ÎCCJ, decizie (scj.ro #86308)
ÎCCJ, decizie (scj.ro #86308) (Înalta Curte de Casație și Justiție)
COUR EUROPÉENE
DES
DROITS DE
L’HOMME
EUROPEAN COURT OF
HUMAN RIGHTS
THIRD SECTION
CASE OF
BRAGADIREANU
v.
ROMANIA
(Application no.
22088/04)
JUDGMENT
STRASBOURG
6 December
2007
FINAL
06/03/2008
This judgment will
become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Bragadireanu v.
Romania
,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr
B.M.
Zupančič
,
President
,
Mr
C.
Bîrsan
,
Mrs
A.
Gyulumyan
,
Mr
E.
Myjer
,
Mr
David Thór
Björgvinsson
,
Mrs
I.
Ziemele
,
Mrs
I.
Berro-Lefèvre,
judges
,
and Mr
S.
Quesada
,
Section Registrar
,
Having deliberated in private on
15
November 2007
,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
22088/04) against
Romania
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Alexandru Bragadireanu (“the
applicant”), on
25 May 2004
.
The applicant, who had been granted legal aid, was
represented by Mr A. Grigoriu, a lawyer practising in
Bucharest
. The Romanian
Government (“the Government”) were represented by their Agent, Mrs B. Ramașcanu,
of the Ministry of Foreign Affairs.
The applicant alleged, in particular, that his continued
detention, in the light of his severe health problems, and the standard of medical
care received in prison amounted to a violation of Article 3 of the Convention.
He also complained under Article 6 of the Convention that the criminal
proceedings against him had been unfair and had lasted too long.
On
4 July 2006
the Court decided to
communicate the above complaints to the Government and to grant formal priority
to the application, under Rule 41 of the Rules of the Court. Under the provisions
of Article 29 § 3 of the Convention, it decided to examine the merits
of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1954 and lives in
Bucharest
.
A. Criminal proceedings against the applicant
On
9 June 1993
, the applicant was
placed in police custody for five days under the accusation of having murdered
his partner. On
14 June 1993
, the prosecutor
attached to the
Giurgiu County Court
ordered the applicant's
remand in custody.
Examination of the merits by the domestic courts
On
22 October 1993
, the prosecutor
attached to the
Giurgiu County Court
committed the
applicant for trial for aggravated murder, under Article 176 (a) of
the Criminal Code.
On 4 April, 10 October,
28 November 1994
, 9
January, 13 February and
15 May 1995
, in the presence of
the applicant and D.U., his chosen defence counsel, the County Court heard evidence
from witnesses. On
10 October 1994
the applicant also
gave evidence. On
15 May 1995
the County Court heard evidence from the
prosecutor, the civil party and D.U. It then allowed the applicant to address
the court last.
In a judgment of
29 May
1995
the County Court found the applicant guilty of aggravated
murder and sentenced him to twenty years' imprisonment. It based its judgment
on the witness testimonies, the applicant's declarations and behaviour and the
medical reports concerning the death of the victim. On
16 February 1996
the
sentence was confirmed, upon the applicant's appeal, by the Bucharest Court of
Appeal which heard evidence from the applicant and I.C., his defence counsel.
The applicant appealed in cassation before the
Supreme Court of Justice alleging that he had not committed the murder and
that, therefore, the evidence had been wrongly interpreted by the courts.
Development of the applicant's medical condition
during the proceedings
The applicant was sent to the
Prison
Hospital
from 4 August
to
5 October 1995
, from 4 April to
25 April 1996
and again
from 8 to
22
August 1996
. He underwent several surgical interventions there. In 1996 he
was diagnosed with a perianal tumour but refused further surgery.
Due to a severe problem with his eyes, the doctors who examined
the applicant recommended his release.
During the proceedings before the Supreme Court,
the applicant's health was in constant decline. Therefore, he was absent from
most of the hearings held in the case, but allegedly requested repeatedly that
the proceedings be suspended because of his illness.
It appears from the non-definitive decisions that
the applicant was represented either by a court-appointed counsel or by a
lawyer of his choice for most of the hearings.
On
17 February 1997
, after having
examined the applicant and having noted, in particular, that he had lost 20 kg
in six months, the prison doctors recommended that the applicant undergo an
expert examination by the Forensic Institute. On
10 March
1997
, the same doctors recommended the applicant's release.
He was hospitalised again between 8 January and
30 May 1997
. In March
2007, he was transferred under escort to the Bagdasar public Hospital in
Bucharest
where he
underwent a colostomy. He claims that he was handcuffed to the bed.
On
23 April 1997
, the doctors recommended
his release from custody due to his severe medical condition.
On
15 May 1997
, the Forensic
Institute concluded that the applicant had to follow a three-month course of treatment,
which would prevent him from participating in the proceedings.
