Communicated on 9 March 2015

THIRD SECTION

Application no. 261/14 Ahmed Fadl Allah FADI FAWZI TAHA against Romania lodged on 18 December 2013

STATEMENT OF FACTS

The applicant, Mr Ahmed Fadl Allah Fadi Fawzi Taha , is an Egyptian national who was born in 1977 and is currently detained in Jilava Prison.

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

The applicant was arrested in the night of 13/14 October 2010 on suspicions of dealing in drugs. He remained imprisoned and is currently serving his prison sentence following the criminal conviction for those crimes by the Romanian courts.

A. The circumstances of the case

1. The conditions of detention

The applicant was first placed in Bucharest Police detention facilities no. 15. Subsequently, he was transferred to Rahova Prison (on 12 November 2010), then Giurgiu Prison and finally to Jilava Prison where he is currently held. Within these prisons, he was moved on several occasions from one cell to the other, sometimes with other foreigners and sometimes with only Romanian inmates.

He described the overall conditions of his detention in all prisons as being precarious: he lived in overcrowded and dirty cells, with no room to store the personal belongings and infested with bedbugs; the food was poor and the drinking water was dirty and infested with worms. He was not afforded any possibility to observe his Muslim faith, either by praying or by receiving adequate food. Moreover, in retaliation for his repeated complaints about the conditions in prison, he was subject to repeated transfers, either between prisons or to different cells where inmates were less accommodating to foreigners or Muslims. He was beaten up by inmates on three occasions during his detention.

In the police detention facility he was placed in a cell measuring 8 sq. m provided with 8 beds. The cell was in the basement and the only window was facing the road, thus bringing dust and exhaust fumes into the room and offering a view of car tires and pedestrians ’ feet. The toilet was in the room facing the beds, with no separation from the living space.

In Rahova Prison he initially shared an 8 sq. m cell with eleven other inmates. The cell was too small for its occupants and the only place to eat was in their beds. There was no space for practicing religious activity. He had to bribe the guards in order to make sure that his food respected the Muslim requirements. He was beaten up by cellmates because of his alleged collaboration with the prison administration.

In Giurgiu Prison he shared a small cell with five other inmates; the toilets were separated from the cell. He alleged that the heating system did not work properly and that although the food respected the requirements of Muslim faith, it was of poor quality and lacked proteins and fruits.

Because of the precarious conditions his health deteriorated. In particular, in June 2011 he lost his contact lenses in Rahova Prison and was kept without eyeglasses until December 2012. Meanwhile his eyesight deteriorated significantly from -4.5 diopters to -8.5 diopters . From May 2011 to 21 March 2012 the applicant made ten requests with the prison administration to obtain contact lenses or correction glasses. He got kidney stones because of the poor quality of water. He lost almost all his teeth and because he had no money the necessary dental intervention was postponed. He developed respiratory troubles and was diagnosed with asthma because the inmates were cooking, drying clothes and smoking in the cells which rendered the air unbreathable. He got skin infections because of the bedbugs.

During his detention, the applicant was moved from the closed detention regime to the semi-opened regime.

2. Violence from other inmates

The applicant described several episodes when he was beaten up by his inmates. He explained that after each complaint he lodged with the authorities, the prison administrators would come to the cell and, on that occasion, confiscate all illegal merchandise (such as mobile phones or drugs) from the other inmates. He would then be beaten up by the inmates in retaliation. Such episodes occurred in January and February 2011 in Rahova Prison; on the latter occasion he was sent to the hospital because one of his contact lenses was broken during the attack thus injuring his eye. He described two more episodes of violence against him in Jilava Prison: supposedly in retaliation for his repeated complains , he had been moved from a room that he had shared with Muslims to a room occupied by Romanian prisoners who beat him up and broke his jaw which caused him to lose a tooth.

3. The medical care

The applicant provided excerpts from his prison medical file.

On 18 October 2010 his dentition was examined and recorded in the medical file; it appears that at that time he was missing two of his upper teeth and four of his lower teeth, while additionally seven upper teeth and one lower teeth were badly damaged.

On 19 October 2010 it was recorded that his medical condition was generally good. An inscription in capital letters followed by multiple exclamation points warned that he was following the Muslim food regime.

From 30 November 2010 to 9 December 2010 he was treated in the Bucharest Prison hospital for palpitations caused by stress. He was released with dietary recommendations and medical treatment.

On 14 January 2011 the applicant ’ s eye-sight was checked and on 19 January 2011 he made a handwritten note on the medical file attesting that he had received the prescription for eye glasses.

On 7 July 2011 his high myopia (-7.50 diopters for each eye) was recorded and the applicant obtained the doctor ’ s agreement to receive new contact lenses.

On 24 June 2012 he was again recorded with high myopia.

From 8 June 2012 to 20 June 2012 the applicant was treated in a prison hospital for skin infection.

On 10 October 2013 he was examined following an aggression. The subsequent X-ray investigation, carried out the next day, did not reveal any bone fractures.

On 18 July 2013 he received a comprehensive dental examination; it was recorded that the applicant had no money to support the cost of the prosthesis and that he requested help from the penitentiary system. The examination and conclusions were repeated on 2 August 2013.

In the first half of 2014 it was recorded that he suffered from asthma.

4. The complaints

The applicant complained on numerous occasions to the judge responsible with the execution of sentences (“the post-sentencing judge”) about the conditions of detention and the lack of medical care.

On 28 January 2014 the post-sentencing judge attached to the Jilava Prison observed that the applicant was held in a cell which measured 51.09 sq. m and had 36 beds, of which 35 were occupied at that time. The judge considered that the overcrowding represented a general problem of the penitentiary system and it belonged to the legislative and the executive powers to resolve the matter, not to the courts. The judge further noted that the applicant received adequate food, water, and medical treatment. Consequently, he dismissed the complaints.

On 16 April 2014 the above decision was quashed by the Bucharest District Court which considered that the applicant ’ s rights had been breached in so far as he had not been afforded 4 sq. m of living space in the cell.

On 19 May 2014 the post-sentencing judge attached to Jilava Prison dismissed as unfounded a motion whereby the applicant complained that he did not receive Muslim food and could not pray and that he got kidney problems because of the poor quality of water. The objection lodged by the applicant against this decision was dismissed by the Bucharest District Court on 6 August 2014.

On 2 June 2014 the Jilava Prison post-sentencing judge dismissed a new complaint lodged by the applicant about the conditions of his detention. In particular, the applicant complained that upon his request to be moved with other Muslim detainees (in order to allow him the possibility to pray) , he was placed with non-smoking Muslims, despite the fact that he had been a smoker for the past 20 years. The judge reiterated that the applicable laws and regulations only allowed smoking during outdoor exercise and therefore dismissed as unlawful the applicant ’ s request. The applicant also complained that he had been beaten up by a co-detainee. The judge noted that the incident had been reported to the prison administration which interviewed the applicant and the co-detainee, sought a medical investigation and then forwarded the report to the prosecutor. Based on these elements, the judged concluded that the Prison Administration had acted diligently in the matter. Lastly, the applicant complained that he did not receive adequate dental care in prison. The judge examined in detail all the interventions to the applicant ’ s teeth during detention and concluded that the treatment had been adequate.

The applicant appealed against the judge ’ s decision. On 2 July 2014 the Bucharest District Court dismissed as unfounded his objections.

On 5 August 2014 the Giurgiu Prison post-sentencing judge dismissed a new complaint lodged by the applicant concerning the alleged lack of eye care. The judge noted that in the meantime the applicant had been transferred to Jilava Prison which removed the case from the Giurgiu Prison judge ’ s jurisdiction.

B. Relevant law

The relevant provisions of Law no. 275/2006 on the execution of sentences (“the Execution of Sentences Act 2006”) are quoted in Iacov Stanciu v. Romania, no. 35972/05, § 116, 24 July 2012. In addition, Article 40 § 1 of the Act provides that neither freedom of conscience and opinion nor freedom of religion may be restricted.

On 1 February 2014 the 2006 Act was replaced by a new Law no. 254/2013 which guarantees the detainees ’ freedom of religion in similar terms as to the 2006 Act (Article 58 of the new Law).

The Recommendation of the Committee of Ministers to member states on the European Prison Rules ( Rec( 2006)2) (“the European Prison Rules”) is quoted in Jakóbski v. Poland, no. 18429/06, § 26, 7 December 2010 and in Vartic v. Romania (no. 2) , no. 14150/08 , § 28, 17 December 2013 . Rule 29.2 provides as follows:

“The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.”

COMPLAINTS

The applicant complains under Article 3 of the Convention about the conditions of his detention. In particular, he points out that the space in the cells was very limited; that the food was inadequate; and that he could not practice his religion or pray. Furthermore, he was separated from the other Muslims as a punishment for his repeated complaints about the poor conditions in detention. In his correspondence with the Court, he further complained that the medical care was inadequate for all the problems he developed in detention and that the post-sentencing judge reinterpreted or otherwise ignored his relevant complaints.

Under Article 5 of the Convention he complains that he was beaten up in detention and that although the incidents were recorded in his prison file, he does not dare ask for a copy, for fear of retaliation.

Under Article 9 of the Convention the applicant complains that there is no place for him to pray and claims that every time he complains about it, the prison administration thre atens him.

QUESTIONS TO THE PARTIES

1. Have the conditions of the applicant ’ s detention been in breach of the requirements of Article 3 of the Convention?

2. Has the applicant been subjected to inhuman or degrading treatment in detention by the other detainees, in breach of Article 3 of the Convention?

3. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

4. Has there been a violation of the applicant ’ s freedom of religion in detention, contrary to Article 9 of the Convention?

The Government are invited to provide information on the following matters:

– the conditions of the applicant ’ s detention, in particular concerning (1) the occupancy of the cells where the applicant was held; (2) the hygiene; (3) the quality of food and water; (4) the possibility to profess his religion; (5) the medical care received in detention (including dental care and eye care);

- the criminal investigations into the allegations of ill-treatment in detention made by the applicant.