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THIRD
SECTION
CASE OF GEORGESCU v. ROMANIA
(Application
no. 25230/03)
JUDGMENT
STRASBOURG
13 May
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 Georgescu v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25230/03) 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 Florin Georgescu (“the
applicant”), on 4 July 2003.
- The
applicant, who had been granted legal aid, was represented by Mr C.
Purcarescu, a lawyer practising in Bucharest. The Romanian Government
(“the Government”) were represented by their Agent,
Mr Răzvan-Horaţiu Radu, from the Ministry of
Foreign Affairs.
- On
27 March 2007 the Court decided to communicate the complaints
concerning Articles 3 (ill-treatment in detention), 6 § 1
(length of criminal proceedings against the applicant), 8 (right to
the respect for his correspondence) and 34 of the Convention to the
Government. 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.
- On
17 September 2007 the Section President rejected the applicant's
request for formal priority, made under Rule 41 of the Rules of
Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Bucharest.
- On
8 December 1995 S.M., a powerful businessman, lodged a criminal
complaint against the applicant, who, between March and
October
1995, had asked for 20,000 US dollars (USD) for his sick wife, and
instead had used the money to buy a Mercedes and a BMW car. The
applicant claimed that he was working for the Protection and Guard
Service (Serviciul de Protecţie şi Pază), a
state body with attributions in the field of national security, but
later on the investigation showed that on 5 April 1995 he had been
released from duty.
Similar
complaints of fraud were made by other alleged victims of the
applicant.
A. Applicant's arrest and ill-treatment in pre-trial
detention
- The
applicant was arrested on 11 January 1996 and brought to the
Bucharest District Police Detention Centre. The next day the
prosecutor ordered his pre-trial detention in the same police
facility.
In a
statement made on 12 February 1996 the applicant informed the
prosecutor that he had psychiatric problems that made him unfit for
detention and therefore asked to undergo psychiatric tests (see
paragraph 23 below).
- On
4 April 1996 the Bucharest District Court rejected a request by the
prosecutor for an extension of the applicant's detention. On 8 April
1996 the applicant was released from custody.
- On
12 June 1996 the prosecutor ordered the applicant to be remanded in
custody. On 14 June 1996 he was arrested again and placed in police
detention.
- On
24 July 1996 the Bucharest County Court quashed the District Court's
decision of 4 April and extended the applicant's pre-trial detention.
- He
was released again on 18 December 1997.
- The
parties' submissions concerning the conditions of detention differ
significantly.
1. The applicant's submissions
- According
to the applicant, during the first four weeks of his detention he was
beaten by masked police officers and by inmates, on the orders of the
investigators.
- He
was woken up in the night and interrogated, under threat of death. He
was forced to bend over with his hands handcuffed behind his knees.
The investigators would then hang him with his head downwards from a
truncheon passed between his hands and legs. He was beaten on his
feet with his shoes on until he lost consciousness.
- He
was subject to the same treatment every two to four days.
- He
used to be taken to the first-floor offices and beaten over the back
and head with 1.5 metre-long metal-reinforced wooden truncheons,
while the investigators verbally abused him.
- On
an unspecified date an inmate called “Nelu” raped the
applicant, with the help of other inmates and encouraged by the
investigator. He also broke the applicant's teeth with his fist when
the applicant refused to open his mouth.
- His
inmates urinated on his food and forced him to eat it.
- The
applicant told his wife about the ill-treatment and she informed his
lawyer, who managed to have the applicant moved to a different cell
but the applicant was again subjected to ill-treatment by his new
inmates. He was forced to squat and do push-ups all night long under
the supervision of an inmate. If he refused to obey, the next day he
would be beaten. He was not allowed to use the toilets but was beaten
when he urinated in the cell.
- According
to the applicant, the treatment inflicted by the investigators was
far worse than that he suffered at the hands of his inmates. Once he
was punched in his liver by the police until he almost lost
consciousness.
2. The Government's submissions
- The
Government denied that any ill-treatment had been inflicted on the
applicant.
