Inhuman and / or degrading conditions of detention
II. RELEVANT DOMESTIC LAW A. Provisions on sentencing and the execution of sentences and detention measures ... 27. Law no. 254/2013 on sentencing and the execution of sentences and detention measures came into force on 1 February 2014, repealing Law no. 275/2006. Its implementing regulations were published on 1 1 April 2016. Law no. 254/2013 provides that persons deprived of their liberty may complain to a post-sentencing judge if they consider that the conditions of their detention do not comply with the domestic rules on detainees ’ accommodation. The rules in question are laid down in Order no. 433/2010 of the Ministry of Justice, in force as from 1 5 February 2010, and concern the compulsory standards for detention in prisons ( see paragraph 34 below ). The judge may order the management of a custodial facility to remedy the problems complained of. The judge ’ s decisions can be challenged in the district court within whose jurisdiction the custodial facility lies and are binding on the facility in question. 28. On 1 February 2014 a new Code of Criminal Procedure ( “ the NCCP ” ) came into force. The NCCP provides for new preventive measures in the context of criminal proceedings, such as judicial supervision ( Articles 211-215 1 ), judicial supervision on bail (Articles 216-217) and house arrest ( Articles 218 - 222). ... 29. A new Criminal Code ( “ the NCC ” ) came into force on 1 February 2014. 30. The NCC has retained the three main penalties provided for in the former Criminal Code : life imprisonment, fixed-term imprisonment and fines ( Article 5 3 of the NCC ). 31. Prisoners sentenced to life imprisonment may be released on parole if they have served at least twenty years of their sentence, have displayed good conduct and have satisfied all the civil obligations imposed in the sentencing judgment (Article 99 of the NCC ). Prisoners sentenced to fixed-term imprisonment may be released on parole if they have already served two-thirds of a sentence of up to ten years, or three-quarters of a sentence of more than ten and less than twenty years, if they are serving their sentence under an open or semi-open regime, if they have satisfied all the civil obligations imposed in the sentencing judgment, and if the court is in favour of their reintegration into society ( Article 1 00, paragraph 1, of the NCC ). 32. The imposition of a sentence may be waived under Article 80 of the NCC if the offence is not a serious one and the court considers that the convicted person ’ s conduct, his or her efforts to mitigate the effects of the acts committed and the prospects of rehabilitation justify such a measure. The measure provided for in Article 80 is not applicable to anyone who has a previous conviction or has evaded prosecution or trial, or to offences carrying a sentence of more than five years ’ imprisonment. The NCC provides for the possibility of suspending a sentence consisting of a fine or less than two years ’ imprisonment in the light of the person ’ s conduct prior to conviction, subject to fulfilment of the civil obligations imposed in the sentencing judgment (Articles 83-90 of the NCC ). Lastly, under Article 1 59 of the NCC, the parties may reach a friendly settlement avoiding criminal liability where the proceedings were instituted by the prosecuting authorities of their own motion. 33. Law no. 252/2013, which came into force on 1 February 2014, governs the organisation and operation of the probation system. ... B. Provisions concerning liability in tort 36. Article 1 349 § 1 of the Civil Code provides that everyone must observe the rules of conduct imposed by the law or local custom and refrain from interfering, through actions or inaction, with the rights or legitimate interests of others. Any act committed by a person that causes damage to another renders the person through whose fault the damage was caused liable to make reparation for it ( Article 1 357 of the Civil Code). C. Statistical data concerning the number of detainees in facilities operated by the ANP 37. The National Prison Administration ( Administraţia Naţională a Penitenciarelor – “the ANP”) publishes statistics on its website [2] concerning the number of detainees in all facilities under its authority. These statistics indicate that 33, 434 people were being held on 3 1 December 2013, 28, 225 on 2 6 January 2016 and 28, 062 on 9 August 2016, in facilities with a total capacity of 18, 820 places. According to the same data, the occupancy rate of all facilities under the ANP ’ s authority was 154. 36% on 2 3 June 2015, 153. 87% on 1 4 July 2015, 150. 92% on 1 5 September 2015, 150. 74% on 2 9 March 2016, 150. 41% on 1 7 May 2016 and 149. 11% on 9 August 2016. In calculating the occupancy rate, the ANP used a figure of 4 sq. m of living space per detainee, as provided in Order no. 433/2010 ... D. Recommendations issued by the People ’ s Advocate ... 