Suspension of the proceedings
On
27 May 1997
the Supreme Court
suspended the trial due to the applicant's health condition, as revealed by the
Forensic Institute's report adduced in the case. It also ordered the applicant's
release, which took place on
30 May 1997
.
The Supreme Court requested periodically the
experts' opinion on the applicant's condition in order to assess if the reasons
for the suspension of the proceedings were still valid.
After his release, the applicant continued to be
treated for his illness. On
15 January 1998
the Forensic
Institute certified that another six‑month course of treatment was
necessary and that during that time the applicant could not participate in the
proceedings.
On
10 March 1999
the court held a
hearing and noted that the medical report had not yet been submitted. It set
its next hearing for
2 June 1999
.
On
12 March 1999
the Forensic
Institute informed the Supreme Court that the applicant was fit to participate
in the trial.
On 2 June the court took note of the medical report
but noted some informalities and sent it back to the Forensic Institute. It set
its next hearing for 13 October.
Referral of the case back to the first-instance
court
On
13 October
1999
, in the presence of the applicant's chosen counsel, the Supreme
Court noted that neither the prosecutor nor the lower courts had ordered the applicant's
psychiatric evaluation, required by law for any person prosecuted for
aggravated murder.
Therefore, in a final decision of
25 October 1999
the
Supreme Court of Justice quashed the previous decisions adopted in the case and
sent the case back to the County Court, ordering the applicant's psychiatric
evaluation.
Re-examination of the case
On 10 March 2000 the file was sent to the Giurgiu
County Court, which held the first hearing on 10 April 2000, and then several
more, the applicant being absent due to his health problems. He was, however,
represented in the proceedings mainly by D.U., a lawyer of his choice.
Evidence in the file showed that on
31 May 2000
he had
been released from hospital.
On
20
November 2000
the County Court referred the case back to the prosecutor to order
the psychiatric evaluation.
The prosecutor's appeal against this judgment was
allowed by the Bucharest Court of Appeal in a final decision of
1 March 2001
which
instructed the County Court to order the applicant's evaluation itself, as
decided by the Supreme Court on
25 October 1999
.
On
23 April 2001
the case was restored
to the County Court's list of cases.
Some twenty hearings took place before the County
Court, the case being repeatedly postponed due to the absence of the expert
reports or for erroneous summoning of the parties. It appears that the
applicant did not attend any of these hearings but was represented at most of
them by D.U., his defence counsel.
On
15 June 2001
the applicant was
hospitalised for another operation.
On
14 September 2001
the Forensic
Institute estimated that the applicant required a four-month course of medical
treatment that could not be administered in prison. However, on
29 October 2001
, upon the
County Court's request, it concluded that the applicant was fit to participate
in the trial.
On
5 November 2001
the applicant
appeared before the medical commission for his psychiatric examination.
35
. On
27
March 2002
the psychiatric expert report was adduced in the case. It
confirmed that the applicant had been mentally competent for legal purposes at
the time of the victim's murder. The County Court heard evidence from the
applicant's lawyer and the prosecutor on
20 May
2002
and pronounced its judgment on
10 June
2002
. Due to the applicant's repeated absence on account of his
medical condition, the County Court could not hear evidence from him in person.
36
. The
court re-examined the evidence already in the file and based its decision on
the corroboration of witness testimonies gathered by the investigators and the
courts, the expert reports concerning the victim's death and the applicant's
behaviour towards his partner, towards his former wives (witnesses in the case)
and during the criminal investigations and court proceedings – including the
assessment of the answers he gave during a polygraph test that he had agreed to
take on 12 June 1993 and in the course of which he had not been assisted by a
lawyer – and the psychiatric evaluation of the applicant. The County Court
found him guilty of aggravated murder and sentenced him to twenty years'
imprisonment.
The applicant, through his lawyer, lodged an
appeal against this judgment challenging the interpretation of facts and law by
the County Court. He claimed his innocence and alternatively asked the court to
reduce his sentence. His appeal was rejected as out of time in a decision of
13 November
2002
of the Bucharest Court of Appeal.
However, on 28 February 2003 the Supreme Court of
Justice, upon the applicant's request, quashed the decision and referred the
case back to the Bucharest Court of Appeal for a re-examination of the appeal.
It considered that the applicant had respected the time limits for lodging his
appeal.
The applicant did not attend any of the four
hearings held before the Court of Appeal. I.C., his chosen representative,
attended one of these hearings. The court noted that both the applicant and his
lawyer alleged that their health had prevented them from attending the
hearings. However, the Court of Appeal found that the applicant was not hospitalised
at that time and that his lawyer had failed to designate a substitute, although
the court had requested him to do so, in compliance with the law.
On
29 May 2003
the Court of Appeal designated
of its own motion a representative for the applicant. The same day it examined
and rejected the appeal, the applicant not being present at the hearing. It
found that the evidence confirmed the applicant's guilt and that in the
circumstances of the case the penalty imposed by the District Court was justified.
