In the case of Bulea v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section
Registrar,
Having deliberated in private on 12 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
27804/10) 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 Bogdan Ioan Bulea (“the
applicant”), on 17 May 2010.
The applicant was represented by Ms Diana-Elena
Dragomir, a lawyer practising in Bucharest. The Romanian Government (“the
Government”) were represented by their Agent, Ms C. Brumar, from the Ministry
of Foreign Affairs.
The applicant complained that he had been
subjected to inhuman and degrading detention conditions in Bacău Prison. He
also complained that the prohibition on leaving Romania imposed on him by the
authorities had breached his rights under Article 2 of Protocol No. 4 to the
Convention.
On 17 January 2012 the application was declared
partly inadmissible and the complaints concerning Article 3 of the Convention and
Article 2 of Protocol No. 4 to the Convention were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mr Bogdan Ioan Bulea, is a Romanian
national who was born in 1973.
A. The preventive measures taken against the applicant
during his criminal investigation and trial
On 30 January 2003 the applicant was arrested and charged with several crimes.
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.
On 28 August 2003 the applicant’s pre-trial detention was replaced by the Bacău
County Court with the preventive measure of a prohibition on leaving town. Claiming
that the prohibition on leaving his town of residence had prevented him from
obtaining a job, the applicant sought to have the measure overturned. On 25
November 2003 the Bacău County Court allowed the applicant’s application and
replaced it with a prohibition on leaving the country.
On 20 April 2004 the Bacău 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 filed an appeal, which was partially allowed on 22 March
2005 when the Galaţi Court of Appeal decided to send the case back to the Galaţi
County Court for retrial on the merits.
10. During the retrial, the applicant sought the revocation of the preventive measure
prohibiting him from leaving the country on several occasions, complaining that
the unreasonably long travel ban had prevented him from conducting his business
activities and earning a living for his family. He also argued that there were
no reasons to suspect that he posed a flight risk. On 7 March 2006 the Galaţi
County Court rejected the applicant’s application, holding that the severity of
the crimes he was accused of, the significant losses to the State treasury
which had been caused by those offences and the early phase of the trial justified
the need to keep the preventive measure against him in place. The court further
stated that the duration of the proceedings and the duration of the preventive
measure imposed on him were also due to the complexity of the case, which involved
numerous defendants and witnesses.
Similar applications
for revocation of the preventive measure filed by the applicant were rejected
with the same reasoning by the Galaţi County Court on 3 and 28 April 2006.
On 19 September 2006 a new application by the applicant was again rejected by
the same court, which found that the measure was still necessary given the significant
losses caused to the State treasury, the complexity of the case and the fact
that the measure had not been in force for an excessive period of time.
11. On 30 March 2007 a new judgment on the merits was issued by the Galaţi 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 repay to the State treasury the sum of 3,740,901,433 Romanian lei (ROL)
which he had received illegally. The court analysed the necessity of the preventive
measure prohibiting the applicant from leaving the country and decided to
maintain it, considering that it was necessary in view of the severity of the
crimes committed by the applicant.
The applicant filed an appeal against the judgment of 30 March 2007.
During the appeal hearings before the Galaţi Court of Appeal, the
applicant once again applied for the removal of the prohibition on leaving the
country. At a hearing which took place on 8 October 2008 the court rejected the
applicant’s application with the reasoning that, at this stage of the proceedings,
given the fact that the applicant had been convicted by the first-instance
court but also in view of his numerous attempts to delay the proceedings,
keeping the measure in place was warranted. On 18 December 2008 the Galaţi
Court of Appeal dismissed the applicant’s appeal. The preventive measure
imposed on the applicant was maintained, the court holding that the reasons for
imposing the measure were still valid.
Both the applicant and the prosecutor filed appeals on points of law (recurs)
against the judgment of 18 December 2008.
By a final judgment of 18 March 2010 the High Court of Cassation and Justice
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 treasury was upheld.
