THIRD SECTION

CASE OF ALEXANDRU MARIUS RADU v. ROMANIA

( Application no. 34022/05 )

JUDGMENT

STRASBOURG

21 July 2009

FINAL

21/10/2009

This judgment may be subject to editorial revision.

In the case of Alexandru Marius Radu v. Romania ,

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

Josep Casadevall , President, Corneliu Bîrsan , Boštjan M. Zupančič , Egbert Myjer , Ineta Ziemele , Luis López Guerra , Ann Power , judges, and Santiago Quesada , Section Registrar ,

Having deliberated in private on 30 June 2009 ,

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

PROCEDURE

1 . The case originated in an application (no. 34022/05) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Alexandru Mariu s Radu (“the applicant”), on 30 August 2005 .

2 . The Romanian Government ( “ the Government ” ) were r epresented by their Agent, Mr Răzvan-Horaţiu Radu .

3 . The applicant alleged that the authorities had failed to protect his physical integrity while he was detained in Jilava Penitentiary .

4 . The applicant and the Government each filed further written observations (Rule 59 § 1 of the Rules of Court ).

5 . On 7 April 2006 the President of the Third Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention ).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1974 . He is currently detained in PloieÅŸti Penitentiary.

7 . On 27 January 2005 the applicant was arrested for robbery with violence. He was first placed in pre-trial detention in the Bucharest police facility. O n 4 May 2005 he was sent to Bucharest- Jilava Penitentiary .

8 . During the criminal investigation, the applicant denied the charges, allegedly because other co-defendants had threatened to physically abuse him and his family should he confess to his crime. He allegedly unsuccessfully asked the authorities to grant him special protection.

9 . On 27 April 2005, the prosecutor ’ s office completed the criminal investigations against the applicant and the case was sent to Bucharest County C o urt. Before the c ourt the applicant confessed to his crime. From that moment on he was allegedly threatened with physical abuse by several co- detainees, acting on behalf of one of the applicant ’ s co-defendants in the criminal proceedings.

10 . By decision n o. 704/2005 of 23 August 2005 the administration of Jilava Penitentiary ordered that the applicant be placed in strict solitary confinement for ten days for proffering verbal insults against prison staff , on 13 August 2005, while he was in cell no. 510 . On 28 October 2005 the Bucharest District Court annulled decision n o. 704/2005 . The court fo u nd that the applicant had not commit ted any offence .

A. The i ncident of 9 September 2005 and subsequent proceedings

11 . On 9 September 2005 , around 11.15 p.m. , while he was detained in cell no. 315, the applicant was physically abused by N.M. and seven other co-detainees, allegedly relatives of his co-defendant .

12 . Following this assault , at 11.50 p.m. he was examined by Dr L . from the Jilava Pen itentiary ’ s medical centre. Dr L . noted in his report that the applicant had a n open wound on his scalp and sent him to Rahova Penitentiary Hospital for surgery . Dr. V. , from the Rahova Hospital for detainees , provided the applicant with medical care.

13 . On 10 September 2005 the applicant was sent back to Jilava Penitentiary. On 15 September 2005 the surgical stitches were extracted from his wound. On 22 Decem ber 2005 a doctor examined him and established a diagnosi s of recent cranial trauma, with scarring, and prescribed him medication.

14 . Shortly after this incident of 9 September 2005 , by d ecision n o. 783/2005 of 1 9 September 2005, the administration of Jilava Penitentiary placed the applicant in strict solitary confinement for ten days, for breach of disciplinary rules , namely for proffering insults and threats against a co-detainee . The decision mentioned that the applicant was still in cell no. 315.

15 . The incident report noted that late in the evening of 9 September 2005, at 11.15 p.m. , the applicant had insulted N.M. and had threatened him with a small knife. N.M. had subsequently knocked the a pplicant over so that he had fallen on his head , causing an open wound. He had been taken to the hospital immediately . As is stated in an official letter of 11 July 2006, addressed to the National Administration of Penitentiaries , the medical file and the administrative files of N.M. revealed that he had not suffer ed any injury during the incident of 9 September 2005.

16 . On an unspecified date a fter the incident, t he applicant was placed in cell no. 207. He shar ed this cell with fifty-five other inmates, for wh om thirty-seven beds were provided.

17 . On 21 September 2005 the National Administration of Penitentiaries rejected the applicant ’ s request to be transferred to another detention centre, on the ground that his “legal situation was not clarified yet”. The applicant was invited to apply for transfer once the criminal proceedings against him were completed.

1. The criminal complaint brought by the applicant against N.M.

18 . On 7 October 2005 the applicant filed a criminal complaint against N.M. for the injury that he had suffered on 9 September 2005.

