THIRD SECTION

DECISION

Application no . 60914/09 Gheorghe STANCU against Romania

The European Court of Human Rights (Th ird Section), sitting on 4 June 2 013 as a Committee composed of:

Alvina Gyulumyan , President, Kristina Pardalos , Johannes Silvis , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 26 October 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 Gheorghe Stancu , is a Romanian national, who was born in 1974 and is currently detained in Arad Maximum Security Prison.

2. The Romanian Government (“the Government”) were represented by their Agents, Ms Irina Cambrea and Ms Catrinel Brumar , from 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.

4. The applicant is detained in Arad Maximum Security Prison since 21 August 1996, serving a twenty-two year sentence. Because he escaped, the applicant is classified as dangerous and is currently detained alone in a cell.

5. On 3 July 2006 the applicant was transported to the Arad County Court in order to appear in a hearing. While he was in the arrest ward of the court, some of the other prisoners present were smoking. When the applicant, who is a non-smoker, complained that he was disturbed by the smoke, he was assaulted by another prisoner.

6. Following the incident, the applicant lodged a civil complaint against the Arad Prison Administration seeking moral damages for being placed on two occasions in a cell for smokers even though he was not a smoker. The applicant also claimed that the regulations whereby the non-smokers should not be placed in cells with smokers were being systematically breached by the authorities, especially in respect of “ high risk ” detainees.

7. By a judgment of 16 February 2008 the Arad District Court dismissed the complaint ruling that the applicant did not submit any evidence in order to prove the prejudice he suffered by being placed in a smoking cell. The court further held that in any case the situation was not of a permanent nature, the applicant having complained only about two separate incidents. By a judgment of 18 June 2009 the Arad County Court dismissed the applicant ’ s appeal on points of law, thus upholding the judgment of the Arad District Court.

B. Relevant domestic law and practice

8. The relevant provisions concerning the protection against passive smoking in prisons are described in the case of Florea v. Romania (no. 37186/03, §§ 28-30, 14 September 2010).

COMPLAINT

9. The applicant complained under Article 3 of the Convention that on 3 July 2006 he was subjected to inhuman and degrading treatment by having been placed in a cell together with other smoking detainees.

THE LAW

10. The applicant complained that on 3 Ju ly 2006 he was placed in a cell

tog ether with smoking prisoners although he is not a smoker, thus breaching his rights guaranteed by Article 3 of the Convention, which reads as follows:

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

11. The Government submitted that the applicant ’ s complaint does not reach the minimum level of severity in order to fall within the ambit of Article 3 of the Convention. In this respect the Government pointed out that the applicant is detained alone in a cell and therefore the incident of 3 July 2006 was of a singular occurrence.

12. The Court recalls that ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Dougoz v. Greece , no. 40907/98, § 44, 6 March 2001). It must also be recalled that allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis , Labita v. Italy [GC], no. 26772/95, § 121, 6 April 2000).

13. The Court has previously found that placement of a non-smoker suffering from chronic hepatitis and arterial hypertension in a cell with smoking detainees for a period of almost three years, together with his exposition to smoking also in the infirmary and the prison hospital in the context of the overall poor conditions of detention, amounts to inhuman and degrading treatment in breach of Article 3 (see Florea , cited above).

14. However, these considerations do not apply in the present case where the applicant, who is detained alone in a cell, only complained of his placement together with smoking prisoners on a single occasion. While being aware of the difficulties that an applicant might encounter in order to substantiate such complaints, the Court notes that in the current case the applicant did not provide any details concerning his state of health or his overall detention conditions.

15. Having regard to all the material in its possession taken together with the short period of exposure to smoke, the Court is not convinced that the treatment in issue attained the minimum level of severity warranting the conclusion that the applicant ’ s rights under Article 3 were thereby infringed.

16. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Alvina Gyulumyan Deputy Registrar President