issued by the Registrar of the Court  
no. 059  
25.01.2011  
The authorities failed to safeguard the health of the applicant,  
who had been exposed to fellow prisoners’ tobacco smoke  
In today’s Chamber judgment in the case Elefteriadis v. Romania (application  
no. 38427/05), which is not final1, the European Court of Human Rights held,  
unanimously, that there had been:  
A violation of Article 3 (prohibition of inhuman or degrading treatment) of the  
European Convention on Human Rights  
The case concerned the applicant’s exposure to fellow prisoners’ tobacco smoke in  
shared cells, while being transported to court and in the waiting areas before his court  
appearances.  
Principal facts  
The applicant, Anesti Elefteriadis, is a Romanian national who was born in 1966. He is  
currently serving life imprisonment for murder in Poarta Albă Prison (Romania). When he  
entered prison in 1992 the prison doctor pronounced him clinically fit. Between 1994 and  
2000 he served his sentence in a 13.81 sq. m cell together with three smokers. In 1999  
he was diagnosed with pulmonary fibrosis. According to the applicant, his numerous  
requests for transfer made from 1994 onwards failed to produce results until 1999.  
Between 2000 and 2005 he was imprisoned in different establishments. According to  
medical certificates issued in 2005, his overall state of health was good. After being  
transferred to Rahova Prison in February 2005 he was again placed in a cell with two  
prisoners who, according to the applicant, smoked day and night. Following his requests  
to that effect, he was transferred in November 2005 to a cell where none of the  
prisoners smoked. Medical tests in 2008 showed the applicant to be suffering from grade  
two chronic obstructive bronchopneumopathy.  
The applicant was transported on several occasions between the prison and the domestic  
courts, where he had been summoned to appear at public hearings. He travelled in vans  
transporting large numbers of prisoners in cramped conditions and without any  
ventilation. During the journeys, and also in the prisoners’ waiting areas at the courts,  
smoking was allegedly permitted and the applicant inhaled other prisoners’ cigarette  
smoke.  
The applicant’s first complaint, lodged in 2005, was rejected on the ground that Rahova  
Prison did not have the resources to provide separate cells for non-smokers. A further  
complaint was rejected by a judgment of 14 June 2006. The court referred to the fact  
that the national prisons authority had banned prisoners from smoking in the vehicles  
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month  
period following its delivery, any party may request that the case be referred to the Grand Chamber of the  
Court. If such a request is made, a panel of five judges considers whether the case deserves further  
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral  
request is refused, the Chamber judgment will become final on that day.  
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for  
supervision of its execution. Further information about the execution process can be found here:  
www.coe.int/t/dghl/monitoring/execution  
 
transporting them to court; with regard to the waiting areas, it stated that prisons were  
not responsible for the manner in which the courts organised their activities.  
In the context of proceedings brought by the applicant against Rahova Prison seeking to  
be placed in a no-smoking cell, the national prisons authority stated that it had been  
physically impossible to separate smokers and non-smokers in accordance with the  
anti-smoking legislation. Finding that the applicant’s detention satisfied the criteria laid  
down by the prison’s internal regulations and the national legislation, the court rejected  
his complaint, and did likewise when the case was referred back to it following two  
appeals on points of law. The court observed that the applicant had been placed with  
prisoners who smoked owing to the physical impossibility for the authorities in Rahova  
Prison to provide dedicated cells for non-smokers. Furthermore, the applicant had  
subsequently been transferred to a cell shared with a fellow non-smoker, as the prison  
had sufficient capacity at that time to make that possible. The court further found that  
the applicant had not provided proof of the alleged damage. The judgment was upheld  
on appeal.  
In January 2009 the applicant was transferred to Poarta Albă Prison and placed in an  
individual cell.  
Complaints, procedure and composition of the Court  
Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant  
claimed that he had been obliged to share a cell with smokers, that he had contracted  
pulmonary illnesses for which he had received no treatment and that he had been  
transported and locked up with smokers prior to hearings before the domestic courts.  
The application was lodged with the European Court of Human Rights on 8 October  
2005.  
Judgment was given by a Chamber of seven, composed as follows:  
Josep Casadevall (Andorra), President,  
Elisabet Fura (Sweden),  
Corneliu Bîrsan (Romania),  
Egbert Myjer (the Netherlands),  
Ineta Ziemele (Latvia),  
Luis López Guerra (Spain),  
Ann Power (Ireland), Judges,  
and also Santiago Quesada, Section Registrar.  