- They
presented a detailed report of the applicant's detention and medical
treatment, based on the prison records and medical files. According
to that report, from 30 January to 9 February 1996 the applicant had
shared a dormitory with twelve other detainees, including M.I.
- From
9 to 28 February he was kept in Jilava Prison Hospital. On
22 February 1996 the psychiatric doctors from the Mina Minovici
Forensic Medicine Institute examined the applicant and diagnosed him
with a personality disorder. He was prescribed antidepressants. The
diagnosis was confirmed by the same Institute on 8 August 1996, on
the prosecutor's request.
- From
28 February to 1 April 1996 he was held in the Bucharest Police
Detention Centre again and placed in a dormitory with ten other
inmates: M.I., B.Y., T.G., C.M., G.M., V.G., L.N., P.N., V.C. and
R.S.M.
- On
1 April he was sent to Jilava Prison Hospital where he remained until
8 April. He was diagnosed with depression, anxiety and hemiplegia of
the left side of his body.
- From
14 June to 7 September 1996 he was held in the police facilities
again and shared a cell with four other inmates. He spent the rest of
his pre-trial detention in Jilava Prison Hospital, where he was
treated for depression and a personality disorder.
- No
detainee named “Nelu” was identified by the prison
authorities.
- No
complaints by the applicant concerning the conditions of detention
were registered with the authorities during his detention.
B. Investigation into the allegations of ill-treatment
- On
16 February 1996 the applicant's wife lodged a criminal complaint
with the Military Prosecutor's Office attached to the Bucharest
County Court, claiming that her husband was being subjected to
ill treatment in detention. She claimed that she had noticed
marks of violence on her husband's face on 14 February 1996 when she
had visited him in the prison hospital. He had told her that he had
been beaten.
- On
15 March 1996 the applicant gave testimony before the prosecutor. The
relevant parts of his statement are as follows:
“I was arrested... and put in a cell with seven
other detainees for the first two-three weeks. During that time the
prisoner responsible for maintaining order in the cell, a certain
“Nelu”, tried to sexually abuse me. During the same
period I was taken for questioning and kicked in my stomach and face;
I received blows to my cheeks and was kneed... by three to four
persons wearing civilian clothes and masks ... This treatment is
still going on...
I should also mention that in ... 1995 I was treated for
spasmophilia; in May 1995 I suffered from depression and received
treatment for it ... and I was treated for anxiety.”
- On
21 March 1996 the prosecutor took depositions from M.I. and S.C., two
inmates who stated that they had shared a cell with the applicant,
the first from 30 January to 1 April 1996 and the second from 7
March 1996 to an unspecified date. They both stated that the
applicant had not complained of ill-treatment by investigators and
had not been subjected to any violence in the cell.
- On
4 April 1996 the Mina Minovici Forensic Medicine Institute, which had
examined the applicant upon the prosecutor's request, rendered its
report, describing the applicant's condition as follows:
“1) pale yellow ecchymoses of 6/7 cm
on the right arm, at 1/3 distance from the palm, with receding
contour, hard upon palpation (old haematoma, ...);
2) pale yellow zone with hyper-pigmented
centre, uneven contour, ... isolated on the left arm, at
approximately 1/3 distance on the front side (plaque of 5/4 cm);
3) semicircular ecchymose of 7/5 cm on the
right inguinal zone (with pale yellow centre), bluish with greeny
yellow margins and visible contour;
4) complains of pain in the right
hypochondrium.
Palpation: liver, approximately 5 cm under the rib cage,
very sensitive. Specialist examination recommended (ultrasound scan).
Conclusion: “Georgescu Florin presents
injuries caused by hitting with hard objects which could have taken
place 15 to 30 days before the medical examination. He would have
needed 6 to 7 days' medical treatment for his injuries.”
- On
19 April 1996 the military prosecutor took the following decision:
1. Not to open a criminal prosecution ... as
the injuries were caused by [the applicant's] actions”...
3. To communicate the decision to the person
concerned.”
