THIRD SECTION

DECISION

Application no . 37952/09 Ghennadii VARTIC against Romania

The European Court of Human Rights (Third Section), sitting on 26 November 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 8 July 2009,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ghennadii Vartic, is a Moldovan national, who was born in 1973 and is currently detained in Jilava Prison.

2. The Romanian Government (“the Government”) are represented by their Agent, Mrs C. Brumar, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Background of the case

4. In 1999 the applicant was sentenced to twenty-five years in prison. He served his sentence in various prisons. From 30 April to 12 May 1998 and from 9 February 1999 to 21 February 2009 he was detained in Rahova Prison.

5. On 18 March 2003 an antenna of the type C-GUARD 19 was installed in Rahova Prison for the protection of telephone communications. According to an information note issued on 20 June 2008 by the prison authorities, the antenna was installed at a distance of approximately 102 metres from the cell where the applicant was detained.

2. Legal proceedings initiated by the applicant in connection with his alleged exposure to high-frequency radiation

6. On 29 August 2008 the applicant lodged a complaint with the judge responsible for the execution of sentences attached to Rahova Prison, alleging that the antenna emitted electromagnetic radiation that had negatively affected his health. He claimed that he was suffering from several neurological disorders, which were described in medical documents adduced at the trial (dated 27 March and 19 September 2008 and 8 February 2009). He argued that he had been receiving treatment for migraine, for which he blamed long-term exposure to radiation.

7. The applicant also indicated that from the time the antenna was installed prison staff had received an extra salary allowance (amounting to 10% of their basic salary) for working in dangerous conditions, namely exposure to electromagnetic fields in their working environment. He requested to be awarded a sum of money equivalent to that allowance, as well as compensation for distress, and to be provided with adequate medical care.

8 . The judge rejected the complaint on all those grounds on 24 October 2008. He examined the merits of the complaint relating to the applicant ’ s health and medical assistance and dismissed as inadmissible the claim for compensation, on the ground that only the civil courts had jurisdiction to examine such claims.

9 . With regard to the applicant ’ s health, the judge held that there was no direct link between the electromagnetic field in issue and the applicant ’ s physical ailments, as described in his medical record. The judge ruled on the basis of an expert report commissioned from the National Institute of Forensic Science (INEC) in a distinct set of proceedings initiated by one of the applicant ’ s fellow prisoners, who had lodged a similar complaint. The expert report was issued on 3 October 2008 and found that in several areas of the prison to which only staff had access the levels of radiation were higher than those prescribed by the relevant safety guidelines. The level of radiation was significantly lower in areas to which the applicant had access. The report also found that there was no conclusive evidence as to the harmful effects on human beings of radiation emitted by wireless communication devices.

10 . The applicant appealed before the Bucharest District Court , and claimed that in a report of 19 November 2007 the National Radio Communication Company had found that exposure to high-frequency electromagnetic fields in all living areas in Rahova Prison was higher than the allowable standard, which is a maximum of ten watts per square metre (W/m²). The applicant did not however submit a copy of this report to the District Court, claiming that he intended to submit it directly to the European Court of Human Rights.

11 . The Bucharest District Court dismissed the applicant ’ s appeal in a final judgment on 28 January 2009, on the grounds that his medical condition had not been affected by exposure to electromagnetic radiation. The court based its findings on the medical reports adduced to the file and considered that, even with the most basic medical knowledge that any legal practitioner could be expected to have, the lack of any direct link between the applicant ’ s medical condition and his alleged exposure to radiation was obvious. The court rejected the applicant ’ s request to have the INEC report supplemented and to have the names of the prison staff receiving the allowance for working in dangerous conditions disclosed, as not relevant to the case. With regard to the applicant ’ s claim for compensation, the court reiterated that only civil courts had jurisdiction over such matters.

B. Relevant domestic law and practice

12. Two orders of the Minister of Justice, no. 945/C of 2 April 2003 and no. 399/C of 6 February 2007, awarded staff in Rahova Prison a specific allowance for health risks associated with exposure to electromagnetic radiation during their working hours.

