ECHR Ruling of July 20, 2021 in the case "Polgar v. Romania" (complaint No. 39412/19).
In 2019, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to Romania.
In the case, a complaint was successfully considered on the issue that a claim concerning harm has been an effective remedy since January 13, 2021 to obtain compensation for improper conditions of detention or transportation of prisoners in the past. There was a violation of article 13 of the Convention in the case.
CIRCUMSTANCES OF THE CASE
The applicant was held in custody. He appealed against the improper conditions of detention, as well as a remedy (a civil claim for liability for a civil offense used to obtain compensation for moral damage.
Regarding compliance with article 3 of the Convention. In making a final decision on the applicant's case, the Romanian courts noted that during his detention in Deva prison (from February 27, 2014 to April 29, 2015 and from May 14 to May 25, 2015), he was provided with less than 3 sq. m of sanitary space.
In the pilot Judgment in the case "Rezmives and Others v. Romania" (See: Judgment of the European Court in the case "Rezmives and Others v. Romania" (Rezmive and Others v. Romania) of April 25, 2017, Complaint No. 61467/12), the European Court has already found a violation of Article 3 of the Convention in factual circumstances similar to those examined in the present case.
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
Regarding compliance with article 13 of the Convention, considered in conjunction with article 3 of the Convention. Arguing that there was no violation of article 13 of the Convention in the present case, the Romanian authorities referred to a remedy that arose as a result of the development of case law after the above-mentioned Ruling in the case "Rezmives and Others v. Romania" (Rezmive and Others v. Romania), which, according to the Romanian authorities, allowed to resolve numerous individual complaints related to the problem of inadequate conditions of detention in Romania.
(a) The creation of a new remedy provided for by Romanian law. On the basis of the materials submitted to it, the European Court was unable to verify whether all the decisions indicated by the Romanian authorities had entered into legal force. However, taking into account the considerable number of case-law examples and the conclusions of the Romanian courts, the European Court formulated the following observations.
Firstly, with regard to the availability of a remedy, the burden of proof imposed on the applicants did not seem excessive. In most of the examples cited, the complainants used readily available evidence, such as a description of the conditions of detention or transportation complained of, sometimes witness statements, so the Romanian authorities had to refute these allegations.
Secondly, with regard to procedural guarantees, most of the proceedings lasted less than two years in the courts of one or two instances. Only four cases were considered for a little more than two years in the courts of one or two instances. In this regard, although the Romanian legislation in force at the time under review did not set a specific time limit for adjudicating on such disputes, the time spent by the courts of the respondent State to consider a claim for injury did not seem to be unduly long. In addition, the rules on court fees did not seem to impose an additional excessive burden on the plaintiff. According to Romanian law, persons wishing to file a lawsuit against the State to obtain compensation for improper conditions of detention or transportation were not required to pay a court fee.
Thirdly, the Romanian courts analyzed civil claims for their compliance with the standards set out in the case law of the European Court. They considered whether the treatment of the plaintiffs had reached such a degree of cruelty as to fall within the scope of article 3 of the Convention, taking into account the positive obligations of the State arising from this article. They also took into account the consequences of excessive overcrowding in correctional institutions when determining whether there had been a violation of article 3 of the Convention, and attached particular importance to the reasonableness of the amount of compensation for non-pecuniary damage, given the duration of the existence of inadequate conditions of detention.
Fourth, the establishment of the fact of improper conditions of detention or transportation of prisoners was the basis for the presumption of moral harm.
Fifthly, and finally, with regard to the question of whether the plaintiffs received adequate and sufficient compensation for damages, the European Court checked, on the one hand, whether the compensation extended to the entire period complained by the plaintiffs, and, on the other hand, whether the amounts of compensation awarded by the Romanian authorities were reasonable in comparison with the amounts of just compensation awarded by the European Court of Justice in similar cases.
(i) Was the compensation extended to the entire period under appeal? The majority of Romanian courts found a violation of article 3 of the Convention and awarded compensation for all the periods appealed by the plaintiffs. When considering a claim for causing harm due to improper conditions of detention, one court limited the period for which compensation was awarded, ruling that each transfer of the plaintiff to another correctional institution meant calculating the three-year statute of limitations anew. Two other courts took a different position, excluding from consideration, as falling under the statute of limitations, those periods of the plaintiff's detention that were interrupted by the applicant's release and were outside the three-year statute of limitations for filing a claim for causing harm.
