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THIRD
SECTION
DECISION
Application no.
24082/03
Gheorghe Moşoi ZARAFIM
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 13 March 2012 as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
judges,
and
Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 15 July 2003,
Having
regard to the decision taken by the President of the Chamber to
appoint Mr Mihai Poalelungi to sit as ad hoc
judge (Article 26 § 4 of the Convention and Rule 29 § 1 of
the Rules of Court), as Mr Corneliu Bîrsan, the judge elected
in respect of Romania, had withdrawn from the case (Rule 28 of
the Rules of Court),
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Gheorghe Moşoi Zarafim, is a
Romanian national who was born in 1970 and before his arrest lived in
Craiova. He was represented before the Court by Ms Andreea Livia
Troanţă-Rebeleş Turculeanu, a lawyer practising in
Craiova. The Romanian Government (“the Government”)
were represented by their Agent, Ms Irina
Cambrea, of the Ministry of Foreign Affaires.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
22 February 1999 the applicant was apprehended by police on suspicion
of having committed several violent crimes. On
the same date he was placed in pre-trial detention by order of the
prosecutor.
- During
the early stages of the proceedings, the applicant lodged several
complaints with the prosecutor concerning ill-treatment by the
investigators. His complaints were dismissed as ill founded or
vexatious. In particular the prosecutor considered that the evidence
in the file did not support the applicant’s claims. The
applicant was informed about the prosecutor’s decisions in
letters of 5 October 1999, 24 November 1999, 4 and 29 December
1999.
1. The criminal trial against the applicant
- The
proceedings were held before the Olt County Court. The applicant was
represented at all hearings by a court-appointed lawyer. On
4 December 2001 the County Court convicted the applicant and
sentenced him to twenty-five years’ imprisonment for crimes of
aggravated murder, attempted aggravated murder, causing bodily harm,
and trespassing.
The
judge who delivered the judgment had not heard the applicant and the
witnesses at a previous hearing.
- Both
the applicant and the prosecutor appealed against the judgment. The
applicant complained of breaches of his procedural rights by the
first instance court and about the outcome of the proceedings.
The
prosecutor contested the court’s legal classification of some
of the crimes.
- The
Court of Appeal quashed the judgment of 4 December 2001 and decided
to re-examine the case on the merits. It did not hear new evidence
from the applicant or witnesses.
In a
decision of 4 July 2002 it changed the legal classification of the
crimes committed by the applicant. The sentence remained unchanged.
The court further dismissed the applicant’s appeal as
ill-founded without giving any reasons.
- Both
the applicant and the prosecutor submitted appeals on points of law
(recurs) against the judgment. The applicant pleaded his
innocence and requested a less severe sentence.
In a
final decision of 8 May 2003 the Supreme Court of Justice upheld the
previous decision. It dismissed the applicant’s appeal as it
considered that the sentence handed down had been appropriate, taking
into account his previous criminal activity and his inferior
intellect.
2. The conditions of detention
- The
applicant has been incarcerated continuously from 22 February 1999,
initially in pre-trail detention and subsequently while serving his
sentence. He is currently held in Craiova Prison.
- During
his detention, the applicant has been transferred twenty-three times
between the prisons in Iaşi,
Bucharest, Jilava and Craiova. The Government submitted a
detailed prison record describing the conditions of the applicant’s
detention to date.
- The
applicant has been reprimanded on several occasions for breaches of
the prison rules (making or retaining prohibited objects or
substances, maintaining an illegal alcohol processing device in the
cell, insulting magistrates dealing with his case, violence towards
prison personnel or inmates, and destroying prison property). The
applicant exercised his right to appeal against the reprimands and
his complaints were examined on the merits and rejected by the courts
or the prosecutor.
3. Medical care in prison
- The
applicant was recorded as “clinically healthy” in the
prison medical chart drafted upon his arrest.
On 7
May 1999 he was admitted to the Jilava Prison Hospital for a
psychiatric examination. He was diagnosed with a personality disorder
and exhibiting antisocial behaviour.
- According
to the prison medical record, the applicant was admitted on several
occasions to prison hospitals, underwent expert examinations, was
taken regularly for medical check-ups and received treatment. He was
diagnosed with arterial hypertension, gallbladder dyskinesia, a
duodenal ulcer and a fungal infection of the nail, type two obesity,
an old fracture of the collarbone, superior brachial plexus paresis,
a urinary infection, and respiratory diseases. According to the
prison medical chart, he received treatment for his conditions.