- On
24 April 1996 the military prosecutor sent the following letter to
the applicant's wife:
“The investigation showed that the facts
complained about had taken place because of the conflicts between
[the applicant] and his inmates, caused by [the applicant's] mental
illness. They had not been caused by the wardens.”
- Neither
the applicant nor his wife received a decision by the prosecutor.
- On
26 August 2003, on the applicant's request, the Bucharest Military
Prosecutor's Office informed the applicant that on 19 April 1996 the
prosecutor had decided not to prosecute, as the facts complained
about were not prohibited by the criminal law.
C. Criminal proceedings against the applicant
- On
27 December 1995 the applicant gave the Bucharest Police documents
required for the investigation into the allegations against him.
On 28
December 1995 his deposition was taken by the police in connection
with the facts under examination. The next day the police decided to
open a criminal investigation in respect of the applicant.
- On
10 January 1996 the Prosecutor's Office attached to the Bucharest
County Court opened criminal proceedings against the applicant on
various charges of forgery and abuse of official position.
- The
applicant's testimony was heard again either by the police or by the
prosecutor on 11, 12 and 30 January, 19 March, 11 June, 9 July and
15 August 1996.
From
January to June 1996 several witnesses and alleged victims gave
testimony in the case.
The
applicant's wife's deposition was heard by the investigators on
27 December 1995, 5 and 31 January, 19 March and 11 June 1996.
- On
11 January, 16 March and 6 June 1996 searches were conducted at the
applicant's home. A Mercedes and a BMW car found in his garage were
confiscated and valued by an expert at USD 18,654. On 2 April 1996,
with the applicant's wife's agreement, the two cars were given to
S.M. in compensation for the damage he had sustained.
- On
13 September 1996 the prosecutor opened a separate file for the
offences allegedly committed between 28 March and 3 April 1995 and
referred the case to the Bucharest Military Prosecutor's Office, as
the applicant had been a military officer during that time.
- On
16 September the same prosecutor indicted the applicant for an act of
fraud allegedly committed on 6 June 1996. On 6 October 2000 the
applicant was convicted by the Bucharest District Court. This
application to the Court does not concern the proceedings referred to
in this paragraph.
- Several
witnesses gave testimony before the military prosecutor. On 7
December 1999 the Military Prosecutor's Office decided not to
prosecute the applicant for the offences committed before 3 April
1995 and referred the case back to the Prosecutor's Office attached
to the Bucharest County Court in respect of the offences allegedly
committed between 26 June and 15 October 1995. It also noted that the
applicant had tried to abscond during the investigation. On his
request, the applicant was informed of this decision on 8 August
2003 but did not receive a copy of it.
- The
prosecutor attached to the Bucharest County Court opened the
investigation but could not hear the applicant's testimony before 27
June 2001, as the latter had allegedly absconded.
- On
9 September 2002 the prosecutor at the Bucharest County Court also
decided not to prosecute the applicant and made reference to the
military prosecutor's decision of 7 December 1999 concerning the same
facts. However, on 23 September 2002 the Prosecutor's Office attached
to the Bucharest Court of Appeal annulled the decision and ordered
the reopening of criminal proceedings against the applicant.
- The
case was referred back to the prosecutor attached to the Bucharest
County Court on 26 September 2002 and from there to the police for
further investigation on 6 November 2002.
- On
10 February 2003 the applicant gave testimony.
- On
10 March 2003 the police returned the file to the prosecutor attached
to the Bucharest County Court with a proposal to indict the
applicant. However, on 4 July 2003 the prosecutor closed the
investigation as the case had become time-barred.
- On
5 November 2003 the Prosecutor's Office attached to the Bucharest
County Court informed the applicant of its decision.
D. Applicant's access to his criminal file
- The
applicant asked the Bucharest District Court to release a copy of the
transcripts made during the hearing of 4 April 1996. This information
was requested by the Court.
- In
a letter of 4 September 2003 the president of the District Court
informed the applicant that it was impossible to obtain the document
as the file was situated in the old archives which were being
reorganised.