13. The Order of the Ministry for Public Health no. 1193/2006 on the general norms concerning limits on individuals ’ exposure to electromagnetic fields details the relevant safety guidelines. According to this order, the reference levels range from 0 hertz (Hz) to 300 gigahertz (GHz). The order is based on Council of the European Union Recommendation no. 1999/519/EC of 12 July 1999.

COMPLAIN TS

14. The applicant complained under Article 14 of the Convention, alleging that he had been discriminated against on the basis of his Moldovan nationality. He argued that his health had deteriorated because of long-term exposure to electromagnetic radiation, and that he had not been granted any form of compensation. In contrast, prison staff had been awarded an allowance for health risks associated with their exposure to radiation. The applicant contended that he had been exposed to 168 hours of radiation per week, 4.5 times that of the prison staff, whose exposure was limited to working hours.

15. He further complained under Article 6 § 3 (c) of the Convention that the Bucharest District Court had refused to hear evidence in his case, thus failing to guarantee a fair trial.

16. Lastly, he complained that the guarantees provided under Article 13 of the Convention had been disregarded, since there had been no available appeal under domestic law against the final decision of the Bucharest District Court.

THE LAW

I. THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION

17. The applicant argued under Article 14 of the Convention that he had been subjected to discrimination on account of his exposure to electromagnetic radiation in prison and the fact that no financial compensation was available to him, in contrast to the situation of prison staff.

18. The Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by the provisions of the Convention. Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I) , and in the light of its case-law (see, amongst many other authorities, López Ostra v. Spain , 9 December 1994, § 51, Series A no. 303 ‑ C, and BrânduÅŸe v. Romania , no. 6586/03, §§ 64-67, 7 April 2009), the Court considers that the applicants ’ complaints fall to be examined under Article 8 of the Convention taken alone and in conjunction with Article 14 of the Convention, which provide:

Article 8

“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.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. The parties ’ submissions

19. The Government acknowledged that Article 8 of the Convention was applicable in the instant case. They maintained that the Romanian State complied with the standards deriving from the Court ’ s case-law in this matter, having regard to both the substantive and the procedural limbs of Article 8.

20. On the one hand, they indicated that the authorities checked the level of radiation in Rahova Prison regularly, and that the legal limits were complied with in the areas to which the applicant had had access. They also argued that the applicant had not proved a link between his medical condition and his exposure to radiation and, relying on the case of Tătar v. Romania ( no. 67021/01, § 106, 27 January 2009), they contended that there was no scientific certainty as to the relationship between human health and exposure to radiation.

21. On the other hand, the Government argued that the domestic courts had dealt with the applicant ’ s claims carefully and had examined all the necessary evidence. They concluded that the applicant ’ s complaint was unsubstantiated and asked the Court to dismiss it.

22. The applicant argued that the fact that the prison staff had been granted an allowance on account of health risks associated with exposure to radiation was itself proof that there was a link between exposure to such radiation and health problems. He maintained that he had been exposed to a higher frequency of radiation than that allowed by the regulations, and that this had caused him migraine, for which he had been treated in Rahova Prison.

23. He concluded that exposure to radiation and the lack of any financial compensation had violated his right to respect for his private life.

B. The Court ’ s assessment

24. The Court reiterates that an interference with the physical integrity of an individual can be regarded as an interference with the right to respect for private life (see Glass v. the United Kingdom , no. 61827/00, § 70, ECHR 2004 ‑ II, and Storck v. Germany , no. 61603/00, § 143, ECHR 2005 ‑ V). Breaches of the right to respect for private life also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference (see, amongst many other authorities, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII, and Băcilă v. Romania , no. 19234/04 , § 59, 30 March 2010 ). These principles also apply in the prison context (see BrânduÅŸe , cited above, §§ 64-67 ).

25. In the instant case, the Court notes at the outset that the applicant ’ s complaint has two parts: on the one hand he complains that he was not granted any form of financial compensation, unlike prison staff, for long ‑ term exposure to radiation in prison, and on the other he argues that radiation has affected his health.

