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THIRD
SECTION
DECISION
Application no.
27804/10
by Bogdan Ioan BULEA
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 17 January 2012 as a Chamber
composed of:
Josep Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos, judges,
and Marialena
Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 17 May 2010,
Having
deliberated, decides as follows:
THE FACTS
The
applicant, Mr Bogdan Ioan Bulea, is a Romanian national
who was born in 1973 and is currently incarcerated in Bacau Prison.
He is represented before the Court by Ms D. E. Dragomir, a lawyer
practising in Bucharest.
A. The circumstances of the case
The
facts of the case, as submitted by the applicant,
may be summarised as follows.
1. The criminal investigation and the preventive
measures taken against the applicant
- On
30 January 2003 the applicant was arrested and was charged with
fraud, use of forged documents and associating with several people
with the goal of committing economic crimes. The arrest warrant
issued on 30 January 2003 was signed by the case prosecutor and
authorised by the signature and stamp of A. V., the general
prosecutor of the Prosecutor’s Office attached to the Bacau
Court of Appeal.
- On
24 February 2003 the investigation concluded with the applicant’s
indictment for fraud, use of forged documents and associating with
several people with the goal of committing economic crimes. The
applicant was accused of unlawfully requesting and receiving the
reimbursement of V.A.T. from the State budget through his commercial
companies and with the complicity of other companies.
- According
to the indictment, the investigation was commenced following a
complaint filed with the police by the Bacau County Public Finance
Office (Direcţia Generală a Finanţelor Publice
Bacău). Subsequently the Financial Inspectorate (Garda
Financiară) was notified and conducted several inspections
at the premises of a number of commercial companies, including the
applicant’s companies. Its findings were collected in several
reports submitted to the investigative authorities.
- The
conclusions of the investigation were based on the following evidence
listed in the indictment: the accounting records and complaints filed
by the Bacau Tax Office (Administraţia Financiară);
the complaints filed and reports of the inspections conducted by the
Financial Inspectorate; the accounting records and various other
documents belonging to the companies investigated, such as purchasing
contracts, invoices and payment orders; twenty-one witness
statements; minutes of confrontations conducted between the persons
charged and the witnesses; expert reports; and bank statements.
- On
28 August 2003 the applicant’s pre-trial detention was replaced
with the preventive measure of a prohibition on leaving the country.
On
numerous occasions during his trial the applicant sought the
annulment of this measure before the domestic courts, complaining
that the unreasonably long travel ban prevented him from conducting
his commercial activities and earning a living for his family. He
also argued that there were no reasons to suspect that he would
abscond before trial. The applicant’s requests were
consistently rejected with the same reasoning, which was based on the
severity of the crimes charged and the need to ensure the smooth
conduct of the criminal trial.
2. The criminal trial against the applicant
- On
20 April 2004 the Bacau County Court convicted the applicant of
aggravated fraud, use of forged documents and associating with
several people with the goal of committing crimes and sentenced him
to twelve years’ imprisonment. The applicant was also obliged
to return to the State budget the sum of 3,740,901,433 ROL received
illegally.
- The
applicant filed an appeal, complaining that the first-instance court
had not analysed all the evidence, had not responded to all the
submissions made in his defence, had failed to hear all twenty-one
witnesses listed in the indictment and had rejected his request for
the hearing of three additional witnesses without giving thorough
reasoning. In addition, the applicant complained that he had not been
informed of some of the evidence against him during the criminal
investigation.
On 22
March 2005 the appeal was partially allowed and the Galati Court of
Appeal decided to send back the case for a retrial on the merits in
order for the first-instance court to analyse all the evidence and
hear all the proposed witnesses.
- During
the retrial on the merits of the case, the applicant reiterated his
complaints submitted before the appeal court, mainly requesting the
hearing of all witnesses listed in the indictment and of several new
witnesses. The County Court rejected these requests with respect to
some of the witnesses, providing detailed reasoning.
- On
30 March 2007 a new judgment on the merits was issued by the Galati
County Court, which found the applicant guilty of aggravated fraud,
use of forged documents and associating with several people with the
goal of committing crimes and sentenced him to eleven years’
imprisonment. The applicant was also obliged to return to the State
budget the sum of 3,740,901,433 ROL received illegally.
- The
applicant filed an appeal, complaining that several witnesses had
been heard before the court during sessions at which his attorney was
not present. The applicant further complained that the first-instance
court’s judgment had mainly been based on the reports of the
inspections conducted by the Financial Inspectorate which, in his
opinion, had not fulfilled the formal requirements provided by law.
