CASE OF ALEXANDRU ENACHE v. ROMANIA
Preliminary objections dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Ratione materiae;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque
6. The applicant was born in 1973 and lives in Bucharest. He is a lawyer. 7. In a judgment of 25 May 2011, the Bucharest Court of First Instance sentenced him to seven years’ imprisonment for embezzlement and forgery. On 1 December 2011 he was imprisoned in the police station’s detention facility in Bucharest (Centrul de reţinere şi arestare preventivă nr. 2 – secţia 4 Poliţie), where he started serving his sentence. The judgment of the Court of First Instance was upheld by a final judgment of the Bucharest Court of Appeal of 25 November 2011, which was finalised on 25 May 2012. 8. The applicant lodged two applications for a stay of execution of sentence under Article 453 § 1 b) and c) of the former Code of Criminal Procedure (“the CCP”) (see paragraph 22 below). He submitted that he was married and had a child who was only a few months old, born on 19 May 2011, whom he wanted to look after, and that his family were experiencing financial and social difficulties on account of his detention. 9. In a judgment of 27 March 2012, the Bucharest Court of First Instance dismissed his first application on the grounds that a stay of execution of sentence provided for by Article 453 § 1 b) of the CCP for convicted mothers up to their child’s first birthday had to be interpreted strictly and that the applicant could not seek application of that provision by analogy. It also found that the financial and family difficulties referred to by the applicant did not fall within the category of special circumstances required by Article 453 § 1 c) of the CCP to allow a deferral of sentence, especially as they had existed prior to his placement in detention. 10. On appeal by the applicant, the Bucharest County Court upheld the judgment of the Court of First Instance in a judgment of 7 May 2012. 11. In a judgment of 13 June 2012, the Bucharest Court of First Instance dismissed the second application lodged by the applicant under Article 453 § 1 c) of the CCP on the grounds that the statutory conditions were not satisfied. In particular, the court found that enforcement of the sentence did not endanger the applicant’s personal or family situation. In a judgment of 17 July 2012, the Bucharest County Court dismissed an appeal by the applicant against that judgment. 12. The applicant was detained in a number of different prisons, including the Bucharest police detention facility (from 1 to 13 December 2011), BucharestRahova Prison (from 13 to 19 December 2011, 21 December 2011 to 9 January 2012 and 17 January 2012 to 30 January 2013), Mărgineni Prison (from 9 to 17 January 2012) and Giurgiu Prison (from 30 January to 25 February 2013 and from 11 March to 26 September 2013). 13. With regard to the Bucharest police detention facility, the applicant stated that he had been detained there with three other detainees, in cell no. 1, which he said measured 1.80 x 2 sq. m. He said that the cell had only one window, measuring 30 x 40 sq. cm, which had two rows of bars across it and therefore did not let natural light in. He added that the toilets were dirty and separated from the rest of the cell only by a curtain. Lastly, he stated that running water was available only two hours per day. 14. With regard to BucharestRahova Prison, the applicant said that he had been detained in cell no. 209 with eight other detainees. He said that the cell measured 3.20 x 5.80 sq. m and had only one window, measuring 1 x 1.20 sq. m, with bars and a grille and thus no natural light. He added that the cell had been damp and had an unpleasant smell. 15. With regard to Mărgineni Prison, he stated that he had been detained there with twenty-four other detainees in a 2 x 6. sq. m. cell and that there had been no running water. 16. Regarding Giurgiu Prison, he said that he had been detained in an overcrowded cell. He alleged, among other things, that hot water had only rarely been available and that the mattress and bed linen had been dirty. He also complained of the presence of cockroaches, rats and bed bugs. 17. The Government stated that in the Bucharest police detention facility the applicant had been held in a 10.68 sq. m cell containing four bunk beds, a television, natural light and toilets measuring 2.5 sq. m. 18. At Bucharest-Rahova Prison the applicant had been successively detained in seven cells, varying from 19.30 sq. m to 19.58 sq. m in size and containing ten bunk beds. They added that the cells were equipped with toilets, a kitchenette and ventilation and had natural light. 19. At Mărgineni Prison the applicant’s cell had measured 28.35 sq. m and contained twenty-one beds. They specified that it was equipped with toilets, a kitchenette, ventilation and natural light. 20. At Giurgiu Prison the applicant had been detained successively in four cells, varying from 20.35 sq. m to 20.96 sq. m in size and containing space for six detainees. They contained individual beds, a table allowing the inmates to eat their meals together, three bedside tables, a small bench, a television socket and a shoe cupboard. They added that the cells all had toilets measuring 4.03 sq. m, but did not specify whether these were included in the cell area. They stated, lastly, that the cells and the laundry provided to inmates were in good condition. ...