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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
- 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
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- On
3 March 2006 the applicant brought proceedings for stay of execution
of his prison sentence on family grounds.
- 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
- 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.
- Between
30 October and 4 November 2003 the applicant was hospitalized in the
Timişoara Military Hospital and was diagnosed with unstable
behavioural disorder.
- On
an unspecified date in 2005 the applicant was detained in Timişoara
Prison to serve his prison sentence.
- 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.
- Between
5 August and 7 September 2005 the applicant was transferred to the
Psychiatric Unit of Jilava Prison Hospital for psychiatric
examination.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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”
- 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
- 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
