CASE OF DĂSCĂLESCU v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque
5. The applicant was born in 1966 and lives in Valea Călugărească. 6. In 1993 the applicant was sentenced to twenty years’ imprisonment for homicide. Between 24 November 2004 and 12 November 2008 he was serving his sentence in Arad Prison. 7. The applicant alleged that, between 24 November 2004 and 2 October 2008, while he had been under a closed prison regime in Arad Prison, he had been taking his daily three hours of exercise in outside yards which lacked access to toilets or running water. At certain times there were as many as fifty prisoners in one recreation yard. Especially during the hot days of summer the situation could have been described as inhuman and humiliating, because he had been forced to satisfy his physiological needs together with other prisoners along the fences of the yard, in the same place where they were supposed to walk and breathe fresh air. 8. The applicant alleged that he had on numerous occasions asked the Arad Prison administration to provide sanitary facilities and running water in the recreation yards. His requests had been consistently ignored or had received the reply that renovation works were planned for the future. 9. On 4 June 2008, the applicant lodged a new complaint asking the prison authorities to equip the recreation yards with running water and toilets. The prison authorities noted on the applicant’s request that in fact he had been allowed to take water with him during his daily exercise and he had also been able to go to his cell in order to satisfy his physiological needs during this time. They further noted “At the moment renovation works are under way in the yards.” 10. On 16 July 2008 the post-sentencing judge in Arad Prison rejected a complaint on the same matter lodged by the applicant. The judge held that Law no. 276/2006 on the execution of sentences did not provide for the right to have access to sanitary facilities and water during the prisoners’ daily outside exercise. 11. Relying on the provisions concerning the prisoners’ right to daily exercise set forth by Law no. 276/2006 as well as the provisions of Article 3 of the Convention, the applicant made a complaint against the above-mentioned decision before the Arad District Court. He also sought compensation for non-pecuniary damage in respect of the inhuman treatment he had been suffering during his daily exercise since 24 November 2004 in Arad Prison. The Arad Prison administration maintained before the court that the law did not provide for an obligation to equip the recreation yards with sanitary facilities. 12. In a final judgment of 28 October 2008 the Arad District Court found that the applicant had indeed been deprived of access to a toilet and drinking water during daily exercise, and that this was in breach of Article 48 of Law 275/2006, which regulates prisoners’ right to daily exercise. The court based its decision on witness statements as well as on information submitted by the prison authorities. In view of the evidence before it, the court allowed the applicant’s complaint and ordered the Arad Prison authorities to ensure the applicant’s right to daily exercise in a yard provided with sanitary facilities and drinking water. The applicant’s request for damages was rejected as out of time, since it had not first been raised before the post-sentencing judge. 13. In the meantime, on 23 October 2008 the post-sentencing judge in Arad Prison had studied another complaint lodged by the applicant in respect of another alleged breach of his rights. In this context the post-sentencing judge held that he was not competent in law to deal with the applicant’s request for compensation for non-pecuniary damage. 14. On 2 October 2008 the applicant was placed under a semi-open detention regime, because his prison term was approaching its end. He was moved to a different prison wing, where the recreation yard was provided with both toilets and drinking water. 15. On 12 November 2008 the applicant was conditionally released from prison. 16. In a letter dated 2 June 2014, submitted by the Government, the National Administration of Prisons mentioned that the recreation yards of Arad Prison could not technically be equipped with sanitary facilities because the prison lacked a sewage collection and disposal system. At the time the letter was sent, running water had been made available in all yards.