Information Note on the Court’s case-law No. 137

January 2011

Elefteriadis v. Romania - 38427/05

Judgment 25.1.2011 [Section III]

Article 3

Degrading punishment

Inhuman punishment

Positive obligations

Detainee suffering from lung disease subjected to passive smoking in prison and on court premises: violation

Facts – The applicant, who suffers from chronic pulmonary disease, is currently serving a sentence of life imprisonment. Between February and November 2005 he was placed in a cell with two prisoners who smoked. In the waiting rooms of the courts where he was summoned to appear on several occasions between 2005 and 2007, he was also held together with prisoners who smoked. The applicant further claimed to have been subjected to second-hand tobacco smoke when being transported between the prison and the courts. He complained unsuccessfully to the prison authorities.

Law – Article 3: The State was required to take measures to protect a prisoner from the harmful effects of passive smoking where, as in the applicant’s case, medical examinations and the advice of doctors indicated that this was necessary for health reasons. In the instant case the authorities had therefore been obliged to take steps to safeguard the applicant’s health, in particular by separating him from prisoners who smoked, as he had requested on numerous occasions. That appeared to have been not only desirable but also possible, given that there was a cell in the prison in which none of the prisoners smoked. The fact that the prison in question had been overcrowded at the relevant time in no way dispensed the authorities from their obligation to safeguard the applicant’s health. While it was true that the applicant appeared to have had daily exercise in the prison yard, sports activities three times a week and a relatively large cell which had natural light and ventilation and was not overcrowded, these circumstances, however positive, had not been sufficient to offset the harmful effects of the second-hand smoke to which he had been subjected. In particular, following the period during which he had been detained in a cell with smokers, the medical certificates issued by several doctors recorded a deterioration in the applicant’s respiratory condition and the emergence of a further illness, namely chronic obstructive bronchitis. As to the fact that the applicant had been held in court waiting rooms with prisoners who smoked – even assuming that it had been for short periods – this had been against the recommendations of doctors, who had advised the applicant to avoid smoking or exposure to tobacco smoke. The fact that the applicant had eventually been placed in a cell with a non-smoker appeared to have been due to the existence of sufficient capacity in the prison in which he was detained at that particular time rather than to any objective criteria in the domestic legislation ensuring that smokers and non-smokers were detained separately. Thus, there was nothing to indicate that the applicant would continue to be held in such favourable conditions if the prison where he was currently detained were to be overcrowded in the future. With regard to the reasons given by the courts for dismissing his claims for compensation, the mere fact that the situation complained of by the applicant had ceased to exist in the meantime because 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, and to award compensation if necessary. The Court did not consider it reasonable, in the circumstances of the present case, to place the onus on the applicant to prove the truth of his allegations by providing evidence of the suffering resulting from his detention in conditions contrary to Article 3 of the Convention. Adopting such a formalistic approach would rule out 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.

Conclusion: violation (unanimously).

Article 41: EUR 4,000 in respect of non-pecuniary damage.

(See also Florea v. Romania, no. 37186/03, 14 September 2010, Information Note no. 133)

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