B. The applicant’s detention in Bacău Prison
1. The applicant’s account
On 8 April 2010 the applicant started serving his sentence in Bacău
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 before the Court 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 had one window of 1 sq. m
and was therefore lacking in natural light and ventilation. In addition, he
complained that he was being held in the same cell as very dangerous criminals.
According to an order of the prison administration submitted by the applicant,
there was no electricity provided in the cells between 7:30 a.m. and 7 p.m.,
while between 10 p.m. and 7 a.m. electricity was only provided for the security
light.
2. The Government’s account
The applicant was detained in Bacău Prison between 8 April 2010 and 15
July 2010.
20. Between 8 April and 3 May 2010 he was held in the intake area and was
detained in cell no. 115, which measured 26.27 sq. m and had fifteen beds
installed. The applicant shared the cell with a maximum of seven other
detainees. The window measured 1.73 sq. m.
Between 3 May and 7 July 2010 the applicant was detained in cell no. 107, which
measured 39.36 sq. m, had twenty-seven beds installed and which he shared with a
maximum of seventeen other detainees. The window measured 2.78 sq. m.
Between 7 and 15 July 2010 the applicant was detained in cell no. 506, which
measured 32.13 sq. m, had ten beds and which he shared with nine other detainees.
The window measured 2.52 sq. m.
23. In respect of the hygiene conditions in the cells, the Government
submitted that the cells each had a bathroom with individual toilets, showers
and sinks and windows which provided natural light and allowed ventilation. The
cells and the bathrooms were also equipped with an electric ventilation system.
On 15 July 2010 the applicant’s application for temporary release for three
months was allowed by the Bacău Court of Appeal and he was released from
prison on the same date.
Because the applicant did not return to continue serving his sentence after
the expiry of the three-month term, on 19 October 2010 a nationwide search
warrant for him was issued. On 4 November 2011 the warrant was extended to the international
level by the Bacău County Police. The applicant remains at large.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic and international law and
practice concerning the conditions of detention
A description of the relevant legal provisions concerning the rights of
detainees, namely Law no. 275/2006, as well as the national practice concerning
domestic remedies with respect to complaints of overcrowding in Romanian
prisons are summarised in the cases of Cucu v. Romania (no. 22362/06,
§ 56, 13 November 2012) and Porumb v. Romania (no. 19832/04, §§
41-43, 7 December 2010).
According to the order setting 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 Bacău 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.”
B. 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 fleeing during the criminal
investigation, trial or during the execution of the sentence, one of the
following preventive measures may be imposed on the person: (...)
(b) prohibition on leaving town;
(c) prohibition on leaving the country; (...)
(8) The measure to be taken shall be chosen taking account
of its purpose, the severity of the crime, the health, age, [and any] previous
convictions or other circumstances [of] the person against whom the measure is
to be imposed.”
Article 139 of
the Criminal Procedure Code provides that:
“(2) When there are
no reasons to justify the maintenance of a preventive measure, it must be
revoked automatically or upon request.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
Relying upon Article 8 of the Convention, the
applicant complained about the material conditions of his detention in Bacău
Prison, in particular overcrowding and a lack of hygiene. 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, 14967/89, § 44, 19 February 1998). Therefore, the aforementioned
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.”
A. Admissibility
1. The Government’s objection of abuse of the right of
petition
The Government argued that the applicant had
provided the Court with incomplete and misleading information, as he had failed
to disclose the fact that he had been released from prison three years ago on
15 July 2010 and had been a fugitive from justice ever since. Consequently, the
Government argued that the applicant’s behaviour constituted an abuse of his
right to lodge an application and his complaint under Article 3 of the Convention
should be rejected as abusive under Article 35 § 3 (a) of the Convention.
The applicant submitted that the conditions of
detention that he had been subjected to had been humiliating and that the
duration of his detention in such conditions was not relevant to his current situation.
