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THIRD
SECTION
CASE OF HACIOGLU v. ROMANIA
(Application
no. 2573/03)
JUDGMENT
STRASBOURG
11 January
2011
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 Hacioglu v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2573/03) 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 Turkish and Bulgarian national, Mr Sezgin
Hacioglu (“the applicant”), on 6 August 2001.
- The
applicant, who had been granted legal aid, was represented by
Mr Laurent Hincker and Mrs Valérie Billamboz, lawyers
practising in Strasbourg. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- On
12 May 2009 the President of the Third Section decided to communicate
to the Government the complaints concerning the conditions of the
applicant's detention, the alleged interference with his private life
and the alleged lack of fairness of the criminal proceedings
instituted against the applicant. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
- The
Turkish and Bulgarian Governments were informed of the application,
in view of the applicant's nationality (Article 36 § 1 of the
Convention and Rule 44 of the Rules of Court). They did not wish to
intervene.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Istanbul.
A. The origin of the case
- At
the relevant time, the applicant was working for the Turkish company
A., which in January 1999 started a joint venture in the oil industry
with the Romanian company P. based in Constanţa. From
February 1999 the applicant worked in Constanţa at company
P.'s headquarters.
- On
19 July 1999 the joint venture ended and, on the basis of a prior
agreement between the two companies, A.'s employees based in
Constanţa were requested to return all documents belonging to
company P.
- On
26 July 1999 at 10 a.m. the applicant unsuccessfully tried to take
some documents from company P.'s headquarters, following which P.'s
management ordered that all company A.'s employees leave the
headquarters by the end of that day.
- At
4 p.m. the applicant left the premises with documents classified
“confidential”, concerning, in particular, human
resources strategies, redundancy proposals, maps of company P.'s
properties and of the port, and information on the management team
and on the company's export deals. At his home in Constanţa he
put the documents in envelopes and then handed them to O.M. at the
latter's petrol station in Lazu. O.M. gave the envelopes to a Turkish
bus driver, who was instructed to take them to Istanbul and to call
upon his arrival for further instructions; the phone number was
written on the envelopes.
- On
25 August 1999 the Romanian border guards at Vama Veche confiscated
the documents from the bus driver.
B. The applicant's detention
1. The detention in Constanţa Police detention
facilities
- On
the evening of 30 August 1999 the applicant was arrested when trying
to leave Romania at the Ostrov border checkpoint and taken to the
Constanţa Police headquarters. According to the indictment, he
was:
“invited to give explanations to the criminal
investigation authorities concerning the documents found at Vama
Veche checkpoint; it had been already established at that time that
he was the person who had facilitated the illegal transportation of
the documents belonging to P.”
At 8
a.m. on the next day, he was taken to a prosecutor who issued an
arrest warrant and placed him in police custody in the Constanţa
Police detention facilities. According to the applicant's statements,
he was not allowed to contact anyone between 30 and 31 August.
- The
applicant was held in the police detention facilities from his arrest
until 29 October 1999.
- The
applicant described the conditions in custody as follows: he was not
given food for the first twenty-four hours of his detention in the
police headquarters and was not given any written information in
Turkish. He was not allowed a pen and paper to write to his family.
During the investigations he was not allowed to talk with his family
or counsel in private and was prevented from contacting the Turkish
Embassy.
- According
to the information from the Constanţa Police, the cells in the
police detention facilities measured 20 sq. m and had three to four
beds each. The toilets were situated on the corridor. No concrete
information about the applicant's stay was furnished, as, according
to the applicable regulations, the relevant documents are only kept
by the prison authorities for a five-year term, which has already
expired in the applicant's case.
2. The detention in Poarta Albă and Rahova Prisons
- The
applicant was transferred to Poarta Albă Prison on 29 October
1999. He remained there until his conditional release on 15 May
2002, with the exception of the period from 24 August 2000 to 16 May
2001 when he was detained in Rahova Prison.
- He
alleged that in Poarta Albă he had been held in poor conditions.