26. With regard to the lack of compensation, the Court notes that both the judge responsible for the execution of sentences attached to Rahova Prison and the Bucharest District Court held that they did not have jurisdiction over such matters, and indicated that the applicant should bring an action in the civil courts (paragraphs 8 and 11).

27. Indeed, such a remedy, based on the provisions of the Civil Code, would have been available to the applicant and would have been effective within the meaning of Article 35 § 1 of the Convention (see, mutatis mutandis , Florea Pop v. Romania , no. 63101/00 , § 38, 6 April 2010 ). The civil courts with jurisdiction over such matters could have examined whether the legal conditions of civil responsibility had been met and whether the applicant had been treated differently from other individuals in a similar situation, as he alleged before the Court. However, he failed to inform the Court whether he had brought such a civil action.

28. It follows that this part of the complaint is inadmissible and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

29. With regard to the applicant ’ s exposure to electromagnetic radiation emitted by the antenna installed in Rahova Prison, the Court finds that it represents an interference with his right to respect for his private life that is directly attributable to the State authorities. It takes the view that such interference was “provided for by the law”, namely the Order of the Ministry for Public Health on the general norms concerning limits on individuals ’ exposure to electromagnetic fields. Since the antenna had the purpose of protecting Rahova Prison ’ s telephone communications, the Court also finds that the interference had “a legitimate aim”, specifically the prevention of disorder or crime (see, mutatis mutandis , Aliev v. Ukraine , no. 41220/98, § 180, 29 April 2003 ).

30. The Court must therefore examine whether the interference was “necessary in a democratic society” as required by the second paragraph of Article 8.

31. The Court reiterates that the notion of necessity implies that the inference must be based on a pressing social need and must be proportionate to the legitimate aim pursued. In this respect, the Court takes into consideration that a margin of appreciation is left to the Contracting States. The scope of the margin of appreciation will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved (see, mutatis mutandis , Leander v. Sweden , 26 March 1987, § 59, Series A no. 116) . In exercising its supervisory jurisdiction, the Court cannot confine itself to considering impugned court decisions in isolation; it must look at them in the light of the case as a whole and determine whether the reasons adduced by the domestic courts to justify the interference were “relevant and sufficient” (see, mutatis mutandis , Lingens v. Austria , 8 July 1986, § 40, Series A no. 103).

32. In the instant case, the Court notes that the applicant has not argued that the antenna in Rahova Prison was not duly authorised or that he was not informed of the decision-making process that preceded its installation (see by contrast Brânduşe , cited above, §§ 71-72, and Tătar , cited above, § 74). His complaints related only to long-term exposure to radiation and its effects on his health.

33. The Court has examined similar cases and found that there is no agreement amongst the scientific world as to the possible harmful effects of electromagnetic radiation on human health (see Ruano Morcuende v. Spain , (dec.), no. 75287/01, 6 September 2005, and Luginbühl v. Switzerland , (dec.), no. 42756/02, 17 January 2006). Nothing in the present file suggests that there have been major scientific developments in this matter since the Court adopted these decisions in 2005 and 2006.

34. The domestic courts examined the applicant ’ s complaints and found, through non-arbitrary and well-reasoned decisions, that the level of electromagnetic radiation was within the limits prescribed by the relevant domestic legislation in all the areas to which the applicant had access in Rahova Prison. In reaching these decisions, the domestic courts relied on an expert report delivered by the National Institute of Forensic Science (paragraph 9). The applicant claims that the National Radio Communication Company had found otherwise (paragraph 10). However, the Court notes that the applicant did not submit the latter report to the domestic courts, and thus prevented them from examining this evidence to identify any contradictions, and from giving the reasons for which they ultimately preferred one expert report over the other.

35. It follows that this part of the complaint is manifestly ill-founded and should be dismissed as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II. OTHER ALLEGED VIOLATIONS

36. The applicant alleged several other violations of his rights guaranteed by Articles 6 § 3 (c) and 13 of the Convention, on account of the outcome of proceedings before the Bucharest District Court and the absence of an appeal against the final decision delivered by that court.

37. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President