THIRD SECTION

CASE OF COTLEÅ¢ v. ROMANIA ( No . 2)

( Application no. 49549/11 )

JUDGMENT

STRASBOURG

1 October 2013

FINAL

01/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Cotleţ v. Romania ( no . 2) ,

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

Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Nona Tsotsoria, Kristina Pardalos, Johannes Silvis, judges , and Santiago Quesada , Section Registrar ,

Having deliberated in private on 10 September 2013 ,

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

PROCEDURE

1 . The case originated in an application (no. 49549/11) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Fre edoms (“the Convention”) by a Romanian national, Mr Silvestru Cotleţ (“the applicant”), on 29 July 2011 .

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

3 . The applicant complained about the conditions of his detention in Boto ÅŸ ani Prison. He complained specifically of overcrowding and poor conditions of hygiene.

4 . On 11 July 2012 the application was communicated to the Gove rnment. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1964 and lives in Gura-Humorului .

6 . By a final judgment of 6 July 2011 the Suceava Court of Appeal sentenced him to six months ’ imprisonment.

7 . The applicant was detained in BotoÅŸ ani Prison between 11 July and 9 September 2011 and between 11 November 2011 and 6 January 2012.

8 . On 6 January 2012 the applicant was released from prison.

Conditions of detention

9 . The conditions of the applicant ’ s detention are in dispute between the parties.

1. The applicant ’ s account

10 . The applicant co mplained mainly of overcrowding, uns atisfactory sanitary conditions and poor quality of food.

11 . H e was detained in an overcrowded cell . However, the applicant did not state how many inmates the cell had, nor did he mention its area . He simply stated that there were three tiers of bunk beds in the cell.

12 . T he cell was infested with insects . Th e applicant sent an envelope containing insects to the Court in support of his allegations. The re was running water for only a few hours a day , so the detainees had to collect water for drinking and to flush the toilets. T he quality of the food was poor. T he prison had no dedicated place for eating, and the detainees were forced to eat in their cells.

2. The Government ’ s account

13 . The Government submitted in their observations that, the appl icant had been detained in BotoÅŸ ani Prison under an o pen regime for a period of four months.

14 . They further submitted that the applicant had occupied cell 5. The cell had an area of 17.1 squa re metres and a volume of 56.43 cubic metres. The applicant shared the cell with eight inmates. According ly, each detainee had 6.27 cubic metres of space .

15 . The cell was fitted with two window s measuring 130 cm by 160 cm , providing goo d ventilation and natural lighting. It was also equipped with a television set and had adequate electricity and sanitary facilities. The cell had a sanitary annex containing a shower. The prisoners were entitled to two showers per week.

16 . The p rison had its own heating. As regards the hygiene conditions, there was periodical insect treatment and rodent extermination .

3 . The applicant ’ s complaint concerning the material conditions of detention

17 . On 7 September 2011 t he applicant lodged a complaint with the delegated judge on the basis of Law no. 275/2006 , concerning the conditions of his detention, and in particular poor hygiene, lack of personal space, infringement of his right to eat in a dedicated space and to have one hour of suitable exercise in the open air daily , as well as complaining that the food was ina dequat e and insufficient. He also claimed that despite being in an open detention regime he had had no permanent access to the spaces made available by the detention authorities to detainees in an open regime.

18 . On 27 September 2011 the delegated judge allowed the applicant ’ s complaint in part, only as regards his lack of access to spaces made available to detainees in an open regime. It dismissed the applicant ’ s complaint concerning overcrowding , holding that six cubic metres were sufficient.

19 . The applicant appealed the judgment. During the appeal proceedings the applicant abandoned his request to have a witness heard on his behalf. The applicant ’ s appeal against this decision was dis missed as unfounded by the Botoş ani District Court.

II. RELEVANT DOMESTIC LAW

20 . Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006, and from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) on prison conditions, are given in the case of Iacov Stanciu v. Romania , ( no. 35972/05 , 24 July 2012 ).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

21 . The applicant complained about the cond itions of his detention in BotoÅŸ ani Prison. He ma inly complained of overcrowding, unsatisfactory sanitary conditions and poor quality of food . He relied on Article 3 of the Convention, which reads as follows:

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

22 . The Government contested that argument.

A. Admissibility

1. The parties ’ submissions

23 . The Government raised a preliminary objection of non ‑ exhaustion of domestic remedies. They submitted that the applicant had abandoned his complaint about the conditions of his detention in BotoÅŸ ani Prison made on the basis of Law no. 275/2006 , in spite of the fact that this remedy w as effective.

