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THIRD
SECTION
CASE OF PETREA v. ROMANIA
(Application
no. 4792/03)
JUDGMENT
STRASBOURG
29
April 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 Petrea 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 1 April 2008
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4792/03) 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 Alfred-Petronel Petrea
(“the applicant”), on 16 December 2002.
- The
applicant was represented by Mr A. Simion, a lawyer practising in
Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr R.-H. Radu, from the Ministry of
Foreign Affairs.
- On
19 October 2006 the Court decided to communicate the complaints
concerning the conditions of the applicant's detention and the right
to respect for his correspondence 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Iaşi.
- On
23 November 1999 the prosecutor attached to the Piteşti Court of
Appeal issued an arrest warrant against the applicant, who was
accused of tax evasion.
- The
applicant was apprehended on 5 September 2000 and was placed in
police custody for a period of thirty days. The Piteşti District
Court, to which the applicant was first brought on 28 September 2000,
repeatedly extended his pre-trial detention, until the end of the
proceedings before it.
A. Criminal proceedings against the applicant
- The
District Court gave judgment on 19 February 2002. On the basis of the
depositions made by the applicant, four co-defendants and
twenty-one
witnesses, the court convicted the applicant under several heads of
tax evasion and forgery, and sentenced him to six years and
six
months' imprisonment with an obligation, under Article 113 of the
Criminal Code, to undergo medical treatment for his mental disorder
as identified by the medical reports adduced in the case. The court
ordered that the medical treatment be administered through the prison
hospitals, while the applicant was in detention, and continue after
his release until his complete recovery. It also upheld the order for
the applicant's detention.
- In
a decision of 25 June 2002, the Argeş County Court allowed
appeals against the judgment and, based on the evidence in the case
and the defendants' depositions, reduced the applicant's sentence to
five years and six months' imprisonment. It upheld the remainder of
the District Court's judgment.
- This
decision was confirmed, upon an appeal on points of law by the
defendants, in a final decision of 8 October 2002 of the Piteşti
Court of Appeal.
B. The applicant's detention and medical care
- On
20 September 2000 the applicant's lawyer filed a request with the
prosecutor for the applicant's psychiatric evaluation. The Argeş
Forensic Medicine Institute examined the applicant and concluded, on
2 October 2000, that he had been mentally competent for legal
purposes both when the alleged offences had been committed and at the
date of the evaluation.
The
applicant contested the conclusion of the report.
- On
18 December 2000 the “Mina Minovici” Forensic Medicine
Institute in Bucharest confirmed the Argeş Forensic Institute's
report, after having examined the applicant. It also recommended
that, pursuant to Article 113 of the Criminal Code, the applicant be
required to undergo medical treatment for his mental disorder both
during the detention and after his release.
- On
29 November 2000 the applicant underwent a full medical examination
at the Argeş Forensic Medicine Institute. The medical commission
concluded that the applicant's mental disorder did not render him
unfit for detention.
- According
to the detailed medical record from the period of pre-trial
detention, submitted by the Government, the applicant was
hospitalised seven times in prison hospitals. He was mainly diagnosed
with thrombophlebitis, venous insufficiency and a mental disorder.
Each time he was discharged, the doctors recommended treatment for
his various illnesses, periodical re-evaluations and medical
check-ups when needed.
During
this interval he was seen twenty-seven times by the prison doctors,
on 23 and 30 October, 6, 13 and 27 November, 11 and 20 December
2001, 11 February, 17 June, 1, 8, 20, 22 and 29 July, 5, 12, 16, 19
and 26 August, 2, 9, 20, 23 and 30 September, and 7, 13 and
19 October 2002.
Records
indicate that medicine was systematically administered for his venous
insufficiency and until 20 December 2001 for his mental disorder. The
latter treatment was interrupted until 5 August 2002 and after this
date was given sporadically.
- During
his detention, several disciplinary measures were taken against the
applicant. Accordingly, his visit and parcel rights were withdrawn on
26 March 2001, 28 December 2001, 10 January and
8 April 2002, for
possession of forbidden objects. From 4 to
14 January 2002 he was
kept in solitary confinement.
- Lastly,
on 5 February 2002 the penitentiary authorities placed the applicant
in restrictive confinement (“regim restrictiv”),
for twelve months due to his recalcitrant behaviour and repetitive
infringements of the prison regulations. However, on 14 June 2002 he
was reintegrated into the normal detention regime, for good
behaviour.
The
applicant claimed that while subject to the restrictive detention
regime he had been kept in a cold cell wearing worn clothes that had
been inadequate for the temperature, sometimes handcuffed with his
hands above his head, and that for the first month he had not been
seen by a doctor and that correspondence to and from his family had
been tampered with.
