FOURTH SECTION

CASE OF FERREIRA CAPITÃO AND GIL CARDOSO

v. PORTUGAL

(Applications nos. 31519/22 and 41866/22)

JUDGMENT

STRASBOURG

18 January 2024

This judgment is final but it may be subject to editorial revision.

In the case of Ferreira Capitão and Gil Cardoso v. Portugal,

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

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

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 14 December 2023,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Portugal lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The applicants were represented by Mr V. Carreto, a lawyer practising in Torres Vedras.

3. The Portuguese Government (“the Government”) were given notice of the applications.

THE FACTS

4. The list of applicants and the relevant details of the applications are set out in the appended table.

5. Relying on Article 3 of the Convention, the applicants complained of the inadequate conditions of his detention. Under Article 13 of the Convention, they also complained about the lack of an effective remedy in this respect.

THE LAW

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

7. The Government submitted a unilateral declaration which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the case (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003-VI).

8. The applicants complained principally of the inadequate conditions of their detention during the periods indicated in the appended table. They relied on Article 3 of the Convention.

9. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case ‑ law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96 ‑ 101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić , cited above, §§ 122-41, and Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 149 ‑ 59, 10 January 2012).

10. In the leading case of Petrescu v. Portugal, no. 23190/17, 3 December 2019, the Court already found a violation in respect of issues similar to those in the present case.

11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. In particular, it is noted that during their detention (for further details see the appended table) the applicants were kept in multi-occupancy cell which, according to the Government, had a toilet which was not separated from the rest of the cell. According to the Court’s case ‑ law, this situation is unacceptable. The Court therefore concludes that the applicants’ conditions of detention exceeded the unavoidable level of suffering which is inherent in detention and went beyond the threshold of severity under Article 3 (see Petrescu , cited above, § 110; and Canali v. France , no. 40119/09, § 52, 25 April 2013).

12. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.

13. The applicants further complained of a lack of an effective remedy in respect of their complaints under Article 3 of the Convention, which also raised an issue under Article 13 of the Convention, given the relevant well‑established case‑law of the Court. This complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Petrescu (cited above, §§ 75-84), concerning the lack of an effective remedy to complain about poor conditions of detention.

14. In application no. 31519/22 the applicant also complained about the conditions of his detention between 26 June and 10 July 2020 during which he was detained in an individual cell in the Central Prison of Lisbon. Having regard to all of the available material and the parties’ arguments, the Court finds that it cannot establish that the applicant suffered in the concerned prison facilities from severe overcrowding of the kind that could entail, on its own, a violation of Article 3 (see Muršić , cited above ) 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).

15. In view of the foregoing, the Court finds that the complaints related to this period of detention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

16. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Muršić cited above, §§ 181-84) the Court considers it reasonable to award the sums indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 18 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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

Representative’s name and location

Facility

Start and end date

Duration

Sq. m per inmate

Specific grievances

Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

31519/22

17/06/2022

Joaquim Manuel FERREIRA CAPITÃO

1971

Vítor Carreto

Torres Vedras

Lisbon Central Prison

10/07/2020

pending

More than 3 years and 2 months and 25 days

2 inmates

3.72 m²

1 toilet

overcrowding, inadequate temperature, lack of fresh air, poor quality of food, lack of privacy in the showers, lack or inadequate furniture, lack of requisite medical assistance, mouldy or dirty cell, infestation of cell with insects/rodents, humidity, lack of or insufficient quantity of food

15,400

250

41866/22

22/08/2022

João Manuel GIL CARDOSO

1980

Lisbon Central Prison

21/01/2021

pending

More than 2 years and 26 days

2 inmates

3.72 m²

1 toilet

overcrowding, poor quality of food, lack of or insufficient quantity of food, inadequate temperature, lack of fresh air, humidity, mouldy or dirty cell, lack of privacy in the showers, lack of or insufficient physical exercise in fresh air, lack of privacy for toilet

13,200

250

[1] Plus any tax that may be chargeable to the applicants.

[2] Plus any tax that may be chargeable to the applicants.