E. New criminal proceedings against the applicant
- In
1995 the Romanian Intelligence Service requested the Prosecutor's
Office attached to the High Court of Cassation and Justice to start a
criminal investigation in respect of the applicant for having
allegedly blackmailed senior civil servants and businessmen between
February and July 2005, pretending to be an employee of the
Intelligence Service.
- On
11 October 2005 the High Court Prosecutor's Office relinquished
competence in favour of the Bucharest County Court Prosecutor's
Office. On 24 October 2005 the latter searched the applicant's home
and confiscated several documents, including the following:
- a
letter of 11 August 2003 from the Court concerning the present
application;
- the
medical expert report of 4 April 1996;
- the
criminal complaint of 16 February 1996;
- the
military prosecutor's letter of 24 April 1996;
- copies
of a letter addressed by the applicant to the Court and of a letter
addressed to the Anti-Corruption National Prosecutor's Office.
- All
these documents were returned to the applicant on 1 and 21 February
2006.
- The
applicant claimed that the investigators and the secret services had
tried to intimidate him in order to make him withdraw his application
to the Court.
- The
criminal proceedings against the applicant are still pending before
the Bucharest District Court.
F. Action for compensation for illegal detention
- On
an unspecified date the applicant lodged an action for compensation
for illegal detention under Articles 504 and 505 of the Code of
Criminal Procedure. He considered that the prosecutor's decision to
terminate the proceedings on the ground that they were time-barred
had infringed his right of access to a court and had caused him
additional damage in so far as it had not ordered the restitution of
the two confiscated cars.
- In
a decision of 27 April 2004 the Bucharest County Court dismissed the
action on the grounds that the applicant's detention did not fall
within any of the categories provided for in Article 504 of the Code
of Criminal Procedure and that he had not proved ownership of the two
cars.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Criminal Procedure and of the
provisions governing the police and military prosecutor are set out
in Dumitru Popescu v. Romania ((no. 1), no. 49234/99,
§§ 43-46,
26 April 2007) and Barbu
Anghelescu v. Romania (no. 46430/99, § 40,
5
October 2004).
- The
relevant provisions of the Criminal and Civil Codes concerning the
means of obtaining compensation for alleged ill-treatment are set out
in Kalanyos and Others v. Romania ((dec.), no. 57884/00,
19 May 2005).
- In
the same decision, as well as in paragraphs 43-45 of the judgment in
Dumitru Popescu (no. 1), cited above, there is a description
of the development of the law concerning complaints about the
prosecutor's decisions (Article 278 of the Code of Criminal Procedure
and Article 2781 introduced by Law no. 281/24 June
2003 applicable from 1 January 2004).
- For
the legislation on complaints against prison staff, see
paragraphs 45-48 of the judgment Vitan v. Romania,
(no. 42084/03, 25 March 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated in pre-trial
detention and, in substance, that the ensuing investigation had not
been effective. He invoked 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 considered that the applicant had not exhausted domestic
remedies in so far as he had not contested the prosecutor's decision
of 19 April 1996 and had not lodged a separate criminal complaint
against the inmates. In their view, the applicant's complaint to the
prosecutor referred exclusively to injuries allegedly inflicted by
investigators and his allegations of ill-treatment by the inmates had
been made for the first time in his application to the Court.
Furthermore,
the Government pointed out that in lodging his application on 4 July
2003, the applicant had not complied with the six-month
time-limit
from the date of the prosecutor's decision of 19 April 1996.
- The
applicant contended that he had not had an effective remedy against
the prosecutor's decision, which, in any event, had not been
communicated to him until 2003.
- The
Court considers that the Government's pleas of inadmissibility raise
issues as to the effectiveness of the investigation and of the
complaint against the prosecutor's decision as well as of the
communication of that decision. They are thus closely linked to the
merits of the complaint under examination. Therefore the Court joins
the preliminary objections to the merits of the applicant's complaint
(see Kavak v. Turkey, no. 53489/99, §§ 44-49,
6 July 2006).
- 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.
B. Merits
1. The parties' submissions
- The
Government reiterated that the applicant had not complained to the
domestic authorities (prosecutor, prison administration) of the
alleged ill-treatment by his cell-mates and made reference to the
findings of the domestic investigation according to which the
injuries had not been committed by police officers or investigators.