The Court reiterates that an
application may be rejected as abusive under Article 35 § 3 of the Convention,
among other reasons, if it was knowingly based on untrue facts (see Varbanov
v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova (no. 1) no. 74153/01, § 48, 18 January 2005; Rehak v. Czech Republic (dec.),
no. 67208/01, 18 May 2004; and Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006).
Incomplete and therefore misleading
information may also amount to abuse of the right of application, especially if
the information concerns the very core of the case and no sufficient
explanation is given for the failure to disclose that information (see Hüttner
v. Germany (dec.), no. 23130/04,
9 June 2006; Poznanski and Others v. Germany (dec.), no. 25101/05,
3 July 2007; Predescu v. Romania, no. 21447/03,
§§ 25-26, 2 December 2008; and Kowal v. Poland (dec.), no. 2912/11,
18 September 2012).
. In the
circumstances of the present case, the applicant’s failure to inform the Court
that he is no longer in prison does not affect the core of his complaint under
Article 3 of the Convention, which concerns the material conditions of his
detention in Bacău Prison.
. Therefore,
the Court finds that the Government’s objection must be rejected, there being
no indication that the complaint concerning the conditions of the applicant’s detention
was based, knowingly or otherwise, on false information.
2. The Government’s objection of non-exhaustion of
domestic remedies
The
Government also raised a preliminary objection of non-exhaustion
of domestic remedies, as the applicant had not complained before the domestic
authorities under Law no. 275/2006 about the conditions of his detention. They
argued that the remedy under that Law was effective, having regard to the
jurisprudence already submitted by them in previous cases decided by the Court.
The applicant contested that argument.
The Court notes that the
applicant’s complaint concerns the material conditions of his detention, in
particular, overcrowding and poor hygiene. In this regard, it notes that in
recent applications lodged against Romania concerning similar complaints it has
already found that, given the specific nature of this type of complaint, the
legal action suggested by the Government does not constitute an effective
remedy (see Cucolaş v. Romania, no. 17044/03, § 67, 26 October 2010, and Cucu, cited above, §§ 73
and 74).
. The
Court therefore concludes that the domestic case-law referred to by the
Government does not indicate how the legal action highlighted by them could
have afforded the applicant immediate and effective redress for his complaint
(see, mutatis mutandis, Marian Stoicescu v. Romania, no. 12934/02, § 19, 16
July 2009).
. It
therefore rejects the Government’s plea of non-exhaustion of domestic remedies
in respect of the applicant’s complaint concerning the material conditions of
detention in Bacău Prison.
. Finally,
the Court notes that the applicant’s complaint concerning the material
conditions of his detention is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
The applicant complained that he had been detained
in overcrowded cells which had lacked ventilation together with extremely
dangerous criminals.
The Government, referring to their description
of the conditions of the applicant’s detention submitted before the Court (see
paragraphs 20-23 above), contended that the domestic authorities had taken all
necessary measures to ensure adequate conditions of detention for the applicant
and that his complaint was groundless. In addition, the Government submitted
that the short period of the applicant’s detention should be taken into account
when deciding on the applicant’s complaint under Article 3 of the Convention.
The Court notes that in previous cases where
applicants have had less than 4 square metres of personal space at their
disposal it has found that the overcrowding was so
severe as to justify in itself a finding of a violation of Article 3 of the
Convention (see, among many other authorities, Budaca v. Romania, no. 57260/10,
§§ 40-45, 17 July 2012; Niculescu v. Romania, no. 25333/03, §§ 81 and 82,
25 June 2013; and Cucu, cited above, §§ 38-44).
In the present case the Court notes that the
applicant was detained for two months and three days in a cell which afforded
living space of 2.18 sq. m per person, for twenty-six days in a cell which
afforded living space of 3.28 sq. m per person, and for a period of eight days in
a cell which afforded 3.21 sq. m of living space per person.
