MIHĂILESCU proti Rumunsku

FOURTH SECTION

DECISION

Application no. 45735/16
Gabi-Ainăld MIHĂILESCU
against Romania

The European Court of Human Rights (Fourth Section), sitting on 14 June 2022 as a Committee composed of:

Yonko Grozev, President,

Iulia Antoanella Motoc,

Pere Pastor Vilanova, Judges,

and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 45735/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 July 2016 by a Romanian national, Mr Gabi-Ainăld Mihăilescu, who was born in 1971 and lives in Bacǎu (“the applicant”);

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. On 29 October 2013 a medical committee issued a certificate attesting that the applicant had been classified as a person with a permanent, severe physical disability on account of his visual impairment. The medical commission granted the applicant the right to a personal care assistant (for further details, see Mihăilescu v. Romania [Committee], no. 11220/14, 14 February 2017, and Mihăilescu v. Romania [Committee], no. 72608/14, 24 September 2019). The applicant also suffers from various other medical disorders, including coronary heart disease and hepatic steatosis.

2. The applicant served his prison sentence in Iaşi, Bacău, Vaslui and Găeşti prisons. He transited through several other prisons in order to take part in judicial proceedings and for medical reasons.

3. The present application concerns his complaint that, in spite of his severe visual impairment which entitled him to have a person assigned to help him, he was not granted such assistance on the occasion of his various transfers to other detention facilities.

4. In the application form, he referred in general terms to several incidents which occurred in the period from February to May 2016 when, during his transfers to various prisons, he was left without a personal care assistant. No specific hardships were indicated; the applicant simply relied on his right to a personal care assistant, as acknowledged by the 2013 certificate (see paragraph 1 above).

5. His complaints lodged in this respect with the post-sentencing judge, referring to transfers which had occurred between 22 and 29 February, on 1 March, and from 5 to 6 April 2016, were dismissed on the grounds that the right to be accompanied by a personal care assistant during transfer between prison facilities was not provided for by the law. Indeed, in so far as the person assigned as personal care assistant was chosen from among other inmates considered sufficiently reliable to perform such assistance tasks, that person’s prison schedule could not be adjusted to perfectly fit the applicant’s transfer schedule. Furthermore, every transfer order was approved by the National Prison Administration, seeking to ensure that all inmates (including those assigned as personal care assistants as well as those assisted) duly attended the judicial proceedings for which they were respectively called. Hence, to allow a personal care assistant to accompany the person he or she assisted for each transfer was not only logistically difficult and inefficient, but also lacked any legal basis.

6. The court also established that, pending the impugned transfers, the applicant did benefit from the assistance of other inmates who were also being transferred for their own judicial or medical reasons; they helped the applicant get into or out of the car and move around the facility. Occasional help was also provided by the prison guards accompanying the transferred inmates, who also ensured that the applicant moved around safely and reached his destination.

7. In conclusion, neither the applicant’s physical integrity nor his health had been in any way affected by the absence of an assigned personal care assistant for the short periods of time when he was transferred between prison facilities.

8. The Government submitted that in his application form, the applicant referred to one transfer only, that of 27 May 2016. That transfer lasted from 6 a.m. to 8.53 p.m. with a two-hour stop in Focșani Prison. The Court should therefore limit its examination of the case to this incident only.

9. They further submitted that in any event, the other two transfers which had taken place during the period indicated by the applicant were the following, each transfer being organised so as to ensure that the trip to the destination was not excessively long and tiring:

- one transfer on 12 February, departing at 8.31 a.m. with a two-hour stop at Focșani Prison at around 10.30 a.m. and then reaching Jilava Prison in Bucharest at around 8.15 p.m., where the applicant stayed until 15 February at 4.20 a.m. when he left for his final destination, Tulcea Prison, where he arrived at 11.06 a.m.;

- and the second transfer from 22 February at 1.33 p.m., leaving from Tulcea Prison for Slobozia Prison, where he arrived at 5.26 p.m., staying overnight; the next morning at 6.05 a.m. he left for Focșani Prison, where he arrived at 10.54 a.m., leaving after a two-hour stop for Iași Prison, where he arrived at 4.06 p.m.

10. The Government further submitted that pending these transfers, the applicant was assisted by other inmates and by prison guards, in so far as the person designated as personal assistant could not be required to follow the applicant everywhere, since that assistant had his own prison schedule. Therefore, the task of helping the applicant was taken over by those who accompanied him for the transfers. That in itself was not contrary to Article 3, in so far as the applicant was provided with assistance as required and as possible in the circumstances. The applicant has not substantiated the existence of any inconvenience for the mentioned periods of transfer.

11. In his observations, the applicant refuted the Government’s submissions in these terms: “Those stated by the Romanian state are just lies and they are trying to cheat the Court through various tricks. The government agents practice these things to defend their own pockets”.

THE COURT’S ASSESSMENT

12. The Government submitted that the present application constituted abuse of right to petition, in view of the vexatious language used by the applicant (see paragraph 11 above).

13. The Court considers that it is not necessary to examine the preliminary objection concerning abuse of petition, since the application is inadmissible in any event on other grounds.

14. It notes the arguments put forward by the domestic authorities relating to the logistical difficulties in ensuring that the inmate who was assigned as the applicant’s personal care assistant accompanied the latter in all his transfers to other prison facilities (see paragraph 5 above); also, pending the said transfers, the authorities provided some assistance to the applicant (see paragraph 6 above).

15. In the light of the above and of the domestic court’s conclusions as to the lack of any breach of the applicant’s right to his physical integrity (see paragraph 7 above), the Court finds that the solution made available to the applicant as far as his care needs were concerned pending the few‑hour transfers and accommodation in various other prison facilities (see paragraphs 8‑9 above) cannot be considered as unreasonable or otherwise unsuitable in the particular circumstances of the case (by way of contrast, for a situation where the help or first aid provided by cellmates on a day‑to‑day basis over a long period of time was insufficient and incompatible with respect for his human dignity, see Mihăilescu v. Romania [Committee], no. 11220/14, § 49, 14 February 2017 and the references cited therein).

16. The Court also finds it relevant that neither before the domestic courts, nor before it, has the applicant indicated any specific harm or inconvenience suffered during the impugned transfers on account of the absence of his personal care assistant (see paragraphs 4-5 above).

17. Taking into account the particular circumstances of the present case, namely, the short duration of the transfers under discussion, the alternative care assistance provided by the other inmates and prison guards who accompanied the applicant and the absence of any specific or adequately substantiated indication as to the harm suffered during that period, the discomfort presumably experienced during the said transfers is insufficient for the Court to find that the situation complained of reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention.

18. It follows that this application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 July 2022.

Crina Kaufman Yonko Grozev
Acting Deputy Registrar President