10862/19

FOURTH SECTION CASE OF GHIBAN v. ROMANIA (Application no. 10862/19)             JUDGMENT   STRASBOURG 8 February 2024   This judgment is final but it may be subject to editorial revision. In the case of Ghiban v. Romania, 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 18 January 2024, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 March 2019. 2.  The Romanian Government (“the Government”) were given notice of the application. THE FACTS 3.  The applicant’s details and information relevant to the application are set out in the appended table. 4.  The applicant complained under Article 8 of the Convention of the prison authorities’ refusal to grant him compassionate leave in order to attend his mother’s funeral. Additionally, he complained under Article 3 of the inadequate conditions of detention in the Bucharest Rahova, Jilava, Giurgiu, Mărgineni and Craiova prisons since 6 March 2009. THE LAW ALLEGED VIOLATION OF ARTICLE 8 § 1 of the Convention 5.  The applicant complained that he had been unable to attend the funeral of his mother following the refusal of the prison authorities to grant him compassionate leave. He referred to Article 8 of the Convention. 6.  While the Government submitted observations in the case, the arguments presented therein concern only the complaint under Article 3 of the Convention. 7.  In the leading case of Kanalas v. Romania, no. 20323/14, 6 December 2016, the Court already found a violation in respect of issues similar to those in the present case. 8.  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 this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the reasons invoked by the prison authorities to dismiss the applicant’s request for leave (see appended table) are not sufficient to demonstrate that the interference was “necessary in a democratic society”. 9.  This complaint is therefore admissible and discloses a breach of Article 8 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 3 of the Convention 10.  The applicant also complained under Article 3 of the Convention about the inadequate conditions of his detention in the Bucharest Rahova, Jilava, Giurgiu, Mărgineni and Craiova prisons since 6 March 2009. 11. The Government argued that the applicant had failed to exhaust the available effective remedies for the complaint about the inadequate conditions of his detention, as the action in tort had become an effective remedy for grievances similar to those raised by the applicant, allowing him to have the violation of the Convention acknowledged, either explicitly or in substance, and to receive adequate and sufficient compensation at domestic level. The Government expressly referred to Vlad v. Romania (dec.), no. 122/17, 15 November 2022, in their observations and invited the Court to declare this complaint inadmissible. 12. 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 being held in conditions that were allegedly contrary to the Convention. Subsequently, in Vlad, 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. 13.  From the documents submitted by the Government it transpires that on 24 April 2023 (i.e. after 13 January 2021 when the civil tort action became an effective remedy) the applicant was transferred to the Arad prison, a detention facility of which he has not complained to the Court. He also did not inform the Court of having brought a tort action before the domestic courts. 14.  For all the above reasons and in the light of all the material in its possession, since the applicant ceased to be held in conditions of detention that he alleged 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), the complaint must be dismissed for failure to exhaust domestic remedies. 15.  In the light of the foregoing, the Court considers that the complaint under Article 3 must be dismissed on the ground that the domestic remedies had not been exhausted, pursuant to Article 35 §§ 1 and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Császy v. Hungary, no. 14447/11, 21 October 2014), the Court considers it reasonable to award the sum indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaint under Article 8 § 1 of the Convention admissible and the complaint under Article 3 of the Convention inadmissible; Holds that this application discloses a breach of Article 8 § 1 of the Convention; Holds (a)  that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, 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. Done in English, and notified in writing on 8 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Faris Vehabović  Acting Deputy Registrar President   APPENDIX Application raising complaints under Article 8 § 1 of the Convention (refusal of leave to prisoner for attending funeral of close relatives)   Application no. Date of introduction Applicant’s name Year of birth   Date of prison authorities’ refusal of leave and reasons given Deceased person Judicial proceedings Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 10862/19 11/03/2019 Alexandru Nicolae GHIBAN 05/09/2019 - the conditions to obtain leave were not met mother On 01/10/2019 the surveillance judge of the Giurgiu prison dismissed the applicant’s complaint against the prison authorities’ decision as inadmissible. This judgement was confirmed by final decision of the Giurgiu District Court on 06/12/2019.   3,000     [1] Plus any tax that may be chargeable to the applicants.