They concluded that the applicant had not proved beyond reasonable
doubt that he had sustained injuries as a result of acts by the
authorities during his pre-trial detention.
- The
applicant contended that it had taken the authorities a long time to
investigate the allegations and pointed out that the forensic
examination had been made only one month after the complaint about
ill-treatment.
2. The Court's assessment
- The
Court reiterates its case-law on Article 3, in particular concerning
the Court's assessment of the minimum level of severity that the
ill treatment has to attain in order for it to fall within the
scope of this Article (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3288, § 93; Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, § 162;
Kudła v. Poland [GC], no. 30210/96, § 91-92,
ECHR 2000-XI; Peers v. Greece, no. 28524/95, § 67-74,
ECHR 2001-III; and Raninen v. Finland, judgment of 16
December 1997, Reports 1997 VIII, pp. 2821, § 55).
- Furthermore,
it reiterates that where an individual raises an arguable claim that
he has been seriously ill-treated by the police or other such agents
of the State or under their control, unlawfully and in breach of
Article 3, that provision requires that there should be an
effective official investigation capable of leading to the
identification and punishment of those responsible (see Selmouni
v. France [GC], no. 25803/94, § 87, ECHR
1999-V; Assenov and Others, cited above, § 102; and,
mutatis mutandis, Velikova v. Bulgaria, no. 41488/98,
§ 70, ECHR 2000 VI).
- Lastly,
notwithstanding its subsidiary role in assessing evidence, the Court
reiterates that where allegations are made under Article 3 of the
Convention, the Court must apply a particularly thorough scrutiny
even if certain domestic proceedings and investigations have already
taken place (see, for example, McKerr v. the United Kingdom
(dec.), no. 28883/95, 4 April 2000, and Cobzaru v.
Romania, no. 48254/99, § 65, 26 July 2007).
- Turning
to the facts of the present case, the Court notes that the
conclusions of the medical report (albeit it one month later than the
date when the alleged ill-treatment occurred) and those of the
military prosecutor clearly indicate that the applicant's injuries,
whether caused by the investigators or by someone else, were
sufficiently serious to amount to ill treatment within the scope
of Article 3 (see, for example, A. v. the United Kingdom,
judgment of 23 September 1998, Reports 1998-VI, p.
2699, § 21, and Ribitsch v. Austria, judgment of 4
December 1995, Series A no. 336, pp. 9 and 26, §§ 13
and 39).
It
remains to be considered whether the State should be held responsible
under Article 3 in respect of those injuries.
- The
Court notes that a criminal investigation was carried out in the
case. Its effectiveness will now be considered.
- From
the outset, the Court notes that the military prosecutor was called
to investigate acts of ill-treatment allegedly committed by police
officers, prison guards and private individuals. Concerning the first
two categories, the Court has already established that the applicable
law at the date of the facts made the hierarchical and institutional
independence of the military prosecutor doubtful (see Barbu
Anghelescu, §§ 40-30 and 70, and Dumitru
Popescu (no. 1), §§ 74-78, cited above, and
Melinte v. Romania, no. 43247/02, §§ 23-30,
9 November 2006).
- These
doubts are reflected in the present case by the way the investigation
was conducted.
- Although
the applicant had been sharing his dormitory with several other
people (the applicant's statements and the official records do not
tally as to the exact number, but both point out that there were at
least seven other persons in the applicant's cell) when the alleged
facts occurred, the prosecutor heard testimony from only two
detainees: M.I., who was the applicant's inmate from 30 January to 1
April 1996, and S.C., who does not appear in the official records as
being in the same dormitory as the applicant. No police officers or
wardens gave evidence.
- Another
point of concern is the fact that the investigators limited
themselves to exonerating the police officers and thus failed to
identify those responsible for the applicant's injuries. They also
failed to identify and investigate the allegations against the
inmates who might have perpetrated the acts of violence.
- Lastly,
the Court points out that both the prison authorities and the
military prosecutor were informed of the applicant's psychiatric
history from the time of his arrest (see paragraphs 7 and 30 above).
