CASE OF VERDEȘ v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1977 and is currently detained in Timişoara Prison. 6. On 10 May 2013 he was detained in Jilava Prison Hospital after receiving a five year sentence for aggravated theft. From 16 June 2013 onwards he was allowed to serve his sentence in a semi-open detention regime. He was held in Timişoara Prison from 10 October to 12 November 2013, where he was transferred again on 16 December 2013. He remains there to date. 7. In his initial letters to the Court, the applicant stated that he had been diagnosed with human immunodeficiency virus (HIV) prior to his incarceration, for which he required treatment. 8. He stated that he had not received adequate medical treatment for his illness on account of a lack of funding, and that his family had had to assist him in this regard. Furthermore, even if he had tried to complain to the postsentencing judge about the matter, his request for a hearing had been denied on the erroneous ground that he had requested a hearing for legal matters. 9. From May 2013 to November 2014 the applicant was examined, tested and treated regularly for his condition in prison and civilian medical centres and hospitals. He received a number of vitamins and was administered antiretroviral treatment on a daily basis. 10. On 10 May and 26 November 2013 the infectious diseases ward of Bucharest Prison Hospital informed the socio-medical ward of Jilava Prison Hospital that they were monitoring the applicant’s condition. He was hospitalised there from 10 to 20 May and from 22 to 26 November 2013 respectively. It was noted, among other things, that on 9 May 2013 the applicant had been taken to a civilian hospital for blood tests, and that he had been undergoing treatment with antiretroviral medication, in particular Truvada, Prezista and Norvir. It was recommended that he follow a highcalorie, protein-rich diet, take vitamins and liver protection medication, have an immunological and viral evaluation after six months, and continue with the aforementioned antiretroviral treatment. 11. On 12 December 2014 Jilava Prison Hospital informed the National Prisons Agency (Administrația Națională a Penitenciarelor), among other things, that during his detention in the aforementioned facility the applicant had refused treatment through the national infectious diseases programme on the grounds that he could purchase it himself. In Romania, the drug Truvada was not included in the national programme, but could be replaced with Emtriva and Viread, which contained the same active substances. Upon his incarceration the applicant asked to be provided with Norvir and Prezista only, but the doctor had denied him the treatment as it would have been incomplete. 12. On the same date the medical centre attached to Timişoara Prison informed the Government and submitted documents showing, among other things, that during his detention the applicant had lacked any HIV-related symptoms and complications. Also, his clinical and immunological condition and biological tests had remained normal. On 12 February 2014 the Timişoara Forensic Institute produced a forensic expert report in respect of the applicant’s condition, recommending, among other things, that he be hospitalised in Jilava Prison Hospital. On 8 March 2014 the applicant signed a waiver refusing hospitalisation on the grounds that his medical condition had been good, he had wanted to work, and he had been monitored by the local civilian hospital in October 2013, where further monitoring had already been scheduled to take place in May 2014. According to the monitoring carried out by that hospital in both May and November 2014, the applicant’s clinical and biological condition had remained normal. 13. On 18 December 2014 the National Prisons Agency informed the Government, among other things, that the applicant had started antiretroviral treatment in 2007 after being incarcerated in Spain. During his detention he had been given a special high-calorie, protein-rich diet reserved for people with HIV. The authorities had also intended to give him the recommended treatment. His antiretroviral treatment consisted of a combination of four active substances grouped into three separate drugs. One of these was Truvada, which contained two active substances but was not available in the recommended combination through the national infectious diseases programme. For this reason, and given that the applicant had purchased the necessary medication himself, he had not been given treatment through the national programme. He had signed a waiver refusing to receive treatment through the programme and had therefore exercised his right to purchase his own medication. The treatment was administered to him under strict medical supervision. His medical condition had been good during his detention therefore there was no causal link between the conditions of his detention and a potential aggravation of his medical condition. 14. In his initial letter to the Court, the applicant stated that he had been detained in overcrowded and squalid cells lacking sufficient air and light. He had also been detained with smokers even though he was a non-smoker. 15. The National Prisons Agency informed the Government that during his detention in Jilava Prison Hospital and after his transfer to Timişoara Prison the applicant had signed a number of contradictory statements as to whether or not he was a smoker. Those dated 11 October 2013, 25 February 2014 and 2 June 2014 stated he was a smoker, whereas others dated 21 November 2013, 17 December 2013, 23 March 2014 and 1 September 2014 stated he was a non-smoker. 