24 . The applicant disagreed.

2. The Court ’ s assessment

25 . The Court notes that the applicant ’ s complaint concerns the material conditions of his detention an d, in particular, overcrowding, poor sanitary facilities and quality of food . It also notes that the applicant lodged a complaint concerning his conditions of detention on the basis of Law no. 275/2006 . However, the part of the complaint concerning overcrowding was dismissed as unfounded . As regards the Government ’ s allegation that the applicant had abandoned this appeal , the Court observes that the applicant abandoned his bid to have a witness heard o n his behalf , and not his appeal, which was examined on the merits in court (see paragr aph 25) .

26 . T he Court notes that in recent judgments concerning similar complaints it has already found that a legal action based on Law no. 275/2006 could not have afforded the applicant immediate and effective redress for the applicant ’ s complaint (see Cucu v. Romania , no. 22362/06 , § § 73-74, 13 November 2012 ) .

27 . It therefore rejects the Government ’ s plea of non ‑ exhaustion of domestic remedies.

28 . Noting further that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds, the Court concludes that it must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

29 . The applicant reiterated that he had been held in inadequate conditions, that the cell had been overcrowded , and that the conditions had not been conducive to maintaining proper hygiene.

30 . The Government contended that the domestic authorities had taken all necessary measures to ensure adequate conditions of detention for the applicant.

2. The Court ’ s assessment

31 . 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 the execution of the measure 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 KudÅ‚a v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

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

33 . The focal point in the case at hand is the assessment by the Court of the living space afforded to the applicant in BotoÅŸ ani Prison.

34 . The Court notes that even at the occupancy rate put forward by the Government the applicant ’ s living space seems to have been less than four square metres, which falls short of the standards imposed by the case ‑ law (see Flamînzeanu v. Romania , no. 56664/08 , § 98 , 12 April 2011 and Radu Pop v. Romania , no. 14337/04 , § 96 , 17 July 2012 ).

35 . The Court further notes that other circumstances of the applicant ’ s detention, such as the standard of hygiene , are in dispute between the parties.

36 . However, there is no need for the Court to establish the truthfulness or otherwise of each and every allegation, since it considers that the overcrowding of the applicant ’ s cell give s it sufficient grounds to draw substantive conclusions on whether the conditions of the applicant ’ s detention amounted to treatment contrary to Article 3 of the Convention.

37 . In the light of the above, the Court considers that the conditions of the applicant ’ s detention have caused him suffering which exceeded the unavoidable level of suffering inherent in detention and which attained the threshold of degrading treatment proscribed by Article 3.

38 . There has accordin gly been a violation of Article 3 of the Convention in this respect.

II . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

39 . Lastly, the applicant raised several complaints under Article 6 § § 1, 2 and 3 of the Convention concerning the fairness of the criminal proceedings against him, his right to defence , and the presumption of innocence. However, 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 these complaints do not disclose any violation of the provision invoked. Therefore they must be rejected in accordance with Article 35 § 3 (a) of the Convention .

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

40 . 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

41 . The applicant claimed 5,963 euros (EUR) in compensation for pecuniary damage, representing the minimum salary for the period between 22 November 2009 and 22 November 2012, the f ee for obtaining a new driving licence , and medical fees . He also claimed EUR 20,000 in respect of non ‑ pecuniary damage.

42 . The Government submitted that no causal link could be discerned between the alleged violations and the pecuniary damage claimed. As regards the non-pecuniary damage , they maintained that the amount requested by the applicant was too high.

43 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 6 00 in compensation for non ‑ pecuniary damage.

B. Costs and expenses

44 . The applicant also claimed EUR 959.64 for costs and expenses incurred before the domestic courts and the Court.

45 . The Government contended that e xcept f o r the amount of 105.25 Romanian lei (RON) representing the costs incurred for correspondence with the Court, the costs claimed by the applicant had no link with the applicant ’ s conditions of detention and were not justified.

46 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the fact that the applicant had only submitted evidence in connection with the costs incurred for correspondence with the Court , the Court considers it rea sonable to award the sum of EUR 25 .

C. Default interest

47 . 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 the complaint concerning the conditions of detention admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 3 of the Convention on account of the conditions of detention in BotoÅŸ ani Prison ;

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, the following amounts , to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 600 ( six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 25 ( twenty-five euros), plus any tax that may be chargeable to the applicant , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 1 October 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Santiago Quesada Josep Casadevall Registrar President