39. In his Recommendation no. 26 of 7 November 2014 the People ’ s Advocate noted that at Miercurea-Ciuc Prison there was severe overcrowding (1 sq. m of living space per prisoner ), poor lighting, no laundry-drying facilities, insufficient furniture, no canteen for serving meals and an infestation of bedbugs. At Târgu-Jiu Prison, the People ’ s Advocate noted on 1 7 November 2014 that there was overcrowding ( between 1. 21 and 2. 52 sq. m of living space per prisoner ) and no canteen (Recommendation no. 29). On the same date he observed that the water supply for prisoners at Jilava Prison was unfit for consumption (Recommendation no. 30) and that at Galaţi Prison there was very severe overcrowding (183. 99%), insufficient furniture and no permanent water supply (Recommendation no. 31). 40. On 2 4 November 2015 the People ’ s Advocate investigated matters including allegations of poor detention conditions at Botoşani Prison. He observed that one complainant was being held in an overcrowded cell (2. 13 sq. m per prisoner ), meals were served in the cells, the showers were unfit for use and, according to the complainant ’ s fellow inmates, there were sometimes rats, mice, lice and bedbugs (Recommendation no. 24). Overcrowding (2. 21 sq. m per prisoner ), insufficient washrooms and toilets that were not partitioned off were also observed at Pelendava Prison (Recommendation no. 28 of 23 December 2015). During an inspection of Botoşani Prison in 2016, the People ’ s Advocate noted that the prison ’ s occupancy rate was 159.88% in November 2015, that one complainant ’ s cell had 2 sq. m of living space and that the mattresses were very worn out. According to the complainant ’ s fellow inmates, there were bedbugs. The People ’ s Advocate also found that the furniture was inadequate and insufficient and that there was insufficient natural light and artificial lighting (Recommendation no. 10 of 30 March 2016). E. Legislative initiative to improve detention conditions in ANP facilities 41. From 3 to 13 November 2016 the Ministry of Justice held a public consultation on a Bill to amend Law no. 254/2013 on sentencing and the execution of sentences and detention measures. The Bill seeks to introduce a compensation scheme whereby detainees who are victims of chronic overcrowding are entitled to a three-day remission of their sentence for each period of thirty days spent in overcrowded cells. On 2 3 November 2016 the Romanian Government approved the Bill to amend Law no. 254/2013. The Bill will then have to be examined by Parliament. III. RELEVANT COUNCIL OF EUROPE MATERIALS A. The Committee of Ministers 42. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation. The Recommendation reads as follows, in particular: “ The Committee of Ministers, under the terms of Article 1 5.b of the Statute of the Council of Europe, ... Recommends that governments of member states: - take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the Appendix to this Recommendation; Appendix to Recommendation No. R (99) 22 THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 59. The applicants submitted that the respective conditions of their detention in Gherla, Aiud, Oradea, Craiova, Târgu-Jiu, Pelendava, Rahova, Tulcea, Iaşi and Vaslui Prisons and the Baia Mare police detention facility amounted to inhuman or degrading treatment breaching Article 3 of the Convention. Article 3 provides: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” ... B. Merits ... 2. The Court ’ s assessment ... 88. ... The Court considers that the conditions of the applicants ’ detention, also taking into account the duration of their incarceration, have subjected them to hardship going beyond the unavoidable level of suffering inherent in detention. 89. There has therefore been a violation of Article 3 of the Convention. III. APPLICATION OF ARTICLE 4 6 OF THE CONVENTION 90. Article 4 6 of the Convention, in its relevant parts, provides: “ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... ” A. The parties ’ submissions 1. The Government 91. The Government stated that the Romanian authorities had introduced a series of important measures aimed at ensuring full observance of Article 3 of the Convention. Indicating that they were aware of the Court ’ s findings concerning detention conditions and the case-law it had developed following the Iacov Stanciu v. Romania judgment (no. 35972/05, 24 July 2012), the Government gave assurances that they had redoubled their efforts to improve material conditions of detention and reduce overcrowding rates in prisons. Legislative, administrative and budgetary measures had been taken to that end. 92. In this connection the Government cited the NCC, the NCCP, the Law on Execution of Sentences and the Law governing the organisation and operation of the probation system (see paragraphs 27, 28, 29 and 33 above ). They submitted that, as far as pre-trial detention was concerned, the NCC provided for alternative measures ( house arrest, judicial supervision on bail ) and that, with regard to post-conviction detention, the statutory maximum sentence for certain offences had been reduced and fines had replaced prison sentences ( for example, for property-related offences ). They also referred to Article 6 4 of the NCC ( replacement of a fine by community service), Article 80 of the NCC ( some 49, 000 individuals had had the imposition of a sentence waived in 2014) and Article 83 of the NCC ( suspension of a sentence ). Law no. 213/2013 had contributed to reducing the prison population and would continue to do so. Thus, between 2013 and 2014 there had been a decline in the number of people placed in pre-trial detention ( by 31. 