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

Information

  • Judgment date: 2018-09-04
  • Communication date: 2016-02-09
  • Application number(s): 41995/14
  • Country:   ROU
  • Relevant ECHR article(s): 3, 8, 8-1
  • Conclusion:
    Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations
    Article 8-1 - Respect for family life)
    Non-pecuniary damage - award (Article 41 - Non-pecuniary damage
    Just satisfaction)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.703015
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Dragoş Ciupercescu, is a Romanian national, who was born in 1971 and is currently detained in Jilava Prison.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2005 the Bucharest County Court sentenced the applicant to eighteen years’ imprisonment.
He was detained in Giurgiu Prison between 21 January 2009 and 26 January 2015.
As the Court had already examined the applicant’s complaint concerning his conditions of detention in Giurgiu Prison for the period between 21 January 2009 and 24 July 2012, the present application only refers to the applicant’s conditions of detention in the same prison between 24 July 2012 and 26 January 2015.
On 26 January 2015 the applicant was transferred to Jilava Prison where he is serving his sentence at present.
1.
The applicant’s conditions of detention in Giurgiu and Jilava Prisons The applicant complains about the alleged inhuman conditions of his detention in both prisons.
As regards the Giurgiu Prison he complains of overcrowding, limited access to cold and warm running water, cell infested with bedbugs, cockroaches, lack of adequate ventilation and lighting, lack of heating for one month.
On 26 January 2015 the applicant was transferred to Jilava Prison.
He complains of overcrowding and the lack of an adequate place to serve meals.
He also maintains that because of the inadequate temperature in the cell there were traces of moisture on the walls.
He also complains about the poor quality of the water, which contains worms and has a disagreeable smell and taste.
The applicant claims that according to Article 66 of Law no.
254/2013 he is entitled to communication on-line with his wife who lives in Italy and could not come and visit him often.
However, he contends that the prison authorities do not allow him either to have a private computer in his cell or to send e-mails to his wife.
2.
The applicant’s conditions of transport The applicant complains about passive smoking during the transport from the Giurgiu Prison to the courts and while in the waiting room at the courts.
He further states that the prison vans are full of gas smell.
According to the applicant’s medical record, he suffers from bronchitis asthma (astm bronșic).
3.
Complaints lodged by the applicant with the domestic authorities The applicant lodged several complaints on the basis of Law no.
254/2013 on the execution of sentences (“Law no.
254/2013”) with the post-sentencing judge.
(a) Complaint concerning the applicant’s detention conditions in Giurgiu Prison The applicant lodged a complaint with the post-sentencing judge claiming that the temperature in the cell was lower than 19 degrees and that he could not receive visits without a separation device.
On 12 November 2014 the judge allowed his complaint and ordered the prison authorities to allow the applicant to receive a visit without separation device and to ensure an appropriate temperature of minimum 19 degrees in his cell.
This decision was upheld by the Giurgiu District Court on 19 January 2015.
(b) Complaint concerning the applicant’s individual space in Jilava Prison By a judgment of 16 March 2015 the post-sentencing judge dismissed a complaint by which the applicant complained about lack of individual space and medical treatment as unfounded.
The applicant challenged this decision before the Bucharest District Court.
On 20 April 2015 the court partially allowed the applicant’s complaint holding that cell E 5.26, in which the applicant was detained, had less than 4 square meters.
However it did not award any compensation to the applicant as Law no.
254/2013 did not provide the appropriate framework for compensation.
(c) Applicant’s complaints concerning his right to on-line communication The applicant complained with the post-sentencing judge in Jilava Prison that his right to on-line communication was infringed and that he had not been selected to attend professional training programs.
