FOURTH SECTION

DECISION

Application no. 48802/21 José Alberto TEIXEIRA MARTINS DA FONSECA against Portugal

(see appended table)

The European Court of Human Rights (Fourth Section), sitting on 15 June 2023 as a Committee composed of:

Tim Eicke , President , Branko Lubarda, Ana Maria Guerra Martins , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 27 January 2022,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s details are set out in the appended table.

The applicant was represented by Mr V. Carreto, a lawyer practising in Torres Vedras.

The applicant’s complaints under Articles 3 and 13 of the Convention concerning the inadequate conditions of detention and lack of an effective remedy in this respect were communicated to the Portuguese Government (“the Government”).

THE LAW

In the present application, having examined all the material before it and the parties’ arguments, the Court finds that it cannot be established that the applicant suffered in Coimbra Prison, between 27 December 2020 and 19 September 2022, from severe overcrowding of the kind that could entail on its own a violation of Article 3 ( see Muršić v. Croatia [GC], no. 7334/13, § 114, 20 October 2016). Nor it can be found that the cumulative effect of the other aspects of the detention which the applicant complained about reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 (see Bokor v. Portugal (dec.) no. 5227/18, §§ 32-34, 10 December 2020).

In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Considering the conclusion above, the Court finds that the applicant’s transfer to an individual cell at the Coimbra Prison on 27 December 2020 interrupted the “continued situation” of his conditions of detention. The applicant’s complaints concerning his conditions of detention prior to that transfer, including his period of detention at Guimarães Prison, are therefore belated (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 77-78, 10 January 2012).

These complaints must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The applicant also raised a complaint under Article 13 of the Convention alleging lack of any effective remedy in respect of the inadequate conditions of detention.

According to the Court’s established case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131).

Having regard to the findings above in respect of the applicant’s complaints under Article 3 of the Convention, the Court concludes that the applicant did not have an “arguable claim” and that therefore Article 13 is not applicable. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 July 2023.

Viktoriya Maradudina Tim Eicke Acting Deputy Registrar President

APPENDIX

Application raising complaints under Articles 3 and 13 of the Convention

(inadequate conditions of detention and lack of an effective remedy in this regard)

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Facility

Start and end date

Duration

Sq. m per inmate

Specific grievances

48802/21

27/01/2022

José Alberto TEIXEIRA MARTINS DA FONSECA

1964Vítor Carreto

Torres Vedras

Guimarães Prison

13/02/2019 to

27/01/2020

11 months and 15 days

Coimbra Prison

27/01/2020 to

27/12/2020

11 months and 1 day

***

Coimbra Prison

27/12/2020 to

27/07/2021

1 month and 1 day

Coimbra Prison

27/07/2021 to

19/09/2022

1 year and 1 month and 23 days

2 inmates

3.25 m²

1 toilet

2 inmates

3.09 m²

1 toilet

***

1 inmate

6.19 m²

1 toilet

1-2 inmate(s)

3.1-8.2 m²

1 toilet

inadequate temperature, lack of fresh air, lack of or insufficient quantity of food, lack of requisite medical assistance, mouldy or dirty cell, overcrowding, poor quality of food

lack of privacy for toilet, lack of requisite medical assistance, inadequate temperature, lack of fresh air, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, lack of toiletries, lack of or insufficient quantity of food, poor quality of food, lack of or insufficient natural light, lack of or insufficient electric light, mouldy or dirty cell, overcrowding, passive smoking

***

lack of fresh air, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, poor quality of food, lack of or insufficient natural light

Idem