THIRD SECTION

Application no. 46546/12 Gabi Ainald MIHÄ‚ILESCU

against Romania lodged on 12 July 2012

STATEMENT OF FACTS

The applicant, Mr Gabi Ainald Mihăilescu, is a Romanian national, who was born in 1971. He is currently detained in Bacău Prison.

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

Between July 2004 and March 2007 the applicant was detained pending trial on charges of procuring. Subsequently, he was sentenced to ten years ’ imprisonment.

On 8 February 2012 the applicant was detained for the second time pending trial on charges of human trafficking and he was placed in the Bacău Police Department ’ s Arrest ( Centrul de Reţinere şi Arestare Preventivă al Inspectoratului de Poliţie Judeţeană Bacău ). On 6 March 2012 he was transferred to Bacău Prison.

On 19 March 2012 the applicant asked the Bacău Prison warden to place him in an individual cell because he had received several death threats and he feared for his life. There is no evidence in the file that his request was allowed by the authorities.

A. Criminal proceedings lodged by the applicant

On 24 April 2012 the applicant brought criminal proceedings against some of the staff members and the medical personnel of the Bacău Police Department ’ s Arrest arguing that some of them did not provide him with quality medical care and failed to correctly fulfil their professional duties. In addition, he claimed that a nurse was examining and treating the detainees although the doctor stated in the medical records that he was carrying out those duties himself. Lastly, he claimed that on 20 February 2012 he was hit and threatened by S.B., one of the Bacău Police Department ’ s officers, which resulted in him losing his eye sight.

By a decision of 28 June 2012 the Bacău Prosecutor ’ s Office discontinued the criminal proceedings on the ground that no unlawful act had been committed. It held that according to the available documents and testimonial evidence the Bacău Police Department ’ s Arrest doctor and the other medical and regular staff were constantly involved in examining and appropriately treating the detainees. In addition, on 22 February 2012 the applicant was examined at the Ophthalmology Unit of the Bacău County Hospital by a specialist doctor. According to the medical report produced the same day the applicant did not suffer any recent trauma in the eye region, but he was suffering from severe eye sight problems which made it unlikely that even in the case of surgery his eye sight would be restored. There is no evidence in the file that the applicant appealed against the decision before the domestic courts.

On an unspecified date the applicant brought criminal proceedings against several State agents, including police officer S.B., claiming that on 20 February 2012 he had lost his eye sight after he was verbally abused and hit on the head.

By a decision of 12 September 2012 the Public Prosecutor ’ s Office attached to the Court of Cassation discontinued the criminal proceedings. It held that according to the medical reports available to the file the applicant ’ s condition was not the result of a recent or even an old trauma, but of a medical condition that evolved over time and could not be treated anymore either surgically or medically. There is no evidence in the file that the applicant appealed against the decision.

B. Proceedings lodged by the ap plicant on the basis of Law no. 275/2006

On 22 February 2012 the applicant complained before the judge charged with the execution of prison sentences that the Bacău Police Department ’ s Arrest ’ s authorities did not allow him to receive a TV.

By an interlocutory judgment of 5 March 2012 the judge dismissed his complaint on the ground that the detention facilities of the Bacău Police Department ’ s Arrest were not fitted with the electric sockets required to power an electric TV. Consequently the applicant was recommended to get a battery powered one.

On 13 and 16 October 2012, respectively, the applicant complained before the judge charged with the execution of prison sentences that the Bacău Prison authorities refused to allow him to receive a chocolate from his wife and that a person from Bacău Prison forwarded several medical documents from his prison file to the Bacău Police Department without his consent.

On 31 October 2012 the applicant further complained that his right to life and information was breached because the Bacău Prison authorities cut the power after 11 p.m. although Law no. 275/2006 provided that a TV signal should be allowed as long as a national program was broadcasted.

On 1 November 2012 the applicant complained before the same authority that his right to correspondence had been breached in so far as the Bacău Prison authorities retained some summonses issued on his name and a judgment delivered by the domestic courts in respect to criminal proceedings opened against him.

By an interlocutory judgment of 1 November 2012 the judge dismissed the applicant ’ s actions of 13 and 16 October 2012. The judge held that according to the information provided by the prison authorities there was no evidence that the applicant was not allowed to receive chocolate from his wife. In addition, Law no. 275/2006 did not provide that the medical documents were confidential in so far as the criminal investigation bodies were concerned.

On 5 November 2012 the applicant complained before the judge charged with the execution of prison sentences that the Bacău Prison authorities refused to provide him with copies of his request and demands lodged before them.

