FOURTH SECTION

CASE OF FAUR v. ROMANIA

(Application no. 11501/09)

JUDGMENT

STRASBOURG

21 June 2016

This judgment is final but it may be subject to editorial revision.

 FAUR v. ROMANIA JUDGMENT 1

In the case of Faur v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Krzysztof Wojtyczek, President,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Fato Arac, Deputy Section Registrar,
Having deliberated in private on 31 May 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 11501/09) against Romania
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by a
Romanian national, Mr Nistor Isai Faur (the applicant), on 27 March
2006.
2. The applicant, who had been granted legal aid, was represented by
Ms A.I. Rabotka, a lawyer practising in Arad. The Romanian Government
(the Government) were represented by their Agent, Mrs C. Brumar, from
the Ministry of Foreign Affairs.
3. Relying on Article 3 of the Convention, the applicant alleged that he
had been subjected to inhuman and degrading treatment on account of the
material conditions of his detention, including the non-segregation of
smokers and non-smokers, in Arad and Timioara Prisons.
4. On 19 June 2013 the application was communicated to the
Government.

THE FACTS
5. The applicant was born in 1966 and is currently detained in Arad.
6. By a final decision of 21 March 2001 the Arad District Court
convicted the applicant of rape of a minor and sentenced him to thirteen
years imprisonment. The applicants detention started on 21 January 2001
and lasted until 24 May 2011, when he was released from prison on
probation. On 11 July 2013 the applicant was again detained, following a
new conviction for the rape of two girls who were minors, and was
incarcerated in Colibai Prison.
2 FAUR v. ROMANIA JUDGMENT

A. The applicants account

7. In his letters to the Court, the applicant contended that in Arad and
Timioara Prisons he had been kept in overcrowded cells.
8. Despite the fact that he was a non-smoker, he had had to share a cell
with smokers. He lodged several complaints with the domestic authorities in
this respect, claiming that he had health problems because of the smoke he
had inhaled from his inmates cigarettes. By a final decision of 12 April
2005, the Arad County Court allowed one of the applicants complaints and
ordered the placement of the applicant in a non-smoking cell. From the
information submitted by the applicant it is not clear whether that decision
was enforced, but based on his written observations it could be inferred that
he had been placed in a non-smoking cell.
9. Moreover, the applicant alleged that he had been transferred from one
prison to another or from prison to court in vans with detainees who
smoked.

B. The Governments account

10. The applicant was mostly detained in Arad Prison, where he spent
more than eight years. The prison authorities took into account the fact that
the applicant had been convicted of the rape of a minor and for most of his
stay he had therefore been placed alone in an individual cell of 10.40 square
metres.
11. The applicant was detained in Timioara Prison on several
occasions, for five hundred and sixty days in total. On these occasions he
was detained in the medical unit of the prison or in cells used for transit.
According to the information provided by the National Prison
Administration and forwarded to the Court by the Government, the
applicant was held in the following cells:
- cell no. 1 measuring 19.69 square metres, containing eight beds (that is
2.46 square metres per bed);
- cell no. 6 measuring 19.78 square metres, containing three beds (that is
6.59 square metres per bed);
- cell no. 7 measuring 17.71 square metres containing three beds (that is
5.90 square metres per bed);
- cell no. 12 measuring 7.60 square metres containing three beds (that is
2.53 square metres per bed);
- cell no 35 neasuring 20.84 square metres containing ten beds (that is
2.08 square metres per bed);
- cell no. 45 measuring 46. 22 square metres containing nineteen beds
(that is 2.43 square metres per bed);
- and cell no. 66 measuring 21.16 square metres containing nine beds
(that is 2.35 square metres per bed).
 FAUR v. ROMANIA JUDGMENT 3

12. The Government did not provide any information concerning either
the number of the detainees who had occupied the cells or the time spent by
the applicant in each of the above-mentioned cells.
13. The Government submitted that both prisons mentioned by the
applicant had adequate natural and electric lighting and ventilation. Both
prisons had a central heating system providing adequate heating in the
winter. All of the cells in which the applicant had been held had had the
requisite furniture.
14. Cold water had always been available and hot water was available
daily according to a schedule approved by the prison authorities.
15. Concerning the hygiene in the cell, the Government submitted that
prisoners had been responsible for cleaning the cells and were provided with
cleaning products by the prison administration.
16. The applicant had been transferred between the prison facilities in
vehicles fitted with windows, lights, heating and sunroofs. These vehicles
had had between sixteen and thirty-eight seats. Smoking was strictly
prohibited during transfers, and the applicant had anyway been transported
separately from smokers.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

17. The applicant complained about the overcrowding in Arad and

Timioara Prisons. He also complained that, despite being a non-smoker, he
had had to share his cell and the prison vans with smokers. He relied on
Article 3 of the Convention, which reads as follows:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.

A. Admissibility

1. The parties submissions

18. Firstly, the Government contended that the applicant had abused the
right of individual application. They argued that the applicant had intended
to mislead the Court as regards his complaint of overcrowding in Arad
Prison. In particular, the Government noted that in Arad Prison, where the
applicant served most of his sentence (more than eight years out of ten years
and three months), he had been detained in an individual cell.
19. Secondly, they submitted in respect of the admissibility of the case
that the applicant had failed to exhaust domestic remedies through not
4 FAUR v. ROMANIA JUDGMENT

having complained to the competent domestic authorities about the

overcrowding and the alleged exposure to smoke in Timioara and Arad
Prisons and in prison vans.
20. The applicant did not refer in his observations to the objections
raised by the Government.

