THIRD SECTION

DECISION

Application no . 27117/08 Aristotel SZEMKOVICS against Romania

The European Court of Human Rights (Third Section), sitting on 17 December 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria, Kristina Pardalos, judges,

and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 21 May 2008,

Having regard to the partial decision of 6 December 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to a letter submitted by the Hungarian Government on 28 December 2011 indicating that they did not wish to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Aristotel Szemkovics, is a Hungarian national who was born in 1958 and is currently detained in Giurgiu Prison.

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

3 . On 5 November 1999 the Bucharest County Court convicted the applicant of murder and sentenced him to twenty-five years ’ imprisonment. He served his prison sentence in various Romanian prisons.

4 . From 6 April 2009 to 12 February 2010 and on several other occasions in 2010 and 2011, the applicant was detained in Aiud Prison. On 27 October 2011 he was transferred to Giurgiu Prison, where he is currently detained.

5 . While in detention the applicant was diagnosed with type C hepatitis and chronic constipation as well as behavioural disorder.

1. The applicant ’ s complaints with regard to the alleged lack of medical assistance and interference with his right of petition

6 . The applicant submitted numerous requests to the domestic courts for the interruption of his prison sentence, on account of his medical condition. The courts dismissed several of his requests after the applicant informed them that he no longer wished to pursue the proceedings (final judgments of 18 September 2003, 28 June 2004, 7 July 2005, 6 March 2007, 21 August 2008, 27 January 2009 of the Bucharest County Court and of 2 August 2010 of the Alba County Court). Other requests were dismissed because the courts found that the applicant ’ s medical condition was being properly treated within the prison system (judgments of 4 December 2003 and 26 November 2010 of the Bucharest County Court).

7 . On 22 June 2010 the applicant lodged a complaint against the National Prison Administration, complaining that he was not receiving proper medical assistance and that he had contracted type C hepatitis in prison because of unsterilised dental equipment. He also claimed 50,000 euros in compensation for non-pecuniary damage.

8 . In a judgment of 23 February 2011 the Bucharest Court of Appeal dismissed his complaint on the grounds that, under the provisions of the Execution of Sentences Act (Law no. 275/2006), such complaints fell within the jurisdiction of the judge responsible for the execution of prison sentences.

9 . On 9 March 2011 the applicant lodged a complaint before the judge responsible for the execution of sentences in Giurgiu Prison (“the judge”). He alleged that he was not receiving proper medical assistance and that the prison authorities had refused to provide him with copies of his prison files.

10 . The judge dismissed his complaint on 24 June 2011. Before reaching that decision, he had heard evidence from the applicant and had had access to his prison files, including the medical file. The judge found that the applicant had been provided with proper medical care and medication. He also found that the applicant had had access to his files and had been given several photocopies of items from these files.

11 . The applicant contested these findings before the Giurgiu District Court. On 14 November 2011 the applicant appeared before the District Court and declared that he no longer wished to pursue his complaint. In a final judgment of 22 November 2011, the District Court noted that the applicant did not wish to pursue his complaint.

2. The applicant ’ s medical file

12 . The applicant alleged before the Court that the prison doctors had refused to provide him with medication for constipation. He stated that he felt humiliated by this refusal. He claimed that in 2010 he had gone on hunger strike on two occasions – each time for one week – in order to obtain treatment.

13 . The Government submitted a copy of the applicant ’ s medical file. According to his file, he was admitted on thirteen occasions to the Jilava Prison Hospital and on one occasion to the Rahova Prison Hospital, where he was adequately treated for his medical condition. According to the Government, the applicant had constantly received medication for all his chronic conditions. In addition, the applicant was provided with a diet suitable for sick detainees.

3. The alleged interference with the applicant ’ s right of petition

14 . The applicant alleged before the Court that, in 2009, while in Aiud Prison, he had constantly been refused envelopes and stamps for his correspondence with the Court, the prison authorities informing him at the time that he was not entitled to envelopes or stamps and that they had no duty to provide them. He also alleged that the Giurgiu Prison authorities had refused to provide him with a copy of his medical file.

15 . On 6 April 2010 the applicant was transferred to Giurgiu Prison. He alleged that the authorities again refused to provide him with envelopes or stamps for his correspondence with the Court. He also alleged that on one occasion it was only after having threatened to stop eating that he had been given an envelope and a stamp.

