FOURTH SECTION
CASE OF REZMIVEȘ AND OTHERS v. ROMANIA
(Applications nos. 61467/12, 39516/13, 48231/13 and 68191/13)
JUDGMENT
(Extracts)
This version was rectified on 25 June 2017
under Rule 81 of the Rules of Court.
STRASBOURG
25 April 2017
FINAL
25/07/2017
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Rezmiveș and Others v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ganna Yudkivska, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Iulia Motoc,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 21 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in four applications (nos. 61467/12, 39516/13, 48231/13 and 68191/13) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Romanian nationals, Mr Daniel Arpad Rezmiveș, Mr Laviniu Moşmonea, Mr Marius-Gheorghiţă Mavroian and Mr Iosif Gazsi (“the applicants”), on 14 September 2012, 6 June 2013, 24 July 2013 and 15 October 2013 respectively.
2. The first applicant, Mr Rezmiveș, was represented by Ms M.C. Boncea and the third applicant, Mr Mavroian, by Ms N.T. Popescu, a lawyer practising in Bucharest. The second and fourth applicants, Mr Moşmonea and Mr Gazsi, were granted leave by the Section President, under Rule 36 § 2 of the Rules of Court, to present their own case.[1]
3. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
4. Before the Court the applicants complained in particular, under Article 3 of the Convention, about the conditions of their detention in various prisons or police detention facilities.
5. Between 7 October 2013 and 25 June 2014 the Government were given notice of the complaints brought by the applicants under Article 3 of the Convention concerning the conditions of their detention. At the same time, the Section President, sitting as a single judge (Rule 54 § 3), declared the rest of the complaints raised in the applications inadmissible.
6. On 15 September 2015 a Chamber of the Third Section informed the parties that as a structural problem had been raised, the Court intended to apply Rule 61, and invited them to submit their observations on the matter. In accordance with Rule 41 and Rule 61 § 2 (c), the Chamber also decided to process the above-mentioned applications as a matter of priority. Both the Government and the applicants submitted observations on the application of the pilot-judgment procedure.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicants were born in 1970, 1966, 1976 and 1972 respectively. Mr Rezmiveş, Mr Moşmonea and Mr Gazsi are currently detained in Timişoara, Pelendava and Baia Mare Prisons respectively. Mr Mavroian, who had been detained in Focşani Prison, was released on 13 January 2015.
A. The first applicant’s detention
8. On 5 April 2011 the first applicant was admitted to Gherla Prison. He remained there until 12 March 2012, when he was transferred to Aiud Prison. On 13 April 2012 he was transferred to Oradea Prison, where he stayed until 20 December 2012, before being moved to Timişoara Prison on 5 August 2013.
9. The first applicant complained about the conditions of detention in Gherla, Aiud and Oradea Prisons. In particular, he complained of overcrowding (submitting that there was between 1.60 sq. m and 2.22 sq. m of living space per prisoner), the lack of natural light, the short duration of daily exercise and the lack of recreational activities. ...
B. The second applicant’s detention
10. On 13 February 2008 the second applicant was placed in pre-trial detention in Craiova Prison. Following his conviction, he served his sentence there until 17 May 2012, when he was transferred to Târgu-Jiu Prison. On 11 July 2012 he was transferred to Pelendava Prison.
10. The second applicant complained about the detention conditions in all three prisons. ...
C. The third applicant’s detention
16. On 15 December 2009 the third applicant was admitted to Rahova Prison, where he stayed for several months before being transferred successively to Tulcea (2010), Iași (2010-14) and Vaslui (2011-13) Prisons.
17. The third applicant complained about the conditions of detention in Rahova Prison, referring in particular to overcrowding, lack of ventilation in cells, mould on the walls, poor-quality food and the presence of bedbugs. ...
D. The fourth applicant’s detention
23. The fourth applicant was held in the Baia Mare police detention facility from 26 March to 25 May 2012 before being transferred to Gherla Prison.
24. In his application form the fourth applicant complained of poor hygiene conditions, the lack of a toilet, running water, natural light and adequate ventilation, the presence of rats and the insufficient access to showers at the Baia Mare police detention facility. In relation to his detention in Gherla Prison, he complained of overcrowding, lack of ventilation in cells, insufficient and poor-quality food served in rusty containers, and the presence of only one bathroom between twenty-seven detainees, which had two toilets and no hot water and could not be cleaned more than once a month.
...
II. RELEVANT DOMESTIC LAW
A. Provisions on sentencing and the execution of sentences and detention measures
...
27. Law no. 254/2013 on sentencing and the execution of sentences and detention measures came into force on 1 February 2014, repealing Law no. 275/2006. Its implementing regulations were published on 11 April 2016. Law no. 254/2013 provides that persons deprived of their liberty may complain to a post-sentencing judge if they consider that the conditions of their detention do not comply with the domestic rules on detainees’ accommodation. The rules in question are laid down in Order no. 433/2010 of the Ministry of Justice, in force as from 15 February 2010, and concern the compulsory standards for detention in prisons (see paragraph 34 below). The judge may order the management of a custodial facility to remedy the problems complained of. The judge’s decisions can be challenged in the district court within whose jurisdiction the custodial facility lies and are binding on the facility in question.
28. On 1 February 2014 a new Code of Criminal Procedure (“the NCCP”) came into force. The NCCP provides for new preventive measures in the context of criminal proceedings, such as judicial supervision (Articles 211-2151), judicial supervision on bail (Articles 216-217) and house arrest (Articles 218-222). ...
29. A new Criminal Code (“the NCC”) came into force on 1 February 2014.
30. The NCC has retained the three main penalties provided for in the former Criminal Code: life imprisonment, fixed-term imprisonment and fines (Article 53 of the NCC).
31. Prisoners sentenced to life imprisonment may be released on parole if they have served at least twenty years of their sentence, have displayed good conduct and have satisfied all the civil obligations imposed in the sentencing judgment (Article 99 of the NCC). Prisoners sentenced to fixed-term imprisonment may be released on parole if they have already served two-thirds of a sentence of up to ten years, or three-quarters of a sentence of more than ten and less than twenty years, if they are serving their sentence under an open or semi-open regime, if they have satisfied all the civil obligations imposed in the sentencing judgment, and if the court is in favour of their reintegration into society (Article 100, paragraph 1, of the NCC).
32. The imposition of a sentence may be waived under Article 80 of the NCC if the offence is not a serious one and the court considers that the convicted person’s conduct, his or her efforts to mitigate the effects of the acts committed and the prospects of rehabilitation justify such a measure. The measure provided for in Article 80 is not applicable to anyone who has a previous conviction or has evaded prosecution or trial, or to offences carrying a sentence of more than five years’ imprisonment. The NCC provides for the possibility of suspending a sentence consisting of a fine or less than two years’ imprisonment in the light of the person’s conduct prior to conviction, subject to fulfilment of the civil obligations imposed in the sentencing judgment (Articles 83-90 of the NCC). Lastly, under Article 159 of the NCC, the parties may reach a friendly settlement avoiding criminal liability where the proceedings were instituted by the prosecuting authorities of their own motion.
33. Law no. 252/2013, which came into force on 1 February 2014, governs the organisation and operation of the probation system.
...
B. Provisions concerning liability in tort
36. Article 1349 § 1 of the Civil Code provides that everyone must observe the rules of conduct imposed by the law or local custom and refrain from interfering, through actions or inaction, with the rights or legitimate interests of others. Any act committed by a person that causes damage to another renders the person through whose fault the damage was caused liable to make reparation for it (Article 1357 of the Civil Code).