The court‑appointed counsel pleaded for the applicant's innocence and
alternatively asked the court to lower the sentence imposed.
The applicant appealed in cassation against this
decision with the Supreme Court of Justice, challenging, as before, the
interpretation of facts and law by the courts. The applicant did not attend any
of the three hearings on the merits held in the case. At the first hearing, his
personal assistant appeared (see paragraph 42 below), informed the Court of the
applicant's poor health and asked for a postponement to allow the applicant to
appoint a representative. The court postponed the case and appointed a lawyer
for the applicant. Before the next hearing, I.C., the applicant's defence council
who had represented him in the appeal above, made a written request for another
postponement on the ground that he did not have time to study the whole file. In
the presence of the court-appointed counsel and of the prosecutor, the court
allowed the request. However, I.C. failed to appear at the last hearing of
12 February 2004
. The court‑appointed
counsel participated on behalf of the applicant. In a final decision rendered
on the same day, after reassessing the evidence adduced in the case, the Supreme
Court upheld the sentence.
B. The applicant's detention
On
28 August 2003
the applicant was
examined by a commission of doctors from the Commission for the protection of
handicapped persons. They established that his condition amounted to a severe
functional deficiency which entitled him to a personal assistant.
Expert examination of the applicant with a view to
postponing or suspending the execution of his sentence
On
19 February 2004
the applicant lodged
a request for the postponement of the execution of the sentence for medical
reasons. Later on he reformulated it, asking for the suspension of the sentence.
On
1 March 2004
the applicant was
referred to the Forensic Institute for an opinion on whether he was fit to
serve the sentence.
The Forensic Institute doctors re-examined the
applicant and concluded that the stage of his illness permitted the continuation
of his imprisonment and that his medical treatment could be continued in prison
hospitals:
“The
pathology ... is severe, with unpredictable evolution, possibly towards a fatal
prognosis which can happen regardless of whether [the applicant] is in prison
or released.”
The doctors submitted their report on
30 September
2004
.
Based on this evidence, the applicant's request for
suspension was rejected on
18 October 2004
by the Giurgiu County
Court. The decision was upheld by the Bucharest Court of Appeal on
22 November 2004
. The
applicant did not appeal on points of law and thus this latter decision became
final.
On
24 October
2006
the Forensic Institute started a new expert examination of the
applicant in order to assess the possibility of interrupting the execution of
his sentence. However, on
30 August 2006
the applicant refused
to continue with this examination, as he considered that it would not benefit
him.
Medical care and conditions in prison
On
10 March 2004
the applicant was
imprisoned in order to serve the remainder of the sentence. He claimed that he had
been placed in a cell with thirty beds arranged at three levels and with badly damaged
mattresses, with two detainees in each bed, two toilets and no shower or warm
water in the room. Due to his medical condition (as he had an artificial anus, he
was unable to control his bowel movements) he asked to be transferred to a
single-bed cell, but his request was rejected on the ground that no such cells
existed in that penitentiary, except those fo
r s
olitary
confinement.
According to the applicant, he repeatedly
requested to be examined by a doctor, but to no avail. He claimed that his
medicine had not been provided by the authorities for lack of funds, and his
family had had to send it to him.
The Government sent the applicant's medical file
along with a letter from the Administration of Penitentiaries dated
26 September
2006
which detailed the medical care that the applicant received in
prison.
It appears that from 10 to
22 March 2004
he was
hospitalised in the
Jilava
Penitentiary
Hospital
where he
was examined by the penitentiary doctors. He underwent laboratory tests and an
oncological evaluation in public hospitals.
Subsequently he was examined periodically by the
penitentiary doctors and often sent for specialist check-ups.
From 8 May to
22 July
2004
the applicant was hospitalised again in the
Jilava
Penitentiary
Hospital
.
Laboratory analyses were performed and he was also sent to the public hospital
for more detailed examinations.
He was hospitalised again in Jilava from 8 to
28 August 2004
. On
18 August
2004
the doctors performed an abdominal ultrasound scan and
recommended check-ups every three months.
On
6 August 2004
the applicant received
from his family thirty tubes of Pentoxifilin.
His medical surveillance continued throughout
2004, 2005 and 2006. He underwent ophthalmologic check-ups, was seen by
specialist doctors at least every other month, and received through the penitentiary
pharmacies the prescribed medicines every month.
On
28 June 2005
the applicant
informed the authorities that he refused to be examined in the
Jilava
Penitentiary
Hospital
, bearing
in mind his criminal complaint of ill treatment against the penitentiary doctors
(see paragraphs 61-62 below).
He was hospitalised again in Jilava from 23 to
31 August 2006
.
It appears that the applicant received medicine from
the penitentiary pharmacies as prescribed by the doctors that had examined him.