Decision of the Court  
Article 3  
The applicant’s complaint concerning the period from June 1994 to December 2000 was  
rejected as being out of time. His complaint that he had not received appropriate  
treatment was rejected for failure to exhaust domestic remedies. The Court examined  
the applicant’s conditions of detention in Rahova Prison and during his journeys between  
prison and court.  
The Court reiterated that it was incumbent on States to organise their prison systems in  
such a way as to ensure respect for prisoners’ dignity, regardless of logistical or financial  
difficulties. From February to November 2005 the applicant had been detained in a cell  
together with prisoners who smoked, in spite of his repeated requests to be transferred  
2
to a no-smoking cell. While his health had stabilised between 2003 and 2005, the  
pulmonary fibrosis for which he had been under observation for several years was a  
chronic illness. The authorities had therefore been under an obligation to take measures  
to safeguard his health by separating him from prisoners who smoked; this could have  
been done, given that there was a cell in the prison containing only non-smokers.  
The overcrowding in Rahova Prison – confirmed by the CPT2 in the reports on its visits –  
in no way dispensed the authorities from their obligation to protect the applicant’s  
health. Daily exercise in the prison yard, sports activities and a relatively large cell which  
was not overcrowded and had natural light and ventilation were not sufficient to offset  
the harmful effects of the second-hand smoke to which the applicant had been subjected  
as a result of being accommodated with smokers.  
The medical certificates issued by several doctors after 2005 testified to a deterioration  
in the applicant’s respiratory condition and noted the emergence of a fresh illness in the  
form of chronic obstructive bronchitis, which the applicant claimed had been made worse  
by his exposure to other prisoners’ smoke in the vehicles transporting him to court and  
in the waiting areas prior to his appearances before the domestic courts.  
While there were no precise indications that the applicant had been subjected to the  
effects of cigarette smoke during his journeys, the fact that he had been held in court  
waiting rooms with prisoners who smoked was amply confirmed by the Bucharest County  
Court judgment of 14 June 2006. Although it was not known how often the applicant had  
been locked up in those rooms, it had undoubtedly occurred on several occasions when  
he had been summoned to appear before the domestic courts. Even assuming that it had  
been for a short period on each occasion, the conditions in question had been contrary to  
the doctors’ advice to avoid exposure to tobacco smoke.  
The fact that the applicant had subsequently been placed in a cell with a non-smoker  
and was now in an individual cell in a different prison was not due to the objective  
criteria laid down in the legislation but to a combination of circumstances (the existence  
of sufficient capacity in the prison at the particular time), and there was no indication  
that the applicant would continue to be held in such favourable conditions if the prison  
were to be overcrowded in the future.  
Lastly, the courts had rejected the applicant’s claim for compensation on the grounds  
that he had not provided physical evidence of the alleged damage and that his conditions  
had improved following his transfer. The mere fact that the situation complained of by  
the applicant had ceased to exist in the meantime on account of his transfer to a more  
favourable setting did not dispense the domestic courts from the obligation to examine  
whether that situation had had harmful effects on him. It was not reasonable to place  
the onus on the applicant to provide proof of the suffering caused. Adopting such a  
formalistic approach would mean excluding the possibility of compensation in numerous  
cases in which detention was not accompanied by an objectively measurable  
deterioration in the prisoner’s physical or mental health.  
The Court therefore held that there had been a violation of Article 3.  
Article 41  
Under Article 41 (just satisfaction) of the Convention, the Court held that Romania was  
to pay the applicant 4,000 euros (EUR) in respect of non-pecuniary damage.  
The judgment is available only in French.  
2
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment  
3
 
This press release is a document produced by the Registry. It does not bind the Court.  
Decisions, judgments and further information about the Court can be found on its  
Internet site. To receive the Court’s press releases, please subscribe to the Court’s RSS  
feeds.  
Press contacts  
echrpress@echr.coe.int | tel: +33 3 90 21 42 08  
Céline Menu-Lange (tel: + 33 3 90 21 58 77)  
Emma Hellyer (tel: + 33 3 90 21 42 15)  
Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)  
Kristina Pencheva-Malinowski (tel: + 33 3 88 41 35 70)  
Frédéric Dolt (tel: + 33 3 90 21 53 39)  
Nina Salomon (tel: + 33 3 90 21 49 79)  
The European Court of Human Rights was set up in Strasbourg by the Council of  
Europe Member States in 1959 to deal with alleged violations of the 1950 European  
Convention on Human Rights.  
4