Considerații cu privire la condițiile de detenție, contrare art. 3 din Convenția (europeană) pentru apărarea drepturilor omului și a libertăților fundamentale, și remediile interne disponibile
Considerations regarding the conditions of detention, contrary to Article 3 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms, and the available internal remedies

Summary/Abstract: The article deals with the issue of inappropriate conditions of detention in the Romanian penitentiary system and the available internal means of appeal.The objectives of the article consist in determining the content of the notion of conditions of detention, the deficiencies of which led to the violation of Article 3 of the ECHR/Convention, the analysis of the applicable internal remedies and of the relation between these from the perspective of obtaining monetary compensation for inappropriate conditions of detention, and the establishing of the effects of the state of necessity on the State’s obligation to ensure appropriate conditions of detention.The results of the research show that the notion of inappropriate conditions of detention includes both the inadequate medical care and the inadequate material conditions of detention, which include overcrowding, as well as other conditions that, while they are not inhuman and degrading treatments themselves, may contribute to the violation of the standards by causing further suffering, the authorities having to ensure the compliance with the conditions of detention including during the state of emergency. The legislation has provided a specific compensatory measure, known to the public opinion as „compensatory review”, which granted days considered as additionally executed from the sentence, for the period spent in inappropriate conditions of detention, a measure that does not apply for the periods of punishment executed before 24 July 2012, nor after the entry into force of the Law No 240/2019. Although the legislation provides two internal means of appeal, one preventive and specific and the other one compensatory and non-specific, consisting in the action in tort civil liability, not using the preventive means of appeal does not prevent the exercise of the compensatory means of appeal. Likewise, the benefit of the compensatory days, obtained as an effect of the „compensatory review”, excludes the obtaining of monetary compensations for inappropriate conditions of detention, related to the same period.The implications consist in clarifying the discussed issue, by facilitating a unitary practice.

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