C. Statistical data concerning the number of detainees in facilities operated by the ANP
37. The National Prison Administration (Administraţia Naţională a Penitenciarelor – “the ANP”) publishes statistics on its website[2] concerning the number of detainees in all facilities under its authority. These statistics indicate that 33,434 people were being held on 31 December 2013, 28,225 on 26 January 2016 and 28,062 on 9 August 2016, in facilities with a total capacity of 18,820 places. According to the same data, the occupancy rate of all facilities under the ANP’s authority was 154.36% on 23 June 2015, 153.87% on 14 July 2015, 150.92% on 15 September 2015, 150.74% on 29 March 2016, 150.41% on 17 May 2016 and 149.11% on 9 August 2016. In calculating the occupancy rate, the ANP used a figure of 4 sq. m of living space per detainee, as provided in Order no. 433/2010 ...
D. Recommendations issued by the People’s Advocate
...
39. In his Recommendation no. 26 of 7 November 2014 the People’s Advocate noted that at Miercurea-Ciuc Prison there was severe overcrowding (1 sq. m of living space per prisoner), poor lighting, no laundry-drying facilities, insufficient furniture, no canteen for serving meals and an infestation of bedbugs. At Târgu-Jiu Prison, the People’s Advocate noted on 17 November 2014 that there was overcrowding (between 1.21 and 2.52 sq. m of living space per prisoner) and no canteen (Recommendation no. 29). On the same date he observed that the water supply for prisoners at Jilava Prison was unfit for consumption (Recommendation no. 30) and that at Galaţi Prison there was very severe overcrowding (183.99%), insufficient furniture and no permanent water supply (Recommendation no. 31).
40. On 24 November 2015 the People’s Advocate investigated matters including allegations of poor detention conditions at Botoşani Prison. He observed that one complainant was being held in an overcrowded cell (2.13 sq. m per prisoner), meals were served in the cells, the showers were unfit for use and, according to the complainant’s fellow inmates, there were sometimes rats, mice, lice and bedbugs (Recommendation no. 24). Overcrowding (2.21 sq. m per prisoner), insufficient washrooms and toilets that were not partitioned off were also observed at Pelendava Prison (Recommendation no. 28 of 23 December 2015). During an inspection of Botoşani Prison in 2016, the People’s Advocate noted that the prison’s occupancy rate was 159.88% in November 2015, that one complainant’s cell had 2 sq. m of living space and that the mattresses were very worn out. According to the complainant’s fellow inmates, there were bedbugs. The People’s Advocate also found that the furniture was inadequate and insufficient and that there was insufficient natural light and artificial lighting (Recommendation no. 10 of 30 March 2016).
E. Legislative initiative to improve detention conditions in ANP facilities
41. From 3 to 13 November 2016 the Ministry of Justice held a public consultation on a Bill to amend Law no. 254/2013 on sentencing and the execution of sentences and detention measures. The Bill seeks to introduce a compensation scheme whereby detainees who are victims of chronic overcrowding are entitled to a three-day remission of their sentence for each period of thirty days spent in overcrowded cells. On 23 November 2016 the Romanian Government approved the Bill to amend Law no. 254/2013. The Bill will then have to be examined by Parliament.
III. RELEVANT COUNCIL OF EUROPE MATERIALS
A. The Committee of Ministers
42. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation. The Recommendation reads as follows, in particular:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ...
Recommends that governments of member states:
- take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the Appendix to this Recommendation;
Appendix to Recommendation No. R (99) 22
I. Basic principles
1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only where the seriousness of the offence would make any other sanction or measure clearly inadequate.
2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity.
3. Provision should be made for an appropriate array of community sanctions and measures, possibly graded in terms of relative severity; prosecutors and judges should be prompted to use them as widely as possible.
4. Member states should consider the possibility of decriminalising certain types of offence or reclassifying them so that they do not attract penalties entailing the deprivation of liberty.
5. In order to devise a coherent strategy against prison overcrowding and prison population inflation a detailed analysis of the main contributing factors should be carried out, addressing in particular such matters as the types of offence which carry long prison sentences, priorities in crime control, public attitudes and concerns and existing sentencing practices.
...
III. Measures relating to the pre-trial stage
Avoiding criminal proceedings – Reducing recourse to pre-trial detention
10. Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R (87) 18 concerning the simplification of criminal justice; this would involve in particular that member states, while taking into account their own constitutional principles or legal tradition, resort to the principle of discretionary prosecution (or measures having the same purpose) and make use of simplified procedures and out-of-court settlements as alternatives to prosecution in suitable cases, in order to avoid full criminal proceedings.
11. The application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice. To this effect, member states should ensure that their law and practice are in conformity with the relevant provisions of the European Convention on Human Rights and the case-law of its control organs, and be guided by the principles set out in Recommendation No. R (80) 11 concerning custody pending trial, in particular as regards the grounds on which pre-trial detention can be ordered.
12. The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision and assistance by an agency specified by the judicial authority. In this connection attention should be paid to the possibilities for supervising a requirement to remain in a specified place through electronic surveillance devices.
13. In order to assist the efficient and humane use of pre-trial detention, adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed, as necessary.
...
V. Measures relating to the post-trial stage
The implementation of community sanctions and measures – The enforcement of custodial sentences
22. In order to make community sanctions and measures credible alternatives to short terms of imprisonment, their effective implementation should be ensured, in particular through:
- the provision of the infrastructure for the execution and monitoring of such community sanctions, not least in order to give judges and prosecutors confidence in their effectiveness; and
- the development and use of reliable risk-prediction and risk-assessment techniques as well as supervision strategies, with a view to identifying the offender’s risk to relapse and to ensuring public protection and safety.
23. The development of measures should be promoted which reduce the actual length of the sentence served, by giving preference to individualised measures, such as early conditional release (parole), over collective measures for the management of prison overcrowding (amnesties, collective pardons).
24. Parole should be regarded as one of the most effective and constructive measures, which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community.
25. In order to promote and expand the use of parole, best conditions for offender support, assistance and supervision in the community have to be created, not least with a view to prompting the competent judicial or administrative authorities to consider this measure as a valuable and responsible option.
26. Effective programmes for treatment during detention and for supervision and treatment after release should be devised and implemented so as to facilitate the resettlement of offenders, to reduce recidivism, to provide public safety and protection and to give judges and prosecutors the confidence that measures aimed at reducing the actual length of the sentence to be served and the community sanctions and measures are constructive and responsible options.”
43. The second part of Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules (adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), is devoted to conditions of detention. The relevant parts of the Recommendation read as follows:
“18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2. In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards; and
c. there shall be an alarm system that enables prisoners to contact the staff without delay.
18.3. Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.
18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.”
44. On 7 May 2012, in a memorandum which was declassified at the 1144th meeting of the Ministers’ Deputies (June 2012), the Committee of Ministers evaluated the general measures adopted for the execution of judgments in ninety-three Romanian cases relating mainly to overcrowding and material conditions of detention in prisons and police detention facilities (the Bragadireanu group of cases (no. 22088/04)). The situation in police detention facilities was described as giving rise to “serious concerns” because, in addition to overcrowding, the cells were located in police station basements, there was inadequate ventilation and access to natural light and the opportunities for out-of-cell activities were very limited. The Committee of Ministers stated that significant additional measures were still required to ensure that police detention facilities afforded conditions that were fully compatible with the requirements deriving from Article 3 of the Convention. The authorities were encouraged to transfer everyone detained on remand to prisons. The overcrowding in the vast majority of Romanian prisons was said to give rise to “serious concerns”.
...
46. On 12 February 2015 the Committee of Ministers published a memorandum[3] assessing the general measures taken or envisaged in the above-mentioned cases to resolve the issues of overcrowding and poor conditions of detention. Regarding police detention facilities, the memorandum concluded that, as well as being overcrowded, a number of such facilities were structurally unsuitable for longer-term detention. In addition to the severe overcrowding and the shortage of individual beds, the cells were located in police station basements and there was inadequate ventilation and access to natural light. The Romanian authorities were encouraged to provide appropriate living conditions in the cells, to review the system of pre-trial detention on police premises and to ensure that remand prisoners were not held in such facilities for extended periods and were transferred promptly to prisons. The measures introduced in the new Code of Criminal Procedure to reduce prison overcrowding in particular (house arrest, judicial supervision, suspension of sentence and discharge) did not appear likely to contribute to a significant reduction in the prison population. According to the conclusions of the memorandum, Romanian prisons were still severely overcrowded and the material conditions were precarious. The recommendations issued to the Romanian authorities included diversifying the range of alternative measures to imprisonment, relaxing the conditions of access to conditional release, ensuring the proper functioning of the probation service and continuing with plans to modernise the prison estate.