By an interlocutory judgment of 29 November 2012 the judge dismissed the applicant ’ s action of 31 October 2012 on the ground that the prison authorities had complied with the applicable rules. On the same date the applicant ’ s action of 5 November 2012 was also dismissed on the ground that the rights claimed by the applicant were n ot provided for by Law no. 275/2006 and therefore it was the administrative courts and not the judge charged with the execution of prison sentences which were competent to examine the applicant ’ s claims.

By an interlocutory judgment of 5 December 2012 the judge charged with the execution of prison sentences allowed the applicant ’ s action of 1 November 2012. The judge held that both the applicant and the prison authorities were entitled to receive copies of the operative part of a judgment. However, it was only the applicant who was entitled to receive a copy of the reasoning part of the judgment. In addition the prison authorities had a lawful duty to immediately provide the applicant with his correspondence. Consequently, the judge ordered the Bacău Prison authorities not to retain anymore the applicant ’ s correspondence and to provide it to him.

There is no evidence in the file that the applicant appealed against any of the interlocutory judgments before the domestic courts.

C. Other relevant information

On 27 February 2012 the Medical Agency of the Ministry of the Interior asked the Jilava Prison Hospital to hospitalise the applicant upon a recommendation made by the psychiatrist from the Bacău Emergency County Hospital .

On 28 February 2012 the Jilava Prison Hospital refused the request on the ground that according to the relevant legal provisions the applicant could be hospitalised in Bacău .

On 7 March 2012 the Târgu-Ocna Prison Hospital informed the Bacău Prison authorities that they accepted to hospitalise the applicant.

COMPLAINTS

1. Relying in substance on Articles 2 and 3 of the Convention the applicant complains that during his detention he lost his eye sight because he did not receive adequate medical care for his condition.

2. Invoking in substance the same Articles of the Convention, he complained in respect of Bacău Police Department ’ s Arrest about the inhuman and degrading conditions of his detention in so far as he was forced to sleep on the floor because of the number of detainees and the lack of sufficient beds; he was forced to eat without cutlery and sitting on the floor because the cell lacked any furniture; he was not provided with a blanket and he had to share the room wit h smokers although he was a non ‑ smoker. He also argues that he was deprived of any press information and he was not allowed to receive a TV from his family.

In addition, he complains that he was physically abused in Bacău Police Department ’ s Arrest and that as a result he lost his eye sight. Also, during a hunger strike he was not provided with the lawfully required medical assistance and he was not transferred to an infirmary or hospital as required by law. Moreover, the authorities did not hospitalise him as it was recommended by the Bacău County Hospital because all the prison hospitals refused to accept him.

3. Relying on the same Articles of the Convention, he complains in respect of Bacău Prison about the inhuman and degrading conditions of his detention in so far as he had to sleep in overcrowded, flooded and damp rooms infested with bed bugs, without furniture and on very old, smelly and lumpy mattresses without any bed linen, blanket or pillow; he was forced to eat sitting on the floor and was not provided with a broom or any cleaning products; the bathroom pipes and lavatories were defect ive and he was splashed with wa st e from the pipes located on the cei ling; the rooms smelled and he could not rest during the night on account of the constant noise made by some detainees and the conversations they had with the women inmates detained in the same prison; he was forced on many occasions to eat his food altered because there was no refrigerator; the natural light was obstructed and there was no ventilation or proper airing; the food was insufficient and poorly cooked; he was not allowed more than one hour of outdoor exercise per day and his health was affected because he was detained in a room with other smoking detainees although he was a non-smoker. He also argues that the power was cut by the prison authorities at 10 p.m. in breach of Law no. 275/2006; that he was not allowed to receive food from home and that the prison ’ s barber was a detainee that lacked any experience and endangered his life by improperly using the hair cutting utensils.

In addition, he complains that the prison authorities did not transfer him to an individual cell although they allowed his request to that effect. Moreover, between 6 November and 5 December 2012 he was not allowed to shop in the prison ’ s store. Lastly, on an unspecified date he was not allowed to receive chocolate from his wife.

4. Invoking in substance Article 8 of the Convention the applicant complains that between 6 November and 5 December 2012 he was denied the right to phone conversations in Bacău Prison. Also, the prison authorities interfered with his correspondence and read it out loud in the presence of other detainees. Lastly, information about his medical condition was leaked from his medical file without his consent.

5. Relying in substance on Article 34 of the Convention the applicant complains that for three months the Bacău Prison authorities refused to provide him with copies of his requests lodged before them and which he wanted to submit before the Court.

QUESTION TO THE PARTIES

Was the applicant subjected to inhuman and degrading treatment in breach of Article 3 of the Convention , on account of the material conditions of detention and of the fact that he was placed in cells with smokers in Bacău Police Department ’ s Arrest and Bacău Prison?