I correctly predicted that there was a violation of human rights in BARBU v. ROMANIA.

Judgment

FOURTH SECTION

CASE OF BARBU v. ROMANIA

(Application no. 257/14)

JUDGMENT

STRASBOURG

14 February 2017

This judgment is final but it may be subject to editorial revision. In the case of Barbu v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Paulo Pinto de Albuquerque, President,Iulia Motoc,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 24 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 257/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Sănducu Barbu (“the applicant”), on 12 December 2013. 2. The applicant, who had been granted legal aid, was represented by Ms C. Boghină, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs. 3. On 11 July 2014 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1977. He has served sentences in several prisons. On 21 April 2015 he was released from Târgu-Jiu Prison. 5. The applicant alleged that while detained in cell no. 5 of Târgu‐Jiu Prison for eight days, between 1 October and 9 October 2013, he had not had an individual bed and had therefore been forced to sleep on the cold floor on two blankets. As a consequence, the renal disease from which he suffered had been re-activated and he had experienced intense pain. 6. On 3 October 2013 he had been examined by a prison doctor and had been prescribed medical treatment. However, he had been unable to submit any evidence in this connection as the prison authorities had rejected his requests for a copy of his medical records. He submitted instead an old medical certificate stating that on 23 September 2012 he had been hospitalised in the Nephrology Department of Slatina Hospital suffering from renal colic. 7. The applicant lodged a complaint with the post‐sentencing judge asking for an individual bed. 8. His complaint was examined on 15 October 2013. The applicant informed the judge that he had eventually been given a bed, but only after nine days. The post-sentencing judge took note that the applicant had obtained an individual bed; he did not draft an interlocutory judgment, but merely noted that the complaint had been withdrawn. 9. The applicant lodged a complaint with the Gorj District Court seeking compensation in connection with the lack of an individual bed for eight days in cell no. 5 of Târgu-Jiu Prison. 10. On 12 November 2013 the Târgu-Jiu District Court dismissed the applicant’s complaint as inadmissible without examining its merits on account of the fact that the applicant had not submitted an interlocutory judgment by the post-sentencing judge in connection with his complaint. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS
11. Law no. 275/2006 of 20 July 2006 on the execution of sentences, as in force at the material time, stated in Article 38 that prisoners had the right to lodge complaints with a post-sentencing judge delegated by the court of appeal to supervise the observance of the prisoners’ rights. An appeal could be brought in the court of first instance in whose district the prison facility was located against the post-sentencing judge’s decisions. The court could either cancel the impugned measure or reject the complaint but it could not award compensation for the reason that an infringement of the prisoners’ rights was found. Law no. 275/2006 has been repealed and replaced by Law no. 254/2013, which entered into force on 31 January 2014. The new law has restated the content of Article 38 mentioned above in Article 56. 12. The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), published on 11 December 2008, following a visit to different police detention facilities and prisons in Romania, indicated that the lack of beds remained a constant problem, not only in the establishments visited but also at a national level, and that this had remained so since CPT’s first visit to Romania in 1995 (see Artimenco v. Romania no. 12535/04, § 23, 30 June 2009; and Vartic v. Romania, no. 12152/05, § 35, 10 July 2012). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
13. The applicant complained that sleeping for eight days on the floor because of the lack of an individual bed had amounted to ill‐treatment. He relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
14. The Court notes that this complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
15. The applicant alleged that having to sleep on the floor for a period of eight days had resulted in aggravation of his renal disease and he had suffered intense pain. As regards the difficulty in proving his medical condition, he contended that the Government had failed to submit copies of his medical records, to which he had not had access himself because the prison authorities had rejected his requests to obtain copies of them. 16. The Government submitted that the prison authorities had taken all measures necessary in order to ensure adequate conditions of detention for the applicant. They had not contested the applicant’s allegation of the lack of an individual bed for a period of eight days. 2. The Court’s assessment
(a) General principles
17. Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 18. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002‐VI). 19. In the context of deprivation of liberty the Court has consistently stressed that, in order to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation inherent in detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‐XI, and Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‐VIII). 20. Even the absence of an intention to humiliate or debase a detainee by placing him or her in poor conditions, while being a factor to be taken into account, does not conclusively rule out the finding of a violation of Article 3 of the Convention (see Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001‐III and Iacov Stanciu v. Romania, no. 35972/05, § 179, 24 July 2012). Indeed, it is incumbent on the respondent Government to organise its prison system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see, amongst many others, Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006). (b) Application of these principles to the present case
21. Turning to the present case, the Court notes that the Government did not deny the applicant’s allegation that for a period of eight days, between 1 and 9 October 2013, he had not had an individual bed in the cell and had been forced to sleep on the floor. 22. The applicant’s submissions in respect of the lack of an individual bed correspond to the general findings by the CPT in respect of Romanian prisons (see paragraph 12 above). 23. The applicant also contended that sleeping on the floor in October for eight nights had re-activated his renal problems, causing him intense pain. Moreover, he had needed medication for the pain, which had been prescribed by a doctor from Târgu-Jiu Prison. However, he had not been able to submit evidence in this connection as the prison authorities had refused to release a copy of his medical records ( see paragraph 6 above). 24. The Court reiterates that Convention proceedings, such as those in the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in certain instances the respondent Government alone have access to the information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well‐foundedness of the applicant’s allegations (see Kokoshkina v. Russia, no. 2052/08, § 59, 28 May 2009). 25. Applying the above principles in the present case, the Court finds that the Government failed to submit information capable of refuting the applicant’s allegations. 26. The Court cannot therefore rule out that the suffering and humiliation experienced by applicant due to the lack of an individual bed for eight nights had been intensified by the extreme physical pain caused by his renal disease. 27. In the light of the above, the Court concludes that even though in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, sleeping on a cold floor for eight nights in October, with severe kidney pain, had caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that that attained the threshold of severity necessary to fall within the scope of Article 3 of the Convention. 28. There has accordingly been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
