Detention in cells less than 3 sq. m., overcrowded, lack of hygiene and lack of heating in prisons. The Court obliges the state to adopt general measures to improve the situation.

JUDGMENT

Petrescu v. Portugal 3-12-2019 (no. 23190/17)

see here

SUMMARY

Degrading treatment of prisoners in prisons. Detention in a cell of less than 3 m,, overcrowding, lack of hygiene and no heating. The Court recommended that the Portuguese State should take general measures to improve the situation. According to the ECHR, measures must first be taken to ensure that detainees are subject to conditions of detention compatible with Article 3 of the Convention. Secondly, a remedy should be available to denounce the alleged violation or to provide better detention conditions. Violation of Article 3 of the ECHR.

PROVISIONS

Article 3

PRINCIPAL FACTS

The applicant, Daniel Andrei Petrescu, is a Romanian national who was born in 1987 and lives in
Grândola (Romania).

In 2012 Mr Petrescu was arrested and detained in the Lisbon police prison in order to serve a
seven-year prison term imposed for theft and criminal conspiracy. He was held there between
9 March 2012 and 17 October 2014, the date of his transfer to Pinheiro da Cruz Prison, which he left
on 19 December 2016.

In his application Mr Petrescu complained, in particular, about his conditions of detention, especially
prison overcrowding, a lack of hygiene and heating, and unsanitary conditions.

THE DECISION OF THE COURT…

Article 3 (prohibition of inhuman or degrading treatment)

1. Admissibility

Mr Petrescu had not taken any administrative or judicial steps at national level to complain about his
conditions of detention. In consequence, the Government asked the Court to dismiss the application
for failure to exhaust domestic remedies.

With regard to the preventive remedies, the Court considered that the domestic law did not
provide for any sufficiently accessible and effective remedy to prevent the continuation of the
alleged violation or to secure an improvement in Mr Petrescu’s conditions of detention, for the
following reasons.

Firstly, a request, complaint or report to the prison governor, the Director General of Prison Services
or the General Inspectorate of Prison Services was not an effective remedy, in that those bodies did
not have the necessary independence to rule in this area, given that they were directly answerable
to the prison authorities.

Secondly, the Government claimed that Mr Petrescu could have applied to the administrative courts
and to the post-sentencing judge for an order that his conditions of detention be improved.

However, they did not submit any evidence that such a remedy would have been effective.

Furthermore, in view of the numerous national and international reports indicating a structural
problem of prison overcrowding at the relevant time, which continued to affect half of the country’s
prisons, it appeared that this problem did not affect Mr Petrescu alone. Thus, even if those courts
were to have issued a favourable decision, the prison authorities would have had difficulties in
implementing it.

Thirdly, the Ombudsman’s decisions were not binding. He only issued recommendations and the
Government had not shown that those recommendations would have made it possible to secure a
rapid improvement in the conditions of detention being complained of.

With regard to the compensatory remedies referred to by the Government, no relevant example
was cited.

In consequence, the Court considered that it was not possible to conclude with sufficient certainty
that Portuguese law provided Mr Petrescu with a preventive and/or compensatory remedy in
respect of his conditions of detention.

2. Merits

During his stay in the Lisbon police, Mr Petrescu was subjected to:

– degrading treatment for 376 non-consecutive days, during which he was held in various
multiple-occupancy cells providing a personal space of less than 3 sq. m.;

– inhuman and degrading treatment for 385 non-consecutive days, during which he was held in
various cells providing a personal space of between 3 and 4 sq. m. In addition, those cells had no
heating and had sanitation areas which were partly separated from rest of the cell by a partition, which was unacceptable where several prisoners shared a cell. During this period the applicant had
had no access to employment, to any educational or cultural activities, or to sport.

– inhuman and degrading treatment for 36 days, during which he had shared a cell with one other
prisoner, where the sanitary area was only partly separated from the rest of the room by a
chest-height partition.

During his stay in the Pinheiro da Cruz Prison, Mr Petrescu was subjected to inhuman and degrading
treatment for 18 days, during which he was held in a cell in which he had only 1.79 sq. m. of
personal space and where the sanitary area was again only partly separated from the rest of the
room by a chest-height partition.

In consequence, the Court recommended that the Portuguese State envisage the adoption of
general measures. Firstly, measures ought to be taken to ensure that prisoners were provided with
conditions of detention which were compatible with Article 3 of the Convention. Secondly, a remedy
ought to be made available to prevent the continuation of an alleged violation or to enable prisoners
to secure an improvement in their conditions of detention.

Just satisfaction (Article 41)

The Court held that Portugal was to pay Mr Petrescu 15,000 euros (EUR) in respect of non-pecuniary
damage.


ECHRCaseLaw

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