75%), the number of people admitted to prison ( by 20%) and the total number of individuals committed for trial. A significant decline in the number of accused persons standing trial for property-related offences had been recorded in 2014 in relation to the period from 2011 to 2013. An increasing number of prisoners had been released on parole between 2013 and 2014. The probation system was becoming increasingly effective and now included 2 6, 749 people in its records. The Government noted that the People ’ s Advocate was one of the institutions monitoring detention conditions under the national prevention programme. 93. The Government also referred to the measures planned under the “ Strategy for the Development of the Judiciary 2015-2020 ”, which were aimed in particular at improving detention conditions and increasing the prospects of social reintegration for detainees. In their submission, a “Social Rehabilitation Strategy”, adopted in June 2015, would in the medium and long term bring about a lasting reduction in crime and the prison population. 94. The Government noted that substantial resources had been set aside for renovating certain police detention facilities and increasing the capacity of some prisons (1, 164, 000 euros (EUR) in 2014). In addition, plans to build two new prisons ( providing a further 1, 000 places) had been given budgetary approval in 2015. 95. With regard to monitoring detention conditions, the Government stated that a coordination service for pre-trial detention institutions was responsible for centralising data on occupancy rates in those facilities. According to data from the service, the average length of detention on remand in police detention facilities was approximately thirty days. Detainees who did not have 4 sq. m of living space were transferred to other detention facilities. At ANP level, the monitoring of detainees in prisons had alleviated the effects of overcrowding. The ANP ’ s budget had increased by EUR 225, 000 in 2015. Since March 2015, following a decision by the director of the ANP, female prisoners and anyone detained in educational facilities had been given permanent access to hot water. 96. Regarding domestic remedies, the Government submitted that the existing legislative framework, namely Law no. 254/13 ( see paragraph 27 above ) afforded an effective preventive remedy in respect of material conditions of detention. The remedy consisted in applying to the post-sentencing judge, who ordered the prisons concerned to provide detainees with the minimum accommodation standards as laid down in the Court ’ s case-law. With a view to executing the relevant judgments, the ANP had recommended that the prisons transfer certain prisoners to other cells or other prisons. The Government submitted twenty-two examples of domestic decisions, including nineteen in which different prisons had been ordered to guarantee prisoners 4 sq. m of living space, and three in which prisons had been required to take particular action: repairing furniture in an applicant ’ s cell, repainting bathroom walls and complying with hygiene standards. With regard to the compensatory remedy, the Government submitted that a liability claim in tort as provided for by the Civil Code ( see paragraph 36 above ) could be brought by applicants wishing to seek redress for damage resulting from material conditions breaching Article 3 of the Convention. In that connection, they submitted a copy of a domestic decision in which the authorities had been ordered to pay compensation to a prisoner on account of the inappropriate medical treatment and diet he had received during his detention. Two other decisions had ordered Jilava Prison to pay compensation to two prisoners for their lack of access to hot water for two months and four months. A final example of a domestic decision concerned an award of compensation to a prisoner who had been forced to share a police cell with two smokers and who had not had permanent access to a toilet. 97. The Government submitted that the aims of the general measures set out above had been to reduce the number of prisoners, to encourage non-custodial sanctions, to increase capacity at detention facilities and to improve detention conditions. Furthermore, about 100 applications registered by the Court in 2015 had resulted in a friendly settlement. The Government were conscious, however, that there were still gaps to be filled before the existing system complied with Convention standards on detention conditions. The authorities had made efforts to tackle overcrowding, and were continuing and stepping up their modernisation and investment plans. A new memorandum, adopted on 1 9 January 2016, had stressed the need to consolidate the probation system ( in particular by increasing the number of probation officers), improve detention conditions and develop alternative measures. Accordingly, an investment plan involving a total of EUR 838. 