SERCE v. ROMANIA - 35049/08 - Chamber Judgment [2015] ECHR 631 (30 June 2015)

In the case of Serce v. Romania,

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

          Josep Casadevall, President,
          Luis López Guerra,
          Ján Šikuta,
          Johannes Silvis,
          Valeriu Griţco,
          Iulia Antoanella Motoc,
          Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 9 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 35049/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ali Serce (“the applicant”), on 15 July 2008.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Minstry of Foreign Affairs.

3. The applicant alleged, in particular, that the conditions of his detention had been inhuman and that his right to respect for his family life had been breached as a result of the Romanian authorities’ refusal to transfer him to Turkey to serve his prison sentence there, close to his wife and children.

4. On 7 October 2013 the above-mentioned complaints were communicated to the Government and the remainder of the application was declared inadmissible. The Turkish Government, who had been informed of their right to intervene in the proceedings, under Article 36 § 1 of the Convention, gave no indication that they wished to do so.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1966 and is currently being detained in Giurgiu Prison. He is married and has four children. His wife resides in Turkey together with their children.

6. On 28 June 2005 the Bucharest County Court convicted the applicant of aggravated murder and sentenced him to eighteen years’ imprisonment. The Bucharest County Court also decided that the applicant would be deported to Turkey at the end of his prison term.

A. Conditions of the applicant’s detention

1. The applicant’s account

7. In his letters to the Court, which he began sending on 15 July 2008, the applicant complained of the inhuman conditions in which he was being detained, first in Rahova Prison and then in Giurgiu Prison. He described a severe lack of hygiene in both prisons, with insufficient cleaning and personal hygiene products being provided by the prison authorities. He alleged that he could not sleep at night because of bed bugs. He also complained that the food was not adapted to his diabetes.

8. The applicant further alleged that throughout his detention in both prisons he had not been included in any educational activities and had not been allowed to do any work. He had thus been unable to integrate, to be re-educated or to have the term of his prison sentence reduced.

9. In 2008 the applicant was diagnosed with type II diabetes and a sleep disorder.

2. The Government’s account

(a) Rahova Prison

10. In Rahova Prison the applicant was detained in cells measuring 21 sq. m, which he shared with seven other prisoners (2.62 sq. m of personal space). The cells contained eight beds, a window measuring 1.2 by 1.2 m and their own bathroom with a shower, a sink and a toilet. Cold water was always available and hot water was available twice per week. Heating was provided during the winter up to a maximum temperature of 18^oC.

11. The Government submitted that, whenever the presence of bugs was noticed, disinfection operations took place without delay. They submitted documents showing that disinfection had been performed two or three times per year in 2005, 2007 and 2008 in the cells occupied by the applicant in Rahova Prison.

12. The food provided to the applicant was adequate and adapted to his diabetes by substituting pork with beef.

13. The applicant participated in educational and recreational activities whenever necessary. The Government further indicated that the applicant’s reduced participation in the above-mentioned activities was due to his state of health.

(b) Giurgiu Prison

14. The Government submitted that on 17 January 2009 the applicant had been transferred to Giurgiu Prison where he was currently being held in a cell measuring 21.47 sq. m together with five other prisoners (3.57 sq. m of personal space). The cell contained six beds, three bedside tables, one bench, one table and a box for shoes. It had a window measuring 1.5 by 1.8 m and a bathroom with a shower, a sink and a toilet. During the winter, a temperature of 19^oC was ensured in all the cells. Hot water was provided twice per week.

15. With respect to the prisoners’ personal hygiene, once per month the prison administration provided each prisoner with two bars of soap, one tube of toothpaste, one tooth brush, one tube of shaving cream, one razor, and toilet paper. Concerning the hygiene in the cell, the Government submitted that prisoners were responsible for cleaning the cells and were provided with cleaning products by the prison administration. Regular disinfection was conducted once every three months.

16. The applicant received a menu adapted for his diabetes, which included 125 grams of meat per day.

17. With respect to activities in Giurgiu Prison, the Government submitted that in December 2011 the applicant had watched a folk music concert and in December 2012 he had taken part in a discussion on religious themes conducted by the orthodox priest. Also, once in 2013 and once in 2014 the applicant had taken part in a quiz on Romanian history.