The judge dismissed his complaint as unfounded by a decision of 11 May 2015.
The applicant’s challenge against that decision was partially allowed by the Bucharest District Court on 23 June 2015.
The court noted that the applicant’s right to on-line communication had been infringed.
It also noted that although according to Article 66 of Law no.
254/2013 detainees were entitled to on‐line communication with their family, in fact detainees could not benefit from that right as the norms for the implementation of the law had not been adopted.
The court concluded that although the prison administration could not be held liable for that infringement, the detainees’ rights were infringed on account of the lack of foreseeability of the law.
The court dismissed the applicant’s complaint concerning the right to benefit from professional training noting that the applicant had not submitted all the documents requested by the prison administration in this respect.
The applicant lodged another complaint with the post-sentencing judge concerning the alleged infringement of his right to on-line communication.
The judge dismissed the complaint on 19 August 2015 noting that on-line communication became possible only between the prison facilities and that it was not yet used for communication with persons outside the prison network.
The judge held that the prison authorities could not be held liable for other State authorities’ failure to adopt the norms for the implementation of the law within the deadline provided by law.
On 30 September 2015 the Bucharest District Court dismissed the applicant’s appeal against that decision.
The court noted that the infringement of the applicant’s right to on-line communication had been already found by another final decision delivered on 23 June 2015.
It held that the applicant’s right continued to be infringed by non-adoption of the implementation norms.
(d) Complaint concerning the confidentiality of the applicant’s telephone communications and correspondence The applicant lodged another complaint with the post-sentencing judge in Jilava Prison concerning an alleged infringement of the confidentiality of his telephone communications.
The applicant alleged that he had the obligation to inform the prison authorities on all the telephone numbers which he needed to call and they had to be approved by the prison authorities.
A maximum of ten numbers was allowed.
On 4 August 2015 the judge dismissed his complaint on the ground that the identity of all the persons with whom the applicant entered into contact by phone should be known by the prison authorities for preventing the commission of fraud and other crimes; he also held that the right to private phone communications in prison is not an absolute right but a right that could be restricted for ensuring the discipline in a detention facility.
The applicant challenged this decision before the Bucharest District Court.
On 29 September 2015 the Bucharest District Court dismissed his complaint upholding the decision of the post-sentencing judge.
B.
Relevant domestic law Article 56 of Law no.
254/2013 on the serving of prison sentences, which entered into force on 1 February 2014, stipulates that detainees may complain to the post-sentencing judge about measures taken by the prison authorities in respect of their rights within ten days of becoming aware of the impugned measure.
The judge’s decision may be challenged before the domestic courts within five days of notification.
According with Article 66 of the same law certain categories of detainees are entitled to on-line communication with family members or other persons.
The concrete way of implementing this provision was to be stipulated by a regulation to be adopted within six months.
COMPLAINTS 1.
Relying on Article 3 of the Convention the applicant complains about the conditions of his detention in Giurgiu and Jilava Prisons.
He also complains about passive smoking during his transport from Giurgiu Prison to the courts and in the waiting room at the courts.
He alleges that the prison vans are full of gas smell.
2.
The applicant complains under Article 8 of the Convention that his right to respect for private and family life was infringed by his impossibility to communicate on-line with his wife who was living in Italy and by his obligation to provide the prison authorities with a list containing all the phone numbers he needed to call in order to be authorized to make any phone calls from prison.