He also restated his complaints concerning the unfounded rejection of
his requests that more witnesses be heard by the court.
- By
a judgment of 18 December 2008 the Galati Court of Appeal dismissed
the applicant’s complaints concerning the witnesses with the
reasoning that the applicant’s attorney had not been present at
several sessions without ensuring his substitution and that, upon his
return, he could have requested the rehearing of the respective
witnesses. The Court of Appeal held that the decision to reject the
applicant’s request to hear additional witnesses had been legal
and thoroughly reasoned by the lower court. The court further
analysed the Financial Inspectorate’s reports and held that
they constituted valid evidence which could be corroborated by the
rest of the evidence produced in the case.
With
respect to the merits of the case, the court of appeal decided to
change the legal qualification of the crime of
aggravated fraud to unlawfully obtaining a V.A.T. reimbursement and
sentenced the applicant to five years’ imprisonment. The
sum received illegally from the State budget was recalculated and the
applicant was obliged to return 2,962,100,866 ROL. The court further
considered the applicant’s sentence pardoned in accordance with
the law in force.
- Both
the applicant and the prosecutor filed appeals on points of law
(recurs) against the judgment of 18 December 2008. The
applicant reiterated the complaints raised on appeal.
Eight
hearings took place before the High Court of Justice and Cassation.
In one hearing on 27 November 2009, in addition to the presiding
judge (who participated in all hearings), the panel of three judges
included A. V., the former general prosecutor of the Prosecutor’s
Office attached to the Bacau Court of Appeal. At this hearing a
postponement of the case was decided due to a procedural error in the
summons.
- By
a final judgment of 18 March 2010 the High Court of Justice and
Cassation allowed the prosecutor’s appeal and convicted the
applicant of aggravated fraud and associating with several people
with the goal of committing crimes and sentenced him to ten years’
imprisonment. The obligation to reimburse the sum illegally received
from the State budget, as set forth by the 18 December 2008 judgment
of the appeal court, was upheld.
3. The conditions of the applicant’s detention in
Bacau Prison
- On
8 April 2010 the applicant started serving his sentence in Bacau
Prison.
- In
his application form of 17 May 2010 the applicant complained that the
atmosphere in the prison cell was terrifying and amounted to
psychological pressure.
- In
his letter of 9 July 2010 the applicant complained that his prison
cell was overcrowded, measuring 24 sq. m and having twenty-seven beds
arranged in three-level bunks separated by a space of one metre. The
applicant also complained that the cell only has one window of 1 sq.
m and has no ventilation. In addition, he complained that he is being
held in the same cell as very dangerous criminals.
4. The detention regime assigned to the applicant
- As
provided by law, the applicant was incarcerated in a “closed”
detention regime based on the length of his sentence.
- On
28 April 2010 the applicant asked the prison administration to change
his detention regime from “closed” to “semi open”.
The applicant alleged that the closed detention regime violated his
right to private life, in that he was only allowed to receive visits
through a glass window and he could not see his children. He
maintained that the law allowed a change of detention regime and that
his personal circumstances, namely the fact that he had not committed
a dangerous crime and that he was not a repeat offender, qualified
him for reassignment to a less severe regime.
- By
a final judgment of 22 June 2010 the Bacau County Court rejected the
applicant’s request with the reasoning that the legal
requirements for imposing a less severe detention regime were not met
in the applicant’s case. The court noted that the severity of
the crime, the lengthy sentence received and the fact that the
applicant had just started serving his sentence justified the
maintenance of the “closed” detention regime.
B. Relevant domestic law and practice
1. Relevant domestic law concerning freedom of movement
and the prohibition on leaving the country
- Article
25 of the 2003 Constitution provides that:
“The right to freedom of movement is guaranteed
within the country and abroad. The enforcement of this right is
regulated by law.”
- Article
136 of the Criminal Procedure Code provides the following:
“(1) In cases concerning offences
punishable with imprisonment, in order to ensure the good conduct of
the criminal trial or to prevent the suspect or the defendant from
absconding during the criminal investigation, trial or during the
execution of the sentence, one of the following preventive measures
may be imposed on the person:
(c) [a] prohibition on leaving the
country;...
(8) The measure to be taken shall be chosen
having account of its purpose, the severity of the crime, the health,
age, previous convictions [of] and any other circumstances concerning
the person against whom the measure is imposed.”
- Article
139 of the Criminal Procedure Code provides that:
“(2) When there are no reasons to
justify the maintenance of the preventive measure, it must be revoked
automatically or upon request.”