47. With regard to the remedies available in respect of complaints concerning overcrowding and poor material conditions, in the same memorandum the Committee of Ministers assessed preventive remedies (Law no. 254/2013) and found that they did not allow the domestic courts to carry out a comprehensive review of such complaints and to order corrective measures where the minimum national standard was incompatible with the requirements deriving from the Court’s case-law. Doubts were also expressed as to the effectiveness of decisions by post-sentencing judges, especially in a context characterised by systemic overcrowding. As regards compensatory remedies, the Committee of Ministers observed that the examples provided by the authorities in relation to ordinary liability in tort did not prove with the requisite degree of certainty that a compensatory remedy existed in this field. The Committee of Ministers recommended that additional measures be taken in order to fully respond to the indications which the Court had given the Romanian authorities in the Iacov Stanciu v. Romania judgment (no. 35972/05, 24 July 2012) as regards the setting up of an adequate and effective system of remedies.
B. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
...
49. In the Seventh General Report on the CPT’s activities (CPT/Inf (97) 10), published on 22 August 1997, the CPT referred, among other things, to situations of overcrowding:
“13. ... An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention.
14. To address the problem of overcrowding, some countries have taken the route of increasing the number of prison places. For its part, the CPT is far from convinced that providing additional accommodation will alone offer a lasting solution. Indeed, a number of European States have embarked on extensive programmes of prison building, only to find their prison populations rising in tandem with the increased capacity acquired by their prison estates. By contrast, the existence of policies to limit or modulate the number of persons being sent to prison has in certain States made an important contribution to maintaining the prison population at a manageable level.
...”
...
51. The CPT visited various Romanian prisons and police detention facilities in 1995, 1999, 2001, 2002, 2003, 2004, 2006, 2009 and 2010. The reports published following these visits referred in general to significant overcrowding and poor hygiene conditions in the facilities visited.
52. In a report published on 24 November 2011 following its visit to Romania from 5 to 16 September 2010 the CPT gave a detailed overview of the situation encountered in the different police detention facilities it had visited. Most of the cells in those facilities were overcrowded and in a poor state of repair; access to natural light and ventilation was poor, and the artificial lighting was inadequate; the toilets were not fully partitioned off; and the detainees were not supplied with bodily hygiene products. In some of the facilities, detainees were given only one meal a day and the food was of poor quality. In other facilities, detainees were kept in their cells for twenty-three hours a day. In conclusion, the police detention facilities visited were found to be unsuitable long-term accommodation for persons deprived of their liberty. The part of the report containing recommendations reads as follows:
“The CPT recommends, once again, that the Romanian authorities take the necessary measures to guarantee that in police detention facilities:
– each detainee has at least 4 sq. m of living space in multi-occupancy cells;
– each detainee has a clean mattress and blankets;
– there is adequate natural light, artificial lighting and ventilation in the cells; any unnecessary fittings on windows must be removed;
– toilets built into cells are partitioned off;
– the cells and sanitary facilities are kept in a decent state of repair and cleanliness;
– detainees have basic hygiene products;
– satisfactory food (in terms of quality and quantity) is served to detainees, in accordance with the European Prison Rules;
– anyone detained for more than twenty-four hours has at least one hour’s outdoor exercise every day.
The CPT also recommends that the Romanian authorities continue their efforts to offer some form of activity, besides a daily walk, to anyone held for more than a few days in police detention facilities.
...”
53. The same report contains observations on the situation at one particular prison. According to the report’s findings, some of the cells at that prison were overcrowded (with less than 3 sq. m of living space per prisoner), with dirty and foul-smelling sanitary facilities. There was no access to hot water. The CPT issued the following recommendations:
“...
62. The CPT recommends that the Romanian authorities take steps at Poarta Albă Prison to:
– reduce occupancy rates in the cells in blocks II and IV, the aim being to offer a minimum of 4 sq. m of living space per prisoner as laid down in the rules in force;
– repair/renovate the sanitary facilities in block II (in the cells) and block IV (in the cells and communal showers);
– allow prisoners in block IV to have a warm shower at least once a week; consideration should be given in this regard to Rule 19.4 of the European Prison Rules;
– undertake a full renovation of block IV as soon as possible;
– review the quality and quantity of meals provided to prisoners, ensuring that minimum daily intake requirements are strictly complied with and regular inspections of supplies, in particular meat, are carried out.
...”
54. From 5 to 17 June 2014 a CPT delegation visited a number of police detention facilities (Bucharest City police detention facilities nos. 1, 10, 11 and 12, Afumaţi and Cernica police stations, and Arad Police Inspectorate and Bihor County Police Inspectorate detention facilities) and four prisons (Arad, Oradea, Târgşor and Bucharest-Rahova). The report (CPT/Inf (2015) 31) produced following the visit was published on 28 September 2015. With regard to the police detention facilities, the CPT observed that many detainees were still being held there for prolonged periods, even though the facilities were not suitable for such lengthy stays. The CPT recommended that the Romanian authorities ensure that detainees were no longer held for lengthy periods in police facilities and were instead detained in prisons. The conditions in most of the police detention facilities visited, with two exceptions (Oradea and Arad), were similar to those observed in 2010 (overcrowding, dilapidation, lack of hygiene, and insufficient natural light and ventilation). Turning to the detention conditions in the prisons, the CPT noted that overcrowding remained a significant problem and recommended that the Romanian authorities redouble their efforts to develop a penal policy placing emphasis on non-custodial measures. The material conditions at Arad Prison – which had been renovated between 1998 and 2010 – were generally satisfactory, apart from the dilapidated state of certain cells, decrepit walls, damage to beds and wardrobes and problems of vermin infestation. At Oradea Prison, built in the nineteenth century, there were run-down buildings, with overcrowded cells where the walls and ceilings were exposed to water seepage, and in some cases with no artificial lighting or access to natural light, and furniture and mattresses in a poor condition. At Târgşor Prison there were also overcrowded and poorly ventilated cells, with triple bunkbeds, limited access to natural light and seriously inadequate artificial lighting. As far as sanitary facilities and hygiene were concerned, the CPT noted that the toilets and washbasins in several cells were dilapidated and that there were shower heads missing (Arad and Oradea); and that the toilets were unfit for use and detainees were not supplied with enough soap, detergent and sanitary towels (Târgşor). The CPT delegation had received a large number of complaints about the quantity and quality of food. Despite the efforts made at three prisons to offer prisoners work and/or social and educational activities, the vast majority of the prison population did not take part in such activities.
The CPT issued the following recommendations in the light of its visit:
“A. Police detention facilities
...
In the light of the above observations, the CPT urges the Romanian authorities to take the necessary measures to ensure that at police detention facilities:
– detainees have at least 4 sq. m of living space in shared cells (Bucharest central police detention facility and facilities nos. 10, 11 and 12);
– cells have sufficient access to natural light and artificial lighting and ventilation (Bucharest central police detention facility and facilities nos. 10, 11 and 12 and Arad detention facility); any unnecessary fittings of grilles/bars on windows should be removed and the windows expanded (Bucharest police detention facilities nos. 10, 11 and 12 and central facility);
– all detainees have a clean mattress and bedding (Bucharest police detention facilities nos. 10, 11 and 12 and central facility and Arad detention facility);
– the sanitary facilities in the cells at Bucharest central police detention facility and facilities nos. 10, 11, 12 and Oradea detention facility are fully partitioned off (up to the ceiling);
– detainees in Arad police detention facility are immediately provided with access to suitable toilets, including at night; the use of buckets and bottles should be abandoned;
– the cells and sanitary facilities are regularly maintained and kept clean.
