FOURTH SECTION

DECISION

Application no. 2725/21 David Nelson DA NAVE DE ALMEIDA

against Portugal

The European Court of Human Rights (Fourth Section), sitting on 23 March 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 4 January 2021,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s details are set out in the appended table. He 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 domestic remedy to complain about detention conditions were communicated to the Portuguese Government (“the Government”).

THE LAW

Relying on Article 3 of the Convention, the applicant complained about the conditions of his detention in Alcoentre Prison and Caldas da Rainha Prison. He also complained under Article 13 of the Convention of the lack of an effective remedy in respect of his detention conditions.

The Court notes that on 16 September 2016 the applicant had lodged an administrative liability action against the State with the Administrative Court of Leiria claiming compensation for his conditions of detention in Caldas da Rainha Prison. In so far as the administrative action instituted did not concern the conditions of detention in Alcoentre Prison, where he had been detained between 29 September and 21 October 2014, the complaints concerning this period of detention are belated and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

As regards the applicant’s conditions of detention in Caldas da Rainha Prison, the Court notes that the action in this respect was lodged at the domestic level before the judgment Petrescu v. Portugal (no. 23190/17, § 88, 3 December 2019) in which the Court concluded that there are no effective remedies in Portugal to obtain redress for inhuman or degrading conditions of detention. Therefore, in the present case, the Court considers that the administrative proceedings instituted by the applicant should be still considered as a valid and reasonable attempt to exhaust domestic remedies in so far as they concerned the period of detention in Caldas da Rainha Prison between 21 October 2014 and 21 September 2016.

The Government submitted that the applicant had failed to comply with the six-months’ time-limit established in Article 35 § 1 of the Convention since the judgment of the Administrative Court of Leiria was adopted on 1 June 2020. In this respect, the Court refers to its decision Saakashvili v. Georgia ((dec.), no. 6232/20, 1 March 2022) in which it recalled that pursuant to the decisions of the President of the Court of 16 March and 9 April 2020 an extension of three months in total was applied to the method of calculation of the six-month rule under Article 35 § 1 of the Convention whenever a calendar six-month period either started to run or, on the contrary, was due to expire at any time between 16 March and 15 June 2020 ( ibid., § 49). In the present case the final decision was adopted by the Administrative Court of Leiria on 1 June 2020 and was served on the applicant on 4 June 2020, thus within the six months’ time-limit cumulated with the three months extension ( ibid., § 58). Therefore, the Court rejects the Government’s objection of six months as regards the period of detention in Caldas da Rainha Prison.

Turning to the actual conditions of detention in Caldas da Rainha Prison, and having regard to the available material, the Court finds that it cannot establish that the applicant suffered in this prison 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, 20 October 2016) nor can it 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 , no. 5227/18, § 34, 10 December 2020). The complaints under Article 3 concerning the period of detention in Caldas da Rainha Prison must therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

As regards the complaint under Article 13 of the Convention, the Court notes that, according to its established case-law, Article 13 of the Convention applies only where an individual has an “arguable claim” to be victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131; and Narcisio v. Netherlands (dec.), no. 47810/99, 27 January 2005). Having regard to the findings above as to the applicant’s complaints under Article 3 of the Convention about his conditions of detention, the Court concludes that they are not “arguable” for the purposes of Article 13. Thus, the complaint 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 13 April 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 respect)

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

2725/21

04/01/2021

David Nelson DA NAVE DE ALMEIDA

1972Carreto Vítor

Torres Vedras

Alcoentre Prison

29/09/2014 to

21/10/2014

23 days

***

Caldas da Rainha

21/10/2014 to

21/09/2016

1 year and

11 months and

1 day

5 inmates

2.5 m²

1 toilet

***

4 inmates

3.92 m²

1 toilet

lack of or insufficient quantity of food, lack of or insufficient physical exercise in fresh air, poor quality of food, overcrowding, lack of fresh air

***

lack of or insufficient quantity of food, lack of or insufficient physical exercise in fresh air