It
also appears that on several occasions in April 2005 the applicant
refused to be examined by the prison doctors.
- The
applicant alleges that his health problems were caused and
subsequently aggravated by inhuman detention conditions and lack of
adequate medical treatment at the Iaşi, Jilava and Craiova
prisons. In 2005 and 2006 the applicant filed numerous
complaints in that connection, with the National Administration of
Prisons and other authorities. On 27 December 2005 and 8
February 2006 the National Administration of Prisons replied that,
according to his prison medical file, the applicant was receiving
adequate medical treatment and therefore his complaints were not
supported by evidence.
- In
2006 the applicant also filed a criminal complaint for ill treatment
and abuse against O.C. and B.A., doctors at the Iaşi Prison. On
1 September 2006 the Prosecutor’s Office of the Iaşi Court
of Appeal rejected the complaint on the ground that there was no
evidence of a crime. It appears from the file that the applicant did
not appeal against that decision.
- The
applicant repeatedly got into fights with other inmates or the prison
personnel. Each such incident was reported and investigated and the
applicant was taken to the prison infirmary and to prison or civilian
hospitals for further examinations and/or treatment. Expert reports
were drafted concerning any injuries suffered and the number of days
needed for recovery. On at least on one occasion the prison doctors
informed the authorities of such an incident.
- The
applicant also complained once under Law no. 275/2006 on
the execution of sentences (“Law no. 275”) that he
had been the victim of an attack by inmates and guards and the prison
doctors had refused to give him medical assistance.
On 8
April 2008 the judge responsible for the execution of sentences
dismissed that complaint. He found that the applicant had been taken
to the infirmary and given assistance and from there had been taken
to a civilian hospital for further tests. The prison infirmary had
subsequently given him the treatment prescribed by the civilian
doctors. Furthermore, the prison doctors had informed the applicant
that he could request a further medical examination in a civilian
hospital.
4. Other complaints
- On
several occasions the applicant
requested envelopes and stamps to send letters, as well as
photocopies of documents from his prison file. In most of the cases
his requests were met by the prison authorities. When such requests
were refused, the applicant filed complaints with the judge
responsible for the execution of sentences and with the courts under
Law no. 275.
His
actions were examined on the merits and dismissed, with the exception
of a complaint that an envelope addressed to him had been
opened by the director of Iaşi Prison, which led a to a decision
of 25 January 2008 acknowledging a violation of his right to
correspondence.
On
3 July 2007, while he was incarcerated in Iaşi Prison, the
applicant submitted a formal request to be given an envelope in order
to send documents asked for by the Court. He alleged that this
request had been denied with no reasons being given.
B. Relevant domestic law
- The
domestic legislation on the execution of sentences, in particular Law
no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance
no. 56”), and Law no. 275/2006 on the execution of
sentences, is described in Petrea v. Romania, no. 4792/03,
§§ 21-23, 29 April 2008.
COMPLAINTS
- The
applicant complained in substance of a breach of Article 3 of the
Convention due to the fact that while in detention he had contracted
diseases allegedly caused and subsequently aggravated by inhuman
conditions and a lack of adequate medical treatment in prison. He
argued that the prison medical personnel had given him only a
superficial examination.
- The
applicant also complained in substance of a breach of Article 3 of
the Convention on account of ill-treatment by the prosecutor during
the criminal investigation.
- The
applicant raised in substance a complaint under Article 6 § 1 of
the Convention that the criminal proceedings against him had been
unfair.
- The
applicant complained in substance that the State had failed to ensure
his right of individual petition, guaranteed by Article 34 of the
Convention, in that the Iaşi and Jilava prison authorities had
refused to allow his requests for photocopies of documents from his
prison file and for envelopes for correspondence.
- In
a letter of 11 July 2010, invoking Article 8 of the Convention in
substance, the applicant complained that his right to correspondence
had been violated in that an envelope addressed to him had been
opened by the director of the Iaşi Prison on 25 January 2008.