In particular, he claimed that hot water had been very rarely
available and the prisoners at times had not had been able to wash
themselves for months. The prisoners had to improvise and use
electrical appliances to heat water in their cells to enable them to
wash. He alleged that he had not received a copy of the internal
regulations in Turkish.
- The
Government produced official records describing the applicant's
detention as follows.
- For
the first twenty-one days of his detention, the applicant was placed
in cell no. 19 which was 39.48 sq. m in size. He shared the room with
approximately forty-five other persons.
- For
most of his stay the applicant was placed in the section for foreign
prisoners, in cells nos. 1 and 6 which were 15.26 sq. m in size and
had six beds each. There were four to six prisoners in a cell at all
times. Each cell had its own toilet, separated from the living space
by a wall. There was no hot running water; the inmates were scheduled
for a weekly bath. The cells and the toilets had windows for airing
and natural light. The cells were heated with wood. Electricity and
cold water were permanently available. The prisoners were responsible
for cleaning the premises.
In
2004 the toilets were renovated and modernised.
- During
his stay he received four visits from his mother, five from his
father, five from his lawyer and three from representatives of the
Turkish Consulate. On each visit, the applicant received a parcel of
food and cigarettes. His right to receive visits was not restricted
during his detention.
- The
conditions in Rahova Prison were similar to those in Poarta Albă.
The applicant was placed in a 19.55 sq. m cell which had ten beds.
C. Criminal proceedings against the applicant
- On
31 August 1999 the applicant, in the presence of his chosen lawyer,
E.B., and an interpreter, was informed of the reasons for his arrest.
At that time he could not provide an address where his family could
be contacted as all his relatives lived abroad (Turkey and Bulgaria),
but he agreed that his counsel could contact the family. From the
observations submitted by the applicant, it appears that the chosen
counsel E.B. was asked by company A. to defend him.
Throughout
the investigations, the applicant was represented by E.B, and another
counsel specialised in criminal law, both representatives of his own
choosing, and assisted by an authorized interpreter.
- At
different dates during September 1999, the prosecutor proceeded to
hearing testimonies of fourteen witnesses, who worked for company P.
and could provide relevant information regarding the documents that
the applicant had tried to remove from the headquarters of the
company P. and the events of 26 July 1999.
- On
19 October 1999, the applicant, in the presence of his counsel and
assisted by an interpreter was confronted with two of the witnesses
in the case. The minutes of the confrontations indicate that he
addressed questions to those witnesses.
- On
25 October 1999 the Prosecutor attached to the Constanţa Court
of Appeal indicted the applicant for theft of documents (sustragerea
de înscrisuri, Article 242 of the Criminal Code) and
industrial espionage (Article 19 of Law no. 51/1991 on Romania's
national security).
- The
case was tried by the Constanţa County Court, based on the
evidence adduced, in particular, expert reports on the content of the
documents taken by the applicant from company P. and witness
testimonies. In his defence the applicant claimed that he had not
been aware of the content of the documents taken and that he had done
nothing but follow orders from his superiors.
- The
County Court held eight hearings. At each hearing the applicant was
represented by counsel and assisted by an interpreter. For the first
hearing, which took place on 26 October 1999, the applicant was
assisted by a lawyer appointed by the authorities. That hearing did
not bear on the merits of the case, but concerned the extension of
the applicant's pre-trial detention.
- On
18 November 1999 the County Court allowed the defence counsel's
request and postponed the case in order to allow the applicant, in
the presence of an interpreter and his lawyer, to familiarise himself
with the prosecution file. The applicant personally or through his
counsel made no further complaints to the County Court during the
proceeding.
- On
6 and 20 January 2000 the County Court heard the applicant's
testimony and witness evidence. Fourteen witnesses were heard, the
same that had testified before the prosecutor and they all maintained
their previous statements. The defence counsels participated in the
examination of the witnesses and asked questions; they informed the
court that they no longer insisted on the summoning of the absent
witnesses. They insisted nevertheless that two witnesses, employees
of the State Property Fund (FPS) be examined by the court. One of the
proposed witnesses testified at the next hearing, held on 3 February
2000. The applicant, through his counsel declared that he did not
insist in the summoning of the second proposed witness.
