Does witnessing homosexual acts while detained in prison constitute a violation of Article 3?
In Ştefan Lazar and Vasile Luca Teofil v Romania, which ostensibly concerns the complaints of two applicants about convictions for drug trafficking, one of the applicants has brought an Article 3 complaint relating to his detention in prison. Complaints to the Court about imprisonment are (depressingly) common and there is an extensive Article 3 jurisprudence about what does and does not meet the minimum threshold of 'inhuman or degrading treatment or punishment' in this area.
In this case the first applicant, a 41 year old man, has brought an Article 3 complaint about the conditions of his detention in Jilava prison. The applicant claims that in 2003 he was placed in an overcrowded cell that was dirty and infested with cockroaches and that the water he had access to was yellow and infested with parasites. However, an additional element of his Article 3 complaint is that he was required to share with homosexual inmates who practiced sexual activities in his presence.
In its decision, the Court seems to have glossed over the sexual element of the Article 3 complaint. It has stated that the applicant is complaining about 'the material conditions of detention, including overcrowding and the unsanitary conditions of the cell'.
The Court has adjourned its decision on the admissibility of the complaint in order to communicate with the Romanian government and gather more facts about the conditions of the applicant's detention. It will be interesting to see whether, in the Court's subsequent decision and possible judgment on the merits, whether and how the alleged exposure to homosexual acts is considered.