45 million, to be shared between the ANP, the National Probation Service and the Ministry of the Interior, had been envisaged for 2016-2023. By the end of 2023, 10, 895 new places for detainees would be created, 1, 651 places would be modernised and 5, 847 staff would be recruited by the ANP. By 2018, 626 probation officers and 171 administrative assistants would be recruited to the National Probation Service. Between 2018 and 2020, 1, 769 new places for detainees would be created in police detention facilities. For all the above reasons, the Government contended that it was not appropriate to apply the pilot-judgment procedure. 2. The applicants 98. The first applicant appreciated the Romanian Government ’ s intention to improve detention conditions in prisons and police facilities. Nevertheless, he submitted that he had suffered, and was still suffering, the adverse effects of detention in conditions breaching Article 3 of the Convention, and he urged the Court to decide on his application as soon as possible. 99. The second applicant submitted that the plans produced by the Government to improve detention conditions made no reference to compensation for damage sustained by detainees. He asked the Court to decide on his application and to award him the amounts claimed under Article 4 1 of the Convention. 100. The third applicant contended that the adoption of a pilot judgment would be the most appropriate way of seeking to resolve the structural problem of poor detention conditions in Romania. He submitted that specific obligations should be imposed on the authorities and their fulfilment should be monitored by the Committee of Ministers. In that connection he cited the pilot judgment in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, 10 January 2012). With regard to overcrowding, he referred to the statistics published by the ANP indicating that in October 2015 the prison occupancy rate in Romania had been 150. 68%, with a prison population of 28, 383 detainees occupying 18, 336 places. The ANP had also noted that in some prisons, detainees were obliged to share beds, for example in Ploiești Prison, which the Association for the Defence of Human Rights in Romania – Helsinki Committee ( APADOR-CH ) had visited in 2012, finding that there were twenty-four beds between thirty-one detainees. The situation was similar in police detention facilities ( he cited the case of the facilities in Iași, which APADOR-CH had visited in 2014, finding that three detainees were sharing a cell measuring 6. 21 sq. m). With regard to material conditions of detention, the third applicant referred to the Court ’ s findings concerning the lack of hygiene, inadequate number and poor working order of toilets and sinks, limited access to showers, presence of cockroaches, rats and lice, worn-out mattresses and bed linen and poor- quality food ( he referred to Iacov Stanciu, cited above, § 175). Reports on more recent visits by APADOR - CH confirmed the presence of cockroaches and mould, the failure at certain prisons to ensure that the toilets complied with hygiene standards, and the lack of toilets in police detention facilities. With regard to access to health care, the third applicant stated that the acute shortage of medical staff in prisons was confirmed by official statistics published by the ANP ( out of the 1 ,147 posts that had been approved, only 730 were occupied ). This, in his submission, resulted in a very heavy workload for prison doctors and a lowering of the quality of medical treatment. In addition, there were insufficient funds, a factor that had a direct influence on the medical treatment provided to prisoners. Lastly, the third applicant asked the Court not to suspend the processing of similar cases pending before it, in order to avoid exacerbating the damage sustained by victims. 101. The fourth applicant submitted that the observations produced by the Government did not concern any of the aspects of the poor material conditions of his detention in the Baia Mare police detention facilities, and that he wished to maintain his application. B. The Court ’ s assessment 1. General principles 102. The Court reiterates that Article 4 6 of the Convention, as interpreted in the light of Article 1, imposes on the respondent States a legal obligation to apply, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the applicant ’ s rights which the Court has found to be violated. Such measures must also be taken as regards other persons in the applicant ’ s position, notably by solving the problems that have led to the Court ’ s findings of a violation (see, among other authorities, Rutkowski and Others v. Poland, nos. 72287/10 and others, § 200, 7 July 2015; Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 78, ECHR 2014; Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/ 09, 35315/10 and 37818/10, § 83, 8 January 2013; and Broniowski v. Poland [GC], no. 31443/96, §§ 192-93, ECHR 2004-V, and the references cited therein). 