On 24
February the parties presented their case; the applicant was invited
to speak again before the end of the hearing (ultimul cuvânt
al inculpatului). On the same date, the applicant submitted
written conclusions by which he claimed to be innocent and provided
arguments as to why it could not be held his acts constituted a
crime.
- On
28 February 2000 the court convicted the applicant as charged and
sentenced him to four years' imprisonment. According to the
Government, a written translation of the first instance judgement was
served to the applicant.
- The
applicant appealed, claiming that he had been wrongfully convicted.
On 7 April 2000 the Constanţa Court of Appeal upheld the
judgment, based on the evidence existing in the file and on the
pleadings before it. It rejected the defence request for a new
witness, another employee of FPS, as it considered that the evidence
was not relevant to the case. The applicant was represented by
counsel of his choosing and assisted by an interpreter. The applicant
was invited to speak before the end of the hearing.
- The
applicant appealed again on points of law, arguing that the acts he
had committed were not the crimes he had been accused of.
The
Supreme Court of Justice held three hearings in the case; the
applicant was represented by counsel of his choosing and assisted by
an interpreter. On 22 February 2001 the Supreme Court heard the
defence counsel and the prosecutor and invited the applicant to speak
before the end of the hearing (ultimul cuvânt al
inculpatului). It postponed the delivery of the final decision
until 8 March.
- In
a final decision of 8 March 2001 the Supreme Court of Justice
dismissed the applicant's appeal and upheld the previous decisions.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of Law no. 23/1969 on the execution of sentences
are described in paragraphs 23 and 25 of the Năstase-Silivestru
judgment (see Năstase-Silivestru v. Romania,
no. 74785/01, 4 October 2007).
- Law
23/1969 was replaced by Emergency Ordinance no. 56/2003 on the
rights of prisoners (“Ordinance 56”), adopted by the
Government on 25 June 2003 and ratified by Parliament on 7
October 2003. That Ordinance constituted a general measure taken by
the Government in the execution of the judgment adopted by the Court
in the case of Petra v. Romania (23 September 1998,
Reports of Judgments and Decisions 1998 VII; see the
Committee of Minister's Resolution CM/ResDH(2007)92).
III. COUNCIL OF EUROPE DOCUMENTS
- The
relevant findings and recommendation of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) are described in Artimenco
v. Romania (no. 12535/04, §§
22-23, 30 June 2009). In particular, the Court notes that in the
report on the 2002-2003 visits, the CPT expressed concerns over the
limited living space available to prisoners and the insufficient
space provided by the regulations in place at that date. It also
noted that prisoners were sometimes obliged to share a bed and that
the toilets were not sufficiently separate from the living space.
- Recommendation
Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules (adopted by the Committee of Ministers on 11
January 2006 at the 952nd meeting of the Ministers' Deputies),
insofar as relevant, reads as follows:
“23.1 All prisoners are entitled to
legal advice, and the prison authorities shall provide them with
reasonable facilities for gaining access to such advice.
...
23.4 Consultations and other communications
including correspondence about legal matters between prisoners and
their legal advisers shall be confidential. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
- The
applicant complained under Articles 3 and 8 that while he was held in
the Constanta Police detention facilities he was not given food for
the first twenty-four hours, he had not been allowed to contact his
family, his mobile phone and belongings had been confiscated and he
had not been allowed to talk with his family in private.
Relying
on Article 3, he further complained of the poor detention conditions
in Poarta Albă and Rahova Prisons.
- Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- Article
8 of the Convention reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
1. The parties' submissions
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies, in so far as the applicant had not complained to
the authorities about the conditions of his detention or the alleged
breach of his privacy rights. In addition, they pointed out that the
applicant could have lodged a civil law complaint against the Prison.