With regard to meals, reference is made to the observations and recommendations set out in paragraphs 62 and 64.
Furthermore, the CPT recommends that improvements be made to the exercise yards at the detention facilities visited, taking into account the observations made in paragraph 40. The CPT also recommends that the authorities continue their efforts to offer some form of activity, besides a daily walk, to anyone held for more than a few days in police detention facilities.
B. Prisons
...
58. The CPT recommends that the following measures be taken in the institutions visited in the light of the observations set out in paragraphs 54-57:
– review cell occupancy rates in order to guarantee a minimum of 4 sq. m of living space per detainee in shared cells, not including sanitary facilities (Oradea and Târgşor Prisons);
– carry out the necessary renovation and repair work in wings E3 and E4 at Oradea Prison, and ensure that any damaged furniture and mattresses are replaced;
– guarantee that all detainees in wing E3 at Oradea Prison and in the darker closed-regime cells at Târgşor Prison have sufficient access to natural light and adequate ventilation in the cells during the daytime; access to artificial lighting should also be improved in the closed-regime cells at Târgşor Prison; solutions should be found to avoid keeping the light on all night, for example by installing night lights;
– carry out regular disinfestation of the buildings at Arad Prison.
In addition, the cells at the prisons visited should be equipped with signalling systems.
...
61. The CPT recommends that the Romanian authorities take the following measures in the light of the observations set out in paragraphs 59 and 60:
– repair and renovate the sanitary facilities in the relevant wings of Arad, Oradea and Târgşor Prisons; at Oradea Prison, the walls and ceilings damaged by water seepage must also be repaired;
– provide detainees with sufficient personal hygiene products and detergent to clean their cells.
...
64. The CPT recommends that the Romanian authorities take steps to guarantee that the quality and quantity of the food provided to detainees in the prisons visited, and in all other prisons in Romania, comply with the minimum daily intake requirements for protein and vitamins. The CPT calls on the authorities to ensure that the calorie levels currently under discussion comply with the minimum daily intake requirements, and wishes to receive a copy of the new standards in due course.
The CPT also recommends that the kitchens be regularly inspected, with constant attention being paid in particular to compliance with hygiene standards. In addition, the CPT wishes to receive confirmation that the faulty freezer cabinet in the kitchen at Oradea Prison has been replaced.
4. Activities
...
The CPT recommends that the Romanian authorities redouble their efforts to develop programmes of activities for convicted prisoners, including those under the closed regime, and remand prisoners, especially in Oradea and Târgşor Prisons. The aim should be to allow both categories of prisoners to spend a reasonable portion of the day (eight hours or more) outside their cells, carrying out a variety of motivating activities.
To that end, there should be a sufficient number of appropriate staff, in particular psychologists, supervisors and social workers. The CPT recommends that the teams of psychologists, supervisors and social workers at the three prisons visited be strengthened, first of all by filling any vacant posts in those prisons without delay.”
...
C. European Committee on Crime Problems (CDPC)
57. On 30 June 2016 the CDPC published the White Paper on Prison Overcrowding (PC-CP (2015) 6 rev 7), approved on 28 September 2016 by the Committee of Ministers at its 1266th meeting. The White Paper highlights various aspects that national authorities are encouraged to consider when devising their long-term strategies and specific actions to tackle prison overcrowding. The relevant parts of the document read as follows:
“IV. Root causes of overuse of deprivation of liberty and of prison overcrowding
...
d. Limited use of community sanctions and measures
71. Recommendation No. R(92)16 on the European Rules on community sanctions and measures (CSM) sets a number of standards and principles for their use and by doing so incites the member states to introduce a reliable system in order to motivate courts to make more use of CSM instead of imprisonment. CSM can maintain the right balance between protection of society, reparation of the harm done to victims and dealing with the needs of social adjustment of the offenders.
72. Such alternatives can fully or partially replace prison sentences and may include for example treatment orders, fines, confiscation of assets, suspended sentences linked to the fulfilment of certain conditions by the offender, community service/sanctions and many other sanctions and measures, often specially adapted to the particular offender and the circumstances of the crime. What they all have in common is that the crime committed will indeed be met with an adapted and therefore efficient sanction/reaction which can also help prevent future offences. Economic sanctions together with CSM or as standalone alternatives to imprisonment seem to be quite efficient and have often more effects on offenders than the mere use of prison.
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75. Community service is an example in this respect as it helps maintaining offenders in the outside social environment, developing their social and employment skills and working towards their reintegration into society. The role of the local communities in relation to this is very important as they should provide for such possibilities for community service. They thus become a partner in dealing with crime in a manner which steps out of the traditional criminal justice methods and on the other hand become facilitators in social integration of offenders which is a basic indicator of inclusive communities.
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V. How to address prison overcrowding
a. Deprivation of liberty as a measure of last resort
84. As mentioned earlier, this principle is to be found in the relevant Committee of Ministers recommendations. These texts invite the member states to use deprivation of liberty only when the seriousness of the offence combined with consideration of the individual circumstances of the case would make any other sanction or measure clearly inadequate. If this view is largely accepted in reality its interpretation differs which may lead to divergent transpositions into concrete action and rules in the different criminal justice systems. ...
85. In many of its judgements the Court has reiterated that, in view of both the presumption of innocence and the presumption in favour of liberty, remand in custody must be the exception rather than the norm and should be a measure of last resort. In Torreggiani v. Italy the Court reminds of the relevant Committee of Ministers recommendations to be taken into consideration when devising penal policies and reorganising the penitentiary system and invites judges and prosecutors to make more use of alternatives to custody and make lesser use of detention in order, among others, to reduce the growth of prison population.
86. In order to avoid the excessive use of remand in custody and imprisonment courts should apply the principle of using deprivation of liberty as a measure of last resort. Unfortunately only too often deprivation of liberty is a measure of first resort instead of being seen and accepted as an exceptional method of execution of a penal sanction. Courts should not deprive a person of his/her liberty simply because it is provided by law and is carried out in a lawful manner, but also because it is reasonable and necessary in all circumstances (evaluated on a case-by-case basis). This requires the application of the principle of proportionality and the careful assessment of the risk of reoffending and of the risk of causing harm to the society.
87. The length of pre-trial detention should be fixed by law and/or be reviewed at regular intervals. The length of pre-trial detention should in no case exceed the length of the sanction provided for the offence alleged to have been committed. In addition to the length of pre-trial detention being fixed by law, the need for continuation of detention on remand of any suspect or accused should be reviewed at regular intervals as with time the pressing necessity to remand someone in custody may decrease or even disappear.
88. Remand detention can last many months, sometimes years because a person may be considered to be a remand detainee until the last instance court has delivered its judgement. It seems therefore advisable to consider detaining such persons convicted by first instance court together with sentenced prisoners after the judgement of the first instance court is delivered in order to avoid situations of overcrowding in remand facilities and to start preparing the persons for rehabilitation in view of their future release. ...
100. Long prison sentences or prison sentences for life concern usually a minority of the prison population. Nevertheless with time their number rises and more prisoners accumulate who tend to stay locked up for decades or sometimes for life. In accordance with the case-law of the European Court of Human Rights35 any such prisoners should have the right at regular intervals to request early release and this request should be properly considered and reasons given for decisions.
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b. Revision of penal law, decriminalisation and alternatives to penal proceedings
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112. It can be argued that only acts and behaviour that are seriously harmful or causing a risk of harm or real danger to other persons should be criminalised and should entail prison sentences. The need for proportionality between the real harmfulness of the offence committed and the real risk posed by the offender and the degree of punishment is also a very important point to be considered.