- In
October 2002, after the adoption of the final decision in the case,
the applicant was transferred to Iaşi high-security Prison and
placed in the section designated for extremely dangerous prisoners.
- The applicant claimed that, despite his repeated
requests to be seen by a specialist doctor and administered adequate
medical treatment, during the first eight months of detention he had
only been examined by the prison doctor, who had consistently
informed him that there had been no funds for continuing his
treatment. The prison doctor had told him: “there is no problem
if you die, we have a priest and there is wood in the store house”
(“nu e nici o problemă dacă mori, avem preot şi
scânduri la magazie”).
On an
unspecified date, upon repeated requests by his family to the prison
authorities, the applicant was transferred to a different dormitory.
- According
to the Government, the applicant was placed in shared dormitories,
the first measuring 41.12 sq. m and the latter 60.69 sq. m,
which he shared respectively with nine and fifty-three other
prisoners. The dormitories had windows. Hygiene facilities were
permanently accessible to prisoners in a separate room. Warm water
was available once a week. The applicant had daily one-hour walks,
frequently received visits from members of his family and
participated in the social programme of the penitentiary. His medical
treatment continued.
- On
11 July 2003, the Iaşi prison authorities informed the
applicant's counsel that the applicant was not receiving any medical
treatment at that moment, but that such treatment would be
administered if necessary.
- From
3 February 2004 to 7 February 2005, the execution of the sentence was
suspended for medical reasons. On 16 June 2005 the applicant was
released on probation.
II. RELEVANT DOMESTIC LAW
- Article
195 of the Criminal Code (“CC”) and the relevant
provisions of Law no. 23/1969 on the execution of sentences are
described at 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
(“Ordinance 56”) on the rights of prisoners, adopted by
the Government on 25 June 2003 and ratified by Parliament on 7
October 2003. This Ordinance constituted a general measure taken by
the Government in the execution of the judgment adopted by the Court
in the case Petra v. Romania (judgment of 23 September
1998, Reports of Judgments and Decisions 1998 VII; see
the Committee of Minister's Resolution CM/ResDH(2007)92). The
relevant parts of the Ordinance read as follows:
Article 3
“(2) Prisoners may complain against the
measures taken by prison authorities (...).
(5) In examining a complaint, the court takes
one of the following decisions:
(a) allows the action and orders the
annulment, revocation or change of the measure taken by the
penitentiary authority;
(b) dismisses the action if it is
ill-founded.”
- That
Ordinance was replaced by Law no. 275/2006 on the execution of
sentences, which in its Article 38 provides for a similar appeal
lodged with the judge responsible for the execution of sentences, who
has the powers described in Article 3 § 5 of Ordinance 56 and
whose decision can be appealed against before a court.
- The
legislation on the organisation of the military prosecutors' offices
and military tribunals is summarised in paragraph 40 of the
Barbu
Anghelescu judgment (see Barbu Anghelescu v. Romania,
no. 46430/99, 5 October 2004) and in paragraph 68 of the
Bursuc judgment (see Bursuc v. Romania,
no. 42066/98, 12 October 2004).
Until
28 September 2004 when Law no. 293/2004 entered into force, the
penitentiary commanders were active military officers (see Articles 1
and 2 of Law no. 10/1990 and Article 4 § 24 of Government
Decision no. 736/2003).
- The
findings of the European Committee for the Prevention of Torture
(“the CPT”) following visits to Romanian prisons, as well
as the Committee's general findings, are summarised at paragraphs
73-75 of the Bragadireanu judgment (see Bragadireanu v.
Romania, no. 22088/04, 6 December 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
- 1. The
applicant complained under Articles 3 and 8 of the Convention about
the conditions of his detention, a lack of adequate medical treatment
in prison and a violation, by the prison authorities, of his right to
respect for his correspondence, as guaranteed by Article 8 § 1
of the Convention.
- Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- Article
8 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 lodged any
complaint against the prison personnel either for the alleged
ill-treatment (under Articles 267 and 2671 of the CC) or
for the alleged infringement of his right to correspondence (under
Article 195 of the CC).
- As
of 25 June 2003, the applicant had at his disposal a specific
complaint against the acts of the penitentiary authorities, provided
for by Ordinance no. 56.
- The
Government presented some 100 decisions from domestic courts
concerning complaints under Ordinance no. 56 for various acts of the
penitentiary authorities. Some ten percent had been allowed.