- Lastly,
the Government considered that the applicant had not respected the
six month rule in so far as the complaints referred to his
detention in the Constanţa Police detention facilities. The
Government relied on an a contrario interpretation of
Kokoshkina v. Russia, no.
2052/08, § 53, 28 May 2009.
- The
applicant submitted that the Government could not prove the
effectiveness of the indicated remedies and that, in any case he had
been faced with a systemic problem in the detention facilities. He
also contended that his detention should be examined as a single
period and that dividing it according to the time spent in the
detention facilities would be artificial.
2. The Court's assessment
(a) Non-exhaustion of domestic remedies
- The
Court has already found that Law no. 23/1969 does not provide an
effective remedy for complaints concerning the conditions of
detention (see, in particular, Petrea v. Romania, no. 4792/03,
§ 34-36, 29 April 2008). It also reiterates that for the general
conditions of detention, in particular the alleged overcrowding, the
applicant could not be required at the material time to have recourse
to any remedy (see Kalashnikov v. Russia (dec.), no. 47095/99,
18 September 2001, and Solovyev v. Russia (dec.),
no. 76114/01, 27 September 2007).
- It
therefore rejects the Government's plea of non-exhaustion of domestic
remedies.
(b) Six-month rule
- The
Court recalls that it had previously refused to treat the time spent
by the applicants in different detention facilities as a continuing
situation in cases where their complaints related to specific events
(see, Seleznev v. Russia, no. 15591/03, § 35, 26 June
2008).
In
the instant case, the Court notes that the applicant complained about
specific events concerning the period spent in the Constanta Police
detention facilities (see paragraph 38 above). These complaints have
not been reiterated with regard to the other detention facilities.
- The
Court notes that the applicant had been transferred from the
Constanţa Police detention facilities on 29 October 1999. He had
lodged his application with the Court on 6 August 2001. It follows
that his complaints under Articles 3 and 8 concerning this period of
detention fall outside the six-month time-limit set by the
Convention.
(c) Other grounds for inadmissibility
- The
Court notes that in so far as the complaints refer to the
detention conditions in Poarta Albă and Rahova Prisons,
they are not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention. It further notes that they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
1. The parties' positions
- The
Government contended that the conditions of detention were acceptable
according to the standards set by the relevant case-law.
- The
applicant considered that the overcrowding was a serious problem in
that on several occasions there had been few persons sharing one bed.
He reiterated that hot water and heating had not been available.
2. The Court's assessment
- The
Court refers to the principles established in its case-law regarding
the conditions of detention and the medical care of detainees (see,
for instance, Kudła v. Poland [GC], no. 30210/96,
§ 94, ECHR 2000-XI; Mouisel v. France,
no. 67263/01, § 40, ECHR 2002-IX; and
Sarban
v. Moldova, no. 3456/05, §§ 75-77, 4
October 2005).
- It
also reiterates that Convention proceedings, such as the present
application, do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he
who alleges something must prove that allegation) because in certain
instances the respondent Government alone have access to information
capable of corroborating or refuting these allegations. A failure on
a Government's part to submit such information without a satisfactory
explanation may give rise to the drawing of inferences as to the
well-foundedness of the applicant's allegations (see Kokoshkina,
cited above, § 59).
- The
focal point in the case at hand is the assessment by the Court of the
living space afforded to the applicant in Poarta Albă and Rahova
Prisons. The Court notes that the applicant did not contradict the
Government's submissions on the size of the cells. What is contested
between the parties is the actual occupancy of those cells: while the
Government submitted that the number of persons in a cell was always
inferior or equal to the designated occupancy, the applicant claimed
that, at times, prisoners had had to share beds.
The
Court notes that, even at the occupancy rate indicated by the
Government, the applicant's living space seems to have been
consistently below 3 sq. m, which falls short of the standards
imposed by the case-law (see Kokoshkina, cited above, §
62; and Orchowski v. Poland,
no. 17885/04, § 122, ECHR 2009 ... (extracts)).
Moreover,
the applicant's description of the overcrowding corresponds to the
findings made by the CPT during that period (see paragraph 36 above).