2. The Courts assessment

21. As regards the Governments request for the application to be
declared inadmissible as an abuse of the right of petition on the grounds that
the applicant complained of overcrowding in Arad Prison while he had in
fact been held in an individual cell, the Court finds that it is not necessary to
examine the said objection as this complaint is in any event inadmissible for
the following reasons.
22. According to the information provided by the National Prison
Administration, not contested by the applicant, for most of his stay in Arad
Prison the applicant had been detained alone in a cell of 10.40 square metres
(see paragraph 10). This leads the Court to conclude that the complaint
about overcrowding in Arad Prison is manifestly ill-founded and must be
rejected in accordance with Article 35 3 (a) and 4 of the Convention.
23. The Court further notes that the Government also raised an objection
of non-exhaustion of domestic remedies concerning the alleged
non-segregation of smokers and non-smokers in the cells as well as in the
vans in which the applicant had been transported. In this respect the Court
notes that in recent applications lodged against Romania concerning similar
complaints the Court has already found that, given the specific nature of this
type of complaint, the legal action suggested by the Government does not
constitute an effective remedy (see Toma Barbu v. Romania, no. 19730,
50, 30 July 2013). Moreover, the applicant lodged several complaints with
the domestic authorities concerning his alleged exposure to passive
smoking.
24. It therefore rejects the Governments plea of non-exhaustion of
domestic remedies in respect of this part of the applicants complaints.
25. Lastly, the Court notes that the remaining complaints raised by the
applicant under Article 3 of the Convention are not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that they are not inadmissible on any other grounds. They must therefore be
declared admissible.

B. Merits

26. The applicant reiterated that he had been held in overcrowded cells.
He also argued that it was irrelevant that he had been held in a non-smoking
cell because smoking took place everywhere, even on the medical wards
and without any consideration for the detainees illnesses.
 FAUR v. ROMANIA JUDGMENT 5

27. The Government contended that the domestic authorities had taken
all necessary measures in order to ensure that the applicants conditions of
detention were adequate. They also submitted that the applicant had been
held in different prison cells providing between 2 and 6 square metres of
living space which were cells for non-smokers. Furthermore, in Timioara
Prison he had been detained on medical wards where smoking had been
prohibited.
28. They also contended that the applicants allegations that he had
suffered because he had been constantly exposed to smoke were untrue, as
his medical records did not show that he was suffering from any disease
caused by exposure to passive smoking.
29. The Court notes that the applicant was kept in detention in Timioara
Prison in poor conditions. The Court refers to the principles established in
its case-law regarding inadequate conditions of detention (see, for instance,
Kuda v. Poland [GC], no. 30210/96, 90-94, ECHR 2000-XI, and
Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 139-165,
10 January 2012). It reiterates in particular that a serious lack of space in a
prison cell weighs heavily as a factor to be taken into account for the
purpose of establishing whether the detention conditions described are
degrading from the point of view of Article 3 and may disclose a
violation, both alone or taken together with other shortcomings (see,
amongst many authorities, Karaleviius v. Lithuania, no. 53254/99, 39,
7 April 2005, and Ananyev and Others, cited above, 145-147, 149).
30. In the leading case of Iacov Stanciu v. Romania (no. 35972/05,
24 July 2012), the Court already found a violation in respect of issues
similar to those in the present case.
31. Having examined all the material submitted to it, the Court has not
found any fact or argument capable of persuading it to reach a different
conclusion on the merits of these complaints. Having regard to its case-law
on the subject, the Court considers that in the instant case the applicants
conditions of detention in Timioara Prison were inadequate.
32. The applicant also raised another complaint concerning his alleged
non-segregation of smokers and non-smokers in both prisons and in the
prison vans. In the light of its findings above, the Court does not consider it
necessary to examine these remaining aspects (see, Epistatu v. Romania,
no. 29343/10, 55, 24 September 2013, and Bahn v. Romania,
no. 75985/12, 53, 13 November 2014).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. Article 41 of the Convention provides:

6 FAUR v. ROMANIA JUDGMENT

If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

A. Damage

34. The applicant claimed 1,000,000 euros (EUR) in respect of

non-pecuniary damage. He also claimed 300 EUR/month until the end of
his life by way of compensation for his exposure to smoke and to a toxic
environment.
35. The Government submitted that the amounts claimed were excessive
and unjustified.
36. The Court observes that in the current case it has found the
respondent State to be in breach of Article 3 on account of the material
conditions of detention in Timioara Prison. It accordingly awards the
applicant EUR 3,900 in respect of non-pecuniary damage.

B. Costs and expenses

37. The applicant also claimed EUR 1,100 for the costs and expenses
incurred through the correspondence before the domestic courts and the
Court.
38. The Government argued that the applicant had not submitted any
documents to justify the costs and expenses he had allegedly incurred.
39. According to the Courts case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court rejects the claim for costs and
expenses.

C. Default interest

40. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the material conditions of detention
in Timioara Prison and non-segregation of smokers and non-smokers
admissible and the remainder of the application inadmissible;
 FAUR v. ROMANIA JUDGMENT 7

2. Holds that there has been a violation of Article 3 of the Convention on

account of the material conditions of detention in Timioara Prison;

3. Holds that there is no need to examine the remaining complaint under

Article 3 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three
months, EUR 3,900 (three thousand nine hundred euros), to be
converted into the currency of the respondent State at the rate applicable
at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;

5. Dismisses the remainder of the applicants claim for just satisfaction.

Done in English, and notified in writing on 21 June 2016, pursuant to

Rule 77 2 and 3 of the Rules of Court.

Fato Arac Krzysztof Wojtyczek

Deputy Registrar President