B. The applicant’s requests for transfer to Turkey

18. In 2007 the applicant lodged a request with the Romanian Ministry of Justice based on the provisions of the Convention between Romania and Turkey on the transfer of convicted persons, seeking to serve the rest of his sentence in a Turkish prison. According to the applicant, he wanted the transfer in order to be closer to his family, who lived in a Turkish village in humble conditions and did not have the means to travel to Romania.

19. The Romanian Ministry of Justice acted on the applicant’s request and initiated the transfer proceedings. As a result, on 5 June 2007 the Ankara District Court acknowledged the judgment of the Romanian court which had convicted the applicant and decided that the rest of the applicant’s sentence should be served in Turkey.

20. On 4 February 2008 the applicant’s transfer request was brought before the Bucharest Court of Appeal. The applicant claimed before the court that such a transfer would be in accordance with the convention signed between Romania and Turkey and would allow him to see his children and to receive visits from his family, who would provide him with adequate food and treatment for his diabetes.

21. In a judgment of 4 April 2008 the Bucharest Court of Appeal rejected the applicant’s transfer request, on the ground that Turkey had less severe legal provisions on conditional release, which might lead to the applicant’s release in a shorter period of time. The punitive and educational purpose of his sentence would thus fail to be achieved.

22. On 15 December 2011 the Bucharest Court of Appeal rejected with the same reasoning a new transfer request lodged by the applicant.

I. RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS

23. Excerpts from the relevant provisions concerning the rights of detainees, namely Law no. 275/2006, are quoted in Iacov Stanciu v. Romania (no. 35972/05, §§ 113-16, 24 July 2012).

24. Excerpts from the relevant parts of the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are quoted in Iacov Stanciu (cited above, §§ 121-23).

25. The CPT did not visit Giurgiu Prison, and in Rahova Prison only visited the section for minors. However, a Romanian NGO, the Association for the Defence of Human Rights in Romania - the Helsinki Committee (APADOR-CH) visited Rahova Prison in February 2009 and reported that the prison was overcrowded and that no activities of any type were proposed to prisoners. The same NGO also visited Giurgiu Prison in 2009 and reported overcrowding, a lack of hygiene in the shower areas and the food-preparation area, and the fact that the spaces provided for various sportive or cultural activities were left unused.

26. The Government submitted one decision rendered by the post sentencing judge in Oradea Prison on 11 July 2011, admitting a prisoner’s complaint and ordering the prison authorities to provide the necessary cleaning products in accordance with the law. There was no mention of whether that decision was final.

27. The Government also submitted two additional decisions issued by the post sentencing judge rejecting prisoners’ complaints concerning the lack of activities and opportunities to work.

28. Lastly, they submitted two final judgments delivered by the High Court of Cassation and Justice, in respect of proceedings brought by detainees under articles 998-999 of te Civil Code, seeking compensation for alleged breaches of their right to correspondence and medical assistance, and for a specific incident of failure to provide hot water for a period of three months. The High Court disagreed with the decisions taken by the lower courts on the merits and on appeal in those cases, and awarded the applicants up to 3,000 euros in respect of non-pecuniary damage.

29. The Convention between Romania and Turkey concerning the transfer of convicted persons (“the convention”) was ratified by the Romanian Parliament by Law no. 99/1992. Romania and Turkey thereby agreed to the mutual transfer of convicted persons under certain conditions.

The convention sets out the following cases when transfer must be refused:

Article 6

“The transfer of a convicted person shall be refused:

a) if one of the two states considers that the transfer may breach its sovereignty, security, public order, fundamental principles of the rule of law or other fundamental interests;

b) if the competent authorities from the administering state have issued a final judgment against the same convicted person, for the same acts;

c) if the judgment against the convicted person cannot be enforced in the administering state due to prescription or any other cause which, according to the legislation of the said state, prevents the enforcement of the sentence;

d) if the person was sentenced for a crime of a strictly military nature.”

30. The relevant provisions of Law no. 302/2004 on international judicial cooperation on criminal matters, in force at the relevant time, read as follows:

Article 140 - Optional refusal of transfer

“A request for the transfer of a convicted person may be refused, mainly, for the following reasons:

...

c) if there are sufficient reasons to believe that, once transferred, the convicted person may be set free immediately or after much too short a term compared with the rest of the sentence to be served in accordance with the Romanian law ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

31. The applicant complained of the inhuman conditions of his detention, more specifically the poor hygiene aggravated by the lack of activities of any kind or work and the fact that the food he received was not adapted to his diabetes.

This complaint falls to be examined under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

32. The Government submitted that the applicant had not complained to the post sentencing judge or any other domestic authority about the conditions of his detention.