2. Relevant domestic and international law and practice
concerning the conditions of detention
- The
general domestic legal provisions concerning the execution of
sentences are partially described in the judgments of Gagiu v.
Romania, no. 63258/00, §§ 41-42, 24 February 2009,
and Măciucă v. Romania, no. 25763/03, §
14, 26 May 2009.
- The
national practice concerning domestic remedies with respect to
complaints of overcrowding in Romanian prisons is described in the
judgment of Porumb v. Romania, no. 19832/04, §§
41-43, 7 December 2010.
- According
to the order on the required minimum conditions of detention issued
by the Minister of Justice (Order no. 433/C of 5 February 2010,
published in Official Journal no. 105 on 15 February 2010), prison
cells must provide a minimum space of 4 sq. m per detainee for
detainees who are confined to their cells (including those in the
“closed” detention regime).
- Excerpts
from the relevant parts of the general recommendations of the
European Committee for the Prevention of Torture (CPT), as well as
its reports concerning detention conditions in Romanian prisons, can
be consulted in Bragadireanu v.
Romania (no. 22088/04, §§
73-75, 6 December 2007).
- In
addition, in its most recent report concerning its 2006 visit to
Romania, the CPT described the conditions in Bacau Prison as follows:
“Overcrowding remains a central problem in this
prison whose incarcerated population amounted to 1,036 persons at the
time of the visit as opposed to an official capacity of 456 places.
...
The living space in practically all cells fell at a
minimum of under 0.6 sq m per detainee, the maximum being 1.5 sq m;
the beds (superposed on three levels) and the mattresses were barely
enough and the ones existent were in a severely bad condition.”
COMPLAINTS
- The
applicant complained under Article 5 §§
1 (c), 2 and 3 of the Convention of the unlawfulness and length of
his pre-trial detention and of the fact that he had not been informed
of the reasons for his arrest.
- The
applicant complained under Article 6 § 1 of the Convention that
he had not had the benefit of an impartial tribunal, as the chief
prosecutor who had countersigned his arrest warrant had taken part as
a judge in the trial before the High Court of Justice and Cassation.
The applicant further complained that that he had not been informed
of some of the evidence against him.
- Relying
in substance on Article 6 § 3 of the Convention, the applicant
complained that he had not had adequate time and facilities to
prepare his defence and that some of the evidence and witnesses
proposed by him had been rejected by the courts, while some of the
witnesses had been heard by the trial court in the absence of his
attorney.
- The
applicant further complained under Article 8 of the Convention of
inhuman and degrading detention conditions, both during his pre-trial
arrest and during his ongoing detention in Bacau Prison following his
final conviction. In addition, the applicant complained that the
restrictions imposed on his visitation rights due to his assignment
to the “closed” detention regime breach his right to
private and family life under the same Article.
- Citing
Article 1 of Protocol No. 1 to the Convention, the applicant
contested the sum of money he had been obliged to reimburse to the
State budget.
- Finally,
the applicant complained under Article 2 of Protocol No. 4 to the
Convention that the prohibition on leaving Romania imposed on him by
the authorities had been unreasonably long in duration and
disproportionate.
THE LAW
A. Complaints under Article 3 of the Convention
- The applicant complained of
inhuman and degrading detention conditions, both during his pre-trial
arrest and during his ongoing detention in Bacau Prison, citing
Article 8 of the Convention. In this
respect, it must be noted that the Court is master of the
characterisation to be given in law to the facts of the case and it
does not consider itself bound by the characterisation given by an
applicant (see Guerra and Others v.
Italy, no. 14967/89, § 44,
19 February 1998). Therefore, the above-mentioned complaint will be
further analysed under Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- Concerning
the complaint of inhuman detention conditions during the pre-trial
arrest, the Court notes that the applicant’s pre-trial
detention was ended by the domestic courts on 28 August 2003, seven
years before the submission of the current application before the
Court.
It
follows that this part of the application is inadmissible for
non-compliance with the six-month rule and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
- With
respect to the complaint of inhuman conditions of the applicant’s
ongoing detention in Bacau Prison, the Court considers that it
cannot, on the basis of the case file, determine the admissibility of
this complaint and that it is therefore necessary, in accordance with
Rule 54 § 2 (b) of the Rules of Court, to give notice
of this part of the application to the
respondent Government.
B. Complaint under Article 2 of Protocol No. 4 to the
Convention
- The
applicant complained that his freedom of movement, guaranteed by
Article 2 of Protocol No. 4 to the Convention, had been unjustifiably
restricted by the excessive length and lack of proportionality of the
prohibition on leaving the country imposed on him.