In order for the remedies provided by Romanian legislation to be considered effective, the Romanian courts had to analyze complaints of violation of Article 3 of the Convention in accordance with the principles and standards of the case-law of the European Court of Justice. This was especially important in cases where some plaintiffs claimed that they had been detained longer than the three-year statute of limitations. However, only a very limited number of courts have ruled on this issue, and therefore this line of case practice could not be considered widespread and consistent. In the opinion of the European Court, only systematic refusals by Romanian courts, confirmed by established case-law, to apply the concept of a "continuing situation" developed in the case-law of the European Court on complaints of violation of Article 3 of the Convention, could cast doubt on the effectiveness of the measure in question. There was no such situation in the present case.
(ii) Was the amount of compensation appropriate and sufficient? The Romanian courts applied the rules on liability for harm and fairly determined the amount of compensation for moral damage caused to the plaintiffs. In addition, the Romanian courts have not awarded amounts less than those awarded by the European Court of Justice in similar cases.
In the light of the above and the general living standard in Romania, the compensation received by the plaintiffs, considered as a whole, did not indicate the existence of any systemic problem of improper compensation for damages in relation to the amounts awarded by the Romanian courts.
(iii) conclusion. Taking into account the criteria used by the Romanian courts to assess the inadequate conditions of detention and compensation for non-pecuniary damage caused to the applicants, it should be noted that Romania's case law has changed significantly since the aforementioned pilot judgment of the European Court in the case "Rezmives and Others v Romania" (Rezmive and Others v Romania).
This practice was strengthened by the decree of the Supreme Court of Romania of February 19, 2020, which established the basic criteria applied to appeals of this type. This decision, about which the parties were notified on April 14, 2020, was available for review in the database of court decisions of July 13, 2020, and the public could not have been unaware of the decision six months after its publication, that is, on January 13, 2021.
Thus, a claim for harm, as the Romanian courts have repeatedly pointed out, as of January 13, 2021, was an effective remedy for persons who believed that they were subject to improper conditions of detention or transportation of detainees and who were no longer in these conditions at the time of filing the claim.
If the Romanian courts systematically refuse to examine complaints about improper conditions of detention in accordance with the principles and standards defined in the case law of the European Court, this could cast doubt on the effectiveness of this appeal. The European Court retained the authority to finally examine any complaints from applicants who, in accordance with the principle of subsidiarity, used the remedies provided by the Romanian authorities.
(B) the effectiveness of the appeal in the applicant's case. The plaintiff took advantage of the opportunity to file a claim for damage, which did not give him the opportunity to obtain full recognition of the violations of the Convention and receive adequate and sufficient compensation. The final decision in the applicant's case was delivered by the Romanian authorities on 13 February 2019, i.e. long before the date set by the European Court as the date from which the remedy in question could be considered effective.
The case involved a violation of the requirements of Article 13 of the Convention, considered together with Article 3 of the convention (adopted unanimously).
As regards compliance with Article 46 of the convention. As regards preventive remedies, the European Court noted with interest that the degree of overcrowding in correctional institutions in Romania began to decrease immediately after the adoption by the European Court of Justice of a pilot judgment on the subject, and also that appeals to judges for the execution of sentences allowed the Romanian courts to assess the situation with overcrowding in correctional institutions, appealed by some prisoners. However, the downward trend in the number of inmates in correctional institutions reached zero in June 2020, and the corresponding number of people in custody increased for six months, reaching a level of 199.2% by December 2020. This increase was also confirmed by the latest data available on the website of the Romanian correctional system management. Consequently, the European Court could not reach a conclusion different from the conclusion reached in the aforementioned judgment in the case "Rezmives and Others v. Romania" (Rezmive and others v. Romania). Although the Romanian legislation provided for preventive measures, in the absence of a clear improvement in the conditions of detention in Romanian correctional institutions, in particular with regard to their overcrowding, nothing in the case file suggested that these measures would probably provide prisoners with an effective opportunity to bring these conditions in line with the requirements of Article 3 of the convention. The European Court of Justice has asked the Romanian authorities to ensure the implementation of reforms to reduce the number of inmates in correctional institutions and maintain the number of inmates at an acceptable level.
With regard to the compensatory appeal, the European Court noted that from 13 January 2021 a civil claim for injury provided, in principle, an appropriate remedy for complaints of violation of the convention, which could be used by persons who believed that they had been detained in improper conditions in the institutions of the Internal Affairs system or correctional institutions and who, at the time of filing the claims, were no longer, as well as people who appealed against the improper conditions of transportation of prisoners.
In application of Article 41 of the convention. The European Court awarded the plaintiff 2,500 euros as compensation for non-pecuniary damage.