Judgment

FOURTH SECTION

CASE OF CRISTIAN CĂTĂLIN UNGUREANU v. ROMANIA

(Application no. 6221/14)

JUDGMENT

STRASBOURG

4 September 2018

FINAL

04/12/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Cristian Cătălin Ungureanu v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ganna Yudkivska, President,Vincent A. De Gaetano,Paulo Pinto de Albuquerque,Egidijus Kūris,Iulia Motoc,Georges Ravarani,Péter Paczolay, judges,and Marialena Tsirli, Section Registrar,
Having deliberated in private on 3 July 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 6221/14) 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 Cristian Cătălin Ungureanu (“the applicant”) on 25 November 2013. 2. The applicant was represented by Ms E. Ungureanu, a lawyer practising in Ploieşti. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The applicant alleged that it had been impossible for him to maintain personal relations with his son during the divorce proceedings, and that the length of those proceedings had been excessive. 4. On 16 September 2014 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1972 and lives in Ploiești. 6. At the relevant time, he was married to I.M.U. and they had a son together, born in 2006. Following a series of conflicts between the parents concerning their son’s education, on 13 September 2012 I.M.U. filed for divorce and custody of the child. On 19 October 2012 she left the family home and took the child with her. They moved in with her parents and grandmother. 7. On 2 November 2012 the applicant lodged an application for an interim injunction (ordonanţă preşedenţială), seeking to be granted sole or shared custody of the child during the divorce proceedings, or alternatively the right to visit the child during those proceedings according to a detailed schedule that he submitted to the court. 8. The Ploiești District Court gave its ruling on 8 January 2013. It ruled that it would not be in the child’s interests to change his residence temporarily during the divorce proceedings. It also observed that the applicant had not been prevented from visiting his child in the mother’s new home, as he himself had confirmed in his statements before the court. The court noted that in any case the law did not provide for the possibility to have visiting rights established during divorce proceedings. It relied on Article 6132 of the Code of Civil Procedure (see paragraph 18 below). 9. Following an appeal by the applicant, that ruling was upheld by the Prahova County Court, which rejected all the arguments raised by the applicant concerning his right to visit his child. The court reiterated that the law did not allow for the granting of that right during divorce and custody proceedings. The court also ordered the applicant to pay 1,000 Romanian lei (RON – approximately 230 euros (EUR)) to I.M.U., representing the costs that I.M.U. had incurred. The court delivered the final decision in the case on 27 May 2013. 10. In June 2013 the applicant, who was in the habit of visiting his son at school in the mornings, was removed from the school premises by the school guard, who informed him that from then on, he would need the school principal’s permission if he wanted to see his son at the school. 11. According to the applicant, after the final decision of 27 May 2013 (see paragraph 9 above), I.M.U. and her family denied him any further contact with his son. It appears from the parties’ submissions that the applicant was able to see his son on 27 December 2012, between 31 December 2012 and 2 January 2013, on 20 January, between 2 and 3 March, on 14 and 17 March, on 28 April, on 2, 6 and 12 May 2013, and one last time, on 9 June 2013, after the court had given its ruling in respect of the interim injunction. 12. On 30 October 2013 the applicant added a copy of the District Court’s ruling of 8 January 2013 (see paragraph 8 above) to the case file. 13. After several postponements that were due mainly to the parties’ requests to be allowed to submit additional evidence, on 22 January 2014 the Ploieşti District Court gave its judgment on the divorce proceedings, ruling that the child’s sole residence would be with his mother. The applicant was granted the right to have the child stay at his home every other weekend and for two weeks during the summer holidays. On 21 February 2014 the applicant asked the District Court to finish the drafting of its written judgment faster, and reiterated that he had been unable to see his child for the past ten months. 14. On 4 March 2014 the judgment was served on the applicant at his address; on 28 March 2014 he lodged an appeal. On 2 April 2014 I.M.U. also lodged an appeal against the District Court’s judgment. Despite requests from the applicant to expedite the proceedings in order to allow him to re-establish contact with his son, the case file could not be sent to the Prahova County Court before 7 May 2014 owing to administrative problems within the District Court. 15. The start of the proceedings before the Prahova County Court was postponed on several occasions in order to allow the parties to get acquainted with the submissions in the file, to hear evidence and to obtain an expert evaluation of the relations between the parents and between each parent and the child. The County Court delivered its ruling on 22 October 2015. It upheld the previous decision adopted by the District Court. 16. Both parties lodged appeals against the County Court’s decision. At the applicant’s request, the case was sent to the Bucharest Court of Appeal. After several postponements to the proceedings, on 2 November 2016 the Bucharest Court of Appeal delivered the final decision in the case. It upheld the ruling of the District Court, but made some amendments to the applicant’s visiting schedule. 17. On 19 February 2018 the child moved in with the applicant, at the boy’s own express request and in accordance with an agreement signed before a notary by both parents, following the mother’s decision to move permanently to another town. II. RELEVANT DOMESTIC LAW