- Furthermore,
the Court considers that taking into account the corroboration by the
CPT reports of the applicant's description of sanitary conditions it
cannot but conclude that the applicant was deprived of the
possibility to maintain an adequate corporal hygiene in prison.
- The
Court has frequently found a violation of Article 3 of the Convention
on account of the lack of personal space afforded to detainees and
unsatisfactory sanitary conditions (see, in particular, Ciorap
v. Moldova, no. 12066/02, § 70, 19 June 2007; and
the judgments cited above: Kalashnikov, §§
97 et seq.; Kokoshkina, § 64; and Petrea, §§
49-50).
In
the case at hand, the Government failed to put forward any argument
that would allow the Court to reach a different conclusion.
- In
the light of the above, the Court finds that the conditions of the
applicant's detention caused him suffering that exceeded the
unavoidable level of suffering inherent in detention and that
attained the threshold of degrading treatment proscribed by Article
3.
There
has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION
- The
applicant complained of a violation of his rights of defence. In
particular, he complained that he was not granted ex officio
counsel and he had to hire a lawyer; that he was not heard by the
courts and that he and his counsel did not have the opportunity to
obtain examination of witnesses on his behalf and against him; that
he was not assisted by an interpreter and that he did not receive
written translations of all the judicial decisions concerning him. In
a letter of 18 December 2002 the applicant specified that the
interpreter assigned to assist him during the proceedings did not
translate everything to him and complained that during the
investigation he could not meet his counsel in private. He relied on
Article 6 §§ 1 and 3 of the Convention.
- Article
6 § 1 of the Convention reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- Article
6 § 3 of the Convention reads as follows:
“3. Everyone charged with a criminal
offence has the following minimum rights:
(...);
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
A. The parties' submissions
1. The Government's submissions
- The
Government argued that the criminal proceedings against the applicant
were fair. They submitted in this respect that the proceedings had
been adversarial and that the applicant had had the opportunity to
propose and adduce evidence in his defence, as the minutes of the
hearings of the case indicate. The applicant and his chosen counsel
had made oral and written submissions to the domestic courts, all
their requests for evidence being duly reviewed.
- The
Government further indicated that neither the applicant nor his
chosen counsel raised before the domestic courts the complaints
submitted to the Court in respect of the alleged unfairness of the
proceedings.
- In
respect of the complaint regarding the alleged breach of paragraph c)
of Article 6 § 3, the Government emphasised that the applicant
decided to be represented by counsel of his own choice from the very
beginning of the proceedings against him and therefore it was not
true that the domestic authorities refused his alleged request for
legal aid. Furthermore, throughout the proceedings he has been
represented by one or two counsel of his own choice and it was only
on one occasion that his counsel were not present and the domestic
courts appointed counsel for him. Moreover, that particular hearing
did not concern the merits of the case, but the review of the
legality of his pre-trial detention.
- As
concerns the alleged violation of Article 6 § 3 (d), the
Government submitted that the applicant had been heard by the
domestic courts, as the records of the hearings indicated, and he had
the opportunity to put forward evidence in his defence, as well as to
address questions to the witnesses.
- Noting
that the applicant had been assisted by an authorised interpreter
during the entire duration of the proceedings, including during the
investigation phase, the Government considered that the applicant's
complaint under Article 6 § 3 e) was manifestly ill-founded.
They referred further to the fact that the applicant failed to bring
any complaint before the domestic courts about an alleged failure of
the assigned interpreter to provide accurate translation.
- Finally,
the Government considered that the applicant's complaints concerning
the fairness of the proceedings were abusive, taking into account
that he falsely contended that he had never been heard by the
domestic courts and that he had been assisted by an interpreter on
only one occasion.
2. The applicant's submissions
- The
applicant submitted observations on several aspects of Article 6. The
Court shall rely in its examination on those observations that relate
to the questions communicated to the parties on 12 September 2009
(see paragraph 3 above)
- The
applicant submitted that when he was arrested he had not been
informed that he could choose between defending himself or being
represented by counsel. He further referred to Rule 93 of the
Standard Minimum Rules for the Treatment of Prisoners (Resolution
(73)5 of the Committee of Ministers of the Council of Europe).