113. On the other hand it should be fully recognised that crimes committed by dangerous offenders merit special attention and often bring about the use of prolonged deprivation of liberty to protect society and potential victims, which must be seen as fully justified. The definition of dangerousness may vary, but the definition from the Committee of Ministers Recommendation CM/Rec 2014 (3) on dangerous offenders may be useful as a starting point in this respect. ‘A dangerous offender is a person who has been convicted of a very serious sexual or very serious violent crime against persons and who presents a high likelihood of re offending with further very serious sexual or very serious violent crimes against persons.’ Violence may be defined as the intentional use of physical or psychological force.
114. So in total, general revisions of the criminal justice systems or at least revision of the types of crimes, of their dangerousness for society and of the sanctions contained in the criminal codes would be welcomed as this could offer an opportunity to study the coherence and ideas and values behind the penal policy of a given country and would simultaneously offer a chance to address prison overcrowding. This is a demanding but not impossible task and it can pave the way to more lasting reforms of criminal law bringing it up to date.
115. Therefore in order to obtain long lasting reduction of prison numbers it is important to consider legislative possibilities for:
– decriminalising some offences (some countries have decriminalised drunken driving and substance abuse and have replaced these with administrative sanctions and treatment orders, others have decriminalised irregular immigration, others have replaced imprisonment of fine defaulters with community service);
– individualising the sentences pronounced regarding their necessity and proportionality;
– diverting from the criminal justice process (for example suspension of the case, suspension of the pronouncement of a sentence) by way of mediation, reparation and victim compensation schemes;
– providing for sufficient alternatives to pre-trial detention;
– suspending prison sentences with or without imposing certain conditions;
– replacing prison sentences for some offences by sanctions and measures enforced in the community (community service, victim compensation schemes, electronic monitoring, etc.);
– introducing sufficient types of community sanctions and measures and stopping automatic recall to prison in case of non-respect of the conditions imposed by the court sentence or treatment order;
– providing more possibilities for early release schemes.
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THE LAW
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II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
59. The applicants submitted that the respective conditions of their detention in Gherla, Aiud, Oradea, Craiova, Târgu-Jiu, Pelendava, Rahova, Tulcea, Iaşi and Vaslui Prisons and the Baia Mare police detention facility amounted to inhuman or degrading treatment breaching Article 3 of the Convention. Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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B. Merits
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2. The Court’s assessment
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88. ... The Court considers that the conditions of the applicants’ detention, also taking into account the duration of their incarceration, have subjected them to hardship going beyond the unavoidable level of suffering inherent in detention.
89. There has therefore been a violation of Article 3 of the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
90. Article 46 of the Convention, in its relevant parts, provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
...”
A. The parties’ submissions
1. The Government
91. The Government stated that the Romanian authorities had introduced a series of important measures aimed at ensuring full observance of Article 3 of the Convention. Indicating that they were aware of the Court’s findings concerning detention conditions and the case-law it had developed following the Iacov Stanciu v. Romania judgment (no. 35972/05, 24 July 2012), the Government gave assurances that they had redoubled their efforts to improve material conditions of detention and reduce overcrowding rates in prisons. Legislative, administrative and budgetary measures had been taken to that end.
92. In this connection the Government cited the NCC, the NCCP, the Law on Execution of Sentences and the Law governing the organisation and operation of the probation system (see paragraphs 27, 28, 29 and 33 above). They submitted that, as far as pre-trial detention was concerned, the NCC provided for alternative measures (house arrest, judicial supervision on bail) and that, with regard to post-conviction detention, the statutory maximum sentence for certain offences had been reduced and fines had replaced prison sentences (for example, for property-related offences). They also referred to Article 64 of the NCC (replacement of a fine by community service), Article 80 of the NCC (some 49,000 individuals had had the imposition of a sentence waived in 2014) and Article 83 of the NCC (suspension of a sentence). Law no. 213/2013 had contributed to reducing the prison population and would continue to do so. Thus, between 2013 and 2014 there had been a decline in the number of people placed in pre-trial detention (by 31.75%), the number of people admitted to prison (by 20%) and the total number of individuals committed for trial. A significant decline in the number of accused persons standing trial for property-related offences had been recorded in 2014 in relation to the period from 2011 to 2013. An increasing number of prisoners had been released on parole between 2013 and 2014. The probation system was becoming increasingly effective and now included 26,749 people in its records. The Government noted that the People’s Advocate was one of the institutions monitoring detention conditions under the national prevention programme.
93. The Government also referred to the measures planned under the “Strategy for the Development of the Judiciary 2015-2020”, which were aimed in particular at improving detention conditions and increasing the prospects of social reintegration for detainees. In their submission, a “Social Rehabilitation Strategy”, adopted in June 2015, would in the medium and long term bring about a lasting reduction in crime and the prison population.
94. The Government noted that substantial resources had been set aside for renovating certain police detention facilities and increasing the capacity of some prisons (1,164,000 euros (EUR) in 2014). In addition, plans to build two new prisons (providing a further 1,000 places) had been given budgetary approval in 2015.
95. With regard to monitoring detention conditions, the Government stated that a coordination service for pre-trial detention institutions was responsible for centralising data on occupancy rates in those facilities. According to data from the service, the average length of detention on remand in police detention facilities was approximately thirty days. Detainees who did not have 4 sq. m of living space were transferred to other detention facilities. At ANP level, the monitoring of detainees in prisons had alleviated the effects of overcrowding. The ANP’s budget had increased by EUR 225,000 in 2015. Since March 2015, following a decision by the director of the ANP, female prisoners and anyone detained in educational facilities had been given permanent access to hot water.
96. Regarding domestic remedies, the Government submitted that the existing legislative framework, namely Law no. 254/13 (see paragraph 27 above) afforded an effective preventive remedy in respect of material conditions of detention. The remedy consisted in applying to the post-sentencing judge, who ordered the prisons concerned to provide detainees with the minimum accommodation standards as laid down in the Court’s case-law. With a view to executing the relevant judgments, the ANP had recommended that the prisons transfer certain prisoners to other cells or other prisons. The Government submitted twenty-two examples of domestic decisions, including nineteen in which different prisons had been ordered to guarantee prisoners 4 sq. m of living space, and three in which prisons had been required to take particular action: repairing furniture in an applicant’s cell, repainting bathroom walls and complying with hygiene standards. With regard to the compensatory remedy, the Government submitted that a liability claim in tort as provided for by the Civil Code (see paragraph 36 above) could be brought by applicants wishing to seek redress for damage resulting from material conditions breaching Article 3 of the Convention. In that connection, they submitted a copy of a domestic decision in which the authorities had been ordered to pay compensation to a prisoner on account of the inappropriate medical treatment and diet he had received during his detention. Two other decisions had ordered Jilava Prison to pay compensation to two prisoners for their lack of access to hot water for two months and four months. A final example of a domestic decision concerned an award of compensation to a prisoner who had been forced to share a police cell with two smokers and who had not had permanent access to a toilet.
97. The Government submitted that the aims of the general measures set out above had been to reduce the number of prisoners, to encourage non-custodial sanctions, to increase capacity at detention facilities and to improve detention conditions. Furthermore, about 100 applications registered by the Court in 2015 had resulted in a friendly settlement. The Government were conscious, however, that there were still gaps to be filled before the existing system complied with Convention standards on detention conditions. The authorities had made efforts to tackle overcrowding, and were continuing and stepping up their modernisation and investment plans. A new memorandum, adopted on 19 January 2016, had stressed the need to consolidate the probation system (in particular by increasing the number of probation officers), improve detention conditions and develop alternative measures. Accordingly, an investment plan involving a total of EUR 838.45 million, to be shared between the ANP, the National Probation Service and the Ministry of the Interior, had been envisaged for 2016-2023. By the end of 2023, 10,895 new places for detainees would be created, 1,651 places would be modernised and 5,847 staff would be recruited by the ANP. By 2018, 626 probation officers and 171 administrative assistants would be recruited to the National Probation Service. Between 2018 and 2020, 1,769 new places for detainees would be created in police detention facilities. For all the above reasons, the Government contended that it was not appropriate to apply the pilot-judgment procedure.