- The
applicant contested the effectiveness of the appeals before the
adoption of the Ordinance no. 56. In addition, he considered that any
complaint against the prison authorities would only have worsened his
situation in the penitentiary. Moreover, he considered that the
authorities had an obligation to investigate of their own motion his
allegations of ill-treatment.
Lastly,
he pointed out that Ordinance no. 56 was not available when he lodged
this application with the Court.
2. The Court's assessment
(a) The objection of non-exhaustion of
domestic remedies
- The
Court reiterates that the purpose of the exhaustion rule is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to it. However, the only remedies which Article 35 of the
Convention requires to be exhausted are those that relate to the
breaches alleged and at the same time are available and sufficient.
The existence of such remedies must be sufficiently certain not only
in theory but also in practice, failing which they will lack the
requisite accessibility and effectiveness; it falls to the respondent
State to establish that these various conditions are satisfied (see,
among many other authorities, Selmouni v. France [GC],
no. 25803/94, §§ 74-75, ECHR 1999-IV).
It is
true that in order for the exhaustion rule to come into operation,
the effective remedy must exist at the date when the application is
lodged with the Court. However, this rule is subject to exceptions
which might be justified by the specific circumstances of each case
(see Baumann v. France, no 33592/96, § 47,
22 May 2001 and Brusco v. Italy, (dec.),
no.
69789/01, ECHR 2001-IX).
The
Court has accepted that this was the case when at the national level
a new law, specifically designed to provide direct redress for
violations of fundamental procedural rights, was introduced with
retroactive effect and thus put an end to a structural problem that
existed in the national legal system before its adoption (see Içyer
v. Turkey (dec.), no. 18888/02, §§ 83 84,
ECHR 2006 I; Charzyński v. Poland (dec.),
no. 15212/03, §§ 40 41, ECHR 2005 V
and, mutatis mutandis, Ismayilov v. Azerbaijan,
no. 4439/04, § 38, 17 January 2008).
- The
Court has already found that before the entry into force of Ordinance
no. 56 no effective remedy for alleged violations of the right to
correspondence was available (see Petra, § 38; and
Năstase Silivestru, §§ 47 54,
judgments cited above). Likewise, it has established in its case law
that a military prosecutor could not be considered independent and
impartial in an investigation conducted against another member of the
military, as the penitentiary commander was at the date of the facts
(see, mutatis mutandis, Barbu Anghelescu, § 67
and Bursuc, § 107, judgments cited above).
- However,
from June 2003 Ordinance no. 56 introduced an appeal before the
courts against any act of the prison authorities. It regulated the
procedure to be followed and the possible outcome of the appeal.
It is
true that at that date, this application had already been pending
with the Court. However, the circumstances of the case, the gravity
of the allegations made (lack of medical treatment and interference
with the right to correspondence) are of such nature that would
require immediate action by the authorities. Moreover, the Court
notes that this remedy was specifically designed to provide direct
redress for such complaints, thus putting an end to a structural
problem that existed in the national legal system before its adoption
(see paragraph 22 above). The case-law presented by the Government
shows that the remedy is effective in practice.
For
these reasons, the Court considers that it was in the applicant's
interest to lodge a complaint with the courts under the newly
introduced procedure when it became available, in order to allow the
domestic authorities to put the situation right as swiftly as
possible.
- It
follows that the complaints of lack of medical treatment under
Article 3 and infringement of the right to respect for correspondence
under Article 8 should be rejected for non-exhaustion of domestic
remedies in so far as they concern the period after the entry into
force of Ordinance no. 56.
- However,
the Court reiterates that for the general conditions of detention, in
particular the alleged overcrowding, the applicant could not be
required 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).
(b) Other grounds of inadmissibility
- The
Court notes that the complaint concerning the right to respect for
correspondence during restrictive confinement was lodged more than
six months after the date when the situation complained of ended
(see Koval v. Ukraine (dec.), no. 65550/01, 30 March
2004; Rosengren v. Romania (dec.), no. 70786/01,
27 April 2004 and Mujea v. Romania (dec.), no. 44696/98,
10 September 2002). The Court also notes that the applicant did not
substantiate any of the allegations of interference with his right to
correspondence for the period before the entry into force of
Ordinance no. 56 (see paragraph 36 above).
- Therefore,
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 complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
- However,
the Court notes that the part of the complaint concerning the
conditions of detention before June 2003, and the alleged
overcrowding in Iaşi Penitentiary, 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 considered that the conditions of detention, including
during the periods of solitary and restrictive confinement, had been
adequate (see, a contrario, Kehayov v. Bulgaria,
no. 41035/98, 18 January 2005 and Kalashnikov v. Russia,
no. 47095/99, ECHR 2002 VI).
- The
applicant made reference to the description of the conditions in
prison he had provided in his submissions to the Court, and as
evidenced by his medical record and inmates' statements concerning
the conditions during his restrictive detention.
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).
- The
Court notes that according to the medical records, the applicant's
psychiatric treatment was interrupted at least from
December 2001
to August 2002, although there is no evidence of a reassessment by
specialist doctors of his condition during that time. After August
2002 the treatment was given sporadically. The Court notes with
concern the applicant's allegations, which the Government did not
refute, that during the first eight months of detention in Iaşi
Prison his repeated requests to be seen by a specialist doctor were
ignored without any explanation from the prison doctor (see paragraph
17 above).
- Furthermore,
the Court notes that according to the information available from the
Government, in Iaşi Penitentiary the applicant was held in large
capacity dormitories with 1.1 sq. m to 4 sq. m per person, that he
was only allowed one hour of daily exercise and only had access to a
warm shower once a week.
- The
Court has frequently found a violation of Article 3 of the Convention
on account of the lack of personal space afforded to detainees (see,
in particular, Kalashnikov, cited above, §§ 97 et
seq., Labzov v. Russia, no. 62208/00, § 44 et
seq.; Mayzit v. Russia, no. 63378/00, § 39 et seq.,
20 January 2005; Khudoyorov v. Russia, no. 6847/02, §
104 et seq., 8 November 2005; Novoselov v. Russia,
no. 66460/01, § 41 et seq.,
2 June 2005 and Popov v.
Russia, no. 26853/04, § 215 et seq.,
13 July 2006).
- Moreover,
the CPT has stressed the detrimental effect of large capacity
dormitories in penitentiaries especially when coupled with a poor
regime of activities and inadequate access to washing facilities (see
also, mutatis mutandis, Kalashnikov, § 97,
and Kehayov, § 66, judgments cited above).
- The
Court accepts that in the present case there is no indication that
there was a positive intention of humiliating or debasing the
applicant. However, although the question whether the purpose of the
treatment was to humiliate or debase the victim is a factor to be
taken into account, the absence of any such purpose cannot exclude a
finding of a violation of Article 3 (see Peers v. Greece,
no. 28524/95, § 74, ECHR 2001 III and
Romanov v. Russia, no. 63993/00, § 80, 20
October 2005). The Court considers that the above described
conditions of detention in which the applicant was held, in the
context of his psychiatric condition and lack of adequate treatment
for it, must have had a harmful effect on the applicant's human
dignity.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the conditions in prison, in particular the lack of
ongoing medical treatment before June 2003, the date of the entry
into force of Ordinance no. 56, and the overcrowding, caused the
applicant suffering attaining the threshold of degrading treatment
proscribed by Article 3.
- There
has accordingly been a violation of Article 3 of the Convention in so
far as the conditions of the applicant's detention are concerned.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Under
Article 5 § 3 of the Convention the applicant complained that he
had been arrested by a prosecutor who had not met the requirements of
independence set forth by the Convention and that he had not been
brought promptly before a judge after his arrest.
- He
also alleged a violation of Article 6 §§ 1 and 2, as he
considered that the domestic courts had wrongly interpreted the
evidence and had been influenced by the wide media coverage of the
case as a result of the prosecutor's public declarations following
his apprehension.
- Having regard to 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 must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. 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 the reimbursement of the sums that were confiscated
from him at the beginning of the criminal investigations and the
following sums in respect of non pecuniary damage:
– 500,000
euros (EUR) for the Article 3 violation;
– EUR
1,000,000 for the Article 5 violation;
– EUR
3,000,000 for the Article 6 § 1 violation;
– EUR
1,000,000 for the Article 6 § 2 violation;
– EUR
100,000 for the Article 8 violation.
- The
Government considered that the amounts requested by the applicant
under Articles 3 and 8 were exorbitant and did not present any
observations in respect of the other claims. They also considered
that the finding of a violation should constitute sufficient
reparation in the case.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; likewise it reiterates that it
found the applicant's complaints under Articles 5, 6 and 8
inadmissible; it therefore rejects the respective claims. On the
other hand, it awards the applicant EUR 3,000 in respect of
non-pecuniary damage for the violation found.
B. Costs and expenses
- The
applicant claimed EUR 58,000 for the costs and expenses incurred
before the domestic courts. He also claimed the reimbursement of the
costs incurred before the Court, without quantifying them.
- The
Government pointed out that the applicant had not sent any documents
to support his claims.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
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 complaint concerning Article 3,
in so far as it refers to the conditions of detention before June
2003 and the overcrowding in Iaşi Penitentiary 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, EUR 3,000
(three 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 29 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
