Information Note on the Court’s case-law

December 2022

Vlad v. Romania (dec.) - 122/17

Decision 15.11.2022 [Section IV]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure to exhaust a remedy that became effective only after the application was lodged, as a result of new case-law following a pilot judgment concerning a systemic issue: inadmissible

Facts – In 2017 the applicant lodged an application with the Court complaining about his material conditions of detention in Bucharest-Rahova Prison. He continued to be detained there until at least August 2020 and was subsequently transferred to a different prison. Under Law no. 169/2017 he received compensation in the form of a reduction of sentence, resulting by implication in his early release in March 2021. However, this form of compensation applied only to the period of detention prior to 23 December 2019, the date on which Law no. 169/2017 was repealed. The applicant complained that he had not received any compensation in respect of the subsequent period.

Law – The Court identified two distinct periods on the basis of the remedies available.

(a) Regarding the applicant’s detention before 23 December 2019:

Article 34: The applicant had been granted a reduction of sentence in relation to the total period of detention up to that date, which had also resulted directly in his early release, thereby preventing the continuation of the alleged violation (see Dîrjan and Ştefan v. Romania (dec.), 14224/15 and 50977/15, 15 April 2020, Legal summary ).

Conclusion : inadmissible (loss of victim status)

(b) Regarding the applicant’s detention after 23 December 2019:

Article 35 § 1: In its judgment in Polgar v. Romania (39412/19, 20 July 2021, Legal summary ), the Court had recognised the possibility of bringing a civil action in tort before the domestic courts under Articles 1349 and 1357 of the Civil Code, and identified 13 January 2021 as the date from which the remedy in question could be deemed effective in respect of individuals who considered that they had been subjected to inadequate conditions of detention and who were no longer, when they lodged their action, being held in such conditions. The applicant in the present case had satisfied that condition by 23 March 2021 at the latest.

It was true that the effectiveness of a given remedy was normally assessed with reference to the date on which the application was lodged. However, the Court had made an exception to this principle in a number of cases characterised by particular circumstances, especially where it considered that the introduction of a new remedy by the national legislature had been the direct consequence of the pilot-judgment procedure aimed at remedying a systemic problem.

Stressing the importance of the principle of subsidiarity – recently enshrined in the Preamble to the Convention by Protocol No. 15 – and the principle of shared responsibility, the Court noted that the change in the practice of the Romanian courts was comparable to that resulting from the introduction of a compensatory remedy in the relevant Italian, Moldovan and Hungarian legislation.

In each case, the change reflected the efforts of the national authorities to implement the recommendations made by the Court in a pilot judgment – in this instance Rezmiveș and Others v. Romania , 61467/12 et al., 25 April 2017, Legal summary – and was aimed at enabling cases concerning prison overcrowding to be dealt with at the domestic level, so as to counter the growing threat posed to the Convention system by large numbers of similar cases deriving from the same structural or systemic problem. The Court had no reason to doubt that this line of case-law continued to be applied.

The Court also referred to the object and purpose of the pilot-judgment procedure. It did not have the capacity, nor was it appropriate to its function, to adjudicate on large numbers of repetitive cases which required the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions. In the Court’s view, recourse to the Romanian courts afforded speedier redress than proceedings before it, and eased the Court’s caseload by avoiding the need for it to examine large numbers of cases that were similar in substance.

The applicant, at the time of his release and to this day, had the possibility of bringing – as others had done, according to the numerous examples from the domestic case-law – the aforementioned action in tort.

With regard to the remedies made available at domestic level, the Court saw no objective reason to make a distinction between those stemming from legislation and those that resulted from a change in the practice of the domestic courts.

Consequently, it considered it appropriate in the present case to apply an exception to the general principle that the effectiveness of a given remedy was to be assessed with reference to the date on which the application was lodged.

Conclusion : inadmissible (non-exhaustion of domestic remedies).

(See also Stella and Others v. Italy (dec.), 49169/09 et al., 16 September 2014, Legal summary ; Domján v. Hungary (dec.), 5433/17, 14 November 2017, Legal summary ; and Draniceru v. the Republic of Moldova (dec.), 31975/15, 12 February 2019, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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