According to the said provisions interviews between prisoners and
their legal advisers may be within sight but not within hearing,
either direct or indirect, of the police or institution official.
- He
considered that two distinct issues arose in respect of his rights
under Article 6 § 3 c), on one hand that the authorities
allegedly tried to dissuade his counsel from assisting him; on the
other hand that the Romanian legislation in force at the time,
provided that during visits to convicted persons the conversation
should be carried out in Romanian or in a language understood by the
staff supervising the visit (Article 19 of Law no. 23/1969). He
concluded that he could not therefore prepare his defence properly
and that all his conversations with his counsel had taken place
within the hearing of the authorities.
- The
applicant attached to his observations a statement by one of the
counsel, E.B., who represented him during the proceedings in
question. According to this statement, on the day following the
applicant's arrest the counsel, upon a request of company A., saw him
in the presence of the prosecutor. They had been denied the right to
meet in private. They had also not been allowed to speak directly in
English between themselves, but an interpreter was brought in to
translate between Romanian and Turkish. When he later met the
applicant a guard was always present. They spoke English, but had no
guarantee that the guard would not understand their conversation.
Counsel also conceded that despite the fact that he needed to ask for
the permission of the Chief Prosecutor to meet the applicant, his
requests were not refused.
B. Admissibility
1. Alleged abuse of the right of petition
- The
Court notes that the Government pleaded that the complaints under
Article 6 §§ 1 and 3 should be rejected for abuse of right
of petition as the applicant had included some untrue statements in
his application form.
- The Court recalls that a finding of abuse of right of
petition may be made in extraordinary circumstances, in particular if
it appears that an application was clearly unsupported by evidence or
outside the scope of the Convention, or if the application was based
on untruths in a deliberate attempt to mislead the Court (see, for
example, Ismoilov and Others v. Russia, no. 2947/06,
§ 103, 24 April 2008).
- The
Court notes that indeed some statements in the initial application
form concerning the assistance of an interpreter and the
representation by counsel turned out not to be completely accurate.
However, it observes that the initial application form was submitted
by the applicant's representative at that time, counsel from Turkey
who had not assisted the applicant during the proceedings before the
Romanian courts. At the time, the applicant was detained in Romania.
In these circumstances, the Court can envisage that communication
between the applicant detained in Romania and his counsel, living in
Turkey, may have led to some confusion as to factual details. It also
notes that in a letter of 18 December 2002 (see paragraph 57 above),
after his release from prison, the applicant presented a version of
the facts which does not appear to contradict the Government's
version. The same version of events is also corroborated by a
statement submitted by E.B., counsel who represented the applicant in
the domestic proceedings (see paragraph 69 above).
- Having regard to the above, the Court concludes that
it is unable to find any indication of abuse in the present
application and therefore rejects the Government's objection.
2. Other reasons for inadmissibility
- The
Court notes at the outset that the documents available in the case
file indicate that the applicant did not, either in his appeal or in
his appeal on points of law, raise any complaint in respect of the
alleged procedural failures that he invoked before the Court.
- However,
the Court does not find it necessary to
determine whether the applicant has exhausted domestic remedies, as
it finds the applicants' complaints in any event inadmissible for the
reasons stated below.
(a) Complaint concerning lack of privacy
of the meetings with his counsel
- By
letter of 18 December 2002, the applicant complained that he could
not meet his counsel in private, and that during the investigation, a
guard was always present during the meetings he had with his counsel.
- The
Court notes that the final decision was delivered on 8 March 2001.
Even though the decision was indeed drafted at a later date, the
applicant provided a copy of it to the Court on 2 January 2002.
Nevertheless, he raised this complaint for the first time before the
Court on 18 December 2002, that is, more than six months after the
latest date he had available to him a full copy of the said final
decision.
- It follows that this complaint must be rejected as
having been lodged outside the six-month time-limit, pursuant to
Article 35 §§ 1 and 4 of the Convention.