33. The applicant did not submit observations on this point.

34. The Court observes that the applicant’s complaint concerns mainly the physical conditions of his detention, in particular the lack of hygiene and absence of activities or work. In this regard, it notes that in recent applications lodged against Romania concerning similar complaints, it has already analysed such submissions from the Government and found that, given the specific nature of this type of complaint, the legal avenues suggested by the Government did not constitute an effective remedy (see Lăutaru v. Romania, no. 13099/04, § 85, 18 October 2011; Leontiuc v. Romania, no. 44302/10, § 50, 4 December 2012; and Necula v. Romania, no. 33003/11, §§ 32-39, 18 February 2014). At any rate, the Court notes that out of the three decisions issued by the post sentencing judge submitted by the Government, only one admitted the prisoner’s complaint, and then only to impose a very general obligation on the prison authorities (see paragraph 26 above). The other two judgments of the High Court of Cassation and Justice submitted by the Government relate to specific situations in which the right to correspondence and medical assistance were breached, as well as a particular incident concerning the provision of hot water (see paragraphs 27 and 28 above). They do not address structural issues such as poor hygiene or the applicant’s specific allegations of lack of activities and work. In addition, the Government did not say what specific measures had been taken by the prison authorities in order to remedy the shortcomings identified by the above-mentioned decisions.

35. The Court therefore concludes that those decisions do not demonstrate how the legal actions proposed by the Government could have afforded the applicant immediate and effective redress for the purposes of his complaint (see, mutatis mutandis, Marian Stoicescu v. Romania, no. 12934/02, § 19, 16 July 2009).

36. The Court therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the physical conditions of his detention, in particular the lack of hygiene and the absence of activities and work in Rahova and Giurgiu Prisons.

37. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

38. With respect to the applicant’s complaint that he did not receive food adapted to his diabetes, the Court notes that, according to the documents submitted by the Government, the applicant received a special menu for prisoners suffering from diabetes (see paragraphs 12 and 16 above). The applicant did not contradict the Government’s submissions. In addition, there is no indication in the file as to whether the applicant ever complained about that issue before the authorities. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Merits

39. The applicant considered that the detention conditions in both Rahova and Giurgiu Prisons amounted to torture, especially given that he was suffering from diabetes. He further alleged that the fact that no activities or work had been proposed to him had aggravated the suffering caused by the inhuman conditions in which he was being held.

40. The Government, referring to their description of the detention conditions submitted before the Court (see paragraphs 10 to 17 above), contended that the domestic authorities had taken all the measures necessary to ensure adequate conditions of detention, and that the applicant’s complaint was unsubstantiated.

41. The Court reiterates that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of execution of the measure of detention do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001-VIII, and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

42. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).

43. The Court notes that, in addition to overcrowding, other aspects of the physical conditions of detention are relevant for its assessment of compliance with Article 3 (see Ostrovar v. Moldova, no. 35207/03, § 89, 13 September 2005; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; and Iacov Stanciu, cited above, § 169). The Court has found that the following conditions of detention raise an issue under Article 3 of the Convention: lack of appropriate furniture in the cells; poor sanitary facilities, such as a limited number of toilets and sinks for a large number of detainees; sinks in cells providing only cold water for a wide range of needs (personal hygiene, washing clothing and personal objects, cleaning the toilets); limited access to hot showers; poor sanitary conditions in general, including the presence of cockroaches, rats, lice and bedbugs (see Iacov Stanciu, cited above, § 175).

44. Turning to the present case, the Court notes that the applicant started to complain on 15 July 2008 about the conditions in which he was detained in Rahova and then in Giurgiu Prison. More specifically, he complained of lack of hygiene and the presence of bedbugs, which prevented him from sleeping at night. He also complained of a lack of activities and opportunities to work. The Government did not explicitly contradict those allegations.

45. Even though there are no relevant CPT reports concerning the above-mentioned prisons, the applicant’s allegations are supported by the reports of APADOR-CH, a Romanian NGO which visited the said prisons (see paragraph 25 above). Moreover, the Court has already held in a number of cases that the detention conditions in Rahova or Giurgiu Prisons, which included the presence of parasites, breached the safeguards of Article 3 of the Convention (see Iacov Stanciu, cited above; Geanopol v. Romania, no. 1777/06, 5 March 2013; and Niculescu v. Romania, no. 25333/03, 25 June 2013, for the conditions in Rahova Prison; Cucu v. Romania, no. 22362/06, 13 November 2012, and Bădilă v. Romania, no. 31725/04, 4 October 2011, for the conditions in Giurgiu Prison).