Between the periods of hospitalisation, the
applicant was detained in the penitentiaries in Rahova and
Giurgiu
.
Complaints concerning the conditions in prison and
medical care
On
4 June 2004
the applicant lodged
a criminal complaint against the penitentiary doctors that had operated on him
while in detention. He accused them of intentional harm and malpractice during
the surgical intervention. On
1 April
2005
the Bucharest Military Prosecutor's Office dismissed the
complaint as out of time. The applicant appealed against this decision. In his
letter to the Prosecutor's Office, he invoked the fact that he was “transported
to and kept in the
Bagdasar-Arseni
Hospital
under
escort”. The criminal complaint was re-examined and dismissed again, on
28
July 2005
, by the Bucharest Military Prosecutor. In a decision of
18 April 2006 the Bucharest Military County Court upheld the Prosecutor's
decision, on the grounds that the accusation against the penitentiary doctors was
unfounded and that, in any case, due to the time lapse between the operations and
the lodging of the criminal complaint, responsibility for any of the alleged
crimes was time-barred.
On
3 August 2005
the applicant lodged
a complaint with the Bucharest District Court under the Government's Ordinance no. 56/2003.
He considered that his right to information, to the protection of his health
and to a healthy environment had been infringed in prison. Furthermore he
claimed that the prison conditions had amounted to torture. Accordingly, he
argued that despite his severe medical condition the prison authorities had refused
to put him in a cell by himself. He also claimed lack of access to his medical
and criminal files.
In a decision of
17 October
2005
the District Court dismissed his action. It considered that the
quality of medical care did not fall under the ordinance invoked; the applicant
should have lodged an action in civil responsibility against the doctors. In
any case, the evidence showed that the applicant had been given adequate
medical care, seen by various doctors and examined and afforded the aftercare that
had been prescribed.
The court dismissed as unfounded the applicant's
allegation of lack of access to his medical file. It noted that the said file had
been adduced in the case, both the applicant and his representative having thus
had access to it.
Lastly, the District Court recalled that the
Ordinance did not impose an obligation on the prison authorities to ensure
access for the applicant to his criminal file. It recalled that the applicant
had the right to designate a representative to study it.
The applicant's appeal was also dismissed by the
Bucharest County Court, in a final decision of
5 December
2005
. The County Court noted that the Penitentiary had refused to
move the applicant to an individual cell on the ground that he would be soon transferred
to a new section, to a room that would be better suited to his medical
requirements. It appears that the court estimated that the applicant's
allegations concerning the negative influence on his health of the conditions
of his detention were unfounded. The court also recalled that it was for the
prison authorities to provide his personal assistant.
In a letter of
16
December 2005
the Commission for the Protection of handicapped persons
informed the applicant that as long as he was imprisoned he was not entitled to
any special allowance for his own needs or for hiring a personal assistant,
since it was for the penitentiary to provide care for him.
To date, the applicant is still in prison. It
seems that he has not been transferred to an individual cell.
II. RELEVANT DOMESTIC LAW
The relevant provision of the Code of Criminal
Procedure on the psychiatric evaluation of a person charged with a criminal
offence reads as follows:
Article
117 Mandatory expert examination
“(1) The
psychiatric evaluation is mandatory in cases of aggravated murder...”
The Code of Criminal Procedure provides that
informalities in the trial such as the courts not hearing evidence from the
accused in person, constitute an infringement of the rights to defence which
shall lead to declaring the decision taken null and void. The relevant
provisions of domestic law and practice are described in detail in the case of
Ilișescu
and Chiforec v. Romania
(no. 77364/01, §§ 18-19,
1 December
2005
).
The relevant part of law no. 51/1995 on the organization
and exercise of lawyers' practice reads:
Article 38
“The
lawyer shall study the case thoroughly..., shall attend every court hearing...”
The relevant part of the statutes of the lawyers'
practice reads:
Article
221
“(2) When
the lawyer is prevented from fulfilling his professional duties, he shall
provide a substitute...”
III. RELEVANT PROVISIONS OF THE COUNCIL OF
EUROPE
CONCERNING
CONDITIONS OF DETENTION
Extract from the 11th General Report of the
European Committee for the Prevention of Torture (CPT) (CPT/Inf (2001) 16)
“29. In
a number of countries visited by the CPT, particularly in central and eastern
Europe, inmate accommodation often consists of large capacity dormitories which
contain all or most of the facilities used by prisoners on a daily basis, such
as sleeping and living areas as well as sanitary facilities. The CPT has
objections to the very principle of such accommodation arrangements in closed
prisons and those objections are reinforced when, as is frequently the case,
the dormitories in question are found to hold prisoners under extremely cramped
and insalubrious conditions. No doubt, various factors - including those of a
cultural nature - can make it preferable in certain countries to provide
multi-occupancy accommodation for prisoners rather than individual cells. However,
there is little to be said in favour of - and a lot to be said against -
arrangements under which tens of prisoners live and sleep together in the same
dormitory.”
