Communicated on 24 June 2014

THIRD SECTION

Application no. 65980/13 Laurentiu Eduard NENCIU against Romania lodged on 4 October 2013

STATEMENT OF FACTS

The applicant, Mr Laurentiu Eduard Nenciu , is a Romanian national, who was born in 1966 and is currently detained in Giurgiu Prison .

A. The circumstances of the case

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

On 24 June 1999 the C ă l ă ra ş i County Court convicted the applicant of breaking and entering, rape and murder and sentenced him to twenty five years ’ imprisonment. In application of Article 71 of the Criminal Code, his right to vote and to be elected was withdrawn during detention.

The decision became final on 25 February 2000 when the Supreme Court of Justice dismissed the appeal in cassation lodged by the applicant.

The applicant is currently serving his prison sentence in Giurgiu Prison. He describes as follows the conditions of his detention:

- there is no water during summer days;

- he is placed with smokers (in the court-room and for few days during detention) although he does not smoke;

- the windows are covered with bars and thick galvanised wire which renders the ventilation of the cell impossible;

- he is transported to court hearings in small dirty vans, with no ventilation or natural light;

- starting from 2009 and until present he is held with five other inmates in a 17.65 sq. m cell infested with bugs.

The applicant complained repeatedly to the post-sentencing judge (Law no. 275/2006 on the execution of sentences; “Law no. 275/2006”) about the conditions of his detention.

By two decisions of 29 August and 21 November 2013 the post ‑ sentencing judge for Giurgiu Prison noted that the applicant was no longer held with smokers; as for the overcrowding, the judge observed that because of the large number of inmates held in that Prison, it was impossible to ensure more personal space for the applicant. He also concluded that in so far as the inmates were responsible for cleaning their cell, the presence of bugs was not the authorities ’ fault, but their own. The applicant appealed against these two decisions and on 31 January 2014 the Giurgiu District Court ordered the Giurgiu Prison administration to ensure the applicant 4 sq. m of personal space, as provided by law.

The applicant also complained with the post-sentencing judge for Slobozia Prison that while he was held in the latter prison, in March-May 2013, he was again placed in cells with smokers. On 7 October 2013 the post-sentencing judge dismissed his request for being lodged outside the ten-day time-limit imposed by Law no. 275/2006. The decision was upheld by the Slobozia District Court on 10 March 2014.

Ruling on a similar complaint lodged by the applicant about his stay in Rahova Prison in a cell with smokers from 8 to 11 March 2013, the post ‑ sentencing judge for this Prison decided, on 19 March 2013, that no measure could be imposed on Rahova Prison as the applicant was no longer there. He also noted that the applicant could lodge a separate claim for compensation with the civil courts.

B. Relevant domestic law and practice

The relevant provisions of the Criminal Code providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows:

Article 64 – Additional penalties

“Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty:

(a) the right to vote and to be elected to bodies of a public authority or to public elective office; ...”

Article 71 – Secondary penalty

“The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64.

(2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ... ”

In its decision of 5 November 2007 (following an appeal in the interest of the law) which became mandatory on the date of its publication in the Official Gazette on 18 July 2008, the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention, and thus assess in each case the necessity of the withdrawal of the right to vote.

COMPLAINTS

The applicant complains under Article 3 of the Convention about the overall conditions of his detention.

He also complains, under Article 3 of Protocol No. 1 to the Convention about his automatic disqualification from exercising his right to vote.

QUESTIONS TO THE PARTIES

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

The Government are invited to provide information on the material conditions of detention, as well as concerning smoking in the cells where the applicant was held.

2. Has there been a breach of the applicant ’ s right under Article 3 of Protocol No. 1 to the Convention on account of the withdrawal of his right to vote during the time he was serving his prison sentence ( Cucu v. Romania , no. 22362/06 , § 111 , 13 November 2012 )?

The Government are invited to provide information on the possibilities opened to the applicant to reinstate his name on the electoral roll, in particular after the adoption of the decision of 5 November 2007 by the High Court of Cassation and Justice, or after the entry into force of the new Criminal Code.