103. In order to facilitate effective implementation of its judgments, the Court may adopt a pilot-judgment procedure allowing it to clearly identify structural problems underlying the breaches and to indicate measures to be applied by the respondent States to remedy them (see Resolution Res(2004)3 on judgments revealing an underlying systemic problem, adopted by the Committee of Ministers on 12 May 2004, and Broniowski, cited above, §§ 189-94). This adjudicative approach is, however, pursued with due respect for the Convention institutions ’ respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention ( see Rutkowski and Others, cited above, § 201, and the references cited therein ). 104. Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court ’ s task as defined by Article 1 9, namely to “ ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto ”, is not necessarily best achieved by repeating the same findings in large series of cases (see Rutkowski and Others, cited above, § 202, and Varga and Others v. Hungary (nos. 14097/12 et al., § 96, 10 March 2015). 105. The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order. While the respondent State ’ s action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements (see Rutkowski and Others, cited above, § 202; Varga and Others, cited above, § 97; and Torreggiani and Others, cited above, § 86). The Court may decide to adjourn the examination of similar cases, thus giving the respondent States a chance to settle them in such various ways. If, however, the respondent State fails to adopt such measures following a pilot judgment and continues to violate the Convention, the Court will have no choice but to resume the examination of all similar applications pending before it and to take them to judgment in order to ensure effective observance of the Convention (see Ališić and Others, cited above, § 143). 2. Application of these principles in the present case ( a) Whether the situation in the present case is incompatible with the Convention and requires the application of the pilot-judgment procedure 106. The Court notes that the first findings of a violation of Article 3 of the Convention on account of inadequate detention conditions in certain prisons in Romania date back to 2007 and 2008 ( see Bragadireanu v. Romania, no. 22088/04, 6 December 2007, and Petrea v. Romania, no. 4792/03, 29 April 2008 ) and that, since the adoption of the judgments in question, there have been increasing numbers of such findings. Between 2007 and 2012 there were ninety-three judgments finding a violation. Most of these cases, like the present ones, concerned overcrowding and various other recurrent aspects linked to material conditions of detention (lack of hygiene, insufficient ventilation and lighting, sanitary facilities not in working order, insufficient or inadequate food, restricted access to showers, presence of rats, cockroaches and lice, and so on). 107. Having regard to the significant inflow of cases concerning the same subject, the Court found it necessary in 2012 to issue guidance to the Romanian authorities under Article 4 6 of the Convention. The existence and extent of the structural problem identified by the Court in Iacov Stanciu ( cited above ) justified the indication of general measures to improve the material conditions in Romanian prisons, in combination with an adequate and effective system of domestic preventive and compensatory remedies, in order to achieve full compliance with Articles 3 and 46 of the Convention ( see Iacov Stanciu, cited above, §§ 195-99). 108. At the same time, the Committee of Ministers has twice assessed the general measures adopted by the Romanian authorities in response to the Court ’ s findings, and its conclusions only served to confirm the worrying state of affairs in the vast majority of Romanian police detention facilities and prisons, which continued to be beset by severe overcrowding and precarious material conditions. The Committee of Ministers found that additional measures were needed in order to set up an adequate and effective system of remedies ( see paragraph 47 above ). The reality of the situation is also confirmed by the latest CPT reports, emphasising the significance of the problem of overcrowding in Romanian custodial facilities. The same reports note that police detention facilities are inappropriate for prolonged periods of detention as they are generally overcrowded, have no direct access to a toilet and are poorly ventilated and unhygienic. The CPT has also found that overcrowding is a persistent problem in Romanian prisons, at some of which it has noted a lack of hygiene, insufficient lighting and ventilation, sanitary facilities not in working order, inadequate food and insufficient sociocultural activities ( see paragraphs 52 - 54 above ). All these findings are also borne out by the recommendations of the People ’ s Advocate, who, after visiting certain prisons, called on the prison authorities to put an end to overcrowding, poor hygiene conditions, the lack of a canteen, the presence of rats, mice and bedbugs and the lack of partitions for toilets, and also urged them to provide drinking water and sufficient furniture and to allow access to working showers ( see paragraphs 39-40 above ). 