The CPT standards (“Substantive” sections of the
CPT's Annual General Reports)
“50. The
CPT would add that it is particularly concerned when it finds a combination of
overcrowding, poor regime activities and inadequate access to toilet/washing
facilities in the same establishment. The cumulative effect of such conditions
can prove extremely detrimental to prisoners...
[Prisoners
unsuited for continued detention]
Typical examples of this kind of prisoner
are those who are the subject of a short‑term fatal prognosis, who are
suffering from a serious disease which cannot be properly treated in prison
conditions, who are severely handicapped or of advanced age. The continued
detention of such persons in a prison environment can create an intolerable
situation. In cases of this type, it lies with the prison doctor to draw up a
report for the responsible authority, with a view to suitable alternative
arrangements being made.”
The CPT
visited
Romania
in 1995, 1999, 2001, 2002, 2003, 2004 and 2006. All but
its most recent visit report have since been made public.
Overcrowding of
prisons and lack of reasonable hygiene facilities were constantly stressed by
the CPT.
Recommendation no. R (98) 7 concerning the
ethical and organisational aspects of health care in prison reads:
“C. Persons
unsuited to continued detention: serious physical handicap, advanced age, short
term fatal prognosis
Prisoners
with serious physical handicaps and those of advanced age should be
accommodated in such a way as to allow as normal a life as possible and should
not be segregated from the general prison population. Structural alterations
should be effected to assist the wheelchair-bound and handicapped on lines
similar to those in the outside environment.
The
decision as to when patients subject to short term fatal prognosis should be
transferred to outside hospital units should be taken on medical grounds. While
awaiting such transfer, these patients should receive optimum nursing care
during the terminal phase of their illness within the prison health care
centre. In such cases provision should be made for periodic respite care in an
outside hospice. The possibility of a pardon for medical reasons or early
release should be examined.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant considered that the conditions of
his detention and the lack of adequate medical treatment for his illness
amounted to a violation of Article 3 of the Convention, which reads as follows:
“No
one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
A. Admissibility
The
Government commented in detail on the applicant's pre-trial detention and the
conditions of his release on
30 May 1997
, including the
alleged use of handcuffs to attach the applicant to his bed in the
Bagdasar-Arseni
Hospital
. Insofar
as the complaint is understood to refer to these aspects, the Court recalls
that the present application was only lodged on
25 May
2004
, that is, more than six months after the end of the pre-trial
detention.
As for the alleged use of handcuffs, the
applicant did not raise at least in substance such a complaint with the local
authorities. The mere fact that he mentioned in his criminal complaint against
the doctors that treated him in 1995-1996 that he had been “transported under
escort” to the public hospital does not enable the Court to consider that the
applicant allowed the Romanian authorities to deal with the matter. If it were
argued that he had no effective channel of complaint at his disposal, the six-month
rule, with which the applicant did not comply, would come into operation once
more (see,
mutatis mutandis
,
Rosengren v. Romania
(partial dec.),
no. 70786/01, 27 April 2004).
It follows that this part of the complaint must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
However, in so far as the complaint refers to the
conditions of his imprisonment from March 2004 onward, the Court notes that
these allegations are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that this
part of the complaint is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Government contended that the applicant had not proved “beyond reasonable
doubt” his alleged ill-treatment. They recalled that the applicant was examined
periodically by specialists and received the adequate treatment as prescribed
by his doctors. The fact that he had to occasionally receive medicines from his
family did not amount to ill‑treatment. They relied on cases such as
Cara-Damiani
v. Italy
((dec.), no. 35995/97,
28 March 2000
) and
I.T.
v. Romania
((dec.), no. 40155/02,
24 November 2005
).
The applicant replied that his medical condition,
namely his inability to control his bowel movements, generated a very hostile
environment in his cell, subjecting him to continuous mockery from his inmates,
and culminating in his exclusion from any social activity. He recalled that although
he was entitled to special conditions and even to a personal assistant (see
paragraph 42 above), he was still sharing the cell and could not ensure a
minimum standard of hygiene, because of the lack of warm running water or
showers. In addition, the applicant contended that nobody had offered to help
him get from his cell to the sanitary facilities in the penitentiary.
The Court recalls that although Article 3 of the
Convention cannot be construed as laying down a general obligation to release
detainees on health grounds, it nonetheless imposes an obligation on the State
to protect the physical well-being of persons deprived of their liberty, for
example by providing them with the requisite medical assistance. The Court has
also emphasised the right of all prisoners to conditions of detention which are
compatible with human dignity, so as to ensure that the manner and method of
execution of the measures imposed do not subject them to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent in
detention; in addition, besides the health of prisoners, their well‑being
also has to be adequately secured, given the practical demands of imprisonment
(see
Kudła v. Poland
[GC],
no. 30210/96, § 94,
ECHR 2000‑XI
and
Mouisel v. France
, no. 67263/01,
,
ECHR 2002‑IX
).
