20203/17;38524/20;49452/20

FOURTH SECTION CASE OF KALLO AND OTHERS v. ROMANIA (Application no. 20203/17 and 2 others – see appended list)             JUDGMENT   STRASBOURG 11 April 2024       This judgment is final but it may be subject to editorial revision.   In the case of Kallo and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:  Branko Lubarda, President,  Anne Louise Bormann,  Sebastian Răduleţu, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 21 March 2024, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in applications against Romania 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 Romanian Government (“the Government”) were given notice of the applications. THE FACTS 3.  The list of applicants and the relevant details of the applications are set out in the appended table. 4.  The applicants complained of the inadequate conditions of their detention. THE LAW JOINDER OF THE APPLICATIONS 5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.  The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention. 7.  As regards the admissibility of applications nos. 20203/17 and 49452/20, the Government raised a preliminary objection concerning the loss of the victim status for certain periods of detention specified in the appended table because adequate redress based on Law no. 169/2017 amending and completing Law no. 254/2013 on the execution of sentences was afforded for those specific periods of detention. 8.  The Court notes that the domestic remedy introduced in respect of the inadequate conditions of detention in Romania and applicable until December 2019 was held to be an effective one in the case of Dîrjan and Ştefan v. Romania (dec.), nos. 14224/15 and 50977/15, §§ 23-33, 15 April 2020. The Court therefore finds that the relevant parts of applications nos. 20203/17 and 49452/20 (details described in the appended table) are incompatible ratione personae with the provisions of the Convention because the applicants were, indeed, afforded adequate redress for certain periods of their detention, specified in the appended table. Those parts of the applications must be declared inadmissible in accordance with Article 35 §§ 3(a) and 4 of the Convention. 9.  As regards the admissibility of all applications, the Government argued that the applicants had failed to exhaust the available effective remedies for the complaints about the inadequate conditions of their detention, as an action in tort was an effective remedy for grievances similar to those of the applicants, allowing them to have the violation of the Convention acknowledged, either explicitly or in substance, and to receive adequate and sufficient compensation at the domestic level, and invited the Court to declare these applications inadmissible. 10.  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 held in conditions that were allegedly contrary to the Convention (see also Vlad v. Romania, (dec.), no. 122/17, §§ 30-33, 15 November 2022). 11.  However, the applicants either ceased to be held in conditions that were allegedly contrary to the Convention before 13 January 2021 (application no. 20203/17) or continue to be held in such conditions (applications nos. 38524/20 and 49452/20). Therefore, the Court dismisses the Government’s objection as to the non-exhaustion of domestic remedies and finds that the applicants did not have at their disposal an effective domestic remedy for their grievances considering their situations. 12.  Turning to the periods of the applicants’ detention, the details of which are indicated in the appended table, the Court notes that the applicants were kept in detention in poor conditions. 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). 13.  In the leading case of Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017, the Court already found a violation in respect of issues similar to those in the present case. 14.  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. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during the periods indicated in the appended table were inadequate. 15.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. REMAINING COMPLAINTS 16.  In application no. 20203/17 the applicant also raised additional complaints under Article 3 of the Convention related to the conditions of detention served during another period following his release in May 2020 and re‑apprehension several months later. 17.  The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 18.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Rezmiveș and Others, cited above), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints concerning the inadequate conditions of detention, for the periods specified in the appended table, admissible, and the remainder of the applications inadmissible; Holds that there has been a breach of Article 3 of the Convention concerning the inadequate conditions of detention for the periods specified in the appended table; Holds (a)  that the respondent State is to pay the applicants, within three months, the amounts 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 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 11 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Branko Lubarda  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   Facility Start and end date Duration Sq. m per inmate Specific grievances Domestic compensation awarded (in days) based on total period calculated by national authorities Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1]     20203/17 17/05/2017 Imre-Roberto KALLO Bistrița, Baia Mare and Gherla Prisons 24/12/2019 to 06/05/2020 4 month(s) and 13 day(s) 2.08 m² lack of or inadequate hygienic facilities, lack of fresh air, lack of or insufficient electric light, poor quality of food, lack of toiletries, overcrowding 192 days in compensation for the period of detention spent in inadequate conditions between 03/08/2016-01/12/2017 and 25/05/2018-23/12/2019 1,000     38524/20 05/10/2020 Florin CONSTANTIN Giurgiu, Craiova, Târgu Jiu, Pelendava, Turnu Severin, Jilava Prisons 27/10/2017 to 01/05/2022 4 year(s) and 6 month(s) and 5 day(s)   The applicant continues being held in detention in allegedly poor conditions, after 01/05/2022, a period which is not the subject of the present application   2.9 m² overcrowding (save for 05/10/2019-27/09/2020, 19/03/2021-18/05/2021, 10/11/2021-11/04/2022), no or restricted access to warm water, poor quality of food, lack of or poor quality of bedding and bed linen, inadequate temperature, no or restricted access to potable water, lack of or restricted access to leisure or educational activities - 5,000     49452/20 04/12/2020 Mihai MILUŢ Mioveni Prison Hospital, Craiova, Craiova-Pelendava, Drobeta-Turnu Severin Prisons 23/12/2019 pending More than 3 year(s) and 11 month(s) and 15 day(s) 2.01 m² no or restricted access to warm water, lack or inadequate furniture, lack of or insufficient natural light, mouldy or dirty cell, infestation of cell with insects/rodents 42 days in compensation for a total period of detention spent in inadequate conditions from 12/04/2018-22/12/2019 3,000   [1] Plus any tax that may be chargeable to the applicants.