Lexploria

Information Note on the Court’s case-law 253

July 2021

Polgar v. Romania - 39412/19

Judgment 20.7.2021 [Section IV]

Article 13

Effective remedy

Action in tort an effective remedy from 13 January 2021 for obtaining compensation for poor conditions of detention or transport that had now ended: violation

Article 46

Article 46-2

Execution of judgment

General measures

Respondent State required to ensur e pursuit of reforms aimed at reducing size of the prison population and keeping it at manageable levels

Facts – The applicant was incarcerated. He complained of his poor condition of detention and the remedy, a civil-law action for liability in tort, used to obtain compensation in respect of the non-pecuniary damage sustained.

Law – Article 3: The domestic courts had held, at final instance, that during his detention in Deva Prison (from 27 February 2014 to 29 April 2015 and from 14 May to 25 May 2015), the applicant had disposed of less than 3 sq. m² of personal space.

In the pilot judgment Rez miveÈ™ and Others v. Romania , the Court had already found a violation of Article 3 in factual circumstances similar to those in the present case.

Conclusion : violation (unanimously).

Article 13 taken together with Article 3: In arguing that there had been n o violation of Article 13 in the present case, the Government relied on a remedy resulting from case-law developments following the above-mentioned RezmiveÈ™ and Others judgment, which, they submitted, allowed the numerous individual cases arising from the problem of poor conditions of detention in Romanian prisons to be resolved.

(a) Creation of a new domestic remedy – On the basis of the material available in the file, the Court was unable to confirm whether all of the cited domestic decisions had become final. However, given the significant number of examples from the case-law and the findings by the domestic courts, t he Court was able to make the following observations.

Firstly, with regard to the accessibility of the remedy, the burden of proof incumbent on complainants did not appear to have been excessive. In the majority of these examples, the complainants had use d easily obtainable evidence, such as such as descriptions of the impugned conditions of detention or transport, and sometimes witness statements, so that the burden had then been on the authorities to refute the allegations in question.

Secondly, with reg ard to the procedural guarantees, the majority of the proceedings had lasted less than two years, for one or two levels of jurisdiction. Only four sets of proceedings had lasted a little longer than two years, for one or two levels of jurisdiction. In this connection, although the legislation in force did not lay down a specific time period within which a decision was to be issued in such disputes, the time taken by the domestic courts to examine the actions in tort did not appear to have been unduly long. In addition, the rules with regard to court fees did not seem to have placed an excessive burden on the complainants. Under Romanian law, individuals wishing to bring an action against the State in order to obtain compensation for poor conditions of detent ion or transport were not required to pay court fees in this respect.

Thirdly, the domestic courts had analysed the civil actions concerned in conformity with the standards laid down in the Court’s case-law. They had evaluated whether the degree of gravity required for a violation of Article 3 had been attained, having regard to the States’ positive obligations under that provision, had taken account of the consequences of severe overcrowding in determining whether there had been a violation of Article 3 an d had accorded particular importance to the reasonableness of the compensation awarded in respect of non-pecuniary damage, having regard to the duration of the poor conditions in question.

Fourthly, a finding of inadequate conditions of detention or transp ort gave rise to a presumption of non-pecuniary damage.

Fifthly and lastly, on the question of whether the complainants had received adequate and sufficient redress, the Court verified, on the one hand, whether this redress had covered the whole of the per iod complained of, and, on other, whether the sums awarded by the judicial authorities were unreasonable by comparison with what the Court had awarded in respect of just satisfaction in similar cases.

(i) Did the redress cover the entire period complained of? – The majority of the courts had acknowledged the violation of Article 3 and had compensated the entirety of the periods complained of. In examining a civil action in tort for inadequate conditions of detention, one court had limited the relevant perio d for calculating the compensation payable to the complainant, holding that each transfer to another prison triggered a new three-year limitation period. Two other courts had taken a different position, in that they had rejected as time-barred those period s of detention which were interrupted by the complainants’ release and were outside the three-year time-limit from the lodging of the civil action.