Coming back to the facts of this case, the Court
considers that this complaint has two branches: medical care in prison and the
conditions of detention. The Court will assess them individually.
Medical care in prison
The evidence available to the Court shows that
the applicant was examined by the penitentiary doctors on regular basis and
sent to the public hospitals for further examinations when considered
necessary. The applicant's claims to the contrary seem unsubstantiated in the
light of his medical record adduced in the case by the Government and
uncontested by the applicant.
It is true that the applicant's family provided medicines
for him. However, the Court notes that this was only reported to have happened
once, on
6 August 2004
, and the medical record of the applicant
contains doctors' prescriptions during his detention, which proves that the
penitentiary authorities have generally responded adequately to his medical
treatment requirements.
The Court will not speculate on the effects on the
applicant's health should these medicines have not been provided by his family.
However, it is to be noted that the applicant's general health did not seem to have
deteriorated in prison due to lack of medical treatment.
Lastly, the Court recalls that on the question of
whether a severely ill person should remain deprived of liberty, it is
precluded from substituting the domestic courts' assessment of the situation
with its own, especially when the domestic authorities have generally
discharged their obligation to protect the applicant's physical integrity,
notably by providing appropriate medical care (
ibid
.).
In the instant case, the courts refused to suspend
the execution of the sentence based on the 2004 medical report's conclusion
that the applicant was fit for detention. In 2006 the applicant put an end to the
second medical examination that was meant to assess the possibility of his
release from detention.
However, there is no indication in this file of the ineffectiveness
of the application with the courts for release from prison on health grounds.
Therefore, taking into consideration the medical
care in prison alone, the applicant did not prove “beyond reasonable doubt”
that his suffering attained the minimum level of severity in order to fall
within the scope of Article 3 (see
Kudła
, § 91 and
I.T.
(dec.), both cited above, and also paragraph 95 of this judgment, below).
Adequate facilities in prison
The Court considers that a separate issue arises
insofar as the conditions ensured to the applicant in prison are concerned,
regard having been had to his health requirements. The applicant's allegations
of the lack of any organised help from the prison authorities are in no way
contested by the Government. Moreover, it seems that the applicant did not
benefit in prison from a personal assistant, required by his poor health, being
forced to rely on his inmates for the most basic sanitary needs.
It is true that the Court requires in such cases
that the interference be proved “beyond reasonable doubt”, it being noted that
such proof may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact (see
Ireland
v. the United Kingdom
, judgment of 18 January 1978, Series A
no. 25, p. 64-65, § 161).
In the present case the Court cannot but notice
that the Government, which provided very detailed information from the
penitentiary authorities concerning the medical surveillance of the applicant,
could not produce a single piece of information on the facilities offered to
the applicant in detention, including on the question of a the personal
assistant. This allows the Court to conclude that no such facilities were
provided to the applicant.
The Court recalls thus that the applicant's medical condition is
severe, his basic sanitary needs are difficult to attend to and he has severe
functional deficiencies. Although the authorities are aware of these facts, he
is still detained in a regular penitentiary, is sharing the cell with other
persons, has no showers or warm water at his disposal and is not regularly assisted
for his needs. His poor condition has led to social segregation from the rest
of the prison population.
Moreover, the applicant's description of the
prison facilities both in his initial letters to the Court and in his further observations,
in particular overcrowding, obligation to share beds with other persons, damaged
mattresses and inappropriate sanitary facilities are not contested by the
Government and are confirmed by the CPT's reports on Romania. These conditions do
not satisfy the European standards established by the CPT (see paragraphs 73-75
above).
Accordingly, as stressed by the CPT, the cumulative effect of
overcrowding in large capacity (and sometimes also insalubrious) dormitories,
poor regime of activities and inadequate access to washing facilities can prove
detrimental to the prisoners (see also,
mutatis mutandis,
Kalashnikov v.
Russia
, no. 47095/99, § 97, ECHR 2002‑VI, and
Kehayov v. Bulgaria
, no. 41035/98, § 66, 18 January
2005)
.
In this context the Court also recalls that it
does not exclude that in particularly severe situations humanitarian measures
could be taken (see,
mutatis mutandis,
Farbtuhs v.
Latvia
,
no. 4672/02, § 52,
2 December 2004
)
The foregoing considerations are sufficient to
enable the Court to conclude that the conditions in prison, in particular the
overcrowding and lack of access to hygiene and other facilities appropriate to
his health situation, caused the applicant suffering attaining the threshold of
inhuman and degrading treatment proscribed by Article 3.