(b) Complaint concerning alleged refusal
to appoint an ex officio counsel
- The
applicant complained that he had not been provided with a
court-appointed lawyer and had had to hire counsel himself. In his
observations he specified that he had not been informed at the moment
of his arrest that he could choose between defending himself in
person or through the assistance of counsel.
- The
Court notes that from the applicant's submissions, as well as from
the statements of his counsel at that time, it appears that that
lawyer had been asked by the applicant's employer to defend the
applicant. No document in the case file indicates that the applicant
at any time made a request for legal aid or that he questioned the
performance of the lawyers representing him. Moreover, he does not
seem to have at any time expressed the wish to defend himself or
stated that he did not want the services of the lawyers who
represented him.
- In
view of the above, the Court considers that the applicant's complaint
under this aspect of Article 6 of the Convention is manifestly
ill-founded within the meaning of Article 35 § 3 and
therefore inadmissible in accordance with Article 35 § 4 of the
Convention.
(c) Complaint concerning the alleged
impossibility of calling and questioning witnesses and the alleged
failure of the domestic courts to hear the applicant
- The
applicant complained that he had not been heard by the courts and
that he and his counsel did not have opportunity to obtain
examination of witnesses on his behalf and against him.
- The Court stresses in the first place that it is not
its task to act as a court of appeal or, as is sometimes said, as a
court of fourth instance, for the decisions of domestic courts.
According to the case-law, the latter are best placed to assess the
credibility of witnesses and the relevance of evidence to the issues
in the case (see, amongst many authorities, Vidal v.
Belgium, 22 April 1992, § 32, Series A no. 235-B, and
Edwards v. the United Kingdom, 16 December 1992, §
34, Series A no. 247-B). The Court further reiterates that the
principle of equality of arms, one of the broader concepts of a fair
hearing, requires each party to be given a reasonable opportunity to
present their case under conditions that do not place them at a
substantial disadvantage vis-à-vis the opponent. The
right to adversarial proceedings means in principle the opportunity
for the parties to have knowledge of and to comment on all evidence
adduced or observations submitted, with a view to influencing the
court's decision (see K.S. v. Finland, no. 29346/95, § 21,
31 May 2001).
- Turning
to the facts of the case, the Court observes that all the witnesses
heard during the investigation also testified before the
first-instance court. It appears that there was no contradiction
between the statements given at the different stages of the
proceedings. The applicant himself gave a full statement before the
first-instance court and in the appeal proceedings he was given the
last word. It also appears that two cross-examinations were organised
during the investigation and that during the trial the applicant,
through his counsel, could address questions to the witnesses. His
requests for witnesses in his defence were given due consideration,
and even though it is true that in the appeal proceedings one of his
requests was refused, the appellate court provided reasoning for its
decision. Moreover, in his appeals the applicant, even though he was
represented by counsel, failed to make any complaint in respect of
his right to be heard by the courts or to call and question
witnesses.
- In
the circumstances of the case, the Court is of the view that this
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
(d) Complaint concerning the alleged lack
of assistance of an interpreter
- In
the initial application form, the applicant contended that he was
assisted by an interpreter only on one occasion. In his letter of 18
December 2002 the applicant redefined his complaint, by stating that
the interpreter assigned to him throughout the proceedings did not
translate everything to him. He further complained that he did not
receive written translations of all the judicial decisions concerning
him.
- The
Government indicated that the applicant was assisted by an
interpreter throughout the entire proceedings, including the
investigation stage. They further submitted that the applicant was
given a translated copy of the first-instance judgement.
- The
Court reiterates that paragraph 3 (e) of Article 6 states that every
defendant has the right to the free assistance of an interpreter.