16. The National Prisons Agency also informed the Government that during his incarceration in Jilava Prison Hospital the applicant had been detained in cells E2.16, E3.4 and E2.27. 17. From 10 May to 10 October 2013 he had been detained in cell E2.16, which measured 40.3 square metres. He had shared this cell with between eight and fifteen detainees. It had two windows measuring 1.2 x 1.1 metres, which allowed natural ventilation. It also had a bathroom with a sink, two showers and a toilet with natural ventilation. 18. From 21 November to 16 December 2013 the applicant had been detained in cells E3.4 and E2.27, which measured 27.3 and 34 square metres respectively. He had shared his cells with between two to four and eight detainees respectively. Each cell had a window measuring 1.2 x 1.1 m, which allowed natural ventilation. They also had a bathroom with a sink, two showers and a toilet with natural ventilation. 19. Each detainee was allocated a hospital bed. The building had electricity and its own central heating system. 20. The prison authorities complied with the relevant domestic rules when issuing inmates with cleaning materials. Cleaning and maintenance were carried out in accordance with these rules. 21. During his detention in Jilava Prison Hospital the applicant had not initiated any proceedings before the post-sentencing judge under Law no. 275/2006. 22. The National Prisons Agency also informed the Government that during his incarceration in Timişoara Prison the applicant had been detained in cells E1.1, E1.4 and E2.2. 23. From 11 October 2013 to 23 January 2014 and from 27 June 2014 to date he had been detained in cell E1.1 which was an infirmary room; from 23 January to 21 March 2014 he had been detained in cell E2.2; and from 21 March to 27 June 2014 he had been detained in cell E1.4. The cells measured 32.02, 15.43 and 34.03 square metres and had eight, six and eight beds respectively, lined up in two rows. They all had furniture and standard cupboards for personal belongings. The number of detainees never exceeded the number of available beds. Each cell had a window measuring 1.25 x 1.40, 1.10 x 1.34 and 1.27 x 1.45 metres respectively, which allowed for optimal natural ventilation and light the room. Cells E1.1 and E1.4 had an annex with metal shelves for personal luggage and a bathroom with two sinks, showers and toilets with natural ventilation. Cell E2.2 had a bathroom with a sink, shower and toilet. 24. During the cold season heating was permanently on in the cells and during the hot summer the cell doors remained open both at night and during the day to avoid any heat-related problems. The prison authorities issued inmates with cleaning materials and the cells and communal detention areas were cleaned daily by the detainees themselves. Inmates were also issued with personal hygiene products and allowed to wash their bedlinen regularly in the prison washroom. 25. Detainees allowed to serve their prison sentence in a semi-open detention regime could spend time outside their cells from 8 a.m. to 12 p.m. and from 2 p.m. to 6 p.m. They were allowed access based on a preapproved schedule to the prison courtyards, which had sports equipment and tables and benches for leisure activities. They also had access to the library, classrooms and educational activity classes. 26. During his detention in Timişoara Prison the applicant did not lodge a complaint with the post-sentencing judge or domestic courts concerning the conditions of his detention or a breach of his rights as a detainee. He only asked the prison authorities if he could work and his request was allowed. He was regularly informed of the need to maintain personal hygiene and was trained on health and safety in the workplace. 27. On an unspecified date in 2013 the applicant asked the postsentencing judge attached to Jilava Prison Hospital for a hearing on legal matters. 28. On an unspecified date the judge dismissed the applicant’s request on the grounds that it did not provide legal advice. He was informed that the relevant domestic rules prevented the post-sentencing judge from allowing detainees hearings to solve issues that fell outside its competence. It noted that according to the applicant’s request, he had not lodged a complaint about measures which could have interfered with his rights as a detainee or complained that he had been subjected to inhuman and degrading treatment or to discrimination. 29. On 26 November 2013 the applicant asked the warden of Jilava Prison Hospital if he could be assigned to a non-smoking room because he was a non-smoker. 30. On an unspecified date in 2013 the warden of Jilava Prison Hospital dismissed his request stating, among other things, that smoking was prohibited in the applicant’s section of the prison, and that his room was non-smoking. 31. On 3 February and 19 March 2015 the parties submitted to the Court a detailed list of items the applicant had purchased from the prison shops from 16 October 2013 to 10 December 2014. According to that list, from 16 October 2013 to 30 August 2014 he had purchased cigarettes regularly but had seemed to stop purchasing from 2 September to 10 December 2014. He had also purchased lighters a few times. 32. On 11 December 2014 the applicant signed a statement declaring that he had not lodged a complaint with the European Court of Human Rights against Timişoara Prison about the conditions of his detention or medical treatment received, and that his complaint had been lodged against Jilava Prison Hospital. 33. On 19 March 2015 the applicant informed the Court that his situation had not changed at all. He was still being denied the necessary treatment for his condition, detained with smokers and purchasing his own food.