2. The applicants
98. The first applicant appreciated the Romanian Government’s intention to improve detention conditions in prisons and police facilities. Nevertheless, he submitted that he had suffered, and was still suffering, the adverse effects of detention in conditions breaching Article 3 of the Convention, and he urged the Court to decide on his application as soon as possible.
99. The second applicant submitted that the plans produced by the Government to improve detention conditions made no reference to compensation for damage sustained by detainees. He asked the Court to decide on his application and to award him the amounts claimed under Article 41 of the Convention.
100. The third applicant contended that the adoption of a pilot judgment would be the most appropriate way of seeking to resolve the structural problem of poor detention conditions in Romania. He submitted that specific obligations should be imposed on the authorities and their fulfilment should be monitored by the Committee of Ministers. In that connection he cited the pilot judgment in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, 10 January 2012). With regard to overcrowding, he referred to the statistics published by the ANP indicating that in October 2015 the prison occupancy rate in Romania had been 150.68%, with a prison population of 28,383 detainees occupying 18,336 places. The ANP had also noted that in some prisons, detainees were obliged to share beds, for example in Ploiești Prison, which the Association for the Defence of Human Rights in Romania – Helsinki Committee (APADOR-CH) had visited in 2012, finding that there were twenty-four beds between thirty-one detainees. The situation was similar in police detention facilities (he cited the case of the facilities in Iași, which APADOR-CH had visited in 2014, finding that three detainees were sharing a cell measuring 6.21 sq. m). With regard to material conditions of detention, the third applicant referred to the Court’s findings concerning the lack of hygiene, inadequate number and poor working order of toilets and sinks, limited access to showers, presence of cockroaches, rats and lice, worn-out mattresses and bed linen and poor-quality food (he referred to Iacov Stanciu, cited above, § 175). Reports on more recent visits by APADOR-CH confirmed the presence of cockroaches and mould, the failure at certain prisons to ensure that the toilets complied with hygiene standards, and the lack of toilets in police detention facilities. With regard to access to health care, the third applicant stated that the acute shortage of medical staff in prisons was confirmed by official statistics published by the ANP (out of the 1,147 posts that had been approved, only 730 were occupied). This, in his submission, resulted in a very heavy workload for prison doctors and a lowering of the quality of medical treatment. In addition, there were insufficient funds, a factor that had a direct influence on the medical treatment provided to prisoners. Lastly, the third applicant asked the Court not to suspend the processing of similar cases pending before it, in order to avoid exacerbating the damage sustained by victims.
101. The fourth applicant submitted that the observations produced by the Government did not concern any of the aspects of the poor material conditions of his detention in the Baia Mare police detention facilities, and that he wished to maintain his application.
B. The Court’s assessment
1. General principles
102. The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent States a legal obligation to apply, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the applicant’s rights which the Court has found to be violated. Such measures must also be taken as regards other persons in the applicant’s position, notably by solving the problems that have led to the Court’s findings of a violation (see, among other authorities, Rutkowski and Others v. Poland, nos. 72287/10 and others, § 200, 7 July 2015; Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 78, ECHR 2014; Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 83, 8 January 2013; and Broniowski v. Poland [GC], no. 31443/96, §§ 192-93, ECHR 2004-V, and the references cited therein).
103. In order to facilitate effective implementation of its judgments, the Court may adopt a pilot-judgment procedure allowing it to clearly identify structural problems underlying the breaches and to indicate measures to be applied by the respondent States to remedy them (see Resolution Res(2004)3 on judgments revealing an underlying systemic problem, adopted by the Committee of Ministers on 12 May 2004, and Broniowski, cited above, §§ 189-94). This adjudicative approach is, however, pursued with due respect for the Convention institutions’ respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention (see Rutkowski and Others, cited above, § 201, and the references cited therein).
104. Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court’s task as defined by Article 19, namely to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in large series of cases (see Rutkowski and Others, cited above, § 202, and Varga and Others v. Hungary (nos. 14097/12 et al., § 96, 10 March 2015).
105. The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order. While the respondent State’s action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements (see Rutkowski and Others, cited above, § 202; Varga and Others, cited above, § 97; and Torreggiani and Others, cited above, § 86). The Court may decide to adjourn the examination of similar cases, thus giving the respondent States a chance to settle them in such various ways. If, however, the respondent State fails to adopt such measures following a pilot judgment and continues to violate the Convention, the Court will have no choice but to resume the examination of all similar applications pending before it and to take them to judgment in order to ensure effective observance of the Convention (see Ališić and Others, cited above, § 143).
2. Application of these principles in the present case
(a) Whether the situation in the present case is incompatible with the Convention and requires the application of the pilot-judgment procedure
106. The Court notes that the first findings of a violation of Article 3 of the Convention on account of inadequate detention conditions in certain prisons in Romania date back to 2007 and 2008 (see Bragadireanu v. Romania, no. 22088/04, 6 December 2007, and Petrea v. Romania, no. 4792/03, 29 April 2008) and that, since the adoption of the judgments in question, there have been increasing numbers of such findings. Between 2007 and 2012 there were ninety-three judgments finding a violation. Most of these cases, like the present ones, concerned overcrowding and various other recurrent aspects linked to material conditions of detention (lack of hygiene, insufficient ventilation and lighting, sanitary facilities not in working order, insufficient or inadequate food, restricted access to showers, presence of rats, cockroaches and lice, and so on).
107. Having regard to the significant inflow of cases concerning the same subject, the Court found it necessary in 2012 to issue guidance to the Romanian authorities under Article 46 of the Convention. The existence and extent of the structural problem identified by the Court in Iacov Stanciu (cited above) justified the indication of general measures to improve the material conditions in Romanian prisons, in combination with an adequate and effective system of domestic preventive and compensatory remedies, in order to achieve full compliance with Articles 3 and 46 of the Convention (see Iacov Stanciu, cited above, §§ 195-99).
108. At the same time, the Committee of Ministers has twice assessed the general measures adopted by the Romanian authorities in response to the Court’s findings, and its conclusions only served to confirm the worrying state of affairs in the vast majority of Romanian police detention facilities and prisons, which continued to be beset by severe overcrowding and precarious material conditions. The Committee of Ministers found that additional measures were needed in order to set up an adequate and effective system of remedies (see paragraph 47 above). The reality of the situation is also confirmed by the latest CPT reports, emphasising the significance of the problem of overcrowding in Romanian custodial facilities. The same reports note that police detention facilities are inappropriate for prolonged periods of detention as they are generally overcrowded, have no direct access to a toilet and are poorly ventilated and unhygienic. The CPT has also found that overcrowding is a persistent problem in Romanian prisons, at some of which it has noted a lack of hygiene, insufficient lighting and ventilation, sanitary facilities not in working order, inadequate food and insufficient sociocultural activities (see paragraphs 52-54 above). All these findings are also borne out by the recommendations of the People’s Advocate, who, after visiting certain prisons, called on the prison authorities to put an end to overcrowding, poor hygiene conditions, the lack of a canteen, the presence of rats, mice and bedbugs and the lack of partitions for toilets, and also urged them to provide drinking water and sufficient furniture and to allow access to working showers (see paragraphs 39-40 above).
109. More than four years after identifying the structural problem, the Court is now examining the present cases, having already found a violation of Article 3 of the Convention in 150 judgments on account of overcrowding and inadequate material conditions in several Romanian prisons and police detention facilities. The number of findings of Convention violations on this account is constantly increasing. The Court notes that as of August 2016, 3,200 similar applications were pending before it and that these could give rise to further judgments finding violations of the Convention. The continuing existence of major structural deficiencies causing repeated violations of the Convention is not only an aggravating factor as regards the State’s responsibility under the Convention for a past or present situation, but is also a threat for the future effectiveness of the supervisory system put in place by the Convention (see, mutatis mutandis, Broniowski, cited above, § 193).
