Communicated on 12 April 2016

FOURTH SECTION

Application s no s . 52909/15 and 56503/15 Eugen Catalin BOKOR against Portugal and Mirel Catalin DRAGAN against Portugal lodged on 20 November 2015 and 15 February 2016 respectively

STATEMENT OF FACTS

The applicant in the first case (no. 52909/15), Mr Eugen Catalin Bokor , is a Romanian national who was born in 1972 and is detained in Alcoentre .

The applicant in the second case (no. 56503 /15), Mr Mirel Catalin Dragan, is a Romanian national who was born in 1987 and is detained in Lisbon.

A. The circumstances of the case s

The facts of the case s , as submitted by the applicant s , may be summarised as follows.

1. Application no. 52909/15

On 9 March 2012 the applicant was arrested in Portugal. He was detained in the Lisbon Central Prison ( Estabelecimento Prisional de Lisboa ) from 15 March 2012 to 2 July 2015.

The applicant states that during this period he was initially held for seven days in a room of approximately 2 x 3.85 metres (7.7 sq m) where he was provided with a mouldy mattress; the cell had no shower or a proper toilet (just a hole in the floor).

He alleges that he was later held in a cell of the same dimensions, together with two other inmates; the cell had three beds, one of which was made of cement and the other two were metal. The cell had bedbugs as well as other insects and mice. He states that the toilet was in the cell, without any separation, that it was often blocked and lacked a toilet seat. The cell did not have adequate heating and the window did not close properly, which caused mould and humidity in the cell.

On 13 November 2014 the applicant was held in solitary confinement for twelve days, following the discovery of a knife in his cell. He alleges that the solitary cell was unsuitable for use, as it was flooded and had no natural light; during this period he was not allowed to see a doctor or to receive correspondence.

The applicant states that the food in the prison was poor and that he was not provided with the special diet food prescribed by the doctor.

The applicant also alleges that a communal shower room was located on another floor; only three of the showers had warm water and had to be used in a very short period of time by three hundred people. Prison officers were often on strike, which meant that detainees could not be taken to the doctor.

On 2 July 2015 the applicant was transferred to Alcoentre Prison ( Estabelecimento Prisional de Alcoentre ).

2. Application no. 56503/15

On 6 December 2013 the applicant was arrested by a unit of the National Republican Guard ( Guarda Nacional Republicana ) on charges of criminal association and theft.

On 8 December 2013 the Lisbon Criminal Investigation Court ( Tribunal de Instru ção Criminal de Lisboa ) remanded the applicant in custody. He has since been detained in the Lisbon Judicial Police Prison ( Estabelecimento Prisional Regional instalado junto da Pol í cia Judiciária de Lisboa ).

The applicant states that he was held in different cells, which he describes as follows : from 8 December to 14 December 2013 he was held in an overcrowded cell of 12 sq m (with seven other inmates): the cell had a shower, a sink and a toilet; from 14 December 2013 to March 2014 he was held in a cell of 12.5 sq m intended for four inmates: the cell had a shower, a sink and a toilet; from March to July 2014 he was held in a cell of 6.5 sq m intended for two inmates: the cell had a shower, a sink and a toilet which were separated from the beds by a wall of 60 x 30 cm; from July 2014 to July 2015 he was held in a cell of 6.5 sq m with a shower, a sink and a toilet; from July 2015 to December 2015 he was held in a cell of 6.5 sq m intended for two inmates: the cell had a shower, a sink and a toilet which were separated from the beds by a wall of 60 x 30 cm; since December 2015 he has been held in a cell of 12.5 sq. m for four people: the cell has a shower, a sink and a toilet which is separated from the beds by a wall of 60 x 30 cm.

The applicant alleges that the cells had rats, lacked heating and had insufficient ventilation. He also alleges that there was no privacy inside the prison because the showers had no doors.

B . Relevant Council of Europe materials

Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, in its relevant parts, read as follows:

“18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.

18.2 In all building where prisoners are required to live, work or congregate:

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;

b . artificial light shall satisfy recognised technical standards; and

c . there shall be an alarm system that enables prisoners to contact the staff without delay.

18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.

18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.

18.5 Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.

18.6 Accommodation shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other.

...

19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.

...

21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.

22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.

22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.

...

39. Prison authorities shall safeguard the health of all prisoners in their care.”

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) published on 15 December 2015 a report “Living space per prisoner in prison establishments: CPT standards”. The relevant parts of the report read as follows:

“ Minimum standards for personal living space in prison establishments: general aspects

5. During its monitoring activities, the CPT has frequently encountered situations of prison overcrowding. The consequences of overcrowding have been highlighted repeatedly by the CPT in its visit reports: cramped and unhygienic accommodation; constant lack of privacy; reduced out of cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. The CPT considers that the question of minimum living space per inmate is intrinsically linked to the commitment of every Council of Europe member state to respect the dignity of persons sent to prison.