In order for a domestic remedy to be considered effective, the national courts had to analyse the complaints under Article 3 in accordance with the principles and standards established by the Court in its case-law. This was especially important where certain complainants alleged that they had been in detention for periods that were longer than the statutory limi tation period. However, only a very limited number of courts had ruled on this question and this line of case-law could not therefore be regarded as widespread and consistent. In the Court’s view, only a systematic refusal by the domestic courts, confirmed by an established case-law refusing to apply the concept of a “continuing situation” as developed in the Court’s case-law on Article 3 could call into question the effectiveness of the remedy in issue. That was not the situation here.

(ii) Was the amount of the redress adequate and sufficient? – The domestic courts had applied the rules governing actions for liability in tort and had determined on an equitable basis the amount of compensation awarded in respect of the non-pecuniary damage sustained by the complainants. Furthermore, they had not awarded sums lower than those awarded by the Court in similar cases.

In the light of these considerations and of the general standard of living in the respondent State, the compensation obtained by the complainants, taken as a whole, did not disclose a structural problem of inadequate redress as regards the sums awarded by the national courts.

(iii) Conclusion – Having regard to the criteria adopted by the national courts for assessing poor conditions of detention and compensating the non-pecuniary damage sustained by complainants, the domestic case-law had developed significantly since the Rezmiveş and Others pilot judgment .

This case-law had been consolidated with the judgement delivered on 19 February 2020 by the Hi gh Court, which had set out the base-line criteria to be applied in remedies of this type. That judgment, which had been notified to the parties on 14 April 2020, had been available for consultation on the case-law database from 13 July 2020 and the public could no longer have been unaware of it six months after its publication, that is, from 13 January 2021.

Thus, an action for liability in tort, as interpreted consistently by the national courts, had represented since 13 January 2021 an effective remedy for individuals who considered that they had been subjected to inadequate conditions of detention or transport, and who were no longer, when they lodged their action, being detained in those conditions.

Were the domestic courts to refuse systematically to examine complaints of inadequate conditions of detention in conformity with the principles and standards laid down by the Court in its case-law, this could call into question the effectiveness of the remedy. The Court retained its jurisdiction for the ulti mate review of any complaint by applicants, who, in accordance with the subsidiarity principle, had exhausted the available domestic remedies.

(b) The effectiveness of the remedy in the applicant’s case – The applicant had availed himself of an action for liability in tort, which had not enabled him to have the violation of the Convention acknowledged in full and to receive adequate and sufficient compensation. The final domestic decision was issued on 13 February 2019, that is, well before the date identif ied by the Court as being the date from which the domestic remedy in question could be considered effective.

Conclusion : violation (unanimously).

Article 46: With regard to the preventive remedies, the Court noted with interest that the level of prison ove rcrowding had begun to fall just after the adoption of the pilot judgment and that applications to the post-sentencing judges enabled the domestic courts to assess the situations of overcrowding complained of by certain prisoners. However, the downwards tr end in prison overcrowding had stopped in June 2020 and numbers had risen again for six months, with an overcrowding rate of 119.2% in December 2020. This upward trend was also confirmed by recent data available on the national prison administration’s webs ite. As a result, the Court was unable to reach a different conclusion from that in the Rezmiveş and Others pilot judgment. Although the national legislation provided for a preventive remedy, without a clear improvement in detention conditions in Romanian prisons, especially in terms of prison overcrowding, there was nothing to suggest that this remedy was likely to provide prisoners with an effective possibility of bringing those conditions into line with the requirements of Article 3. The Court urged the Romanian State to ensure that the reforms to reduce prison overcrowding were pursued and to keep the prison population at manageable levels.

With regard to the compensatory remedy, the Court considered that since 13 January 2021 a civil-law action for liab ility in tort had afforded, in principle, appropriate redress for complaints of a violation of the Convention to individuals who considered that they had been subjected to poor conditions of detention in police detention facilities or in prisons and who we re no longer, when their actions were lodged, being held in conditions that were allegedly contrary to the Convention, and also to persons complaining about poor conditions of transport.

Article 41: EUR 2,500 in respect of non-pecuniary damage.

(See also RezmiveÈ™ and Others v. Romania , 61467/12 et al., 25 April 2017, Legal summary , and Brudan v. Romania , 75717/14, 10 April 2018, Legal summary )

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