110. The Court notes that the applicants’ situation cannot be detached from the general problem originating in a structural dysfunction specific to the Romanian prison system, which has affected large numbers of people and is likely to continue to do so in future. Despite the legislative, administrative and budgetary measures taken at domestic level, the structural nature of the problem identified in 2012 still persists and the situation observed thus constitutes a practice that is incompatible with the Convention (see, mutatis mutandis, Torreggiani and Others, cited above, § 88).
111. Having regard to that state of affairs, the Court considers that the present cases are suitable for the pilot-judgment procedure (see, mutatis mutandis, Varga and Others, cited above, § 100; Neshkov and Others v. Bulgaria, nos. 36925/10 et al., § 271, 27 January 2015; Torreggiani and Others, cited above, § 90; and Ananyev and Others, cited above, § 190).
(b) General measures
112. The Court reiterates that its judgments are essentially declaratory in nature and that in principle it is for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in order to discharge its legal obligation under Article 46 of the Convention (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). However, this does not prevent the Court from suggesting, purely by way of indication, the type of measures that the Romanian State could take in order to put an end to the structural problem found in the present case (see, mutatis mutandis, Ananyev and Others, cited above, § 195).
113. It observes that the Romanian State has recently taken measures that may help to reduce overcrowding and its consequences in Romanian prisons. It welcomes the steps taken by the national authorities and can only encourage the Romanian State to continue this work. Nevertheless, it has to be observed that despite these efforts, the occupancy rate in Romanian prisons remains very high, a situation that confirms the findings of the People’s Advocate, the Committee of Ministers and the CPT (see paragraphs 39-40, 46 and 54 above).
114. In the Court’s view, two types of general measures should be implemented to remedy the systemic problem observed in this judgment.
(i) Measures to reduce overcrowding and improve the material conditions of detention
115. As is indicated by the official data published by the ANP, the occupancy rate for all Romanian prisons ranges from 149.11% to 154.36% (see paragraph 37 above). In this connection, it should be noted that the majority of the more recent judgments have concerned applicants who had a living space of less than 3 sq. m, or even, in some cases, less than 2 sq. m. while serving their sentences. The Court reiterates that where a State is unable to guarantee that each prisoner is detained in conditions compatible with Article 3 of the Convention, the Court encourages it to take action with a view to reducing the prison population, for example by making greater use of non-custodial punitive measures (see Norbert Sikorski, cited above, § 158) and minimising recourse to pre-trial detention (see, among other authorities, Varga and Others, cited above, § 104; Ananyev and Others, cited above, § 197; and Orchowski v. Poland, no. 17885/04, § 150, 22 October 2009).
116. Admittedly, it is not for the Court to indicate how States are to organise their criminal-law and penal systems, since these processes raise complex legal and practical issues going beyond the Court’s judicial function (see Torreggiani and Others, cited above, § 95). Nevertheless, the Court would refer to the recommendations issued by the CPT, the assessments made by the Committee of Ministers and the recommendations set out in the White Paper on Prison Overcrowding, which identify a number of possible solutions to tackle overcrowding and inadequate material conditions of detention (see, respectively, paragraphs 49 and 54, 42 and 46, and 57 above).
117. With regard to pre-trial detention, the Court notes firstly that the cells at police stations have been found by the CPT and the Committee of Ministers to be “structurally unsuitable” for detention beyond a few days (see paragraphs 44, 46, 52 and 54 above). The Court also notes that it has already found that these facilities are intended to house detainees for only very short periods (see, for example, Horshill v. Greece, no. 70427/11, §§ 43-53, 1 August 2013; Chkhartishvili v. Greece, no. 22910/10, §§ 52-64, 2 May 2013; and Bygylashvili v. Greece, no. 58164/10, §§ 55-62, 25 September 2012). In view of these findings, the domestic authorities should ensure that any pre-trial detainees are transferred to a prison at the end of their time in police custody. The Court notes that the reform implemented by the Government has resulted in some reduction in the number of pre-trial detainees (see paragraph 92 above). It welcomes the steps taken and encourages the Romanian State both to ensure that this reform is pursued and also to explore the possibility of facilitating more widespread use of alternatives to pre-trial detention (see paragraphs 42 and 92 above).
118. With regard to post-conviction detention, the Court notes with interest the reform initiated by the Government, which focuses in particular on the reduction of the maximum sentences for certain offences, the imposition of fines as an alternative to imprisonment, discharge and suspension of sentences, and the positive effects of the probation system (see paragraph 92 above). Although this reform has not had a significant effect on overcrowding levels, which remain fairly high (see paragraph 37 above), such measures, coupled with a more diverse range of alternatives to imprisonment (see paragraphs 46 and 57 above), could have a positive impact in reducing the prison population. Other possible options, such as relaxing the conditions for waiving the imposition of a sentence, suspending sentences (see paragraph 32 above), and above all expanding the possibility of access to parole (see paragraphs 31 and 42 above) and ensuring the effective operation of the probation service (see paragraph 97 above), could be sources of inspiration for the respondent Government with a view to resolving the problem of the growing prison population and inadequate material conditions of detention.
119. The Court further notes that the Government’s new strategy also envisages investment to create additional detention capacity (see paragraphs 94 and 97 above). Although this initiative highlights the authorities’ desire to find a solution to the problem of prison overcrowding, the Court would draw attention to Recommendation Rec(99)22 of the Committee of Ministers, according to which such a measure is generally unlikely to offer a lasting solution to this problem (see paragraph 42 above). Furthermore, bearing in mind the precarious physical conditions and poor state of hygiene in Romanian prisons, funds should also continue to be set aside for renovation work at existing detention facilities.
120. The Court leaves it to the respondent State, subject to supervision by the Committee of Ministers, to take the practical steps it deems appropriate to achieve the aims pursued by the above indications in a manner compatible with the conclusions set out in this judgment.
(ii) Remedies
121. As to the domestic remedy or remedies to be adopted in order to tackle the systemic problem identified in the present case, the Court reiterates that where conditions of detention are concerned, the “preventive” and “compensatory” remedies have to be complementary. Thus, where an applicant is held in conditions that are in breach of Article 3 of the Convention, the best possible form of redress is to put a rapid end to the violation of the right not to be subjected to inhuman and degrading treatment. Furthermore, anyone who has been detained in conditions undermining his or her dignity must be able to obtain redress for the violation that has occurred (see Ananyev and Others, cited above, §§ 97-98 and 210-31, and Benediktov v. Russia, no. 106/02, § 29, 10 May 2007).
122. As the Court has already held in the Iacov Stanciu judgment (cited above, §§ 197-98), the respondent State must put in place a preventive remedy allowing post-sentencing judges and the courts to put an end to situations found to breach Article 3 of the Convention and to award compensation if such findings are made.
123. Concerning preventive remedies, the Court notes with interest that the examples provided by the Government (see paragraph 96 above) show that the domestic courts have examined situations of overcrowding following complaints by prisoners, and it acknowledges the substantial ongoing efforts by the authorities to ensure compliance with the domestic standards regarding living space for each detainee. The Court acknowledges this significant recent development in the domestic courts’ case-law, but nevertheless observes that it is difficult to envisage a genuine prospect for detainees to obtain redress for their situation following a decision in their favour unless there is a general improvement in the conditions of detention in Romanian prisons, as described in paragraphs 106 and 108 above.
124. With regard to compensatory remedies, the Court notes with satisfaction that certain courts have examined the various aspects relating to material conditions of detention and have awarded compensation to detainees on that account (see paragraph 96 above). However, it notes that in Romanian law, the system of liability in tort is based on personal liability and therefore requires fault on the part of the person who caused the damage (see paragraph 36 above). The Court would emphasise that in the case of poor detention conditions, the burden of proof, which rests with the individual, must not be excessive. Moreover, it reiterates that substandard conditions of detention are not necessarily due to problems within the prison administration as such, but usually have more complex causes, such as problems in penal policy (see Iacov Stanciu, cited above, § 199). Even where it provides for the possibility of compensation, a remedy may not offer reasonable prospects of success, for example if the award is conditional on the establishment of fault on the part of the authorities (see Ananyev and Others, cited above, § 113; Roman Karasev v. Russia, no. 30251/03, §§ 81‑85, 25 November 2010; and Shilbergs v. Russia, no. 20075/03, §§ 71‑79, 17 December 2009). Accordingly, the examples provided by the Government do not demonstrate with the requisite degree of certainty that there is an effective compensatory remedy in this regard.