Moreover, the applicant’s submissions concerning
the overcrowded conditions of his detention correspond to the general findings
of the CPT in respect of Bacău Prison (see paragraph 29 above).
. The
Court further notes that the other circumstances of the applicant’s detention,
such as the alleged lack of ventilation in the cells, are in dispute between
the parties. However, there is no need for the Court to establish the
truthfulness of each and every allegation, since it considers that the
overcrowding of the applicant’s cell gives it sufficient grounds to draw
substantive conclusions as to whether the conditions of his detention amounted
to treatment contrary to Article 3 of the Convention (see Samartsev v.
Russia, no. 44283/06, §§ 110-113, 2 May 2013).
. Even
though in the present case there is no indication that there was a positive
intention to humiliate or debase the applicant, in the light of the above, the
Court considers that the conditions of the applicant’s detention caused him
suffering which exceeded the unavoidable level of suffering inherent in
detention and which attained the threshold of degrading treatment proscribed by
Article 3.
There has accordingly been a violation of
Article 3 of the Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 2 § 2 OF PROTOCOL
No. 4 TO THE CONVENTION
The applicant complained that the ban on leaving
the country imposed on him had been excessively long and disproportionate, given
that his entire family was in Germany and that the nature of his work involved
a lot of travel abroad. He relied on Article 2 of Protocol No. 4 to the Convention,
which reads as follows it its relevant parts:
“(...) 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 ordre public, for the prevention of crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others.”
Admissibility
. The
Government argued that the applicant had provided the Court with misleading
information, as he had sought to exaggerate his suffering under Article 2 of
Protocol No. 4 to the Convention by falsely claiming that the travel ban had prevented
him from seeing his family residing in Germany, whereas his wife, children and
his mother in fact resided in Romania. Consequently, the Government argued that
the applicant’s behaviour constituted an abuse of his right to lodge an
application and this complaint should also be rejected as abusive under Article
35 § 3 (a) of the Convention. The Government also drew
the Court’s attention to the fact that the applicant had failed to return after
his temporary release from prison, which reinforced the conclusion that the
prohibition on him leaving the country had been justified in the circumstances
of the case.
The applicant submitted that he had never provided
the Court with false information. Although his wife and children lived in
Romania, he had two uncles in Germany.
The Court finds that it is not necessary to
examine the Government’s submissions on the admissibility of this complaint since,
in any event, it will be declared inadmissible for the following reasons.
. The
Court observes that Article 2 § 2 of Protocol No. 4 guarantees to any person
the right to leave any country for any other country of the person’s choice to
which he or she may be admitted. Any measure restricting that right must meet
the requirements of paragraph 3 of that Article (see Gochev v. Bulgaria,
no. 34383/03, § 44, 26 November 2009, with further references).
. The
decision to ban the applicant from leaving the country clearly amounted to such
a measure (see Baumann v. France, no. 33592/96, §§ 62 and 63, ECHR 2001-V, and Napijalo v. Croatia,
no. 66485/01, § 69, 13 November 2003). It must therefore be examined
whether it was “in accordance with law”, pursued one or more of the legitimate
aims set out in Article 2 § 3 of Protocol No. 4 and whether it was “necessary in
a democratic society” to achieve such an aim.
. The Court
notes that the measure was based on the express terms of Article 136 of the
Romanian Criminal Procedure Code.
. The
Court is prepared to accept that the measure, which sought to restrict a person
charged with an offence and subsequently convicted from travelling abroad,
pursued the legitimate aims of the proper administration of justice and
securing the applicant’s presence throughout the trial (see, Pop Blaga v.
Romania (dec.), no. 37379/02, § 159, 10 April 2012).