46. The Court cannot but conclude that the applicant in the instant case was subjected to unsatisfactory sanitary conditions.

47. The Court takes the view that the applicant’s state of health made him vulnerable and that his detention in unhygienic conditions must have been aggravated by the lack of activities or work as well as the overcrowding. It results from the information submitted by the Government that the applicant had available in Rahova Prison less than four sq. m of personal space. The Court considers that such a level of overcrowding cannot but increase the difficulties encountered by the authorities and the prisoners in maintaining an adequate level of hygiene (see Ion Ciobanu v. Romania, no. 67754/10, § 42, 30 April 2013).

48. In view of the foregoing, the Court considers that the cumulative conditions of the applicant’s detention caused him distress that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of severity under Article 3.

49. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

50. The applicant also complained in substance of a violation of his right to private and family life because he had been unable to maintain contact with his wife and four children owing to the Romanian authorities’ refusal to allow his transfer to serve the rest of his sentence in a Turkish prison.

This complaint falls to be examined under Article 8 of the Convention which reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

51. The Government argued that the Court had previously held that the Convention did not grant prisoners the right to choose their place of detention and that separation and distance from their family were an inevitable consequence of their detention. They relied on the cases of Selmani v. Switzerland ((dec.), no. 70258/01, 28 June 2001) and Plepi v. Albania and Greece (nos. 11546/05, 33285/05 and 33288/05, 4 May 2010). The Government further maintained that the aim of the Transfer Convention concluded between Romania and Turkey was not to enable sentenced persons to return to their country of origin and free themselves of the unfavourable consequences of serving the sentence imposed by the sentencing State. The sentencing State was not obliged to agree to the transfer. They therefore requested the Court to declare this complaint incompatible ratione materiae with the provisions of the Convention.

52. The Court considers that the essential issue raised by the current case is whether a refusal by Romania to transfer the applicant to Turkey falls within the scope of any Article of the Convention.

53. In the first place, the Court notes that there is no evidence that Romanian law confers on the applicant any right to be transferred to Turkey and the applicant did not refer to any relevant legal provisions which would indicate the existence of such a right. Nor is there any domestic court transfer order in his favour. Accordingly, it cannot be maintained that he has any substantive right under Romanian law to be transferred to his country of origin.

54. The Court also notes that, whereas provisions of international agreements may create individual rights protected by the Convention, either where the provision is directly applicable (see S.A. Dangeville v. France, no. 36677/97, §§ 46-48, ECHR 2002-III, concerning a failure to bring the domestic law into line with a Community directive) or where the requisite domestic legislation applying it has been enacted (see Beaumartin v. France, 24 November 1994, §§ 27-28, Series A no. 296-B, concerning a right to compensation deriving from a Franco-Moroccan treaty and subsequent French legislation setting up a committee responsible for apportioning the Moroccan indemnity), the provisions of the convention between Romania and Turkey confine themselves to providing an inter-State procedural framework for the transfer of sentenced persons and do not generate any individual substantive rights per se. In any event, those types of .international instruments do not contain an obligation on the signatory States to comply with a request for transfer (see Passaris v. Greece (dec.), no. 53344/07, 4 September 2009). Even though the convention contained grounds for refusing a transfer, it did not bind the Romanian authorities to find in favour of the applicant’s transfer requests.

55. Lastly, it must be recalled that, as regards the refusal to authorise the applicant’s transfer to Turkey, the Convention does not grant prisoners the right to choose their place of detention and that separation and distance from their family are an inevitable consequence of their detention following the exercise by the Romanian State of its prerogatives in the area of criminal sanctions (see Plepi and Selmani, judgments cited above).

56. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

58. The applicant claimed 250,000 euros (EUR) in respect of non-pecuniary damage.

59. The Government considered the claim excessive and unsubstantiated.

60. On the basis of its case-law in the matter, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage incurred as a result of the violation of his Article 3 rights due to the inhuman conditions of his detention.

B. Costs and expenses

The applicant did not claim any costs or expenses. Accordingly, the Court does not make any award under this head.

C. Default interest

62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares admissible the complaint under Article 3 of the Convention concerning the poor hygiene in respect of the applicant’s detention in Rahova and Giurgiu Prisons and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 30 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Josep Casadevall
Registrar President

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