THIRD SECTION
DECISION
Application no. 8712/06
Marius Eugen MĂRCUŞ
against Romania
The European Court of Human Rights (Third Section), sitting on 15 May 2012 as a Chamber composed of:
	Josep Casadevall, President,
	Alvina Gyulumyan,
	Egbert Myjer,
	Ján Šikuta,
	Ineta Ziemele,
	Luis López Guerra,
	Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 24 February 2006,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Mr Marius-Eugen Mărcuş, is a Romanian national who was born in 1983 and lives in Colonia Mică, Făget.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the applicant, may be summarised as follows.
3.  On unspecified dates in 2002 two sets of criminal proceedings were opened against the applicant for fraud and theft.
1.  First set of criminal proceedings opened against the applicant
4.  On 10 January 2003, following complaints with civil claims lodged by several third parties against the applicant, the Făget Prosecutor’s Office indicted the applicant for fraud and sent his case to trial.
5.  The applicant was missing from the hearing of 17 June 2003, but he was represented by a lawyer. On the same date, the court heard the witness D.I.M. and noted that the witness F.S. proposed by the applicant was missing. The court held that on 11 March 2003 the applicant asked the court to hear the witness F.S. and took it upon himself to bring the witness before the court. As the applicant failed to bring the witness before the court, it annulled its decision to hear the said witness and proceeded to examine the merits of the case.
6.  By a judgment delivered the same day, the Făget District Court convicted the applicant for fraud on the basis of testimonial evidence and sentenced him to two years imprisonment. The court also annulled the stay of execution of a previous two years prison sentence which had been imposed on the applicant by a final judgment of the Făget District Court on 18 June 2002 for aggravated theft and ordered the applicant to serve the heavier sentence of the two, that is two years of imprisonment. In addition, it stayed the execution of the prison sentence for a probationary period of four years. Lastly, it ordered the applicant to pay a total amount of 2,150,000 lei (ROL) (approximately 60 euros (EUR)) to some of the civil parties who had joined the criminal proceedings opened against him. The applicant appealed against the judgment. He argued that he was not present at the hearing of 17 June 2003 as he had left the country and the summons papers bore a signature which was not accompanied by the number of his identity card. Moreover, his right of defence was breached because he had not been represented either by a chosen or by an appointed legal representative.
7.  By a judgment of 18 January 2006 the Timiş County Court dismissed the applicant’s appeal as time-barred. The court held that the legally allowed time limit for an appeal could not be extended in the applicant’s case because he did not miss the hearing for reasons beyond his control. It noted that the applicant was heard by the prosecutor on 30 June and 18 November 2002. The first instance court heard the applicant on 11 March 2003 and notified him about the date of the hearing. During the trial before the first instance court he was represented by a lawyer of his own choice. The judgment of the first-instance court was notified at the address indicated by the applicant in the statement given before the said court and it was delivered to a relative who signed for it. Although the signature of the relative was not accompanied by the number of her identity card, there was no proof that the signature was forged. The applicant appealed on points of law (recurs) against the judgment.
8.  By a final judgment of 6 March 2006 the Timişoara Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded.
2.  Second set of criminal proceedings opened against the applicant
9.  On 2 October 2003, following a complaint with civil claims lodged by a third party against the applicant, the Făget Prosecutor’s Office indicted the applicant for theft and sent his case to trial.
10.  The applicant attended the hearing of 27 April 2004 and was represented by a lawyer. On the same date the court heard the witness C.I.M. and after the applicant’s lawyer stated that she did not have any additional evidence proceeded to examine the merits of the case.
11.  By a judgment delivered the same day, the Făget District Court convicted the applicant for theft on the basis of testimonial, documentary and forensic evidence and sentenced him to two years imprisonment. The court also annulled the stay of execution of a previous two years prison sentence which had been imposed on him by a final judgment of the Făget District Court on 18 June 2002 for aggravated theft and ordered the applicant to serve the combined sentence of four years imprisonment. Lastly, it ordered the applicant to pay 19,839,000 lei (ROL) (approximately EUR 600) in pecuniary and non-pecuniary damage to the third party who had joined the criminal proceedings opened against him as a civil party. The applicant appealed against the judgment.
12.  By a judgment of 20 September 2004 the Timiş County Court dismissed the applicant’s appeal on the ground that his sentence had been correctly determined by the first-instance court. The applicant appealed on points of law (recurs) against the judgment.
13.  The applicant was absent at the hearing of 20 June 2005, but was represented by an ex officio lawyer. The applicant did not submit any written reasons for his appeal but in his oral submission the lawyer representing the applicant contested the finding of the County Court and challenged the severity of the prison sentence imposed on the applicant.
14.  By a final judgment of 20 June 2005 (available to the applicant on 1 July 2005) the Timişoara Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded. The applicant lodged an extraordinary appeal of annulment (contestaţie în anulare) against the judgment. He argued that he was not able to attend the hearing of 20 June 2005 because he was abroad and he did not know that the hearing was organised for that date.
15.  By a final judgment of 14 December 2005 the Timişoara Court of Appeal dismissed the applicant’s appeal of annulment on the ground that he had been summoned at the address indicated by him and that he had failed to notify the court about a change of address.
16.  On 3 April 2006 the applicant lodged appeal to review (revizuire) proceedings against the final judgment of 27 April 2004. He argued inter alia that the judgments of 17 June 2003 and 27 April 2004 were null as they both annulled the stay of execution of the same prison sentence and took it into account when determining the resulting two separate prison sentences. The applicant did not inform the Court about the state of the said proceedings.
3.  Proceedings seeking to stay the execution of his prison sentence
17.  On 3 March 2006 the applicant brought proceedings for stay of execution of his prison sentence on family grounds.
18.  By a judgment of 7 June 2006 the Timişoara District Court dismissed the applicant’s action on the grounds that according to the social investigation report produced by the Sacu Social Services his family was able to support itself and the stay of his sentence for the legally allowed period of three months would not have improved their living conditions. The applicant did not appeal against the judgment.
4.  The applicant’s medical condition
19.  According to a medical certificate issued by the Psychiatric Unit of the Lugoj Hospital on 29 October 2003 the applicant had been hospitalized to the said unit between 19 and 24 April 1999 for unstable behavioural disorder.
20.  Between 30 October and 4 November 2003 the applicant was hospitalized in the Timişoara Military Hospital and was diagnosed with unstable behavioural disorder.
21.  On an unspecified date in 2005 the applicant was detained in Timişoara Prison to serve his prison sentence.
22.  According to the applicant’s prison medical file on 24 July 2005 he was diagnosed with unstable and impulsive behavioural disorder and he was administered treatment.
23.  Between 5 August and 7 September 2005 the applicant was transferred to the Psychiatric Unit of Jilava Prison Hospital for psychiatric examination.
24.  Between 8 September 2005 and 1 September 2006 he returned to Timişoara Prison where according to his medical file he continued to receive treatment for his condition.
25.  In his letter of 7 April 2006 the applicant informed the Court that he did not receive the prescribed psychiatric treatment for his medical condition in prison.
26.  In his letter of 18 August 2006, while he was detained in Timişoara Prison, the applicant informed the Court that his medical condition was deteriorating, that his cell was small and that the detainees were forced to share the beds. He also stated that between 3 November and 6 December 2004 he was allegedly detained unlawfully at the Lugoj Police Department.
27.  In his letters of 20 January and 28 June 2008 the applicant informed the Court inter alia that he was detained in Baia Mare Prison and that he was released from prison, respectively.
28.  In his letter of 25 October 2010 the applicant informed the Court that he spent three years in Romanian Prisons without heating and in squalid conditions. He was not provided with the required treatment although he was suffering from a severe depression. Between 2005 and 2007 he was allowed to walk only one hour per day, had to share a cell with up to forty other detainees, had to share the beds in the room and was forced to wash his underwear without detergent or similar substances.
B.  Relevant domestic law
29.  Excerpts from the relevant provisions concerning the rights of detainees, namely Government Ordinance no. 56/2003 and Law no. 275/2006, are given in Petrea v. Romania (no. 4792/03, §§ 22-23, 29 April 2008) and Mariana Marinescu v. Romania (no. 36110/03, § 53, 2 February 2010).
30.  Excerpts from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are given in Bragadireanu v. Romania (no. 22088/04, §§ 73-75, 6 December 2007).
COMPLAINTS
31.  Relying in substance on Article 3 of the Convention the applicant complained in respect of the Romanian prison facilities where he was held that he had to share a bed with other inmates, that he lived in small cells which he was forced to share with up to forty other detainees. Moreover, the detention facilities lacked heating, were squalid, he was not allowed sufficient physical exercise and was not provided with products for washing his clothes. Furthermore, he did not have access to adequate medical treatment for his medical condition, in particular his impulsive behavioural disorder. Lastly, he alleged that he was tortured by the domestic authorities during the criminal investigations lodged against him.
32.  Invoking in substance Article 5 of the Convention, the applicant complained that he had been detained unlawfully pending trial between 3 November and 6 December 2004 at the Lugoj Police Department.
33.  Relying in substance on Article 6 of the Convention the applicant complained in respect of the charges brought against him for fraud that he was heard by the police for the first time in the absence of a lawyer; that the first instance court did not hear his witness; that he was not represented by the chosen lawyer before the court; that the decision of the court was not communicated at his domicile and therefore he was unable to lodge an appeal against it. Moreover, he alleged in respect of the charges brought against him for theft that the domestic authorities lacked impartiality and wrongfully assessed the evidence; that his right of defence was breached as he was assisted by an ex-officio lawyer before the last instance court; that he was not notified of the decision of the first-instance court; that he was threatened with a gun by a police officer during the time of his first statement before the domestic authorities.
34.  Invoking in substance Articles 8 and 34 of the Convention, the applicant alleged that he was unable to obtain copies of documents from his prison file and that the authorities interfered with his right to petition.
35.  Relying on Article 4 of Protocol No. 7 to the Convention the applicant complained that he was sentenced twice for the same unlawful act and that the domestic courts took into consideration the same previous prison sentence twice in two separate sets of proceedings when calculating the resulting prison sentences.
THE LAW
A.  Complaint under Article 3 of the Convention
36.  The applicant complained inter alia that he had been subjected to inhuman and degrading treatment in Timişoara Prison and in Jilava Prison Hospital because of the material conditions of detention, in particular overcrowding. He argued that the cell was small, that he had to share his bed with other detainees and that he was forced to share his cell with up to forty other inmates. He relied in substance on Article 3 of the Convention which, in so far as relevant, reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
37.  The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the applicant’s complaints under Article 3 of the Convention and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B.  Remainder of the applicant’s complaints
38.  The Court has examined the remaining complaints as submitted by the applicant (see paragraphs 31-35, above). However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints 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 pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint under Article 3 of the Convention concerning the material conditions of detention, in particular overcrowding, in Timişoara Prison and in Jilava Prison Hospital;
Declares the remainder of the application inadmissible.
	Marialena Tsirli	Josep Casadevall
	Deputy Registrar	President