THIRD SECTION

Application no. 49496/09 Florea Valentin IGNAT against Romania lodged on 2 September 2009

STATEMENT OF FACTS

The applicant, Mr Florea Valentin Ignat , is a Romanian national, who was born in 1973 and lives in Bucharest.

A. The circumstances of the case

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

On 12 November 2007 the Bucharest District Court sentenced the applicant to four years imprisonment for theft.

He started serving his sentence in Rahova Prison. On 14 May 2009 he was transferred from Rahova Prison to Jilava Prison, where he was detained unti l his release from prison on 11 October 2011.

1. The applicant ’ s medical condition

On an unspecified date the applicant was diagnosed with personality disorder and spinal disc hernia.

a) The first request for the suspension of execution on medical grounds

On 23 January 2009 the Bucharest Fourth District Court allowed an application by the applicant for the suspension of his prison sentence on medical grounds for a period of three months.

The court judgment suspending the applicant ’ s prison sentence was based on a forensic report issued by the Mina Minovici National Forensic Ins titute (hereinafter called “the Forensic Institute”). It revealed that the applicant needed surgery for his spinal disc hernia which could not be performed in the prison hospital.

Between 11 and 19 March 2009 the applic ant was hospitalized in a civil hospital where he underwent a surgical intervention for spinal disc hernia. On his discharge from the hospital the doctor recommended a specialized post-operative recuperation in a civil hospital for the next six months.

b) The second request for the suspension of execution on medical grounds

On 10 February 2009 on the grounds of his continuing ill ‑ health the applicant submitted another applic ation for the suspension of his prison sentence for another three months. A new forensic report was ordered by the court. It revealed that the applicant was suffering from the following medical conditions: spinal disc hernia, tuberculosis, biliary dyskinesia and personality disorder. It concluded that all his conditions could be treated in the prison hospital except from the rehabilitation treatment after surgical intervention for hernia.

On 25 May 2009 the Bucharest Fourth District Court dismissed the applicant ’ s request but ordered the prison authorities to transport the applicant to a civil hospital in order to undergo the prescribed rehabilitation treatment whenever necessary.

c) Futher evolution of the applicant ’ s medical condition

Between 25 March and 2 April 2009 the applicant was hospitalized in a civil hospital, where he was subjected to the medical rehabilitation treatment recommended for his hernia. On his discharge from hospital he was recommended to return in order to continue his medical treatment after one month.

On 9 and 15 June 2009 respectively the applicant underwent neurosurgical examinations in a civil hospital. It was noted that he needed to continue the rehabilitation treatment.

Therefore, between 22 June and 3 July 2009 he was hospitalized in a civil hospital in order to continue his treatment.

On 9, 13 and 15 August 2009 the applicant complained of strong back pains and asked to be taken to a civil hospital. The prison doctor examined him but considered that his transport to a civil hospital was not necessary.

The applicant was exa mined in a civil hospital on 21 August 2009. The doctor noted that the applicant ’ s hernia recurred and that he needed a new surgical intervention.

d) The first complaint for lack of medical assistance

On 15 August 2009 the applicant lodged a complaint with the judge responsible for the execution of the prison sentences in Jilava Prison. R elying on Article 50 of Law no. 275/2006 he claimed that his repeated requests to be taken to a civil hospital because of his back pains were ignored by the prison ’ s doctor. He also claimed that his hernia recurred because the prison authorities did not ensure the continuation of his rehabilitation treatment between 2 May and 22 June 2009.

By an interlocutory judgment of 11 September 2009, the judge dismissed the applicant ’ s complaint as unfounded.

The applicant challenged the interlocutory judgment. On 17 February 2010 the Bucharest Fourth District Court dismissed the part of complaint referring to the period between 2 May and 13 May 2009 when the applicant had been detained in Rahova Prison on the ground that the applicant should have lodged a complaint with the judge delegated to that prison. It allowed the part of the complaint c oncerning the period between 14 May and 21June 2009 holding that the Jilava Prison authorities had not observed their obligation to transport the applic ant to a civil hospital for his rehabilitation treatment as ordered by the same court on 25 May 2009. It stated that the applicant had been taken to a civil hospital in order to undergo his rehabilitation treatment with a delay of one month and twenty days. In connection with the applicant ’ s claim that he was not taken to a civil hospital when he had strong back pains, the court found that “taking into account that the applicant underwent a hernia surgery and was subjected to the recommended rehabilitation treatment with delay ( ... ) he should have been examined by a neurosurgeon immediately after he had complained of strong pains”. The court concluded that the right to medical assistance of the applicant had been infringed by the Jilava Prison authorities. In respect of a potential compensation for the infringement it held that the applicant could not claim compensation on the basis of the procedure provided by Law no. 275/2006 and that he therefore had to bring separate proceedings seeking compensation.

e) The second complaint for lack of medical assistance

On an unspecified date the applicant lodged an other complaint concerning the infringement of his right to medical assistance. He claimed that besides the fact that the prison authorities had transported him to a civil hospital with a delay of eight days, his transport had been carried out in a vehicle which had not met the requirements of safety and comfort needed by a sick person in his condition. By an interlocutory judgment of 31 August 2010 the judge delegated to Jilava Prison allowed his complaint holding that he should have been transported by ambulance more adapted to his special needs.