109. More than four years after identifying the structural problem, the Court is now examining the present cases, having already found a violation of Article 3 of the Convention in 150 judgments on account of overcrowding and inadequate material conditions in several Romanian prisons and police detention facilities. The number of findings of Convention violations on this account is constantly increasing. The Court notes that as of August 2016, 3, 200 similar applications were pending before it and that these could give rise to further judgments finding violations of the Convention. The continuing existence of major structural deficiencies causing repeated violations of the Convention is not only an aggravating factor as regards the State ’ s responsibility under the Convention for a past or present situation, but is also a threat for the future effectiveness of the supervisory system put in place by the Convention (see, mutatis mutandis, Broniowski, cited above, § 193). 110. The Court notes that the applicants ’ situation cannot be detached from the general problem originating in a structural dysfunction specific to the Romanian prison system, which has affected large numbers of people and is likely to continue to do so in future. Despite the legislative, administrative and budgetary measures taken at domestic level, the structural nature of the problem identified in 2012 still persists and the situation observed thus constitutes a practice that is incompatible with the Convention ( see, mutatis mutandis, Torreggiani and Others, cited above, § 88). 111. Having regard to that state of affairs, the Court considers that the present cases are suitable for the pilot-judgment procedure ( see, mutatis mutandis, Varga and Others, cited above, § 100; Neshkov and Others v. Bulgaria, nos. 36925/10 et al., § 271, 27 January 2015; Torreggiani and Others, cited above, § 90; and Ananyev and Others, cited above, § 190). (b) General measures 112. The Court reiterates that its judgments are essentially declaratory in nature and that in principle it is for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in order to discharge its legal obligation under Article 4 6 of the Convention (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). However, this does not prevent the Court from suggesting, purely by way of indication, the type of measures that the Romanian State could take in order to put an end to the structural problem found in the present case ( see, mutatis mutandis, Ananyev and Others, cited above, § 195). 113. It observes that the Romanian State has recently taken measures that may help to reduce overcrowding and its consequences in Romanian prisons. It welcomes the steps taken by the national authorities and can only encourage the Romanian State to continue this work. Nevertheless, it has to be observed that despite these efforts, the occupancy rate in Romanian prisons remains very high, a situation that confirms the findings of the People ’ s Advocate, the Committee of Ministers and the CPT ( see paragraphs 39-40, 46 and 54 above ). 114. In the Court ’ s view, two types of general measures should be implemented to remedy the systemic problem observed in this judgment. ( i ) Measures to reduce overcrowding and improve the material conditions of detention 115. As is indicated by the official data published by the ANP, the occupancy rate for all Romanian prisons ranges from 149. 11% to 154. 36% ( see paragraph 37 above ). In this connection, it should be noted that the majority of the more recent judgments have concerned applicants who had a living space of less than 3 sq. m, or even, in some cases, less than 2 sq. m. while serving their sentences. The Court reiterates that where a State is unable to guarantee that each prisoner is detained in conditions compatible with Article 3 of the Convention, the Court encourages it to take action with a view to reducing the prison population, for example by making greater use of non-custodial punitive measures (see Norbert Sikorski, cited above, § 158) and minimising recourse to pre-trial detention ( see, among other authorities, Varga and Others, cited above, § 104; Ananyev and Others, cited above, § 197; and Orchowski v. Poland, no. 17885/04, § 150, 22 October 2009). 