19 . Following alleged threats from inmates and prison staff, the applicant dropped his complaint . Consequently, o n 6 December 2005, the Bucharest District Court decided to discontinue the crim inal proceedings against N.M.

20 . On 22 December 2005 the applicant ’ s written waiver declaring that he would not appeal against the decision of 6 December 2005 , but unsigned, was registered at the Bucharest District Court .

2. The administrative complaint against the disciplinary penalty imposed on the applicant

21 . On 21 September 2005 the applicant , while still in cell no. 315, complained about the disciplinary penalty imposed on him following the incident of 9 September.

22 . On 21 November 2005 the Bucharest District Court dismissed the applicant ’ s complaint. The court stated that the applicant, “ while drunk ( în stare de ebrietate ) ” had verbally offended N.M., as the latter and six other co-detainees had testifi ed before the Penitentiary administrative authorities. The court did not rely on the statement of the only witness called by the applicant because it had “not been corroborated by the other statements”. Finally, taking into consider ation the medical evidence adduced by the applicant, the court noted that N.M. had recognised that he had hit the applicant upon being provoked by the latter .

23 . The applicant appeal ed against the decision of 21 November 2005. While being examined by the Bucharest County Court, during the hearing of 27 January 2006 concern ing his appeal, he stated that he had been “ forced to withdraw his criminal complaint” against his aggressor.

24 . In a judgment of 27 January 2006, the Bucharest County Court dismissed the applicant ’ s appeal without giving any consideration to the medical evidence submitted by the applicant. The County Court explicitly recognised that the applicant had been injured and taken to hospital on the night of 9 September 2005, but stated that the applicant himself had committed a disciplinary breach by insulting and menacing N.M., so that “ his allegations could only stand for the determination of the extent of his involvement in the incident ”.

B. Other incident s involving the applicant during his detention in Bucharest- Jilava Penitentiary

25 . On 20 October 2005 and 24 November 2005 the National Administration of Penitentiaries again rejected the applicant ’ s requests to be transferred to another detention centre.

26 . On 12 December 2005 the National Administration of Penitentiaries rejected the applicant ’ s request for transfer on the ground that there were no places available elsewhere .

27 . On 8 February 2006 the app licant was re moved to cell no. 407 , and allegedly suffered several injuries as a result of ill- treatment by prison staff .

28 . The medical record from 8 February 2006 stated that the applicant was complaining of being assaulted , but that he refused medical care or clinical evaluation of his physical condition. It was also mentioned that he refused to give a written statement that he was not accepting medical care (“ Afirmativ agresiune . Deţinutul refuză să primească asistenţă medicală şi o evenuală evaluare clinică . Refuză să consemneze în fişa medicală refuzul şi să semneze în registrul de consultaţii ”) .

29 . Shortly after this incident, o n 13 February 2006, the applicant was punished for verbally insulting staff of Bucharest- Jilava Penitentiary , hitting one officer and destroying beds from his cell . He was given a penalty of six months ’ solitary confinement. Following a complaint by the applicant , on 8 June 2006 the Bucharest District Court annulled the decision of 13 February 2006 considering that the disciplinary penalty was too sev ere. The court stated that a less severe penalty of ten days ’ solitary confineme nt would be sufficient and imposed it on the applicant.

30 . On 17 February 2006 a psychiatrist examined the applicant and established that he was suffer ing from a personality disorder. He was prescribed antidepressants.

31 . On 13 M arch 2006 the prison administration informed the applicant that it would accede to his request for protection in order to avoid conflict with some det ainees. The measures taken consisted in being separate d from the other detainees during their transportation to the courts or during daily activities in the penitentiary .

32 . On an unspecified date, the applicant withdrew his complaint against prison staff concerning the incident of 8 February 2006.

C. Subsequent transfers of the applicant to other prisons

33 . On 22 June 2006 the applicant was transferred to Bucharest- Rahova Penitentiary, after being sentenced to imprisonment by a judgment of 4 May 2006 rendered by the Bucharest County Court. An appeal on point s of law lodged by the applicant was dismissed by the High Court of Cassation and Justice on 30 April 2007.

34 . On 6 September 2006, the administration of Rahova Penitentiary issued a report upon the applicant ’ s request stating that his conduct was satisfactory and that h e had had no disciplinary sanctions; that he showed respect for internal rules; that he had regular contact with his family, especially his wife, daughter and sister; and that he had good psychological stability and good social skills, being generally more spontaneous and sincere then tactful or discrete .

35 . The applicant was subsequently transferred to Mărgineni and Ploieşti Penitentiary.

