CASE OF BOJIN AND OTHERS v. ROMANIA

FOURTH SECTION

CASE OF BOJIN AND OTHERS v. ROMANIA

(Application no. 11115/16 and 7 others –

see appended list)

JUDGMENT

STRASBOURG

11 April 2024

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

In the case of Bojin and Others v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Branko Lubarda, President,
 Anne Louise Bormann,
 Sebastian Răduleţu, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 21 March 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 mainly complained about the inadequate conditions of their detention. In application no. 73555/17, the applicant also raised other complaints under the provisions of the Convention.

THE LAW

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

6.  The applicants mainly complained about the inadequate conditions of their detention. They relied on Article 3 of the Convention.

7.  As regards the admissibility of all applications except for applications nos. 73555/17 and 62059/19, the Government 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.

8.  The Court recalls that in Polgar v. Romania, no. 39412/19, §§ 94‑96, 20 July 2021, 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).

9.  The Court notes that, in applications nos. 11115/16, 34027/16, 61897/19 and 55777/20, the applicants were transferred after 13 January 2021 for a period 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).

10.  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 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, the Court accepts the Government’s objection and finds that the applicants’ complaints related to their detention before the transfer to the detention facilities about which they did not complain must be dismissed for failure to exhaust domestic remedies.

11.  Turning to the remaining periods of the applicants’ detention the details of which are indicated in the appended table, the applicants either ceased to be held in conditions that were allegedly contrary to the Convention before 13 January 2021 or continue to be held in such conditions. Therefore, the Court dismisses the Government’s objection as to the non‑exhaustion of domestic remedies and finds that the applicants did not have at their disposal an effective domestic remedy for their grievances considering their situations.

12.  As regards the admissibility of applications nos. 11115/16, 34027/16, 37082/17, 12631/19 and 55777/20, the Government raised a preliminary objection concerning loss of the victim status by the applicants for certain periods of detention 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.

13.  The Court notes that the domestic remedy introduced in respect of the 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.

14.  As regards applications nos. 37082/17 and 12631/19, in the light of all the material in its possession, the Court finds that this remedy was available to the abovementioned applicants, and they were, indeed, afforded adequate redress for certain periods of detention (for details see the appended table).

15.  Therefore, the Court accepts the Government’s objection and finds that certain parts of applications nos. 37082/17 and 12631/19 (for the relevant details see the appended table) 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.

16.  As regards applications nos. 11115/16, 34027/16 and 55777/20, since it has already upheld the Government’s objection on the non‑exhaustion of domestic remedies (see paragraph 10 above), the Court does not consider it necessary to further examine the question of incompatibility ratione personae with the provisions of the Convention.

17.  Turning to the remaining periods of the applicants’ detention the details of which are indicated in the appended table, the Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016). 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 Muršić, cited above, §§ 122‑41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑59, 10 January 2012).

18.  In the leading case of Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017, the Court already found a violation in respect of issues similar to those in the present case.

19.  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 during the periods indicated in the appended table were inadequate.

20.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.

21.  In application no. 73555/17 the applicant submitted an additional complaint under Article 13 which also raised issues under the Convention (see appended table), given the relevant well‑established case‑law of the Court. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Polgar v. Romania, cited above, §§ 94‑99, to the extent shown in the appended table.

22.  In application no. 37082/17 the applicant also raised an additional complaint under Article 3 of the Convention related to the conditions of detention served during another period.

23.  The Court has examined this complaint and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

24.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

25.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Rezmiveș and Others, cited above), the Court considers it reasonable to award the sums indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(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 11 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Branko Lubarda
 Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 of the Convention

(inadequate conditions of detention)

[1] Plus any tax that may be chargeable to the applicants.