116. Admittedly, it is not for the Court to indicate how States are to organise their criminal-law and penal systems, since these processes raise complex legal and practical issues going beyond the Court ’ s judicial function ( see Torreggiani and Others, cited above, § 95). Nevertheless, the Court would refer to the recommendations issued by the CPT, the assessments made by the Committee of Ministers and the recommendations set out in the White Paper on Prison Overcrowding, which identify a number of possible solutions to tackle overcrowding and inadequate material conditions of detention ( see, respectively, paragraphs 49 and 54, 42 and 46, and 57 above ). 117. With regard to pre-trial detention, the Court notes firstly that the cells at police stations have been found by the CPT and the Committee of Ministers to be “structurally unsuitable” for detention beyond a few days ( see paragraphs 44, 46, 52 and 54 above ). The Court also notes that it has already found that these facilities are intended to house detainees for only very short periods ( see, for example, Horshill v. Greece, no. 70427/11, §§ 43-53, 1 August 2013; Chkhartishvili v. Greece, no. 22910/10, §§ 52-64, 2 May 2013; and Bygylashvili v. Greece, no. 58164/10, §§ 55-62, 25 September 2012). In view of these findings, the domestic authorities should ensure that any pre-trial detainees are transferred to a prison at the end of their time in police custody. The Court notes that the reform implemented by the Government has resulted in some reduction in the number of pre-trial detainees ( see paragraph 92 above ). It welcomes the steps taken and encourages the Romanian State both to ensure that this reform is pursued and also to explore the possibility of facilitating more widespread use of alternatives to pre-trial detention ( see paragraphs 42 and 92 above ). 118. With regard to post-conviction detention, the Court notes with interest the reform initiated by the Government, which focuses in particular on the reduction of the maximum sentences for certain offences, the imposition of fines as an alternative to imprisonment, discharge and suspension of sentences, and the positive effects of the probation system ( see paragraph 92 above ). Although this reform has not had a significant effect on overcrowding levels, which remain fairly high ( see paragraph 37 above ), such measures, coupled with a more diverse range of alternatives to imprisonment ( see paragraphs 46 and 57 above ), could have a positive impact in reducing the prison population. Other possible options, such as relaxing the conditions for waiving the imposition of a sentence, suspending sentences ( see paragraph 32 above ), and above all expanding the possibility of access to parole ( see paragraphs 31 and 42 above ) and ensuring the effective operation of the probation service ( see paragraph 97 above ), could be sources of inspiration for the respondent Government with a view to resolving the problem of the growing prison population and inadequate material conditions of detention. 119. The Court further notes that the Government ’ s new strategy also envisages investment to create additional detention capacity ( see paragraphs 94 and 97 above ). Although this initiative highlights the authorities ’ desire to find a solution to the problem of prison overcrowding, the Court would draw attention to Recommendation Rec(99)22 of the Committee of Ministers, according to which such a measure is generally unlikely to offer a lasting solution to this problem ( see paragraph 42 above ). Furthermore, bearing in mind the precarious physical conditions and poor state of hygiene in Romanian prisons, funds should also continue to be set aside for renovation work at existing detention facilities. 120. The Court leaves it to the respondent State, subject to supervision by the Committee of Ministers, to take the practical steps it deems appropriate to achieve the aims pursued by the above indications in a manner compatible with the conclusions set out in this judgment. (ii) Remedies 121. As to the domestic remedy or remedies to be adopted in order to tackle the systemic problem identified in the present case, the Court reiterates that where conditions of detention are concerned, the “ preventive ” and “ compensatory ” remedies have to be complementary. Thus, where an applicant is held in conditions that are in breach of Article 3 of the Convention, the best possible form of redress is to put a rapid end to the violation of the right not to be subjected to inhuman and degrading treatment. Furthermore, anyone who has been detained in conditions undermining his or her dignity must be able to obtain redress for the violation that has occurred ( see Ananyev and Others, cited above, §§ 97-98 and 210-31, and Benediktov v. Russia, no. 106/02, § 29, 10 May 2007). 