The applicant complained under Article 8 of the Convention of the prison authorities\u2019 refusal to grant him compassionate leave in order to attend his mother\u2019s funeral. Additionally, he complained under Article 3 of the inadequate conditions of detention in the Bucharest Rahova, Jilava, Giurgiu, M\u0103rgineni and Craiova prisons since 6 March 2009.<\/p>\n
European Court of Human Rights This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Ghiban v. Romania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Having deliberated in private on 18 January 2024,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application against Romania lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 11 March 2019.<\/p>\n 2. The Romanian Government (\u201cthe Government\u201d) were given notice of the application.<\/p>\n THE FACTS<\/strong><\/p>\n 3. The applicant\u2019s details and information relevant to the application are set out in the appended table.<\/p>\n 4. The applicant complained under Article 8 of the Convention of the prison authorities\u2019 refusal to grant him compassionate leave in order to attend his mother\u2019s funeral. Additionally, he complained under Article 3 of the inadequate conditions of detention in the Bucharest Rahova, Jilava, Giurgiu, M\u0103rgineni and Craiova prisons since 6 March 2009.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 8 \u00a7 1 of the Convention<\/strong><\/p>\n 5. The applicant complained that he had been unable to attend the funeral of his mother following the refusal of the prison authorities to grant him compassionate leave. He referred to Article 8 of the Convention.<\/p>\n 6. While the Government submitted observations in the case, the arguments presented therein concern only the complaint under Article 3 of the Convention.<\/p>\n 7. In the leading case of Kanalas v. Romania, no. 20323\/14, 6 December 2016, the Court already found a violation in respect of issues similar to those in the present case.<\/p>\n 8. 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 admissibility and merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the reasons invoked by the prison authorities to dismiss the applicant\u2019s request for leave (see appended table) are not sufficient to demonstrate that the interference was \u201cnecessary in a democratic society\u201d.<\/p>\n 9. This complaint is therefore admissible and discloses a breach of Article\u00a08 \u00a7 1 of the Convention.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 3 of the Convention<\/strong><\/p>\n 10. The applicant also complained under Article 3 of the Convention about the inadequate conditions of his detention in the Bucharest Rahova, Jilava, Giurgiu, M\u0103rgineni and Craiova prisons since 6 March 2009.<\/p>\n 11. The Government argued that the applicant had failed to exhaust the available effective remedies for the complaint about the inadequate conditions of his detention, as the action in tort had become an effective remedy for grievances similar to those raised by the applicant, allowing him to have the violation of the Convention acknowledged, either explicitly or in substance, and to receive adequate and sufficient compensation at domestic level. The Government expressly referred to Vlad v. Romania (dec.), no.\u00a0122\/17, 15 November 2022, in their observations and invited the Court to declare this complaint inadmissible.<\/p>\n 12.\u00a0The Court recalls that in Polgar v. Romania, no. 39412\/19, \u00a7\u00a7 94-96, 20\u00a0July 2021, it held that an action in tort, based on Articles 1349 and 1357 of the Romanian Civil Code, as interpreted consistently by the national courts, had represented since 13 January 2021 an effective remedy for individuals who considered that they had been subjected to inadequate conditions of detention, and who were no longer being held in conditions that were allegedly contrary to the Convention. Subsequently, in Vlad, cited above, \u00a7\u00a7 24-32, the Court considered it appropriate to apply an exception to the general principle that the effectiveness of a given remedy was to be assessed with reference to the date on which the application was lodged.<\/p>\n 13. From the documents submitted by the Government it transpires that on 24 April 2023 (i.e. after 13 January 2021 when the civil tort action became an effective remedy) the applicant was transferred to the Arad prison, a detention facility of which he has not complained to the Court. He also did not inform the Court of having brought a tort action before the domestic courts.<\/p>\n 14. For all the above reasons and in the light of all the material in its possession, since the applicant ceased to be held in conditions of detention that he alleged contrary to the Convention after the moment when the tort action had been considered as representing an effective remedy (see, mutatis mutandis, Polgar, \u00a7 96 and Vlad, \u00a7 23, both cited above), the complaint must be dismissed for failure to exhaust domestic remedies.<\/p>\n 15. In the light of the foregoing, the Court considers that the complaint under Article 3 must be dismissed on the ground that the domestic remedies had not been exhausted, pursuant to Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n III. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 16. Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Cs\u00e1szy v. Hungary, no. 14447\/11, 21 October 2014), the Court considers it reasonable to award the sum indicated in the appended table.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the complaint under Article 8 \u00a7 1 of the Convention admissible and the complaint under Article 3 of the Convention inadmissible;<\/p>\n 2. Holds that this application discloses a breach of Article 8 \u00a7 1 of the Convention;<\/p>\n 3. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (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.<\/p>\n Done in English, and notified in writing on 8 February 2024, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n Viktoriya Maradudina \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Faris Vehabovi\u0107 ______________<\/p>\n APPENDIX<\/strong><\/p>\n Application raising complaints under Article 8 \u00a7 1 of the Convention<\/p>\n (refusal of leave to prisoner for attending funeral of close relatives)<\/p>\n
\nFOURTH SECTION
\nCASE OF GHIBAN v. ROMANIA<\/strong>
\n(Application no. 10862\/19)
\nJUDGMENT
\nSTRASBOURG
\n8 February 2024<\/p>\n
\nFaris Vehabovi\u0107, President,
\nAnja Seibert-Fohr,
\nAnne Louise Bormann, judges,
\nand Viktoriya Maradudina, Acting Deputy Section Registrar,<\/p>\n
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n