II. RELE VANT DOMESTIC LAW AND PRACTICE

36 . The relevant provisions of the Criminal and Criminal Procedure Codes concerning prohibition of ill-treatment are set out in Pantea v. Romania , no. 33343/96, § § 154-156 , ECHR 2003 ‑ VI (extracts) .

37 . For the legislation on complaints against prison staff, see paragraphs 45-48 of the Vitan v. Romania judgment (no. 42084/03, 25 March 2008).

THE LAW

I . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

38 . The applicant complained that he had been physically abused during his detention in Bucharest- Jilava Penitentiary and that the national authorities had failed to protect him. He invoked, in substance, Article 3 of the Convention, which reads as follows:

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

A. Admissibility

39 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

40 . The Court reiterates the basic principles laid down in the case s of Pantea (cited above, §§ 189-190) and Georgescu v. Romania , no. 25230/03, § § 70-79 , 13 May 2008 . It will examine the present case in the light of those principles.

41 . The Court firstly notes that in his very first letter of 30 August 2005, namely before the first incident involving him, the applicant complained of being threatened by other detainees, who were allegedly concerned about the outcome of the criminal proceedings involving the applicant and others suspects , b ecause he had confessed to his crime.

42 . The Court notes that the conclusions of the medical report on 9 September 2005 clearly indicat e that the applicant suffered injuries . Moreover, i t is no t disputed by the Government that he was injured on 9 September 2005, during his detention in Bucharest- Jilava Penitentiary. However, the Government claim that the applicant ’ s injury was due to his aggressive behaviour towards his cellmates. Without expressly objecting that domestic remedies had not been exhausted , the Government also mention ed that the applicant had withdrawn his criminal complaint against N.M .

In addition, the Government mention ed that prison staff were aware of the existence of dis agreements between the applicant and other inmates, which had degenerated several times in to spontaneous conflicts , and that the applicant had requested to be protected by the prison authority .

43 . The Court observes that, even if there is little concrete in the facts which should have alerted the prison authorities to any danger before the incident of 9 September 2005, after this incident the authorities c ould reasonably have been expected to take concrete and prompt steps to ensur e th e protection of the applicant.

44 . The Government submitted that the prison staff had promptly taken all the necessary measures in order to protect the applicant, namely separating him from those inmates during some activities or removing him from one cell to another, on several occasions.

45 . However , the Court notes that it appears that for some time after being injured on 9 September 2005 and , at least , until 21 September 2005 (see paragraph 21 , above) , the applicant still remained in the vicinity of his ag g ressor , even in the same cell with him (see Pantea cited above, § 194 in finae ) .

Despite the fact that he repeatedly requested to be transferred to another detention centre on the ground that his physical integrity was in danger , t he national authorities at first rejected his requests, on the grounds that no places were available in other penitentiaries and that the criminal proceedings against him were in progress. It was only on 13 March 2006, namely six months after the violent incident involving the applicant, that the prison administration acceded to his request for protection and took steps to separate him from the detainees with whom he had disputes, while they were being transferred to the courts or during daily activities in the penitentiary.

Finally, on 22 June 2006, the authorities saw no obstacle to the transfer of the applicant to Bucharest- Rahova Penitentiary, after he had been sentenced to imprisonment by the judgment of 4 May 2006, rendered by the Bucharest County Court, and while his appeals were still pending.

The Court notes that , unlike his situation in Bucharest- Jilava Penitentiary, where disciplinary penalties were imposed on him on several occasions , even though the domestic courts subsequently annulled or mitigated those penalties , during his subsequent detention in Bucharest- Rahova Penitentiary the applicant receive d positi ve appraisal from prison staff.

46 . The Court also notes that instead of promptly taking measures for the applicant ’ s protection , the penitentiary administration , as a first step, punished him with strict solitary confinement for breach of disciplinary rules , accusing him of offences that were generally less important than th ose about which he was complaining .

47 . The Court points out that the Romanian authorities did not react to the applicant ’ s allegation before the Bucharest County Court, made during the hearing of 27 January 2006, that he had been forced to withdraw his criminal complaint against his aggressor (see paragraph 23, above) . Moreover the Court notes that, in spite of the fact that the Bucharest County Court, while deciding on the administrative complaint brought by the applicant against his disciplinary penalty, explicitly recognised that the applicant had been injured and take n to hospital on the night of 9 Septe mber 2005, it gave no consideration to this fact (see, mutatis mutandis , Biyan v. Turkey , no. 56363/00, § § 34-37 , 3 F ebruary 2005 ).

48 . The Court recognises that the injury suffered by the applicant on 9 September 2005 does not seem to have be en of a particularly serious nature and that there is no evidence of any further attacks on his physical integrity having taken place. It considers , nevertheless, that h aving regard to the vulnerable position of detained person s , national authorities should not wait until serious incidents occur before taking adequate measures of protection but o n the contrary, they should act promptly once they have been made aware of a real danger to an individual ’ s physical integrity.

