CASE OF SERCE v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1966 and is currently being detained in Giurgiu Prison. He is married and has four children. His wife resides in Turkey together with their children. 6. On 28 June 2005 the Bucharest County Court convicted the applicant of aggravated murder and sentenced him to eighteen years’ imprisonment. The Bucharest County Court also decided that the applicant would be deported to Turkey at the end of his prison term. 7. In his letters to the Court, which he began sending on 15 July 2008, the applicant complained of the inhuman conditions in which he was being detained, first in Rahova Prison and then in Giurgiu Prison. He described a severe lack of hygiene in both prisons, with insufficient cleaning and personal hygiene products being provided by the prison authorities. He alleged that he could not sleep at night because of bed bugs. He also complained that the food was not adapted to his diabetes. 8. The applicant further alleged that throughout his detention in both prisons he had not been included in any educational activities and had not been allowed to do any work. He had thus been unable to integrate, to be re-educated or to have the term of his prison sentence reduced. 9. In 2008 the applicant was diagnosed with type II diabetes and a sleep disorder. 10. In Rahova Prison the applicant was detained in cells measuring 21 sq. m, which he shared with seven other prisoners (2.62 sq. m of personal space). The cells contained eight beds, a window measuring 1.2 by 1.2 m and their own bathroom with a shower, a sink and a toilet. Cold water was always available and hot water was available twice per week. Heating was provided during the winter up to a maximum temperature of 18oC. 11. The Government submitted that, whenever the presence of bugs was noticed, disinfection operations took place without delay. They submitted documents showing that disinfection had been performed two or three times per year in 2005, 2007 and 2008 in the cells occupied by the applicant in Rahova Prison. 12. The food provided to the applicant was adequate and adapted to his diabetes by substituting pork with beef. 13. The applicant participated in educational and recreational activities whenever necessary. The Government further indicated that the applicant’s reduced participation in the above-mentioned activities was due to his state of health. 14. The Government submitted that on 17 January 2009 the applicant had been transferred to Giurgiu Prison where he was currently being held in a cell measuring 21.47 sq. m together with five other prisoners (3.57 sq. m of personal space). The cell contained six beds, three bedside tables, one bench, one table and a box for shoes. It had a window measuring 1.5 by 1.8 m and a bathroom with a shower, a sink and a toilet. During the winter, a temperature of 19oC was ensured in all the cells. Hot water was provided twice per week. 15. With respect to the prisoners’ personal hygiene, once per month the prison administration provided each prisoner with two bars of soap, one tube of toothpaste, one tooth brush, one tube of shaving cream, one razor, and toilet paper. Concerning the hygiene in the cell, the Government submitted that prisoners were responsible for cleaning the cells and were provided with cleaning products by the prison administration. Regular disinfection was conducted once every three months. 16. The applicant received a menu adapted for his diabetes, which included 125 grams of meat per day. 17. With respect to activities in Giurgiu Prison, the Government submitted that in December 2011 the applicant had watched a folk music concert and in December 2012 he had taken part in a discussion on religious themes conducted by the orthodox priest. Also, once in 2013 and once in 2014 the applicant had taken part in a quiz on Romanian history. 18. In 2007 the applicant lodged a request with the Romanian Ministry of Justice based on the provisions of the Convention between Romania and Turkey on the transfer of convicted persons, seeking to serve the rest of his sentence in a Turkish prison. According to the applicant, he wanted the transfer in order to be closer to his family, who lived in a Turkish village in humble conditions and did not have the means to travel to Romania. 19. The Romanian Ministry of Justice acted on the applicant’s request and initiated the transfer proceedings. As a result, on 5 June 2007 the Ankara District Court acknowledged the judgment of the Romanian court which had convicted the applicant and decided that the rest of the applicant’s sentence should be served in Turkey. 20. On 4 February 2008 the applicant’s transfer request was brought before the Bucharest Court of Appeal. The applicant claimed before the court that such a transfer would be in accordance with the convention signed between Romania and Turkey and would allow him to see his children and to receive visits from his family, who would provide him with adequate food and treatment for his diabetes. 21. In a judgment of 4 April 2008 the Bucharest Court of Appeal rejected the applicant’s transfer request, on the ground that Turkey had less severe legal provisions on conditional release, which might lead to the applicant’s release in a shorter period of time. The punitive and educational purpose of his sentence would thus fail to be achieved. 22. On 15 December 2011 the Bucharest Court of Appeal rejected with the same reasoning a new transfer request lodged by the applicant.