THE LAW
A. On the alleged violation of Article 3 of the
Convention on account of the conditions of detention
- The
applicant complained in substance of a breach of Article 3 of the
Convention, alleging that while in detention he had contracted
diseases allegedly caused and subsequently aggravated by the inhuman
conditions and the lack of adequate medical treatment in prison. The
applicant did not give any further details in his complaint. Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
1. The parties’ submissions
- The
Government contended that the applicant had failed to give any
details about the conditions of his detention. He had only vaguely
asserted that owing to the poor conditions of detention his health
had deteriorated. He had not specified the diseases he claimed to be
suffering from and had failed to put forward any evidence to support
his evasive allegations.
In
any case, should he have considered that because of the conditions of
detention his health had deteriorated, he had had at his disposal an
effective remedy, that is, an action under Ordinance no. 56 and
subsequently under Law no. 275.
- The
applicant argued that the Acts referred to by the Government could
not provide an effective remedy in his case.
2. The Court’s assessment
- The
Court notes that the applicant’s allegations refer strictly to
a deterioration of his health, caused and aggravated by the inhuman
conditions of detention and to a lack of adequate medical care in
prison.
- However
the applicant failed to indicate or substantiate in any way what
these inhuman prison conditions were. Nor has he given any concrete
details on how the deterioration of his health was caused by the
conditions of detention. It appears that he did not lodge any
concrete complaints in this respect with the domestic authorities.
- The Court has already found that before the entry into
force of Ordinance no. 56, on 27 June 2003, there was no effective
remedy for complaints concerning conditions of detention and lack of
medical care in detention. However, after that date, persons in the
applicant’s situation had an effective remedy under that
Ordinance or the subsequent laws, for complaining about an alleged
lack of medical treatment (see Petrea, cited above, §§
35-36).
(a) On the applicant’s situation
before the entry into force of Ordinance no. 56
- As
to the situation before the entry into force of Ordinance no. 56, the
applicant failed to adduce any specific evidence that would allow the
Court to assess his situation and establish how his health had
evolved and in what way the conditions of detention might have
affected it.
- Based
on the evidence at its disposal and given, in particular, the
applicant’s lack of precision in and substantiation of his
complaint and his failure to raise his allegations with the domestic
authorities, the Court does not entertain any suspicions in this case
as to lack of accuracy in the prison medical records. It thus notes
that according to those records the applicant was given periodic
check-ups both in the prison hospitals and outside (see paragraphs
12, 13 and 17 above), and he underwent several expert examinations
and received adequate and prompt medical treatment for his
conditions.
(b) On the applicant’s situation
after the entry into force of Ordinance no. 56
- As
the Court has ruled in Petrea, after the entry into force of
Ordinance no. 56, the applicant should have lodged a complaint with
the domestic courts about the alleged lack of medical treatment.
- In
this respect, the applicant did avail himself on several occasions of
the mechanism for complaints at his disposal. One such complaint
concerned the alleged lack of medical care and was dismissed by the
courts on 8 April 2008, after an examination of the evidence in the
file.
The
Court is satisfied that the domestic authorities base their decision
both on the prison medical record and on the medical examination
performed in the civilian hospital (see paragraph 17 above).
- The
Court also notes that the applicant was informed by the prison
doctors that he could seek further medical advice in civilian
hospitals, which would have allowed him to adduce objective evidence
in support of his allegations. There is no indication in the file
that such a request by the applicant would have been refused by the
prison authorities. There is nevertheless evidence that he was taken
for medical examinations in civilian hospitals and that the prison
doctors followed the recommendations for treatment of their civilian
colleagues (see paragraph 17 above). It also appears that the
applicant refused, at least in April 2005, to be taken for medical
examinations and in this case the state authorities could not be held
responsible as such for a subsequent deterioration of his health.
The
Court also considers that the mere fact that the judge responsible
for the execution of sentences rejected the applicant’s
complaint does not render the remedy under Ordinance no. 56 and Law
no. 275 ineffective, nor does it justify the applicant’s
omission to make use of such an action in order to bring to the
authorities’ attention any other concrete and substantiated
claims of an alteration in his health due to the conditions of
detention.
(c) Conclusion
- Making
an overall assessment of the situation in the light of the parties’
submissions and of its own findings above, the Court concludes that
the applicant could not satisfactorily substantiate that the
deterioration of this health in prison was caused by facts
attributable to the authorities to a level that would raise an issue
under Article 3 of the Convention.
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.