Even assuming that the applicant's injuries were inflicted by the
inmates because of his behaviour and mental problems, as the
prosecutor concluded, the Court cannot but notice that far from
exonerating the authorities from any responsibility in the case, this
fact shows their negligence and failure to provide the applicant with
prison conditions adequate to his medical condition, at least from 16
February 1996, the date when the ill-treatment alleged by the
applicant was brought to the authorities' attention (see paragraph 29
above and Kudła, cited above, § 94, ECHR
2000 XI, and Mouisel v. France, no. 67263/01,
§ 40, ECHR 2002 IX).
- Turning
back to the Government's objection of non-compliance with the
six-month time-limit, the Court notes that neither the applicant nor
his wife was properly informed of the outcome of the investigation
before 2003. The letter that the military prosecutor sent on 24 April
1996 does not constitute, or replace, the communication of the
decision. It does not indicate the date of the decision, let alone
possible avenues for complaint against it. Moreover, the simple
remark of lack of responsibility of the wardens does not clarify the
situation of the investigators or of the inmate whom the applicant
also accused of ill-treatment.
Therefore
the Court considers that the applicant could not have clearly
understood from the military prosecutor's letter that the
investigation had ended altogether (see, by contrast, Kinis v.
Turkey (dec.), no. 13635/04, 28 June 2005, and Kazel
Yildiz and Others v. Turkey (dec.), no. 34542/03, 28 September
2006).
- It
is true that the applicant did little to keep abreast with the course
of the investigation.
However,
bearing in mind the pace of the criminal proceedings against him (see
paragraphs 93-96 below) it is not unreasonable for the applicant to
have believed that the investigation into his allegations of
ill-treatment was taking a long time and was thus continuing.
Therefore the applicant cannot be considered to have been negligent
(see Kavak, cited above, §§ 84-86).
- Lastly,
the Court considers that it is reasonable to presume that the
applicant preferred to wait for the outcome of the domestic
proceedings before lodging his complaint with the Court, in
particular in so far as the outcome might have had a bearing on the
Court's examination of the allegations of ill-treatment (see Paul
and Audrey Edwards
v. United Kingdom (dec.), no. 46477/99, 7
June 2001).
- As
for the Government's plea of non-exhaustion, the Court notes that the
complaint to the courts about the prosecutor's decision became an
effective remedy according to the Convention's standards on 1 July
2004, when Law no. 281/2003 amending the right of access to court
became applicable (see Dumitru Popescu v. Romania ((no. 1),
cited above, §§ 43 45). However, the eight-year
lapse of time between the date when the alleged ill-treatment
occurred and the date when the appeal became possible renders the
remedy ineffective in this particular case (see Dumitru Popescu
(no. 1), cited above, § 56).
- For
all these reasons, the Court dismisses the Government's preliminary
objections. Furthermore, in the light of the above and on the basis
of all the material placed before it, the Court considers that the
Government have not satisfactorily established that the applicant's
injuries were caused otherwise than by the treatment inflicted on him
by the authorities or with their consent or by the inadequacy of the
prison conditions, in particular bearing in mind the authorities'
failure to prevent the ill-treatment at least from the date when it
became foreseeable, and concludes that these injuries were the result
of inhuman and degrading treatment (see also Cobzaru, cited
above, § 74). Accordingly, there has been a violation of
Article 3 of the Convention.
- Having
regard to the above-mentioned deficiencies identified in the
investigation, the Court also concludes that the State authorities
failed to conduct a proper investigation into the applicant's
allegations of ill treatment (see Cobzaru, cited above, §
75). Accordingly, there has also been a violation of Article 3 of the
Convention under its procedural head.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal investigation
against him had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The Government considered that the applicant had not
lodged his complaint within six months from the date of the final
decision, in so far as he refers to the military prosecutor's
decision of 7 December 1999. Under the applicable law, that decision
did not have to be communicated to him.
- The
applicant pointed out that the criminal investigation in his regard
had not ended with the prosecutor's decision of 7 December 1999.