16 . The Government submitted copies of the special files in Aiud and Giurgiu Prisons relating to the stationery provided to the detainees. These two files include the lists of envelopes and stamps that were provided to prisoners, among them the applicant; they bear the applicant ’ s signature.

B. Relevant domestic law and practice

17 . Excerpts from the relevant provisions of the Execution of Sentences Act ( Law no. 275/2006) are quoted in Iacov Stanciu v. Romania (no. 35972/05, §§ 113 ‑ 116, 24 July 2012).

COMPLAINTS

18 . The applicant complained in substance under Article 3 of the Convention of a lack of medical treatment in Giurgiu and Aiud Prisons.

19 . He complained in substance under Article 34 of the Convention of an interference with his right to individual petition on account of the prison authorities ’ refusal to provide him with envelopes, stamps and a copy of his medical records.

THE LAW

A. Complaint relating to the alleged lack of medical assistance

20. The applicant complained of a lack of medical assistance in detention, relying in substance on Article 3 of the Convention, which reads:

Article 3

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

21 . The Government raised a preliminary objection on the grounds that the applicant had not exhausted domestic remedies. Relying on the Court ’ s findings in cases such as Petrea v. Romania (no. 4792/03, 29 April 2008) and Coman v. Romania (no. 34619/04, 26 October 2010), they argued that a complaint under Law no. 275/2006 to the judge responsible for the execution of sentences was an effective remedy in cases of alleged interference with a detainee ’ s right as provided for in the above-mentioned law. They referred to rights such as the right to medical assistance, the right of petition, the right to correspondence, the right to telephone conversations and the right to receive visits and parcels.

22 . The applicant contested the Government ’ s assertions and, referring to a procedure that had been reviewed by means of a final decision by the High Court of Cassation and Justice in September 2010, claimed that he had exhausted the domestic remedies available to him. The procedure in question originated in a criminal complaint that the applicant had lodged against the doctors in Aiud Prison.

23 . The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. However, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, §§ 74-75, ECHR 1999-IV).

24. With regard to Romania, the Court has already found that a complaint lodged – on the basis of the provisions of Law no. 275/2006 –with the judge responsible for the execution of sentences is an effective remedy in cases dealing with specific problems deriving from detention, such as an individual detainee ’ s access to medical assistance (see Petrea , cited above, §§ 36-37; Coman , cited above, § 45; and Măciucă v. Romania , no. 25763/03, § 19, 26 May 2009), disciplinary measures in detention (see Geanopol v. Romania , no. 1777/06, § 48, 5 March 2013) or harassment on account of the applicant ’ s ethnic origin (see Coman , cited above, § 45 in fine).

B. Complaint relating to the alleged interference with the right of individual petition

27. The applicant complained of an interference with his right of individual petition because the prison authorities had refused to provide him with envelopes and stamps and also copies of his files. He relied, in substance, on Article 34 of the Convention, which reads:

Article 34

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

28. The Government argued that the applicant ’ s right of individual petition had been observed. They submitted copies of documents from the relevant files in Aiud and Giurgiu Prisons that the applicant had signed on several occasions when he had been given stamps, writing paper, envelopes and copies of several documents.

29. The applicant claimed that he had paid for all those items.

30. The Court reiterates that there are positive obligations inherent in Article 34 requiring authorities to furnish all necessary facilities to make possible a proper and effective examination of applications. Such an obligation will arise where applicants are in situations of particular vulnerability and dependence and are unable to obtain the documents needed for their case files (see Iambor v. Romania (no. 1), no. 64536/01, § 216, 24 June 2008, and Naydyon v. Ukraine , no. 16474/03, § 63, 14 October 2010). Persons held in detention, with limited contact with their family or the outside world, may find themselves in a vulnerable position if they are dependent on the authorities for their communications with the Court (see, mutatis mutandis , Trosin v. Ukraine , no. 39758/05, § 54, 23 February 2012, and Iulian Popescu v. Romania , no. 24999/04, § 34, 4 June 2013).

31. In the instant case, the Court notes that both the Aiud and the Giurgiu Prison kept registers listing the stationery items that had been supplied to the prisoners. According to these registers, the applicant received paper, envelopes, stamps and copies of documents on several occasions, as testified by his signature. The applicant has neither denied this in his response to the Government ’ s observations, nor claimed that the signature is not his. His allegations that he had to pay for those items are not supported by any evidence.

32 . It follows that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

For these reasons, the Court , unanimously,

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President