18. Article 6132 of the Code of Civil Procedure (“the former Code”), as applicable at the relevant time, provided that during divorce proceedings a court could order temporary measures by means of an interim injunction, concerning: custody of children, alimony, child allowance and use of the family home. The same provision was incorporated into Article 920 of the new Code of Civil Procedure, which entered into force on 15 February 2013 and is presently applicable. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
19. The applicant complained under Articles 6, 8, 14 and 17 of the Convention of the denial of his visiting rights by the courts and of the repercussions of the courts’ decisions on his relationship with his son and on the child’s psychological development. He further complained under Article 8 that the divorce proceedings had lasted too long, thus endangering even further his relationship with his son. 20. The Court, master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), will examine the complaint from the standpoint of Article 8 alone (see, for example and mutatis mutandis, Cristescu v. Romania, no. 13589/07, § 50, 10 January 2012, and Jovanovic v. Sweden, no. 10592/12, § 53, 22 October 2015). Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
21. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ observations
(a) The applicant
22. The applicant complained that the courts had abusively refused his request for the establishment of visiting rights during the divorce proceedings, thus leaving the extent of his relationship with his son entirely at his spouse’s discretion. He noted that the proceedings in respect of the interim injunction had lasted for more than seven months (from 2 November 2012 until 27 May 2013 – see paragraphs 7 and 9 above) and that therefore, although he could have lodged another application for an interim injunction, that course of action would not have brought a swift resolution and could not have guaranteed a favourable outcome. 23. He further pointed out that he had done everything to alert the domestic courts in respect of the necessity to expedite the divorce proceedings and argued that he had not been responsible for any delay in those proceedings. (b) The Government
24. The Government contended that the applicant had never been prevented from visiting his child and that imposing a visiting schedule by means of a court order would have only exacerbated the deterioration of relations between the parents. They asserted that the lack of legislative provisions for awarding provisional visiting rights pending the outcome of divorce proceedings had not constituted the domestic courts’ fundamental argument in dismissing his application. 25. They furthermore pointed out that in similar situations the domestic courts consistently awarded visiting rights by means of an interim injunction if the best interests of the children concerned dictated it. They cited several examples of domestic case-law to this effect. 26. The Government pointed out that if the applicant had been prevented from seeing his child, he could at any point have lodged a fresh application for an interim injunction, which would have been examined by the courts. 27. Lastly, the Government contended that the authorities had not been responsible for the delays in the divorce proceedings and argued that the length of those proceedings had been reasonable and had not interfered with the applicant’s right to family life. 2. The Court’s assessment
28. The Court refers to the principles established in its case-law regarding the right to respect for family life (see, as a recent example, Mitrova and Savik v. the former Yugoslav Republic of Macedonia, no. 42534/09, §§ 77-79, 11 February 2016). 29. Turning to the facts of the present case, the Court notes that the domestic courts clearly stated that the law did not provide for granting visiting rights during divorce proceedings (see paragraphs 8, 9 and 18 above). The applicant’s complaint relates to the effects that the application of this law had on his relationship with his son (see paragraph 11 above). It appears that after the decision of 8 January 2013 was taken, it became more difficult for the applicant to maintain contact with his son (see paragraphs 10 and 11 above). 30. The Court acknowledges that the domestic courts do not always reject as inadmissible such requests for visiting rights made during divorce proceedings (see paragraph 25 above). However, the applicant could not have benefited in any manner from the existence of more favourable domestic case-law, as decisions adopted by the domestic courts in individual cases are not binding on any other domestic courts and do not constitute as such a primary source of law. 31. Moreover, the applicant could not have been expected to lodge a fresh application for an interim injunction, as indicated by the Government (see paragraph 26 above), as nothing in the law itself allowed him to expect a different outcome from the courts. When examining his request, the domestic courts did no more than apply the law, albeit in a restrictive manner. The Court considers that the provision of the law in question, by its very nature, removed the factual circumstances of the case from the scope of the domestic courts’ examination (see, mutatis mutandis, X and Others v. Austria [GC], no. 19010/07, § 126, ECHR 2013). 