125. The Court encourages the Romanian State to introduce a specific compensatory remedy allowing appropriate compensation to be awarded for any violation of the Convention that has already been found on account of inadequate living space and/or precarious material conditions. In this context, the Court notes with interest the legislative initiative concerning the remission of sentences (see paragraph 41 above), which may afford appropriate redress in respect of poor conditions of detention, provided that, firstly, such a remission is explicitly granted to redress the violation of Article 3 of the Convention and, secondly, it has a measurable impact on the sentence served by the person concerned (see Stella and Others v. Italy (dec.), nos. 49169/09 et al., §§ 59-60, 16 September 2014). Lastly, the Court notes that a compensatory remedy was recently implemented by the Hungarian authorities in the wake of the Varga and Others judgment (cited above).
126. In this connection, having regard to the importance and urgency of the problem identified and the fundamental nature of the rights in question, the Court considers that a reasonable deadline must be set for the implementation of the general measures. However, it finds that it is not for the Court to set such a deadline at this stage and that the Committee of Ministers is better placed to do so. That being so, the Court concludes that within six months from the date on which this judgment becomes final the Romanian Government must provide, in cooperation with the Committee of Ministers, a precise timetable for the implementation of the appropriate general measures.
(c) Procedure to be followed in similar cases
127. The Court reiterates that in the pilot judgment it may decide on the procedure to be followed in the examination of all similar cases (see also, mutatis mutandis, Torreggiani and Others, cited above, § 100; Xenides-Arestis v. Turkey, no. 46347/99, § 50, 22 December 2005; and Broniowski, cited above, § 198).
128. The Court decides that pending the adoption by the domestic authorities, subject to supervision by the Committee of Ministers, of the necessary measures at national level, it will adjourn the examination of any applications of which the Government have not yet been given notice where the sole or main complaint concerns overcrowding and poor detention conditions in prisons and police cells in Romania. It points out that it may nevertheless decide at any moment to declare any such case inadmissible or to strike it out in the event of a friendly settlement between the parties or the resolution of the matter by other means, in accordance with Articles 37 or 39 of the Convention. However, the Court may continue its examination of applications of which notice has already been given to the respondent Government (see, mutatis mutandis, Torreggiani and Others, cited above, § 101).
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FOR THESE REASONS, THE COURT, UNANIMOUSLY,
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3. Holds that there has been a violation of Article 3 of the Convention;
4. Holds that the respondent State must, within six months from the date on which this judgment becomes final in accordance with Article 44 § 2 of the Convention, provide a precise timetable, in cooperation with the Committee of Ministers, for the implementation of the appropriate general measures to remedy the problem of prison overcrowding and poor detention conditions, in line with the Convention principles as set forth in this judgment;
5. Decides to adjourn, pending the adoption of the necessary measures at national level, all similar applications against Romania of which the Government have not yet been given notice, it being understood that in accordance with the Convention it may at any moment declare any such application inadmissible or strike it out of its list;
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Done in French, and notified in writing on 25 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena TsirliGanna Yudkivska
RegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Wojtyczek is annexed to this judgment.
G.Y.
M.T.
CONCURRING OPINION OF JUDGE WOJTYCZEK
(Translation)
1. This judgment touches on an important question that is currently the subject of public debate in a number of countries and is a matter of significant public concern, namely the choice of penal policies.
2. I would note in that context that the Court’s role was defined restrictively in Article 19 of the Convention: “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. Furthermore, under Article 3 of Protocol No. 1 to the Convention, the States Parties have undertaken to hold elections under conditions ensuring the free expression of the opinion of the people in the choice of the legislature. The implementation of this Article presupposes the establishment of a parliament with legislative power and the ability to make policy choices expressed through legislation. It is not for the Court to interfere in the political sphere, which falls within the exclusive competence of national parliaments and governments. Hence the choice of penal policies is a matter for national parliaments. They may, in principle, opt either for a more repressive policy, requiring a greater number of prison places, or for a more lenient policy, requiring a lower number of places in custodial facilities.
It should equally be borne in mind that criminal penalties, whether or not they entail deprivation of liberty, constitute a crucial interference in the sphere of individual liberty. If such interference falls within the ambit of the rights safeguarded by the Convention, it must be proportionate to the weight of the values that the Convention protects. When limiting the rights safeguarded by the Convention, the State should choose instruments entailing the least restriction of those rights.
On the other hand, the Convention may require the implementation of appropriate criminal legislation that is capable of ensuring effective protection of the rights and values proclaimed in that treaty. The lack of severity of a criminal penalty in the case of certain types of human rights violations may engage the State’s responsibility. Insufficient interference with individual freedom may thus amount to a violation of the Convention (see, for example, Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 61‑62, 20 December 2007; Ali and Ayşe Duran v. Turkey, no. 42942/02, § 66, 8 April 2008; and A. v. Croatia, no. 55164/08, §§ 66-67 and 78, 14 October 2010).
3. I note that in a number of judgments concerning prison overcrowding, the Court has emphasised that States are free to choose the means to redress this problem and has sought to remain neutral in disputes concerning the choice of penal policies (see, for example, Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, 8 January 2013, and Neshkov v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 January 2015).
4. I would observe that in the present case the Court has expressly stated a position as to what penal policy would be advisable, firstly by advocating measures to reduce the number of people receiving custodial sentences (see paragraphs 115 and 118 of the judgment) and secondly by expressing reservations regarding the possibility of solving the problem through a new prison-building programme (see paragraph 119 of the judgment).
It is true that research in social science has shown that harsh penal policies do not have the desired effects. However, de lege lata, the Court does not have jurisdiction to rule on the rationality of choices made in the field of penal policy.
5. In order to be able to make rational recommendations on changes that would be advisable in the field of penal policy, it is essential to carry out a detailed prior examination of a number of factors, in particular the nature and scale of crime in the society in question, the criminal law in force and the number of prison places viewed in the context of existing crime levels. Any recommendation in this field that was not based on careful analysis of the above considerations would have no persuasive force.
However, the Court has issued recommendations on future penal policy without having carried out a sufficiently thorough analysis of the aforementioned questions. It does not seem convincing to make recommendations on softening Romanian penal policy without first having shown that the current state of criminal law in Romania would enable less severe penalties to be introduced in the specific context of crime levels in that country’s society without undermining the protection of fundamental values and individual rights. Moreover, even the least punitive penal policies will necessarily lead to overcrowding in prisons if the number of prison places remains insufficient in relation to the needs resulting from a particular crime level. In general, a rational penal policy must above all, as far as possible, be tailored to the nature and extent of crime rather than to prison capacity, although the question of the optimum allocation of the available resources is an important factor which must inevitably be taken into account.
6. I would observe that the question of policy choice in this sphere is especially sensitive, given that measures taken by the Romanian government to relax criminal policy on corruption (Government Emergency Ordinance no. 13/2017 on amending and implementing Law no. 286/2009 on the Criminal Code and Law no. 135/2010 on the Code of Criminal Procedure, published in Official Gazette no. 92/2017 and repealed on 5 February 2017 – Ordonanţa de urgenţă nr. 13/2017 pentru modificarea şi completarea Legii nr. 286/2009 privind Codul penal şi a Legii nr. 135/2010 privind Codul de procedură penală) gave rise to mass demonstrations across the country.
[1] Rectified on 9 June 2017: Mr Mavroian was referred to as the second applicant.
[2]
[3].
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