There has accordingly been a violation of Article
3 of the Convention insofar as the conditions of the applicant's detention are
concerned.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Right to a fair trial
The applicant complained under Article 6 § 1 of
the Convention that he had not had a fair trial before the domestic courts. In
particular, he claimed that the witnesses had been influenced by the
prosecution, that the courts had judged the case in his absence and that he had
not always been represented by a lawyer during the proceedings and in
particular during the polygraph test (see paragraph 36 above).
The relevant part of Article 6 reads as follows:
“In
the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal...”
The Government contended that the decisions
taken by the courts in the applicant's absence had not been decisive for the
applicant's fate. Unlike in the case of
Ilișescu and
Chiforec
, cited above,
where the Court found a violation of
Article 6 on the ground that the applicant had not given evidence before the
domestic courts that convicted him, in the present case t
he
applicant had given evidence twice before the first-instance court.
The Court notes from the outset that there is no
evidence in the file that would allow it to draw a conclusion as to the alleged
lack of representation during the applicant's polygraph test. Moreover, nothing
in the file indicates that he raised this complaint with the domestic courts. However,
even assuming that the applicant was not represented and that he did exhaust
the domestic remedies for this complaint, the Court notes that his conviction
was not based solely on this evidence. Therefore, although regrettable, such a circumstance
is not in itself sufficient for the finding of a violation of Article 6.
Moreover, it is not the Court's role to speculate as to what the outcome of the
criminal proceedings would have been if the answers in the polygraph test had
not been taken into account by the domestic courts.
As for the applicant's conviction without having
given evidence before the domestic courts, when national law permits a trial to
be held notwithstanding the absence of a person “charged with a criminal
offence”, that person should be able to obtain, from a court which has heard evidence
from him, a fresh determination of the merits of the charge (see
Colozza v. Italy
, judgment of 12
February 1985, Series A no. 89, p. 15, § 29, and
Ilișescu
and Chiforec
, cited above, § 34)
.
The Court has already established that Romanian
law allows for the quashing of a decision taken without the person accused
being present and questioned by the courts (see paragraph 70 above).
In the present case, the Court notes, as do the
Government, that the applicant gave evidence, in the presence of his chosen
counsel, before the first‑instance and the appeal courts that examined
for the first time the merits of the case (see paragraphs 8-9 above). However,
in the re-trial, the same levels of jurisdiction re-examined the merits of the
case without hearing evidence from the applicant. It is true that unlike in the
cases of
Constantinescu v. Romania
(no. 28871/95,
, ECHR 2000‑VIII) and
Ilișescu and Chiforec
(cited above,
) where the courts refused to hear evidence from the applicants and/or
their lawyers although they were present at the hearings, in the instant case
neither the applicant nor his chosen counsels (with few exceptions) appeared in
court.
However, the applicant did not raise at least in
substance a violation of his right to give evidence in person in his appeals,
which were formulated through his chosen representative. Neither did he provide
any arguments that would allow the Court to conclude that such a remedy could
not be effective in his particular case (see
Ilișescu and Chiforec,
cited above, § 14).
Therefore, bearing in mind that
under
Article 35, normal recourse should be had by an applicant to effective
remedies, that is, remedies that are available and sufficient to afford redress
in respect of the breaches alleged (see,
mutatis mutandis,
Sakkopoulos v.
Greece
, no. 61828/00, § 44, 15 January 2004
), it
follows that this part of the complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
As for the representation, the Court
notes from
the outset that
the applicant did not
complain about the lack of effective representation in his appeal lodged with
the Supreme Court by his representative on his behalf.
Notwithstanding this and even assuming that the
applicant did exhaust the domestic remedies in this matter, the Court considers
that this complaint is inadmissible for the following reasons.
Accordingly, it notes, as do the Government,
that each time the courts heard evidence from the applicant or witnesses, his
lawyer was present.
However, in the re-examination of the case, while the applicant's
lawyer was present during the first-instance proceedings, he did not attend the
appeal proceedings. Moreover, he failed to provide an acceptable explanation both
for his absence and for his failure to designate a substitute (see paragraphs 26,
39, 71-72 above),
although he had a legal obligation to do so
. The
Supreme Court allowed two postponements to ensure the applicant's
representation by a lawyer of his choice, but to no avail.
In this context, it is reasonable that lawyers were appointed by
the courts of their own motion (see
a contrario,
Imbrioscia v.
Switzerland
, judgment
of
24 November 1993
, Series A no. 275, §
38)
.
For
all these reasons, i
t considers that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Length of the criminal proceedings
The applicant complained that the length of the criminal
proceedings against him had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention, which provides:
“In
the determination of ... any criminal charge against him, everyone is entitled
to a ... hearing within a reasonable time by [a] ... tribunal...”
The period to be taken into consideration began
only on
20
June 1994
, when
Romania
ratified the
Convention. However, in assessing the reasonableness of the time that elapsed
after that date, account must be taken of the state of proceedings at the time.