. The
chief point in issue seems to be whether the ban was “necessary in a democratic
society” in terms of achieving those aims. On that point, the Court observes
that under Article 2 §§ 2 and 3 of Protocol No. 4 the authorities are under an
obligation to ensure that any restriction of an individual’s right to leave his
or her country is, from the outset and throughout its duration, justified and
proportionate. That assessment should normally be subject to review by the
courts, as they offer the best guarantee that the proceedings will be
independent, impartial and lawful. The scope of their review should enable them
to take account of all the factors involved (see Gochev, cited above, §
50, with further references).
The Court has previously found in a series of
cases where this obligation was imposed for periods varying between four years
and three months and four years and ten months, also having regard to the other
specific circumstances of each case, that the restriction of the applicants’
freedom of movement was not disproportionate (see Fedorov and Fedorova v.
Russia, no. 31008/02,
§§ 42-47, 13 October 2005, and Antonenkov and Others v. Ukraine, no. 14183/02,
§§ 62-67, 22 November 2005).
. Taking
into account the above considerations, the Court finds that in the
circumstances of the present case the mere duration of the application of the
preventive measure is insufficient for the Court to conclude that it was
disproportionate. In order to decide whether a fair balance was struck between
the general interest in the proper conduct of the criminal proceedings and the applicant’s
personal interest in enjoying freedom of movement, the Court must ascertain
whether the applicant had a genuine interest in leaving his country of
residence or actually sought to leave and, if so, whether permission to do so
was refused (see Fedorov and Fedorova, cited above, § 44).
In this respect, the Court notes that the
preventive measure against the applicant was imposed by a court in proceedings
which provided all appropriate procedural safeguards. In addition, the
applicant had the opportunity to challenge the prolonged application of the
preventive measure before the courts, pleading first that the measure had prevented
him from obtaining a job and subsequently that it had prevented him from carrying
out his job, which involved travel abroad. However, no actual proof for these
claims or for any possible loss of income caused by the preventive measure was provided
by the applicant. In addition, the applicant admitted in his submissions before
the Court that his wife, children and his mother reside in his home town in
Romania. At the same time, according to the documents submitted by the parties,
the domestic courts thoroughly analysed the applicant’s submissions and found
that the continued restriction of the applicant’s freedom of movement was
justified in the specific circumstances of his case. On this point, the Court
also notes that the applicant is currently at large after failing to return to
serve the remainder of his prison sentence. In view of the above, the Court
sees no reason to depart from the findings of the domestic courts in the
present case. As a result, the case does not disclose any appearance of an
infringement of the guarantees of Article 2 of Protocol No. 4 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed the sum of 48,000 euros
(EUR) in respect of non-pecuniary damage which he averred had been caused by
the suffering he had endured due to the inhuman conditions of his detention and
the prohibition on him leaving the country.
The Government considered the sum claimed by the
applicant to be excessive.
The Court observes that in the present case it
has found a violation only with respect to Article 3. In addition, in the specific circumstances of the present case, the Court
considers that the finding of a violation constitutes sufficient just
satisfaction and therefore rejects this claim.
B. Costs and expenses
The applicant claimed EUR 11,014.30 for legal
costs for representation before the Court, out of which EUR 4,553.90 was to be
paid directly to the bank account of his representative. A detailed document
was submitted indicating the precise dates and the number of hours worked in
preparing the case, which amounted to 91 hours and 10 minutes at an hourly fee
of EUR 57 plus VAT and 28 hours and 15 minutes at an hourly fee of EUR 130 plus
VAT.
The Government considered the sum claimed to be
excessive.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court, making an
equitable assessment, considers it reasonable to award the sum of EUR 850 for
costs and expenses for the proceedings before the Court, to be paid to the bank
account indicated by the applicant’s representative.
C. Default interest
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 3 of
the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction
for any non-pecuniary damage suffered by the applicant;
4. Holds
(a) that the respondent State is to pay directly to
the applicant’s representative Ms Diana-Elena Dragomir in respect of costs and
expenses within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 850
(eight hundred and fifty euros), to be converted into the
respondent State’s national currency 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;
5. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 December 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