The applicant and the prison ’ s authorities challenged this judgment. On 25 October 2010, the Bucharest Fourt h District Court dismissed both complaints upholding the interlocutory judgment.

f) The applicant ’ s action for non-pecuniary damages

On 31 May 2010 the applicant lodged a ci vil action against the National Administration of Penitentiaries seeking compensation for non ‑ pecuniary damages in connection wi th the two infringements of his right to medical assistance found b y the Bucharest Fourth District Court in its decisions of 17 February and 25 October 2010. He based his claims on Articles 998 and 999 of the Romanian Civil Code. On 15 October 2010 the Bucharest Fourth District Court dismissed his action on the ground that he should have lodged his action against the Jilava Prison authorities. Based on the information provided by the applicant it seems that he neither appealed the judgment nor lodged another civil action against the Jilava Prison authorities.

g) Subsequent requests for suspension of execution on medical grounds

On 21 October 2009 the Bucharest Four th District Court allowed a new application by the applicant for the sus pension of the execution of his prison sentence for three months. It based its judgment on the findings of a forensic report according to which the applicant needed a new surgical intervention for his hernia.

On 11 November 2009 the applicant underwent a surgical intervention. As his recovery was slow and he needed to undergo a rehabilitation program in a civil hospital he lodged another application for the extension of the suspension. On 4 January 2010 the Bucharest Fourth District Court allowed his application suspending the ex ecution of his sentence for two months starting from 22 Ja nuary 2010.

2. The applicant ’ s conditions of detention in Jilava Prison

On 14 May 2009 the applic ant was transferred from Rahova Prison to Jilava Prison. He complains about overcrowding and lack of proper conditions of hygiene in Jilava Prison.

Thus, he contends that he was detained on Section IV in room 418 which was overcrowded. The said room was 20 sq.m . in size and housed 14 beds. The applicant did not mention the number of detainees sharing the room.

The detention room lacked adequate heating.

The toilet facilities comprised two Turkish toilets that did not have permanent running water, were extremely dirty and smelly, and were separated by the cell by a cardboard door . Prisoners could only take two ten ‑ minute showers per week.

The applicant also claims that the detention facilities were not adapted to his medical condition.

B. Relevant domestic law

1. Law 275/2006

The relevant provisions of Law no. 275/2006 read, as follows:

Article 3

“The execution of sentences should ensure respect for human dignity.”

Article 50 – The right to medical assistance

“1. The right of detained persons to medical assistance is guaranteed.

2. Medical assistance is provided free of charge, whenever necessary or upon request, by qualified personnel, as provided by law.

3. Detained persons benefit from free medical assistance and medicine.”

2. Articles 998-999 of the previous Civil Code

Articles 998 and 999 of the Civil Code into force at the material time provided that any person who had suffered damage could seek redress by bringing a civil action against the person who had intentionally or negligently caused that damage.

COMPLAINTS

1. Relying on Article 3 of the Convention the applicant complains about the conditions of his detention in Jilava Prison.

2. Under the same article he complains about the alleged infringement of his right to medical assistance during his detention.

3. Relying on Article 8 of the Convention he complains about the unbearable and toxic smells coming from the toilets.

QUESTIONS

1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, due to the conditions of detention in Jilava Prison?

The Government are invited to submit information concerning the applicant ’ s detention conditions in the Jilava Prison, more specifically with respect to the overcrowding and the facilities available.

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Con vention, in connection with his complaint under Article 3 of the Convention concerning the alleged lack of adequate medical treatment?

In particular, could the remedy offered by Articles 998 ‑ 999 of the Romanian Civil Code into force at the material time be considered to be effective in respect to the applicant ’ s request for compensation for the infringement of his right to medical assistance?

The Government are also invited to submit copies of domestic judgments concerning the application of Articles 998-999 of the previous Romanian Civil Code in connection with requests for compensation lodged by detainees for the infringement of their right to medical assistance.

3. Was the applicant subjected to inhuman or degrading treatment in breach of Article 3 of the Convention as regards the alleged lack of medical treatment in Jilava Prison?