6. Minimum standards for personal living space are not as straightforward a matter as they might appear at first sight. To begin with, the ‘ minimum living space ’ standards used by the CPT differ according to the type of establishment . A police cell for short-term detention of several hours up to a few days does certainly not have to meet the same size standards as a patients ’ room in a psychiatric institutions; and a prison cell, whether for remand or sentenced prisoners, is again an entirely different matter.

7. Secondly, a differentiation should be made according to the intended occupancy level of the accommodation in question (i.e. whether it is a single cell or a cell designed for multiple occupancy ). The term ‘ multiple occupancy ’ also needs to be defined. A double cell is arguably different from a cell designed for holding for instance six or more inmates. As regards large-scale dormitories, accommodating dozens and sometimes even up to one hundred inmates, the CPT has fundamental objections which are not only linked to the question of living space per inmate, but to the concept as such.

...

8. Thirdly, the CPT has also taken into consideration the regime offered to prisoners when assessing cell sizes in light of its standards (see paragraph 12 below).

The CPT ’ s minimum standard for personal living space

9. The CPT developed in the 1990s a basic ‘ rule of thumb ’ standard for the minimum amount of living space that a prisoner should be afforded in a cell:

6m 2 of living space for a single-occupancy cell.

4m 2 of living space per prisoner in a multiple-occupancy cell

10. As the CPT has made clear in recent years, the minimum standard of living space should exclude the sanitary facilities within a cell. Consequently, a single-occupancy cell should measure 6m 2 plus the space required for a sanitary annexe (usually 1m 2 to 2m 2 ). Equally, the space taken up by the sanitary annexe should be excluded from the calculation of 4m 2 person in multiple-occupancy cells. Further, in any cell accommodating more than one prisoner, the sanitary annexe should be fully partitioned.

11. Additionally, the CPT considers that any cell used for prisoner accommodation should measure at least 2m between the walls of the cell and 2.5m between the floor and the ceiling.

Promoting higher standards

12 . ... The CPT has consistently stated that single-occupancy cells of less than 6m 2 (excluding the sanitary annexe) should be either withdrawn from service or enlarged in order to provide adequate living space for one inmate.

...

16. For these reasons, the CPT has decided to promote a desirable standard regarding multiple-occupancy cells of up to four inmates by adding 4m 2 per additional inmate to the minimum living space of 6m 2 of living space for a single-occupancy cell:

2 prisoners: at least 10m 2 (6m 2 + 4m 2 ) of living space + sanitary annexe

3 prisoners: at least 14m 2 (6m 2 + 8m 2 ) of living space + sanitary annexe

4 prisoners: at least 18m 2 (6m 2 + 12m 2 ) of living space + sanitary annexe

17. In other words, it would be desirable for a cell of 8 to 9m 2 to hold no more than one prisoner, and a cell of 12m2 no more than two prisoners.

18. The CPT encourages all Council of Europe member states to apply these higher standards, in particular when constructing new prisons.

...

Conclusion

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25. Conditions where inmates are left with less than 4m2 per person in multiple-occupancy cells, or single cells measuring less than 6m2 (both excluding a sanitary annexe) have consistently been criticised by the CPT, and authorities have regularly been called upon to enlarge (or withdraw from service) single cells or reduce the number of inmates in multiple-occupancy cells. The CPT expects that these minimum living space standards will be systematically applied in all prison establishments in Council of Europe member states, and hopes that more and more countries will strive to meet the CPT ’ s ‘ desirable ’ standards for multiple-occupancy cells.”

C . Relevant international reports

A delegation of the CPT visited Portugal from 7 to 16 February 2012. In its ensuing report, published on 24 April 2013, the CPT noted the following in relation to the Lisbon Judicial Police Prison and the Lisbon Central Prison:

“As regard Lisbon Judicial Police Prison, the cells were generally suitably equipped, had access to natural light and adequate artificial lighting. However, many of the cells were overcrowded (four persons in 11m 2 and two persons in 7m 2 ) and showed signs of wear and tear. Prisoners accommodated in multi-occupancy cells should each have at least 4m 2 of living space and cells of 7m 2 should not accommodate more than one person. The CPT recommends that the Portuguese authorities take the necessary steps to bring cell occupancy rates in line with the above requirements and to maintain cells in a proper state of repair.

Lisbon Central Prison was in a state of dilapidation, made worse by the chronic overcrowding in the establishment. Most of the standard 9m 2 cells, initially designed for single occupancy, were accommodating two or three prisoners. The conditions were particularly poor in the basement areas of the prison; for example, the cells in the admission unit in the basement of D wing had damp walls, with flaking paint and crumbling plaster, and were cold (13 o C); many of the windows were missing one or more panes of glass. The mattresses were generally thin, worn and dirty. The floor-level toilets in many of these cells emitted a foul stench and inmates complained about rats coming out of them. The situation in the basement areas of B, C, D and E wings of the prison could be considered as akin to inhuman and degrading treatment.

Material conditions in other parts of the prison were not much better, with cells generally in a state of disrepair. The toilets in the cells were not partitioned, which was particularly degrading for those inmates sharing a cell with one or two other persons. Many cells throughout the prison did not possess any artificial lighting which plunged the cells into total darkness after sundown (circa. 6.30 p.m.), and in a number of cells inmates had manufactured their own makeshift lighting devices. Further, in general, the call bells did not function. Only the basement unit of F wing, which had been completely renovated in 1999, offered decent material conditions.”