The Court recalls that the mere feeling of stress of a detained person is not sufficient to reach the minimum level of severity in order to fall within the scope of Article 3 ( see I. T. v. Romania ( dec .), no. 40155/02, of 24 November 2005 ) . However, it observes that in the present case, unlike in the case I.T. cited above , where the applicant feared only a potential risk of lack of medical treatment needed for a serious disease , the applicant ’ s allegations of harassment from other prisoners concerned an actual risk and they were not properly investigated by the national authorities (see paragraph 47, above) .

T he Court considers that the hardship the applicant endured, in particular the constant mental anxiety caused by the threat of physical violence and the anticipation of such (see Rodić and Others v. Bosnia and Herzegovina , no. 22893/05, § 73 , 27 May 2008 ), must have exceeded the unavoidable level inherent in detention and finds that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention.

Finally, while recognising that it may prove difficult for prisoners to obtain evidence of ill-treatment (see mutatis mutandis Labita v. Italy [GC], no. 26772/95, § 25 , ECHR 2000 ‑ IV and even more so of mere acts of harassment by other detainees (see, mutatis mutandis , Rodić and Others cited above, §§ 64 and 69-73) , the Court finds a sufficient factual base in the present case to consider that there was a n established threat to the applicant ’ s physical integrity and that the existence of that threat had been brought to the attention of the authorities .

49 . Consequently , in the light of the above and on the basis of all the material placed before it , the Court finds that the prison authorities did not satisfactor il y fulfil their positive obligation to intervene in order to protect the applicant when they were aware of the fact that other detainees had ill-treated him ( see Pantea v. Romania , cited above, § 194). The applicant remained exposed to constant threat, which prevented him from maintaining his crimin al complaints against his a g gressor .

50 . Concerning the incident of 8 February 2006, the Court notes the lack of a medical record with respect to the applicant ’ s physical condition, allegedly because of his refusal to undergo a medical examination, although that refusal was not expressed in a written and unequivocal manner, but only attested by the prison doctor. Given these circumstances, the Court cannot consider established beyond a reasonable doubt that the applicant suffered il l-treatment on 8 February 2006.

51 . However, t he Court reiterates that the national authorities have a positive obligation to provide the persons placed under their custody with medical care and to ensure that data concerning the health condition of those persons have been accurately and promptly collected (see , mutatis mutandis, Iambor v. Romania (no. 1) , no. 64536/01, § § 1 73-174 , 24 June 2008 ) .

52 . Turning to the facts of the present case, the Court cannot but notice a certain contradiction in the medical record of 8 February 2006. On the one hand, the applicant had gone to see the prison doctor in connection with the alleged assault, whilst, on the other, he is said to have refused any medical evaluation or medical care . The Court notes that it was mentioned by the prison doctor that the applicant refused to state in writing that he was not accepting medical care, without ascertaining the reasons for his refusal , or indicating if external signs of violence like blood or visible injuries were detectable or not . Therefore, having regard to the circumstances of the case, the Court is not satisfied that diligence was manifested by the national authorities with regard to their positive obligations under Article 3 of the Convention.

Accordingly, having also regard to the conclusion in paragraph 47 above , there has been a breach of Article 3 of the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

53 . 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

54 . The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.

55 . The Government considered that there was no causal link between the alleged violations and the pecuniary damage claimed . They also contended that the claims for non-pecuniary damage were exorbitant.

56 . T he 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, i t awards the applicant , on an equitable basis , EUR 6 ,000 in respect of non-pecuniary damage.

B. Costs and expenses

57 . The applicant also claimed EUR 10 ,000 for costs and expenses incurred before the domestic courts. He did not send any document to support his request .

58 . The Government considered that the claims were unjustified and exorbitant.

59 . The Court reiterates that under Article 41 of the Convention it will reimburse only the costs and expenses that are shown to have been actually and necessarily incurred and are reasonable as to quantum (see Arvelakis v. Greece , no. 41354/98, § 34, 12 April 2001). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.

60 . In the instant case, the Court observes that the applicant has not substantiated his claim in any way, as he has neither quantified his costs nor submitted any supporting documents. Accordingly, the Court cannot award any sum under this head (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004-XI).

C. Default interest

61 . The Court considers it appropriate that the default interest 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 application admissible ;

2 . Holds that there has been a violation of Article 3 of the Convention ;

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 , EUR 6 ,000 ( six thousand euros ) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate appli cable at the date of settlement , plus any tax that may be chargeable ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall b e payable on the above amount 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 21 July 2009 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Josep Casadevall Registrar President