32. The Government argued that the absence of regulation had not been the fundamental reason given by the courts for dismissing the applicant’s application for an interim injunction (see paragraph 24 in fine above). Be that as it may, the Court notes that that argument was prevalent in the domestic courts’ decisions. Moreover, even the remaining argument – namely that the applicant was not prevented from seeing his child (see paragraph 8 above) – cannot be construed as constituting an effective examination of the child’s best interests, but rather as a mere observation of the situation at that particular moment. The domestic courts did not examine the precariousness of the situation, nor did they respond to the applicant’s request for a more structured visiting plan (see paragraph 7 above). In other words, they left the exercise of a right which was fundamental to both the applicant and his child at the discretion of the applicant’s spouse with whom he had (at that time) a conflict of interest (see paragraph 6 above). 33. The Court notes that the hindrance complained of is by its very nature temporary, as it could only last as long as the divorce proceedings were pending. However, in the case at hand these proceedings, initiated on 13 September 2012 (see paragraph 6 above), lasted for more than four years (see paragraph 16 above). The applicant – and equally important, his child – was therefore affected for about three years and five months – that is to say from 9 June 2013 (when he last saw his son – see paragraph 11 above) until 2 November 2016 (when the divorce court gave the final ruling in the case – see paragraph 16 above). The Court considers that in the present case, the lengthiness of this period of time leads it to find that the respondent State has failed to discharge its positive obligations under Article 8 of the Convention (see, for example, M. and M. v. Croatia, no. 10161/13, §§ 179 and 182, ECHR 2015 (extracts), and Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 127 and 138-142, 1 December 2009). 34. The foregoing considerations are sufficient to enable the Court to conclude that as regards the granting of visiting rights during divorce proceedings the Romanian authorities failed to meet their positive obligations arising from Article 8 of the Convention. The underlying problem lies with an insufficient quality of the domestic law. There has accordingly been a violation of this provision. 35. In the light of the above conclusion, the Court considers that there is no need to make a separate ruling on the complaint concerning the length of the divorce proceedings. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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
37. The applicant claimed EUR 150,000 in respect of non-pecuniary damage for his and his son’s suffering because of the separation imposed on them by I.M.U. as a consequence of the 8 January 2013 judgment. He furthermore claimed EUR 100,000 for the psychological and physical effort he had had to make in order to overcome the obstacles placed by the school administration (see paragraph 10 above) to his maintaining contact with his son. 38. The Government opposed any award being made to the applicant’s son, who was not a party to the instant proceedings. They furthermore argued that the finding of a violation constituted sufficient just satisfaction for the applicant. Lastly, they asserted that the amounts requested by the applicant were exorbitant and unjustified vis-à-vis the awards made by the Court in similar cases. 39. Having regard to all the circumstances of the present case, the Court accepts that the applicant must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. Lastly, bearing in mind that the applicant’s son is not party to the present proceedings, the Court makes no award of damages to the child. B. Costs and expenses
40. The applicant also claimed the following amounts for the costs incurred before the domestic courts and for those incurred before the Court:
(a) RON 1,000 or EUR 230, representing costs charged to the applicant under the decision of 27 May 2013 (see paragraph 9 above);
(b) RON 1,500 or EUR 350, representing costs for translating documents for the Court proceedings;
(c) RON 8,000 or EUR 1,800, representing lawyer’s fee in the Court proceedings. He produced receipts for these costs. 41. The Government considered that the applicant’s obligation to pay RON 1,000 to I.M.U. was a logical consequence of his application for an interim injunction being dismissed as ill-founded by the domestic courts. They furthermore denied the applicant’s right to reimbursement for the translation costs, and argued that he could have asked the Court’s permission to use the Romanian language if he had not mastered sufficiently the official languages. For that reason, they considered this cost to have been unjustified in respect of the proceedings. Lastly, they contended that the lawyer’s fee was excessive and unjustified and also argued that a simple receipt, unaccompanied by a signed contract for assistance, was not sufficient to allow for the evaluation of the actual work performed by the lawyer. 42. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the total amount requested by the applicant – that is to say EUR 2,380, covering costs under all heads. C. Default interest
43. 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 application admissible;

2. Holds that there has been a violation of Article 8 of the Convention in respect of the impossibility of granting of visiting rights during divorce proceedings;

3. Holds that there is no need to examine separately whether there has been a violation of Article 8 of the Convention also on account of the length of the divorce proceedings;

4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,380 (two thousand three hundred and eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliGanna YudkivskaRegistrarPresident