FOURTH SECTION

CASE OF MUREŞAN v. ROMANIA

(Application no. 2962/13)

JUDGMENT

STRASBOURG

8 November 2016

This judgment is final but it may be subject to editorial revision.

In the case of Mureşan v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Paulo Pinto de Albuquerque, President,
	Iulia Motoc,
	Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 11 October 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 2962/13) 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 Ioan Mureşan (“the applicant”), on 3 December 2012.
2.  The applicant was represented by Ms L. Ciorbea, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
3.  On 16 September 2014 the complaints concerning the length of the proceedings and the applicant’s medical treatment and transport while in detention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1959 and is currently detained in Baia Mare Prison.
A.  Criminal proceedings against the applicant
6.  On 10 January 2002 an investigation was opened against the applicant for embezzlement, forgery and abuse of his official position as Minister for Agriculture. The criminal investigation ended on 19 December 2003 with the applicant’s indictment together with three other co-accused.
7.  On 27 April 2011 the applicant was convicted of the above-mentioned crimes by the High Court of Cassation and Justice and sentenced to seven years’ imprisonment.
8.  On 28 May 2012 the applicant’s appeal against the above-mentioned judgment was rejected with final effect by a five-judge panel of the High Court of Cassation and Justice. The full text of the judgment became available to the applicant on 1 November 2012.
B.  Conditions of detention
1.  Medical treatment
9.  The applicant started serving his sentence in Gherla Prison on 
31 May 2012. On 2 April 2013 he was transferred to Baia Mare Prison where he is currently serving his sentence. On admission to prison, the applicant was already suffering from type II diabetes, which was being treated with insulin, hypertension, ischaemic heart disease, biliary lithiasis and lumbar discopathy.
10. According to the report drawn up on the applicant’s arrival in Gherla Prison on 31 May 2012 the applicant was allowed to take with him to his cell, among other items, one glucometer with forty-one test strips and needles as well as several drugs.
11.  During his ten-month stay in Gherla Prison the applicant was taken to the medical ward eighteen times. He was given a special diet for diabetics and was allowed to work. He was taken to diabetes specialists outside the prison system on several occasions where he was prescribed a special diet, medication and constant self-monitoring of his glycaemia level. According to the applicant’s medical chart in Gherla Prison his glycaemia levels were measured two, three or four times per day at the prison’s infirmary. Copies of the same medical chart also show that the applicant regularly received medication from the prison infirmary. On 9 October 2012 his signature confirmed the receipt of thirteen drugs including vitamin C and omega 3.
12.  Forensic medical examinations conducted in September and December 2012 concluded that the applicant’s diseases could be treated within the prison system.
13. In Baia Mare Prison the applicant was examined at the prison’s infirmary twenty-four times between April 2013 and September 2014. In addition, he was taken for specialist diabetes and nutrition examinations at the Baia Mare County Hospital nine times between 24 May 2013 and 
2 October 2014.
14. According to the Government’s submissions and copies of the applicant’s medical chart, throughout his detention in Baia Mare Prison the applicant was given, as needed and according to doctors’ prescriptions, insulin and drugs for his hypertension as well as neurotrophic, gastric protective, hypercholesterol and other drugs.
15. According to the information provided by the National Administration of Prisons the applicant made no complaints concerning his medical treatment. On 10 August 2012 the applicant’s lawyer was informed that the complaint against the applicant’s placement in the closed prison regime had been rejected. On 5 September 2013 the applicant’s lawyer was informed by the Baia Mare Prison administration that the applicant could not be compensated for the work he had performed in detention with permission to leave the prison.
2.  Conditions of transport
16.  The applicant alleged that he had been transported in conditions which had not allowed him to take his insulin. In addition, the food provided during transport had not been adapted to his diabetes. The vehicles in which he had been transported lacked air conditioning and other prisoners had been smoking during the trips.
17.  From the Government’s submissions it appears that the applicant was transferred sixteen times between detention facilities, to the hospital or to the courts, in special vehicles (Iveco, Mercedes or Raba vans) which were well-maintained and met the legal comfort requirements. They were fitted with windows, lights, heating and sunroofs. Some of them also had 
air-conditioning. The number of detainees transported never exceeded the number of available seats. Detainees were provided with food and water during transfers, and were allowed bathroom breaks. Smoking was strictly prohibited in the vehicles.
18.  According to the information provided by the National Administration of Prisons, the applicant was allowed to take with him his personal glycaemia kit and medication and was therefore able to measure his glycaemia. Moreover, during long drives a number of breaks were taken allowing the applicant to administer his treatment. As regards the food received during transport, the applicant was provided with a diabetic menu as follows: during transport to and from Gherla Prison the applicant received 100 grams of biscuits, 100 grams of cheese, one egg and 500 grams of bread; during transport to and from Baia Mare Prison the applicant received 320 grams of unsalted cheese, two eggs, 300 grams of processed poultry meat, 260 grams of semi-white bread and 250 grams of apples. Copies of the prison menus were submitted in support of these assertions.
19.  According to the prison visits record the applicant often received food packages which included sweets, fruits and vegetables as well as bottles of juice, all of which he was allowed to take with him during transport.
20. The Government submitted that the prison authorities had received no complaints or requests from the applicant in connection with the conditions of transport.
II.  RELEVANT DOMESTIC LAW
21.  Law no. 275/2006 on the execution of sentences provides in its Article 38 that prisoners have the right to lodge complaints concerning measures taken by prison authorities in connection with their rights provided for by law with a post-sentencing judge delegated by the court of appeal to supervise the observance of these rights. The post-sentencing judge’s decisions can be appealed against to a court. Similar provisions are included in the new law governing the execution of sentences, Law no. 254/2013, which entered into force on 1 February 2014.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22.  The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, the relevant part of 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
23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
24.  The Government asked the Court to take into consideration the efforts made by the Romanian authorities to address the applicant’s difficult criminal case in a prompt manner. They submitted that the duration of the proceedings was influenced by a number of factors such as: postponements requested by the defendants, complaints about the validity of legal provisions raised by the defendants and the adoption of an amendment to the law governing the competence of the courts, which lead to the courts successively declining to exercise their jurisdiction over the case between 
6 June 2005 and 29 October 2007.
25. The applicant contested these arguments.
26.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
27.  In the current case the period to be taken into consideration began on 10 January 2002 (see paragraph 6 above) and ended on 28 May 2012 (see paragraph 8 above). It thus lasted ten years, four months and nineteen days for the criminal investigation and proceedings before the courts on two levels of jurisdiction.
28.  The Court notes from the Government’s submission that there were repeated procedural delays over the entire course of the proceedings (see paragraph 24 above). It accepts that the case against the applicant and the other co-accused can be seen as being to some degree complex, and that the applicant may have also been responsible for some of the delays. That being said, it cannot but note that the proceedings in the present case lasted over ten years.
29.  In the leading case of Vlad and Others v. Romania (nos. 40756/06, 41508/07 and 50806/07, 26 November 2013), the Court found a violation in respect of issues similar to those in the present case.
30.  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.
31.  There has accordingly been a breach of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
32.  The applicant complained under Article 3 of the Convention of the authorities’ failure to provide him with adequate medical treatment throughout his detention, and of the conditions of transport which had not been adapted to his diabetes.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
33. Relying on the Court’s case-law, the Government raised a preliminary objection of non-exhaustion of domestic remedies in so far as the applicant had not raised his complaints before the domestic authorities on the basis of the law on the execution of sentences in force at the relevant time (see paragraph 21 above).
34. The applicant averred that he had presented his situation many times to the prison administration and referred to the replies received on 
10 August 2012 and 5 September 2013 (see paragraph 15 above).
1.  Complaint concerning the inadequacy of medical treatment
35.  The Court has already had the opportunity to examine a similar objection raised by the Government in a number of cases and decided that in the applicants’ situation there was an effective remedy for their complaints concerning the lack of medical treatment (see Petrea v. Romania, 
no. 4792/03, §§ 33-36, 29 April 2008, and Toma Barbu v. Romania, 
no. 19730/10, §§ 74-76, 30 July 2013).
36. Turning to the current case the Court notes that there is no evidence in the file to show that the applicant raised this complaint before the domestic authorities. Therefore, the Court sees no reason to depart from the conclusions reached in its previous cases.
37. It follows that the applicant’s complaint concerning the lack of adequate medical treatment while in detention in Gherla and Baia Mare Prisons is inadmissible for non-exhaustion of domestic remedies. Consequently, it must be rejected in accordance with Article 35 §§ 1 and 
4 of the Convention.
2.  Complaint concerning the conditions of transport
38.  The Court finds that it is not necessary to examine the Government’s preliminary objection in connection with this complaint because it is in any event inadmissible for the following reasons.
39.  The applicant alleged that he did not have the appropriate conditions in which to take his insulin, that the food had not been adapted to his diabetes, that there had been no air-conditioning in the vehicles and that other prisoners had been smoking during the trips.
40.  The Government contended that the applicant had been transported in adequate conditions (see paragraphs 17-19 above).
41.  The Court notes that there is considerable disagreement between the parties as to the conditions of transport the applicant had to face. At the same time, the court notes that the Government’s submissions are very detailed and supported by various documents (see paragraphs 18-19 above).
42.  In addition, the Court notes that except for the applicant’s allegations there is no evidence in the file to support his claims that, for example, the food served during transport was not adequate to his health requirements or that he had been prevented from checking his glycaemia or from administering his insulin. In this connection, the Court notes that the applicant, who was represented by a lawyer (see paragraph 15 above), failed to raise any complaint with the relevant domestic authorities concerning the conditions of transport. Without analysing its effectiveness, the Court has already held that such a complaint would have served the applicant as evidence to substantiate his claim (see Tirean v. Romania, no. 47603/10, 
§ 50, 28 October 2014).
43.  Moreover, it does not result from the file that, during his frequent examinations by doctors outside or inside the prison, the applicant had ever complained of any effects that the alleged inadequate transport conditions may have had on his health.
44.  In these circumstances the Court is not convinced that the treatment the applicant was subjected to was of such intensity as to induce physical suffering or mental weariness, or was an attempt to humiliate him so as to trigger a violation of Article 3 of the Convention.
45.  It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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
47.  The applicant claimed 100,000 euros (EUR) in respect of 
non-pecuniary damage for the violation of his rights under Articles 3 and 
6 § 1 of the Convention.
48.  The Government contested the claim as being excessive.
49.  The Court considers that the applicant must have sustained 
non-pecuniary damage on account of the excessive length of the criminal proceedings against him. Ruling on an equitable basis, it awards award him EUR 3,000 under that head.
B.  Costs and expenses
50.  The applicant did not claim any costs or expenses. Accordingly, it is not necessary for the Court to give a ruling on this issue.
C.  Default interest
51.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaint under Article 6 § 1 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti	Paulo Pinto de Albuquerque
	Deputy Registrar	President