A delegation of the CPT visited Portugal from 13 to 17 May 2013. In its ensuing report, published on 11 February 2015, the CPT noted the following in relation to the Lisbon Central Prison:

“20. As regards material conditions, the delegation noted that a number of the inmates had new or clean bedclothes and mattresses. Further, following the CPT ’ s recommendation in the report on the 2012 visit, a maximum of two prisoners were now being held in the standard 9m 2 cells in the establishment ’ s main building. According to information gathered by the delegation, this last measure was only implemented a few days before the CPT ’ s visit. The Committee welcomes these improvements and trusts that they will be maintained.

However, the mattresses in certain wings – in particular in the basement of C wing – were dirty, very thin and falling apart. Moreover, the material conditions in general had not improved since 2012 visit. The establishment continued to be in an advanced state of dilapidation. In different wings, the delegation found cells with broken windows and a foul odour emanating from the toilets. Further, inmates stated that their cells were particularly cold during winter months due to the structural deficiencies of the building (broken windows, no heating system).

21. In their response to the 2012 report, the Portuguese authorities indicated that reviews were regularly carried out in the establishment to identify deficiencies and recently the most urgent ones, including changing light bulbs. However, many cells in the prison continued to be deprived of any artificial lighting, which plunged the cells into total darkness after sundown and left them gloomy on cloudy days. As an illustration, the delegation visited a cell where the prisoner used his television to illuminate his cell at night. In a number of other cells, inmates had manufactured their own makeshift lighting devices to replace the missing lamp socket. All cells should be provided with safe, functioning artificial lighting.

Further, the delegation again noted that toilets in multi-occupancy cells were still no partitioned. The CPT considers that the benefits of greater privacy and improved hygiene offered by a partition outweigh any reduction in the space within the cell.

Material conditions remain especially poor in the basement areas of B, C, D and E Wings where cells were damp with crumbling plaster. Inmates held in these cells indicated the presence of rats. In sum, the conditions have not improved in these areas and could be considered as amounting to inhuman and degrading treatment. These cells should not be used until they have been properly refurbished.

22 . ... Therefore, the CPT reiterates its recommendation that vigorous action be undertaken to renovate the different wings, starting with the basement units mentioned above. In this context, priority should be given to repairing broken windows, providing artificial lighting in every cell as well as fully partitioning the toilets in all the cells used by more than one person.”

COMPLAINTS

The applicants complain that the conditions of their detention in the Lisbon Central Prison and in the Lisbon Judicial Police Prison were inhuman and amounted to a violation of Article 3 of the Convention. In particular, they complain of overcrowding, poor sanitary and living conditions, and insufficient ventilation and heating.

Additionally, Mr Bokor further alleges that he did not have access to a doctor while he was in solitary confinement.

QUESTIONS TO THE PARTIES

1. a) Is there a domestic remedy under Portuguese law the applicants could have used to complain about the conditions of detention (including overcrowding, sanitary conditions, temperature in the cells, lack of adequate food and medical treatment)? If yes, which?

b) Is there a preventive remedy capable of putting an end to an Article 3 violation in cases of conditions of detention, such as, for example, the immediate transfer of the prisoner to another facility (see Torreggiani and Others v. Italy , nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, §§ 54-55 and §§ 96-97, 8 January 2013)?

c) Is there a compensatory remedy allowing claimants to recover damages when their allegations of inhuman or degrading conditions of detention are proved (see Torreggiani and Others v. Italy , cited above, §§ 96-97, and Varga and Others v. Hungary , nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13 , § 109, 10 March 2015 )?

The Government are invited to submit legislation and relevant case-law.

2. Has there been a violation of Article 3 of the Convention? In particular, were the applicants held in inhuman and degrading conditions of detention in the Lisbon Central Prison and in the Lisbon Judicial Police Prison?

3. The Government are requested to submit information and documents on the conditions of the applicants ’ detention in the Lisbon Central Prison and in the Lisbon Judicial Police Prison. In particular, in respect of each applicant and each cell in which they were held the Government are requested to comment on the following points:

(a) Indicate the cell number and the dates of the applicant ’ s stay.

(b) What was the floor area of the cell (in square metres)?

(c) How many beds were available in the cell at the time of the applicant ’ s stay? Indicate the quality of the beds.

(d) How many detainees were being held in the cell at the time the applicants were there? Indicate the exact number of detainees, not the average.

(e) Was the cell equipped with a functioning ventilation and heating system at the time the applicants were there?

(f) What were the sanitary conditions in respect of the cells in which the applicants were held?

(g) Did the applicant ’ s cell have access to natural light?

(h) Indicate the duration of the out-of-cell time available to him per day and the area available for this purpose.

Where applicable, the Government are requested to provide the above information also as regards the period following the lodging of the applications.

4. With regard to Mr Bokor , was the applicant given access to a doctor when needed?