FOURTH SECTION

DECISION

Application no. 38686/16 Romualdas GASKA against Lithuania

The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Egidijus KÅ«ris, Iulia Antoanella Motoc, judges, and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 27 June 2016,

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 Romualdas Gaska, is a Lithuanian national, who was born in 1958 and lives in Alytus. He had been granted legal aid and was represented before the Court by Ms J. SamuolytÄ—, a lawyer practising in Vilnius.

2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė-Širmenė.

3. The applicant has been detained in the Alytus Correctional Facility since 9 March 2012.

4. In 2014 he submitted a civil claim against the State, alleging that he had been detained in overcrowded and unsanitary cells, that he had had insufficient time to use the shower and that he had been exposed to passive smoking. He claimed 30,000 Lithuanian litai (LTL; approximately 8,700 euros (EUR)) in respect of non-pecuniary damage.

5. On 22 September 2014 the Kaunas Regional Administrative Court dismissed the applicant’s claim. It found that during the entire period under consideration, except for 169 days when he had been transported outside of the correctional facility, the applicant had had 2.24 sq. m of personal space, in violation of the domestic standard of 3.1 sq. m. However, the court found that the sanitary conditions in the cells had complied with relevant domestic hygiene norms and that the applicant had not proved that he had been exposed to passive smoking. It also dismissed as unproven the applicant’s claim that his health had deteriorated. The court further underlined that the applicant was detained in a dormitory-type facility, he was able to move around freely during the day, and various leisure and educational activities were available. Therefore, the applicant’s claim in respect of non-pecuniary damage was dismissed.

6. The applicant lodged an appeal against that decision but on 2 May 2016 the Supreme Administrative Court dismissed it. The court upheld the first-instance court’s findings with regard to the personal space available to the applicant. It also found that during certain periods there may have been breaches of domestic regulations concerning the light available in the cells and the applicant’s exposure to passive smoking. However, the court reiterated that the applicant was detained in a dormitory-type facility, he was able to move around freely during the day, and various leisure and educational activities were available. It therefore considered that the finding of a violation was sufficient and that there was no need to make an award to the applicant in respect of non-pecuniary damage.

COMPLAINTS

7. The applicant complained under Article 3 of the Convention about the conditions of his detention.

8. He also complained, without invoking a specific provision of the Convention, that the domestic proceedings for damages had not constituted an effective remedy for his complaint under Article 3.

THE LAW

9. The applicant submitted that he had been detained in overcrowded and unsanitary dormitory-type rooms in Alytus Correctional Facility and that he had been exposed to passive smoking. He invoked Article 3 of the Convention, which reads:

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

10. The applicant also submitted that the domestic proceedings for damages had not constituted an effective remedy for his complaint under Article 3 of the Convention. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that this complaint falls to be examined under Article 13 of the Convention, which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ submissions

11 . The Government drew the Court’s attention to the fact that the applicant had submitted a forged document to the Court. The document in question was a letter of 30 June 2011 allegedly received by the applicant from the Ministry of Justice, in which the Ministry acknowledged that separation between smoking and non-smoking detainees in correctional facilities was not always ensured in practice. The Government pointed out that that letter had in fact been addressed to another individual, O.B., detained in a different correctional facility. In the copy of the letter which the applicant submitted to the Court, O.B.’s name had been covered in white and the applicant’s name had been hand-written in its place. The Government provided to the Court a copy of the original letter from the Ministry, sent to O.B., bearing the same date and registration number as the one which had been submitted by the applicant.

12 . When asked to comment on the Government’s submissions, the applicant’s representative, Ms J. Samuolytė, stated that she had received the allegedly forged letter from the applicant and apologised for “the very unfortunate oversight” in sending it to the Court.

13 . The applicant submitted that he had given that letter to his representative as “information on how officials should perform their functions when separating smoking and non-smoking detainees”, but that he had not asked her to forward that letter to the Court. He considered that there had been a “misunderstanding” for which his representative had been responsible. The applicant also submitted that the letter from the Ministry had been for information only and had not created any legal consequences.

B. The Court’s assessment

14. Article 35 § 3 (a) of the Convention provides:

“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application;...”

15. The Court reiterates that under this provision an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, and the cases cited therein).

16. In the present case, the applicant complained of various grievances related to the conditions of his detention, including the alleged exposure to passive smoking. In such circumstances, the Court considers that an acknowledgment by the Ministry of Justice that the applicant’s complaint of exposure to passive smoking was well-founded would be undoubtedly relevant to its assessment of whether the conditions of the applicant’s detention complied with the requirements of Article 3 of the Convention.

17. Having examined the letter from the Ministry submitted to it by the applicant and the one submitted by the Government (see paragraph 11 above), the Court has no doubts that the one submitted by the applicant had been altered by covering the name of its true addressee (O.B.) and writing in the name of the applicant. The applicant himself did not deny having forged the letter or having given it to his representative (see paragraph 13 above). In such circumstances, the Court considers it immaterial whether or not the applicant had intended for the forged letter to be sent to the Court. It is likewise immaterial whether the representative, whom the applicant had authorised to act on his behalf, had sent the forged letter to the Court following the applicant’s explicit instructions or as the result of an “oversight” (see paragraphs 12 and 13 above).

18. The Court emphasises that submitting a forged document is a serious attempt to mislead the Court, which it cannot tolerate (see, for example, Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007). In the light of the above, it finds the applicant’s conduct to be contrary to the purpose of the right of individual application. The application must accordingly be rejected as an abuse of the right of application, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 December 2018.

Andrea Tamietti Paulo Pinto de Albuquerque Deputy Registrar President