- The
Court notes that on 7 December 1999 the criminal proceedings ended
only in respect of some of the offences allegedly committed by the
applicant. The investigation continued for the remainder of the
charges. Moreover, the Court notes that the decision of 7 December
1999 was never communicated to the applicant.
For
these reasons, the Court rejects the Government's preliminary
objection (see also, mutatis mutandis, Stoianova and
Nedelcu v. Romania, nos. 77517/01 and 77722/01, §§ 20-21,
ECHR 2005 VIII).
- 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.
B. Merits
- The
Government contended that the proceedings had been very complex, as
the applicant had been the subject of investigations in respect of
several criminal acts at the same time.
- The
applicant contested the Government's argument and considered that the
investigation had been artificially prolonged so that the proceedings
would become time-barred, in order to make it impossible for him to
lodge a complaint for compensation for wrongful detention.
- The
period to be taken into consideration began on the latest on
11 January 1996 and ended on 4 July 2003. It thus lasted seven
years and six months.
- 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,
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 and Stoianova and
Nedelcu, cited above). Moreover, even assuming that the applicant
did try to abscond during the investigation (see paragraphs 42-43
above), the Court notes that the repeated referrals of the
investigation file between the Prosecutor's Office and the military
prosecutor contributed significantly to the protraction of the case.
This deficiency is imputable to the authorities and not to the
applicant (see, mutatis mutandis, Matica v. Romania,
no. 19567/02, § 24,
2 November 2006).
- 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.
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 complained that after his arrest he had not been brought
promptly before a judge, in violation of Article 5 § 3 of the
Convention. However, the Court notes that the applicant was released
from custody on 18 December 1997 and lodged this application on 4
July 2003, therefore more than six month after the situation
complained of ended (see Mujea v. Romania (dec.),
no. 44696/98, 10 September 2002 and Negoescu v. Romania
(dec.), no. 55450/00, 17 March 2005).
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.
- Under
Article 8 and 34, the applicant complained about the Bucharest
District Court's refusal to release copies of his criminal file, and
about the fact that the prosecutor had ordered the search of his home
and confiscated the letter addressed to him by the Court. In his
letter of
5 May 2006 he contended that the prosecutor had tried
to intimidate him in order to persuade him to withdraw this
application.
However,
the Court notes that the applicant did not complain about the
prosecutor's action under Article 2781 of the Code of
Criminal Procedure which, had he done so, would have afforded him an
effective remedy in the case (see Dumitru Popescu (no. 1),
cited above, §§ 43-45).
Moreover,
notwithstanding the difficulties that the applicant encountered in
obtaining copies of his criminal file, nothing indicates that the
authorities aimed to dissuade or discourage the applicant, contrary
to Article 34, and no negative consequence resulted for the applicant
from this delay (see,
a contrario, Petra v. Romania,
judgment of 23 September 1998, Reports of Judgments and Decisions
1998-VII, pp. 2854 55, § 43 and Cotleţ
v. Romania, no. 38565/97, § 71, 3 June
2003).
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- Lastly,
in his letter of 16 January 2008 the applicant complained under
Article 6 § 3 of various infringements of his right of defence
in the criminal proceedings that are currently pending against him.
However, the Court notes that this complaint is premature and must be
rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
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 1,000,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage, including EUR 18,654 for the two cars that
had been confiscated during the criminal proceedings.
- The
Government contended that the applicant's claims were inadmissible as
the applicant had not signed his letter to the Court in which he had
quantified his claims.
Furthermore,
they considered that there was no causal link between the alleged
violations and the pecuniary damages sought. They also contended that
the claims for non-pecuniary damage were exorbitant.
- The
Court notes that Rule 60 of the Rules of Court, of which the
applicant was informed in a letter of 31 July 2007, sets out the
requirements for just satisfaction claims. The applicant's signature
on the letter detailing his claims is not among these requirements.
