CASE OF COSTEL GACIU v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);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)
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1972 and lives in Gherla. 6. On 29 March 2009 the applicant was arrested on suspicion of conspiracy to commit crimes and blackmail, and was placed in the Cluj County Police detention centre. On 28 July 2009 he was transferred to Gherla Maximum Security Prison (“Gherla Prison”) where he remained until 2 February 2011, when his pre-trial detention was replaced by the courts with a prohibition on leaving the town. 7. The applicant alleged that for a period of four months, between 29 March and 28 July 2009, he was held in the Cluj County Police detention centre in a 4 sq. m underground cell with three other prisoners. The cell had no window or ventilation and the walls were covered in mould. He had no free access to water and the cell was extremely unhygienic. He further alleged that access to the toilet was given in accordance with a daily programme which in his opinion amounted to psychological torture. 8. In Gherla Prison the applicant was detained in severely overcrowded cells. He submitted that for a certain period he shared a 38 sq. m cell with twenty-six other prisoners. The cell also lacked ventilation because the window was covered with two rows of metal bars and additional metallic netting. 9. The applicant supported his allegations with statements from Mr S.O.A., who was held in a neighbouring cell in the Cluj County Police facility, and from Mr F.F., who was also held at the Cluj County Police centre at the same time as the applicant, and who afterwards shared a cell with him in Gherla Prison. They confirmed entirely the applicant’s allegations. 10. In the Cluj County Police detention centre the applicant shared a cell of 4.14 sq. m with another prisoner (thus 2.07 sq. m of personal space for each inmate). The cell was not provided with any sanitary facilities such as a toilet, sink or shower. However, the centre had two common bathrooms where the prisoners had access to the toilet on request and to the showers twice a week. The cell had no window to the outside, but ventilation was ensured by a window located above the door and protected with bars and metallic netting. 11. In Gherla Prison the applicant was initially held in quarantine for three days in a 35 sq. m cell which he shared with fourteen other prisoners also in pre-trial detention (thus 2.33 sq. m of personal space for each inmate). The cell had seven rows of bunk beds. 12. Between 31 July and 19 August 2009, still in quarantine, the applicant shared a cell of 43.25 sq. m with twenty-five other prisoners (thus 1.66 sq. m of personal space for each inmate). This cell had eight rows of bunk beds. 13. On 19 August 2009 the applicant was transferred for six days to a cell measuring 16.38 sq. m together with five other prisoners (thus 2.73 sq. m of personal space for each inmate). The cell had three rows of bunk beds. 14. Between 24 August and 9 November 2009 the applicant was held in a cell of 15.96 sq. m with four other prisoners (thus 3.19 sq. m of personal space for each inmate). The cell had three rows of bunk beds. On 9 November 2009 the applicant was moved from this cell at his own request. Between 9 November 2009 and 22 September 2010 he was placed in a cell which measured 51.52 sq. m and accommodated fifteen prisoners (thus 3.43 sq. m of personal space for each inmate). The cell had nine rows of bunk beds. 15. Between 22 and 29 September 2010 the applicant shared a cell measuring 46 sq. m with twenty-two other prisoners (thus 2 sq. m of personal space for each inmate). The cell had nine rows of bunk beds. 16. From 29 September 2010 until his release on 2 February 2011 the applicant shared a cell of 15.96 sq. m with four other prisoners (thus 3.19 sq. m of personal space for each inmate). 17. The cells the applicant was held in were all provided with several tables and a window of 2 m x 1.40 m which ensured natural light and ventilation. 18. On 22 April and 24 July 2010 the applicant requested to be allowed conjugal visits from his wife. His requests were refused by the prison authorities, with the reasoning that no right to such visits was provided for prisoners in pre-trial detention. 19. The applicant complained about these two refusals before the post sentencing judge in Gherla Prison. He relied on Article 82 of Law no. 275/2006 on the execution of sentences, which provided that prisoners on remand should benefit from the same rights as convicted prisoners. On 10 June 2010 the judge rejected the applicant’s complaint, holding that in accordance with Article 44 letters a) and b) of the Regulation for the enforcement of Law no. 275/2006 the applicant, being a prisoner on remand, did not have the right to conjugal visits. 20. The applicant complained against this decision before the Gherla District Court. He underlined that the refusal of conjugal visits amounted to discrimination in breach of the Romanian Constitution and the case-law of the Court. On 26 July 2010 the Gherla District Court rejected the applicant’s complaint with final effect, holding that the decision taken by the judge responsible for the execution of sentences on 10 June 2010 was correctly based on Law no. 275/2006, which provided for the right to conjugal visits only for convicted prisoners. The district court finally held that the contested decision was also in accordance with the Court’s case-law, which stated that restrictions on conjugal visits were not, as such, in breach of Article 8 of the Convention. 21. According to the regulations in force at the relevant time the applicant had the right to a maximum of seventy-two visits throughout his entire detention period of one year and ten months. He was visited by his wife sixty-seven times. The remaining visits were by his father and sister. All the visits took place in an area designated for visits, separated by a glass wall and speaking to each other by telephone, under the visual surveillance of prison guards.