Accordingly, at the date of the ratification, the case was pending with the
first-instance court, the criminal proceedings having being pending for one
year.
The period in question ended on
12
February 2004
, when the Supreme Court of Justice delivered the final decision
in the case.
The time during which the proceedings were suspended due to the
applicant's illness, from
27 May 1997
to
2 June 1999
, will not
be taken into account.
The proceedings thus lasted eight years and eight months, of
which seven years and eight months were after the ratification of the
Convention. During this time, the case was heard by eight courts at three levels
of jurisdiction.
Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
Merits
The Government contended that the case had been
very complex because of the very serious crime committed, and that the
authorities had had difficulties in gathering the evidence. The complex nature
of the case was confirmed, in their view, by the significant period of time
that was necessary for the completion of the mandatory psychiatric examination
of the applicant. In their opinion, the time during which the proceedings were
suspended should not be taken into account by the Court (see
Lavents v. Latvia
,
no. 58442/00, § 100, 28 November 2002
). Lastly, they
contended that the applicant and his representative had been responsible for
the protraction of the case insofar as they had been absent from hearings and
the latter had not appointed replacements, as required by law.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case and the conduct of the applicant and the relevant authorities (see, among
many other authorities,
Pélissier and Sassi v. France
[GC], no.
25444/94, § 67, ECHR 1999-II)
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see
Pélissier and Sassi
, cited above).
Having examined all the material submitted to
it, the Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the
present case.
In particular the Court notes that it took the
courts almost six years before they ordered the mandatory psychiatric
evaluation of the applicant. It does not accept the Government's argument that
this long period was caused by the complexity of the case, insofar as the
applicant was charged with aggravated murder from the beginning of the
proceedings and the obligation to examine psychiatrically in such cases is set down
directly by law.
The Court also recalls that since the remittal
of cases for re‑examination is usually ordered as a result of errors
committed by lower courts, the repetition of such orders within one set of
proceedings discloses a serious deficiency in the judicial system (see
Wierciszewska v.
Poland
, no. 41431/98, § 46, 25 November 2003)
. Because
of these remittals the case was correctly decided by the first-instance court
only on 10 June 2002, that is, eight years after the ratification of the
Convention, during six of which there was continuous examination by the courts.
Lastly, the Court attaches great importance to
the stakes of this case for the applicant, who was charged with aggravated
murder.
Having regard to its case-law on the subject,
the Court considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 8 of
the Convention about his pre-trial detention and claimed that he had been
prevented from contacting his family at that time. However, the Court notes
that the applicant was released on 30 May 1997, while the present application
was only lodged on 25 May 2004. Assuming that the applicant did not have an
effective remedy at his disposal to complain about the violations that had
allegedly occurred during his pre-trial detention, the starting date of the six‑month
period provided by Article 35 § 1 of the Convention is that when the violation
ended, namely 30 May 1997.
It follows that this complaint has been
introduced out of time and must be rejected in accordance with Article 35
§§ 1 and 4 of the Convention.
Lastly, the applicant considered that the way
the authorities had handled the criminal proceedings and his detention
constituted a violation of Articles 1, 7, 13 and 14 of the Convention. However,
the Court considers that nothing in the case file indicates a violation of the
aforementioned Articles and the applicant failed to produce any evidence to
substantiate his complaint.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If
the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant
claimed 30,000 euros (EUR) in respect of pecuniary damage, namely EUR 10,000 for
the violation of Article 3 and EUR 20,000 for the violation of Article 6.
He also claimed EUR 40,000 in respect of non-pecuniary damage, respectively
EUR 25,000 for the Article 3 violation and EUR 15,000 for the Article 6
violation.
Later on he revised his position and only
claimed EUR 30,000 in respect of non-pecuniary damage, that is EUR 10,000 for
the violation of Article 3 and EUR 20,000 for the violation of Article 6.
The Government asked the Court to acknowledge
that the applicant had withdrawn his claims for compensation for pecuniary
damage and considered that, in the light of the Court's case-law, the
compensation claimed for non-pecuniary damage was exaggerated.
The Court notes that the applicant limited his
claims to compensation for non‑pecuniary damage (see paragraph 129 above).
It further accepts that the applicant suffered distress and frustration because
the State authorities continued his detention while failing to provide him with
adequate decent facilities in prison and because of the length of the criminal
proceedings against him. Making its assessment on an equitable basis, the Court
awards the applicant EUR 6,500 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The applicant also claimed the reimbursement of
the costs and expenses incurred before the Court, without specifying the amount
and without sending any supporting document.
The Government contended that the applicant had
not justified the expenses.
According to the Court's case-law, an applicant
is entitled to reimbursement of his costs and expenses only insofar as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The applicant's representative received EUR 850 in
respect of legal aid from the Council of Europe. No other costs being proved, there
is no call to award any sum on that account.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1.
Declares
una