Leiden Law Blog

Faltering detention systems in Europe: the case of Romania

Faltering detention systems in Europe: the case of Romania

Romania has struggled over the last years to improve the situation of prison conditions. At the beginning of this year, the Romanian government even proposed a pardon for officials convicted of corruption in order to ease the overcrowding in prisons. This came under severe criticism and led to heavy protests in the country, eventually resulting in a cancellation of the proposed legislation by the Romanian Senate Committee. Even though this legislation is definitely not the proper way to address the issue of overcrowded prisons, it shows that the government is in any case acknowledging the problem.

The European Court of Human Rights (ECtHR) dealt with numerous cases concerning detention conditions in Romanian prisons. Already in 2007 the Court found a violation of Article 3 of the European Convention on Human Rights (ECHR) in the Bragadireanu v. Romania case (application no. 22088/04), because the prison conditions – in particular the overcrowding and lack of access to hygiene and health facilities – attained the threshold of inhuman and degrading treatment. Since then the cases kept coming.

In 2012 the ECtHR identified a more structural problem in the case of Iacov Stanciu v. Romania (application no. 35972/05). The Court stated that it “has regularly found violations of Article 3 ECHR in respect of the conditions of detention that have existed over a number of years in Romanian prisons” and it urged the Romanian government to take all measures necessary (paragraph 195-196). Unfortunately, the state of affairs persisted and in its Chamber judgment of 25 April 2017, the ECtHR once again found a violation of Article 3 ECHR concerning the conditions of detention in Romanian prisons and in detention facilities attached to police stations (Rezmiveș and others v. Romania, application nos. 61467/12, 39516/13, 48213/13 and 68191/13).

In the Rezmiveș case the Court found that the applicants’ situation was part of a general problem originating in a structural dysfunction specific to the Romanian prison system. Therefore it decided to apply the pilot-judgment procedure. This procedure was created to deal with large groups of identical cases that derive from the same underlying problem. The Court can decide to select one or more cases for priority treatment in order to achieve a solution that ‘extends beyond the particular case’. The aim is to identify a violation, to identify a dysfunction, to give clear indications on how to stop this dysfunction and to accomplish the creation of domestic remedies. In the case at hand Romania has to implement general measures to reduce overcrowding, to improve the material conditions of detention and it has to implement preventative and specific compensatory remedies. By means of the pilot-judgment procedure the ECtHR intends to help national authorities to stop the systematic dysfunction, so that the state is eventually able to abide by the ECHR standards again.

Part of the pilot-judgment procedure is the possibility to ‘freeze’ the examination of all applications which concern similar complaints. The ECtHR decided in the Rezmiveș case to freeze similar complaints that have not yet been communicated to the Romanian government.  The objective is to reduce the workload of the ECtHR and to encourage the national authorities to take the necessary steps. It is believed that when an effective domestic remedy is available, persons will obtain address more easily and quickly than when they have to go to the ECtHR since repetitive cases do not have priority under the current system. Still, the court may resume its examination at any time if the state concerned does not act promptly and effectively or if justice so requires.

Why is it important that Romania improves its detention system as soon as possible? This should have priority not only from a human rights perspective, but also from the perspective of European Union (EU) law. The EU is founded on the principle of mutual trust, which entails that each Member State must presume that all other Member States comply with EU law, and in particular with fundamental rights, save in exceptional circumstances. In Opinion 2/13 concerning the accession of the EU to the ECHR, mutual trust was considered of fundamental importance in EU law. Can this principle still be relied upon when it is clear that Member States, in this situation Romania, do not comply with fundamental rights?

The European criminal law system in particular is based upon mutual trust, which allows for mutual recognition of judicial decisions. Under the European Arrest Warrant (EAW) and the surrender proceedings it is possible for a person to be extradited to another Member State upon the request of that Member State. The Court of Justice of the European Union (CJEU) decided in the case of Aranyosi and Căldăraru (C-404/15 and C-659/15) that mutual trust is not blind trust in this area of law. When there is evidence of a real risk that the general detention conditions lead to a violation of Article 4 Charter of Fundamental Rights of the EU – which corresponds to Article 3 ECHR – and when there are substantial grounds for believing that the person in question will be subjected to this real risk, the executing judiciary must suspend the execution of the EAW.

This ruling had great impact on the principle of mutual trust and the system of the EAW: in exceptional circumstances the presumption of trust no longer applies. It is therefore of utmost importance to improve the detention conditions in Romania, so that Member States of the EU can once again trust Romania to respect the fundamental rights of prisoners.

The ECtHR has given the Romanian government six months, from the date on which the Rezmiveș judgment becomes final, to provide a timetable for the implementation of the proposed general measures. It remains to be seen whether Romania adheres to this deadline and whether they can truly improve detention conditions. The question is perhaps not whether they are willing, but whether they are able to make the necessary changes. The experience gained to date, however, does not paint a particularly rosy picture. 

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