B. On the alleged violation of Article 6 of the
Convention
- The applicant complained that before the
first-instance court he and the witnesses had been heard by one
judge, while the judgment had been given by another judge, and that
the Craiova Court of Appeal had issued its judgment on the merits
without hearing him and without re-examining the evidence produced
before the first-instance court. He also complained that the Court of
Appeal had dismissed his appeal without giving any reasoning for its
decision.
- 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 the Court (see, among many
other authorities, Selmouni v. France [GC], no. 25803/94,
§§ 74-75, ECHR 1999-IV).
- However, it appears that the applicant did not raise
these complaints in his appeals lodged with the domestic courts, and
thus precluded the courts from addressing the issue.
It
follows that these complaints must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic remedies.
- Under
the same Article, the applicant complained that the Supreme Court of
Justice had decided the case on the merits without hearing evidence
from him and without re-examining the evidence adduced before the
first instance court.
- The
Court reiterates that the manner of application of Article 6 to
proceedings before courts of appeal depends on the special features
of the proceedings involved; account must be taken of the entirety of
the proceedings in the domestic legal order and of the role of the
appellate court therein. Where a public hearing has been held at
first instance, the absence of such a hearing may be justified at the
appeal stage by the special features of the proceedings at issue,
having regard to the nature of the domestic appeal system, the scope
of the appellate court’s powers and to the manner in which the
applicant’s interests were actually presented and protected
before the court of appeal, particularly in the light of the nature
of the issues to be decided by it (see Constantinescu v. Romania,
no. 28871/95, § 53, ECHR 2000 VIII).
- Unlike
in the series of cases in which the Court found a violation of
Article 6, where an appellate court called upon to examine a case as
to the facts and the law and to make a full assessment of the
question of the applicant’s guilt or innocence failed to hear
the interested person, in the case currently under examination the
Supreme Court did not re-try the case on the merits but only on
points of law and, under the Criminal Procedure Code, it was not
obliged to hear the applicant or to re-examine the evidence
(contrast, among many other cases, Ieremeiov v. Romania (no. 1),
no. 75300/01, § 28, 24 November 2009; Sinichkin v.
Russia, no. 20508/03, § 32, 8 April 2010; Dănilă
v. Romania, no. 53897/00, § 35, 8 March 2007;
Constantin and Stoian v. Romania, nos. 23782/06 and 46629/06,
§ 60, 29 September 2009; and Sándor Lajos Kiss v.
Hungary, no. 26958/05, § 22, 29 September 2009).
Therefore,
no issue arises under Article 6 § 1 of the Convention.
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.
C. On the alleged violation of Article 34 of the
Convention
- The
applicant complained in substance that the State had failed to ensure
his right of individual petition, guaranteed by Article 34 of the
Convention, in that the Iaşi and Jilava prison authorities had
refused to allow his requests for photocopies of documents from his
prison file and for envelopes for correspondence.
- The
Court notes that the applicant’s repeated requests to receive
envelopes and stamps were answered positively by the authorities more
often than not. On the few occasions when he had to raise the issue
with the courts, under Law no. 275, his complains were examined on
the merits, in the light of the evidence in the file. The Court noted
only one occasion, on 3 July 2007, when the applicant’s
request for envelopes was allegedly not responded to by the
authorities; moreover, the Court fails to discern any negative
consequences suffered by the applicant as a result of the alleged
interference with his right of petition. In fact, the applicant was
able to adduce before the Court the necessary evidence to enable it
to thoroughly examine all the complaints raised.
- In
the light of all the material in its possession, the Court finds that
the facts of the case do not disclose any appearance of a violation
of the rights and freedoms guaranteed by Article 34 of the
Convention.
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.
D. On the other alleged violations
- The applicant complained about ill-treatment by the
prosecutor during the criminal investigation. However, the applicant
became aware of the outcome of the domestic proceedings on 4 December
1999 but only brought the complaint to the Court’s attention 15
July 2005, that is, more than six months after the date of the final
domestic decision (see Andrita v. Romania (dec.), no.
67708/01, §§ 39, 40, 27 January 2009).
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
- Lastly, the applicant complained under Article 8 of
the Convention of an infringement of his right to correspondence due
to the fact that an envelope addressed to him had been opened by the
director of the Iaşi Prison on 25 January 2008. He lodged this
complaint with the Court on 11 July 2010, thus failing to
observe the six-month rule.
It
follows that this complaint has also been introduced out of time and
must be rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep
Casadevall Registrar President
