7FOURTH SECTION

DECISION

Application no. 36779/19 Alexandru-Ciprian MOCEAN against Romania and 3 other applications

(see appended table)

The European Court of Human Rights (Fourth Section), sitting on 31 August 2023 as a Committee composed of:

Faris Vehabović , President , Anja Seibert-Fohr, Anne Louise Bormann , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

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 list of applicants is set out in the appended table.

The applicants’ complaints under Article 3 of the Convention concerning the inadequate conditions of detention were communicated to the Romanian Government (“the Government”).

THE LAW

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention.

The Government argued that for some periods of their detentions (see the appended table) the applicants had lost their victim status because they had benefited from the remedy offered by Law no. 169/2017 amending and completing Law no. 254/2013 on the execution of sentences. They asked the Court to reject the present applications in this part for being incompatible ratione personae with the provisions of the Convention.

Moreover, for the remaining periods of the detention, the Government argued that the applicants had failed to exhaust the available effective remedies for the complaints about the inadequate conditions of their detention, as an action in tort was an effective remedy for grievances similar to those of the applicants, allowing them to have the violation of the Convention acknowledged, either explicitly or in substance, and to receive adequate and sufficient compensation at the domestic level. By a subsequent letter, the Government expressly referred to Vlad v. Romania ((dec.), no. 122/17, 15 November 2022) and invited the Court to declare the cases inadmissible.

The applicants disagreed, claiming that the compensation awarded to them had been insufficient.

As regards the Government’s objection concerning the loss of victim status, the Court notes that in its decision Dîrjan and Ştefan v. Romania ((dec.), nos. 14224/15 and 50977/15, 15 April 2020) it has examined similar applications as the ones in the present case and declared them inadmissible considering that the applicants had lost their victim status. The Court noted that Law no. 169/2017 amending and completing Law no. 254/2013 on the execution of sentences, adopted following the pilot judgment in the case of Rezmiveș and Others v. Romania (nos. 61467/12 and 3 others, 25 April 2017) and in force between October 2017 and December 2019, had been an effective remedy in respect of inadequate conditions of detention in Romanian prisons.

More specifically, the above law had set forth a compensatory remedy, available for periods of detention ranging from 2012 to 2019 and allowing the deduction of six days for 30 days spent in conditions of detention that fell short of standards compatible with Article 3 of the Convention (see Dîrjan and Ştefan , cited above, § 28). That benefit had an impact on the term of the prison sentences giving detainees an opportunity of earlier release on parole.

Taking into consideration the circumstances of the present cases, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility of these complaints. The above ‑ mentioned remedy was available to the applicants in the present applications and, indeed, they benefitted from it. Thus, on different dates, the domestic authorities, applying the provisions described in the abovementioned decision Dîrjan and Ştefan , awarded compensation, through the reduction of days, to the applicants for the certain periods of detention spent in inadequate conditions of which they complained (for further details see the appended table).

The Court is therefore satisfied that the applicants have been afforded adequate redress and can no longer claim to be victims of a violation of their rights under Article 3 of the Convention insofar as the conditions of their detention, for the specific periods described in the appended table, are concerned. It follows that the applications in this part are incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

As regards the remaining periods of the applicants’ detention (see the appended table) and the Government’s objection of non ‑ exhaustion of domestic remedies, the Court recalls that in Polgar v. Romania (no. 39412/19, §§ 94 ‑ 96, 20 July 2021) it held that an action in tort, based on Articles 1349 and 1357 of the Romanian Civil Code, 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 and who were no longer, when they lodged their action, held in conditions that were allegedly contrary to the Convention. Subsequently, in Vlad v. Romania (cited above, §§ 24 ‑ 32), the Court considered it appropriate 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.

Although invited, the applicants did not inform the Court of having brought an action in tort before the Romanian courts. Therefore, in the light of all the material in its possession, since the applicants were no longer in detention conditions that were allegedly contrary to the Convention after the moment when the tort action had been considered as representing an effective remedy (see, mutatis mutandis , Polgar, §96, and Vlad, § 23, both cited above; see for further details the appended table), the Courts considers that their applications in the remaining part must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 21 September 2023.

{signature_p_2}

Viktoriya Maradudina Faris Vehabović Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 of the Convention

(inadequate conditions of detention)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Facility

Start and end date

Duration

Domestic compensation awarded

(in days)

based on total period calculated by national authorities

36779/19

19/08/2019

Alexandru ‑ Ciprian MOCEAN

1985Gherla Prison

23/12/2019 to

28/01/2020

1 month and 5 days

Gherla Prison

13/02/2020 to

03/06/2021

1 year and 3 months et 22 days

354 days in compensation for a total period of detention spent in inadequate conditions from 05/03/2015 to 22/12/2019

58178/19

27/11/2019

Ioan HOLOÅžPIN

1956Găești Prison

23/12/2019 to

15/01/2020

24 day(s)

Găești Prison

23/01/2020 to

15/04/2022

2 year(s) and 2 month(s) and 24 day(s)

300 days in compensation for a total period of detention spent in inadequate conditions from 11/08/2015 to 22/12/2019

17503/20

26/05/2020

Cristian COJOCARU

1971Giurgiu Prison

23/12/2019 to

21/03/2022

2 year(s) and 2 month(s) and 27 day(s)

234 days in compensation for a total period of detention spent in inadequate conditions from 11/11/2015 to 22/12/2019

30172/20

02/09/2020

Ionel ZAHARIA

1978Codlea and TimiÅŸoara Prisons

23/12/2019 to

15/06/2022

2 year(s) and 5 month(s) and 24 day(s)

132 days in compensation for a total period of detention spent in inadequate conditions from 20/02/2018 to 22/12/2019