That right applies not only to oral statements made at the trial
hearing but also to documentary material and the pre-trial
proceedings. This means that an accused who cannot understand or
speak the language used in court has the right to the free assistance
of an interpreter for the translation or interpretation of all those
documents or statements in the proceedings instituted against him
which it is necessary for him to understand or to have rendered into
the court's language in order to have the benefit of a fair trial
(see, for example, Hermi v. Italy, 18114/02, §§
69-70). The said provision does not go so far as to require a written
translation of all items of written evidence or official documents in
the procedure. In that connection, it should be noted that the text
of the relevant provisions refers to an “interpreter”,
not a “translator”. This suggests that oral linguistic
assistance may satisfy the requirements of the Convention (see Husain
v. Italy (dec.), no. 18913/03, 24 February 2005). The fact
remains, however, that the interpretation assistance provided should
be such as to enable the defendant to have knowledge of the case
against him and to defend himself, notably by being able to put
before the court his version of the events (see Güngör
v. Germany (dec.), no. 31540/96, 17 May 2001). In view of
the need for that right to be practical and effective, the obligation
of the competent authorities is not limited to the appointment of an
interpreter but, if they are put on notice in the particular
circumstances, may also extend to a degree of subsequent control over
the adequacy of the interpretation provided (see Kamasinski v.
Austria, no. 9783/82, § 74, 19 December 1989;
Diallo v. Sweden (dec.), no. 13205/07, 5 January
2010).
- In
the present case, the Court notes that the applicant has been
systematically assisted by an interpreter. Thus, the records of the
questioning by the prosecutor, as well as of the hearings held before
the courts, indicate that the applicant was assisted by an authorised
interpreter each time. Moreover, there is nothing in the case file to
show that the interpreter provided inaccurate or inadequate
translation to the applicant, who never raised any complaint before
the domestic authorities in this respect.
- As
regards the applicant's complaint that he did not receive translated
written copies of all the judicial decisions concerning him, the
Court notes firstly that he does not seem to have lodged such a
request with the domestic authorities. Moreover, it considers that
the applicant, after discussions with counsel, could not have been
unaware of the content of the decisions. In this respect it is
important to note that he lodged an appeal and an appeal on points of
law against the judicial decisions convicting him, raising specific
complaints, and therefore it does not appear that he had not been
aware of their content or that he had been unable to exercise
his defence rights by exhausting all available domestic remedies
(see, mutatis mutandis, Baka v. Romania, no. 30400/02,
§ 76, 16 July 2009).
- In
these circumstances, the Court is unable to discern any violation of
the right to have the free assistance of an interpreter.
- It
follows that the application is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant raised other complaints under Articles 5 § 1 (c),
6 §§ 1 and 2, 7 of the Convention, Article 2 §
1 of Protocol No. 4 to the Convention and under Article 2 § 1 of
Protocol No. 7.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application 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 100,000 euros (EUR) in respect of non pecuniary
damage caused by the violation of the rights guaranteed by the
Convention. He also claimed EUR 50,000, representing loss of income
during his detention.
- The
Government considered that the requests were exaggerated and there
was no causal link between the alleged violations and the damages
sought. They argued that a conclusion of violation of the Convention
Articles could constitute just satisfaction in the case. Lastly, they
put forward that the amount sought in respect of pecuniary damage was
speculative.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects the
applicant's claim in this respect. Nevertheless, it considers that
the applicant suffered distress as a result of the conditions of his
detention. It therefore awards him EUR 6,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 25,000 for the costs and expenses incurred
before the domestic courts and the Court. He sent an invoice, by
which his representatives in the proceedings before the Court claimed
EUR 2,350, of which EUR 1,582.50 was payable by the applicant
and EUR 850 had already been received in legal aid from the
Court. A second invoice was produced, by which the representatives
sought EUR 1,674.40 from the applicant.
- The
Government pointed out that the applicant only adduced two invoices
but no document, such as a contract between him and the lawyers,
which would prove the connection to the case.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award EUR 3,000 for the proceedings before
the Court.
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
- Declares the complaints concerning Articles 3,
in so far as they refer to the conditions of detention in Poarta Albă
and Rahova Prisons admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 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:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that might be chargeable
to the applicant, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep Casadevall
Deputy
Registrar President