Article
2 of Protocol No. 4 reads as follows:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of public
order, for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of
the application to the respondent Government.
C. Other complaints
1. Complaints under Article 5 §§ 1 (c), 2 and
3 of the Convention
- The
applicant complained that he had been arrested, even though there had
not been any reasonable suspicion that he had committed a crime. He
further alleged that the prosecutor had not provided him with reasons
for his arrest and that the length of his pre-trial detention had
been excessive. Article 5 reads, in its relevant parts, as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- The
Court notes that the applicant had the opportunity to raise these
complaints before the domestic courts within the proceedings
challenging his pre-trial detention but that he failed to do so.
Moreover, the applicant’s pre-trial detention was ended by the
domestic courts on 28 August 2003, seven years before the submission
of the current application before the Court.
- It
follows that this part of the application is inadmissible for
non compliance with the six-month rule and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
2. Complaints under Article 6 of the Convention
- The
applicant complained of the lack of impartiality and independence of
the domestic courts and of the unfairness of the criminal trial
against him. The applicant further complained that he had not been
informed of some of the evidence against him. He also complained that
he had not had adequate time and facilities to prepare his defence
and that some of the evidence and witnesses proposed by him had been
rejected by the courts, while some of the witnesses had been heard by
the trial court in the absence of his attorney. The relevant parts of
Article 6 read as follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair ... hearing
... by an independent and impartial tribunal established by law.
...
“3. Everyone charged with a criminal
offence has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
...
(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;
...”
- As the requirements of
Article 6 § 3 are to be seen as particular aspects of the right
to a fair trial guaranteed by Article 6 § 1, the Court will
examine the complaints under those two provisions taken together
(see, among many other authorities, Windisch
v. Austria, 27
September 1990, § 23, Series A no. 186, and Lüdi
v. Switzerland, 15
June 1992, § 43, Series A no. 238).
- The Court reiterates that it is not its task to deal
with errors of fact or law allegedly committed by a national court
unless and in so far as they may have infringed rights and freedoms
protected by the Convention (see García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999-I). The assessment of
evidence is primarily a matter for the national courts, which enjoy a
wide margin of appreciation in this respect. The Court’s role
under Article 6 § 1 is not to assess the facts which led the
domestic courts to adopt one decision rather than another and Article
6 § 1 does not guarantee that the “right result”
will be reached by the domestic courts (see Klasen v. Germany,
no. 75204/01, § 43, 5 October 2006).
- The Court notes that the applicant had full
opportunities to present his case before the courts and to bring the
evidence he deemed necessary. The domestic courts addressed all the
relevant submissions made by him and the reasons upon which they
based their decisions are sufficient to rule out the assumption that
their evaluation of the case was arbitrary. Moreover, the Court finds
that any limitations which might have been imposed on the rights of
defence were not such as to deprive the applicant of a fair trial.
As
concerns the complaint about the lack of impartiality of the domestic
courts, the Court notes that judge A.V. participated
only in one hearing of the eight which took place before the
High Court, a hearing during which it was decided to postpone the
case; hence he was not involved in the adoption of the decision on
the merits. Therefore, the Court finds that this fact alone did not
infringe the impartiality of the domestic courts.
- Accordingly,
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 nothing in the file discloses any
appearance of arbitrariness or any infringement of the guarantees set
forth by Article 6 of the Convention. Therefore, the Court
finds that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§
3 and 4 of the Convention.
3. Complaints under Articles 8 of the Convention and 1
of Protocol No. 1 to the Convention
- The
applicant complained that the restrictions imposed on his visitation
rights due to his assignment to the “closed” detention
regime breach his right to private and family life. He also contested
the sum of money he had been obliged to reimburse to the State
budget.
- The
Court notes that the applicant raised the complaint concerning the
“closed” detention regime before the prison authorities
and further before the domestic courts, which examined it in the
course of adversarial proceedings and decided that it was not
well-founded. The Court sees no reason to
depart from the findings of the domestic courts in the present case.
Moreover, the Court considers that nothing in
the file discloses any appearance of arbitrariness or any
infringement of the guarantees set forth by Article 1 of Protocol No.
1 to the Convention.
- 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.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaints under Article 3 of the Convention (conditions of detention
in Bacau Prison) and Article 2 of Protocol No. 4 to the Convention;
Declares the remainder of
the application inadmissible.
Marialena
Tsirli Josep Casadevall
Deputy Registrar President