Where the Court attaches significance to the applicant's signature,
it expressly regulates it, as is the case for an application made
under Articles 33 or 34 of the Convention (see Rule 45 of the Rules
of Court). Bearing in mind the severe consequences that the lack of
signature could have for the applicant (rejection of his claims), the
Court does not consider that such requirement should be implied in
the case at hand, in the absence of explicit regulations. The
Government's argument of inadmissibility is therefore rejected.
- As
for the applicant's claims, the Court does not discern any causal
link between the violation found and the pecuniary damage alleged; it
therefore rejects this claim. On the other hand, it awards the
applicant on an equitable basis EUR 8,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
- Therefore,
the Court does not make any award under this head.
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 UNANIMOUSLY
- Joins to the merits and rejects the
Government's preliminary objections;
- Declares the complaints concerning Articles 3
and 6 § 1 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under both its substantive and procedural limbs;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000
(eight thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the respondent
State's national currency at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring separate opinion of
Judge Myjer is annexed to this judgment.
J.C.M.
S.Q.
CONCURRING OPINION OF JUDGE MYJER
I
agree with the conclusions of the Chamber on all aspects of the case
and would only like to add a few remarks of my own.
As to
the reasoning in paragraphs 79 and 84: if the applicant had
complained only about physical violence inflicted by his
interrogators, the very fact that the medical report dated 4 April
1996 (paragraph 32) made it clear that the applicant presented
“injuries caused by hitting with hard objects which could have
taken place 15 to 30 days before the medical examination” would
have reversed the burden of proof. The Government would have had to
establish satisfactorily that the applicant's injuries were caused
otherwise than – entirely, mainly, or partly – by the
treatment he underwent while in custody (Ribitsch v. Austria,
judgment of
4 December 1995, Series A no. 336, § 34). The
applicant, however, complained about the fact that he had been beaten
by his interrogators and by inmates. That makes the case a
little more complicated, since – as far as violence by inmates
is concerned – in my opinion the Government cannot be blamed
for all such acts. As regards their responsibility for violence by
inmates, it should in my opinion be established that either the
authorities were aware of such violence but did nothing to prevent or
immediately stop it (or worse, encouraged it) or that the prison
conditions and/or the medical condition of the applicant were such
that violence by inmates was in the specific circumstances of the
case foreseeable, or that the authorities, having been properly
warned, did not take the necessary steps to prevent further violence
from occurring. In this specific case it is clear that the
applicant's wife lodged a complaint on 16 February 1996 (paragraph
29). The injuries indicated in the above-mentioned report must have
been sustained after that date. The judgment thus makes it clear that
the national authorities cannot hide behind the fact that they
investigated the allegations and that the interrogators cannot be
blamed. Since they were properly warned as of
16 February 1996,
the reversal of the burden of proof remained in place, in respect of
the violence inflicted by inmates as well.
I
should like to add one other point.
The
applicant also complained about the fact that Article 34 had been
breached. I agree that the reasoning in paragraph 98 is in line with
the existing case-law. I also find that there is a big difference
between this case and the case of Petra v. Romania, which is
quoted in that paragraph, and between this case and the cases
mentioned in the important report of Christos Pourgidides, Member
states' duty to co-operate with the European Court of Human Rights
(PACE document 11183 (9 February 2007)). Nevertheless, it worries
me that the Prosecutor's Office, after having searched the
applicant's house, also confiscated:
– a
letter of 11 August 2003 from the Court concerning the present
application;
– copies of a letter addressed by the applicant to
the Court
(paragraph 53).
Although
I am aware that the documents were returned to him several months
later (paragraph 54), it is in my opinion altogether arguable that
the very fact that “untouchable” correspondence with the
Court has been confiscated as such does raise an issue under Article
34. After such confiscation, does it really matter that there was a
domestic remedy at his disposal which should have been used first? I
wonder what the use is of being able to challenge the decision of the
Prosecutor's Office under domestic law if in the meantime the
authorities have become aware of the contents of correspondence with
the Court. Once they have discovered that they confiscated
“untouchable” documents, ought the authorities not to be
under an obligation to repair proprio motu the violation not
only by returning the documents but also by at least expressly
acknowledging that they had been wrong to confiscate them.