122. As the Court has already held in the Iacov Stanciu judgment ( cited above, §§ 197- 98), the respondent State must put in place a preventive remedy allowing post-sentencing judges and the courts to put an end to situations found to breach Article 3 of the Convention and to award compensation if such findings are made. 123. Concerning preventive remedies, the Court notes with interest that the examples provided by the Government ( see paragraph 96 above ) show that the domestic courts have examined situations of overcrowding following complaints by prisoners, and it acknowledges the substantial ongoing efforts by the authorities to ensure compliance with the domestic standards regarding living space for each detainee. The Court acknowledges this significant recent development in the domestic courts ’ case-law, but nevertheless observes that it is difficult to envisage a genuine prospect for detainees to obtain redress for their situation following a decision in their favour unless there is a general improvement in the conditions of detention in Romanian prisons, as described in paragraphs 106 and 108 above. 124. With regard to compensatory remedies, the Court notes with satisfaction that certain courts have examined the various aspects relating to material conditions of detention and have awarded compensation to detainees on that account ( see paragraph 96 above ). However, it notes that in Romanian law, the system of liability in tort is based on personal liability and therefore requires fault on the part of the person who caused the damage ( see paragraph 36 above ). The Court would emphasise that in the case of poor detention conditions, the burden of proof, which rests with the individual, must not be excessive. Moreover, it reiterates that substandard conditions of detention are not necessarily due to problems within the prison administration as such, but usually have more complex causes, such as problems in penal policy ( see Iacov Stanciu, cited above, § 199). Even where it provides for the possibility of compensation, a remedy may not offer reasonable prospects of success, for example if the award is conditional on the establishment of fault on the part of the authorities ( see Ananyev and Others, cited above, § 113; Roman Karasev v. Russia, no. 30251/03, §§ 81 ‑ 85, 25 November 2010; and Shilbergs v. Russia, no. 20075/03, §§ 71 ‑ 79, 17 December 2009). Accordingly, the examples provided by the Government do not demonstrate with the requisite degree of certainty that there is an effective compensatory remedy in this regard. 125. The Court encourages the Romanian State to introduce a specific compensatory remedy allowing appropriate compensation to be awarded for any violation of the Convention that has already been found on account of inadequate living space and/or precarious material conditions. In this context, the Court notes with interest the legislative initiative concerning the remission of sentences ( see paragraph 41 above ), which may afford appropriate redress in respect of poor conditions of detention, provided that, firstly, such a remission is explicitly granted to redress the violation of Article 3 of the Convention and, secondly, it has a measurable impact on the sentence served by the person concerned ( see Stella and Others v. Italy (dec.), nos. 49169/09 et al., §§ 59 - 60, 16 September 2014). Lastly, the Court notes that a compensatory remedy was recently implemented by the Hungarian authorities in the wake of the Varga and Others judgment ( cited above ). 126. In this connection, having regard to the importance and urgency of the problem identified and the fundamental nature of the rights in question, the Court considers that a reasonable deadline must be set for the implementation of the general measures. However, it finds that it is not for the Court to set such a deadline at this stage and that the Committee of Ministers is better placed to do so. That being so, the Court concludes that within six months from the date on which this judgment becomes final the Romanian Government must provide, in cooperation with the Committee of Ministers, a precise timetable for the implementation of the appropriate general measures. (c) Procedure to be followed in similar cases 127. The Court reiterates that in the pilot judgment it may decide on the procedure to be followed in the examination of all similar cases ( see also, mutatis mutandis, Torreggiani and Others, cited above, § 100; Xenides-Arestis v. Turkey, no. 46347/99, § 50, 22 December 2005; and Broniowski, cited above, § 198). 128. The Court decides that pending the adoption by the domestic authorities, subject to supervision by the Committee of Ministers, of the necessary measures at national level, it will adjourn the examination of any applications of which the Government have not yet been given notice where the sole or main complaint concerns overcrowding and poor detention conditions in prisons and police cells in Romania. It points out that it may nevertheless decide at any moment to declare any such case inadmissible or to strike it out in the event of a friendly settlement between the parties or the resolution of the matter by other means, in accordance with Articles 37 or 39 of the Convention. However, the Court may continue its examination of applications of which notice has already been given to the respondent Government ( see, mutatis mutandis, Torreggiani and Others, cited above, § 101). ...
Polgar v. Romania