions

43. The Government raised a preliminary objection of non‑exhaustion of domestic remedies, in so far as the applicant had not complained before the domestic authorities under Law no. 275/2006 of the conditions under which he was transferred from Rahova Prison to Jilava Prison. They also contended that the applicant’s allegations were unsubstantiated and at variance with the information submitted by the National Prisons Administration.

44. The applicant disagreed, contending that Law no. 275/2006 could not be considered an effective remedy. He also alleged that being deprived of personal and religious items, being transferred in substandard conditions, being deprived of water and food for a day and a half, tiredness and the absence of any information about either his destination or the reason for his transfer, caused him physical and psychological distress which amounted to inhuman and degrading treatment.

He also claimed that the fact he was not informed that he was being transferred to another prison at least twenty-four hours in advance caused him unnecessary suffering which amounted to ill-treatment. Because he did not know early enough that he was being transferred he left Rahova Prison without personal documents and objects necessary for his religious observance. They were never found or sent to him. He contended that he had had great difficulty in replacing those items, because as a Syrian national he did not have close friends or relatives to help him in this respect.

(b) The Court’s assessment

45. The Court finds that it is not necessary to examine the Government’s preliminary objections concerning the non-exhaustion of domestic remedies in respect of the conditions in which the applicant was transferred from Rahova Prison to Jilava Prison, because it considers that the applicant’s complaint is in any event inadmissible, for the following reason.

46. Having regard to the parties’ submissions, the Court is not convinced that the conditions under which the applicant was transported from Rahova Prison to Jilava Prison subjected him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and takes the view that his health and well-being were in fact secured.

47. It follows that this part of his complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

48. As regards the applicant’s complaint under Article 9 of the Convention concerning his freedom of religion, the Court finds that it 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.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

50. The applicant claimed 3,000 euros (EUR) in respect of non‑pecuniary damage.

51. The Government considered that the request for non‑pecuniary compensation was excessive and that a conclusion of a violation of the Convention would suffice to compensate for the non-pecuniary damage allegedly incurred.

52. The Court considers that the applicant suffered distress as a result of the conditions of his detention. It therefore awards him EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

53. The applicant did not submit a claim for the costs and expenses incurred in the proceedings before the domestic courts and before the Court.

C. Default interest rate

54. 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 concerning the conditions of detention 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 conditions of his detention in Jilava Prison;

3. Holds

(a) that the respondent State is to pay to the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, which is to be to be converted into the respondent State’s national currency at the rate applicable on 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Santiago QuesadaJosep Casadevall
RegistrarPresident

 

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