Communicated on 9 February 2016
FOURTH SECTION
Application no. 41995/14
Dragoş CIUPERCESCU
against Romania
lodged on 6 August 2014
STATEMENT OF FACTS
The applicant, Mr Dragoş Ciupercescu, is a Romanian national, who was born in 1971 and is currently detained in Jilava Prison.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2005 the Bucharest County Court sentenced the applicant to eighteen years’ imprisonment. He was detained in Giurgiu Prison between 21 January 2009 and 26 January 2015.
As the Court had already examined the applicant’s complaint concerning his conditions of detention in Giurgiu Prison for the period between 21 January 2009 and 24 July 2012, the present application only refers to the applicant’s conditions of detention in the same prison between 24 July 2012 and 26 January 2015.
On 26 January 2015 the applicant was transferred to Jilava Prison where he is serving his sentence at present.
1. The applicant’s conditions of detention in Giurgiu and Jilava Prisons
The applicant complains about the alleged inhuman conditions of his detention in both prisons.
As regards the Giurgiu Prison he complains of overcrowding, limited access to cold and warm running water, cell infested with bedbugs, cockroaches, lack of adequate ventilation and lighting, lack of heating for one month.
On 26 January 2015 the applicant was transferred to Jilava Prison. He complains of overcrowding and the lack of an adequate place to serve meals. He also maintains that because of the inadequate temperature in the cell there were traces of moisture on the walls. He also complains about the poor quality of the water, which contains worms and has a disagreeable smell and taste.
The applicant claims that according to Article 66 of Law no. 254/2013 he is entitled to communication on-line with his wife who lives in Italy and could not come and visit him often. However, he contends that the prison authorities do not allow him either to have a private computer in his cell or to send e-mails to his wife.
2. The applicant’s conditions of transport
The applicant complains about passive smoking during the transport from the Giurgiu Prison to the courts and while in the waiting room at the courts. He further states that the prison vans are full of gas smell.
According to the applicant’s medical record, he suffers from bronchitis asthma (astm bronșic).
3. Complaints lodged by the applicant with the domestic authorities
The applicant lodged several complaints on the basis of Law no. 254/2013 on the execution of sentences (“Law no. 254/2013”) with the post-sentencing judge.
(a) Complaint concerning the applicant’s detention conditions in Giurgiu Prison
The applicant lodged a complaint with the post-sentencing judge claiming that the temperature in the cell was lower than 19 degrees and that he could not receive visits without a separation device. On 12 November 2014 the judge allowed his complaint and ordered the prison authorities to allow the applicant to receive a visit without separation device and to ensure an appropriate temperature of minimum 19 degrees in his cell. This decision was upheld by the Giurgiu District Court on 19 January 2015.
(b) Complaint concerning the applicant’s individual space in Jilava Prison
By a judgment of 16 March 2015 the post-sentencing judge dismissed a complaint by which the applicant complained about lack of individual space and medical treatment as unfounded.
The applicant challenged this decision before the Bucharest District Court. On 20 April 2015 the court partially allowed the applicant’s complaint holding that cell E 5.26, in which the applicant was detained, had less than 4 square meters. However it did not award any compensation to the applicant as Law no. 254/2013 did not provide the appropriate framework for compensation.
(c) Applicant’s complaints concerning his right to on-line communication
The applicant complained with the post-sentencing judge in Jilava Prison that his right to on-line communication was infringed and that he had not been selected to attend professional training programs. The judge dismissed his complaint as unfounded by a decision of 11 May 2015. The applicant’s challenge against that decision was partially allowed by the Bucharest District Court on 23 June 2015. The court noted that the applicant’s right to on-line communication had been infringed. It also noted that although according to Article 66 of Law no. 254/2013 detainees were entitled to on‑line communication with their family, in fact detainees could not benefit from that right as the norms for the implementation of the law had not been adopted. The court concluded that although the prison administration could not be held liable for that infringement, the detainees’ rights were infringed on account of the lack of foreseeability of the law. The court dismissed the applicant’s complaint concerning the right to benefit from professional training noting that the applicant had not submitted all the documents requested by the prison administration in this respect.
The applicant lodged another complaint with the post-sentencing judge concerning the alleged infringement of his right to on-line communication. The judge dismissed the complaint on 19 August 2015 noting that on-line communication became possible only between the prison facilities and that it was not yet used for communication with persons outside the prison network. The judge held that the prison authorities could not be held liable for other State authorities’ failure to adopt the norms for the implementation of the law within the deadline provided by law.
On 30 September 2015 the Bucharest District Court dismissed the applicant’s appeal against that decision. The court noted that the infringement of the applicant’s right to on-line communication had been already found by another final decision delivered on 23 June 2015. It held that the applicant’s right continued to be infringed by non-adoption of the implementation norms.
(d) Complaint concerning the confidentiality of the applicant’s telephone communications and correspondence
The applicant lodged another complaint with the post-sentencing judge in Jilava Prison concerning an alleged infringement of the confidentiality of his telephone communications. The applicant alleged that he had the obligation to inform the prison authorities on all the telephone numbers which he needed to call and they had to be approved by the prison authorities. A maximum of ten numbers was allowed.
On 4 August 2015 the judge dismissed his complaint on the ground that the identity of all the persons with whom the applicant entered into contact by phone should be known by the prison authorities for preventing the commission of fraud and other crimes; he also held that the right to private phone communications in prison is not an absolute right but a right that could be restricted for ensuring the discipline in a detention facility.
The applicant challenged this decision before the Bucharest District Court.
On 29 September 2015 the Bucharest District Court dismissed his complaint upholding the decision of the post-sentencing judge.
B. Relevant domestic law
Article 56 of Law no. 254/2013 on the serving of prison sentences, which entered into force on 1 February 2014, stipulates that detainees may complain to the post-sentencing judge about measures taken by the prison authorities in respect of their rights within ten days of becoming aware of the impugned measure. The judge’s decision may be challenged before the domestic courts within five days of notification.
According with Article 66 of the same law certain categories of detainees are entitled to on-line communication with family members or other persons. The concrete way of implementing this provision was to be stipulated by a regulation to be adopted within six months.
COMPLAINTS
1. Relying on Article 3 of the Convention the applicant complains about the conditions of his detention in Giurgiu and Jilava Prisons. He also complains about passive smoking during his transport from Giurgiu Prison to the courts and in the waiting room at the courts. He alleges that the prison vans are full of gas smell.
2. The applicant complains under Article 8 of the Convention that his right to respect for private and family life was infringed by his impossibility to communicate on-line with his wife who was living in Italy and by his obligation to provide the prison authorities with a list containing all the phone numbers he needed to call in order to be authorized to make any phone calls from prison.
QUESTIONS TO THE PARTIES
1. Was there a violation of Article 3 of the Convention on account of the applicant’s material conditions of detention in Giurgiu and Jilava Prisons, his exposure to passive smoking while transported to the court hearings and in the court waiting rooms, as well as the gas smell in the prison vans?
2. Has there been an interference with the applicant’s right to respect for his private life and correspondence, within the meaning of Article 8 § 1 of the Convention on account of his impossibility to communicate on-line from prison with his wife and of his obligation to submit a list of the telephone numbers he wished to call from prison as precondition to obtain the authorisation of the prison authorities to make phone calls?
If so, was such interferences in accordance with the law and necessary in terms of Article 8 § 2?
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