29. The applicant complained that by dismissing his claim for compensation without an examination on the merits, the Gorj District Court deprived him of his right of access to a court. He relied on Article 6 § 1 of the Convention, which reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties’ submissions
30. The applicant submitted that his right of access to a tribunal had been infringed on account of the fact that the post-sentencing judge who had examined his complaint had not drafted an interlocutory judgment. This had resulted in the dismissal of his claim for compensation by the Gorj District Court as inadmissible. 31. The Government submitted that on 15 October 2013 the post‐sentencing judge had examined the applicant’s complaint but had not drafted an interlocutory judgment. 32. The Government agreed that the behaviour of the post-sentencing judge could not be imputed to the applicant. However, they contended that even assuming that the post-sentencing judge had delivered an interlocutory judgment, the applicant’s claim for compensation in connection with his lack of an individual bed in Târgu-Jiu Prison would not have been allowed because the procedure set forth by Law no. 275/2006 had not offered the framework for establishing a causal relationship between the rights infringements and the damage, as well as the value of the compensation for the damage. They suggested that the applicant should have brought separate civil proceedings seeking compensation. 33. They also contended that the applicant should have lodged a disciplinary complaint against the post-sentencing judge followed by an action in tort. They concluded by asking the Court to dismiss the applicant’s complaint for non-exhaustion of domestic remedies. B. The Court’s assessment
34. The Court considers that the Government’s arguments as to the exhaustion of domestic remedies concern the merits of the applicant’s complaint about his lack of access to court and will examine them accordingly. 35. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, §§ 28‐36, Series A no. 18, and Osman v. the United Kingdom, 28 October 1998, §§ 136 and 147, Reports of Judgments and Decisions 1998-VIII). This right is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals”. The limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). 36. Turning to the circumstances of the present case, the Court notes that the applicant’s complaint concerns the decision of the Gorj District Court to declare his claim for compensation inadmissible on account of the fact that the applicant had not submitted an interlocutory judgment by the post‐sentencing judge (see paragraph 10 above). 37. In this respect the Court notes that the applicant lodged a complaint with the judge supervising the execution of sentences claiming that his right to have an individual bed had been infringed by the prison authorities. His complaint was examined on 15 October 2013, when the judge took note that the applicant had in the meantime been given an individual bed. However, instead of delivering an interlocutory judgment declaring that the applicant’s complaint had been left without object, he had merely made a note stating that the complaint had been withdrawn (see paragraph 8 above). 38. That being so, the Court considers that even if the post‐sentencing judge had delivered an interlocutory judgment, the Gorj District Court would not have awarded compensation to the applicant for the following reasons. 39. The procedure laid down in Article 38 of Law no. 275/2006, in force at the relevant time, constituted a preventive remedy in the event of a violation of the prisoners’ rights as regards their conditions of detention. Thus, a prisoner who considered that his/her rights related to detention conditions had been infringed might have lodged a complaint with the post‐sentencing judge and might then have challenged the interlocutory judgment of the judge at the court of first instance in whose district the facility was located if he/she was not satisfied with the measures adopted (see paragraph 11 above). 40. The post-sentencing judge could either admit the complaint – and accordingly order that the prison authorities take the requisite legal measures – or reject the complaint as ill-founded. However, the law did not contain any provision concerning the compensation to be awarded to a prisoner if his/her complaint was admitted for the reason that an infringement of his/her rights had been found by the judge (see paragraph 11 above). 41. In conclusion, the solutions available to the post-sentencing judge show that the purpose of the procedure laid down in Article 38 of Law no. 275/2006 was to immediately stop the harm caused by the breach of the prisoners’ rights and not to award compensation for the infringement. Accordingly, the procedure chosen by the applicant could not have led to his being awarded compensation. As indicated by the Government (see paragraphs 32-33 above), other legal avenues, such a civil action for damages, were available to the applicant in order to seek financial compensation. 42. In view of these considerations, and taking into account the nature and features of the impugned proceedings, the Court finds that the applicant’s right of access to a court was not restricted in a manner incompatible with Article 6 § 1 of the Convention. 43. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
45. The applicant claimed 15,000 euros (EUR) in compensation in respect of non‐pecuniary damage. 46. The Government asked the Court to take into account the fact that the applicant had not exhausted the domestic remedies as regards the complaint raised under Article 6 § 1 of the Convention. As to the applicant’s claim concerning the alleged violation of Article 3 of the Convention on account of the conditions of his detention, the Government submitted that the amount requested by the applicant was excessive. 47. The Court observes that in the current case it has found the respondent State to be in breach of Article 3 of the Convention on account of the suffering caused to the applicant by the lack of an individual bed. It accordingly awards the applicant EUR 3,000 in respect of non‐pecuniary damage. B. Costs and expenses
48. The applicant also claimed EUR 1,600 for his lawyer’s fees and EUR 150 for costs and expenses incurred with correspondence. 49. The Government asserted that the claim was excessive and that no documents had been submitted to support the applicant’s claims. 50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the applicant’s failure to provide any supporting documents and the above criteria, the Court rejects the claim for costs and expenses (see Alkaya v. Turkey, no. 42811/06, § 48, 9 October 2012). C. Default interest
51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning Article 3 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident