THIRD SECTION
CASE OF
SERENY v. ROMANIA
(Application no.
13071/06)
JUDGMENT
STRASBOURG
18 June 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Sereny v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 28 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
13071/06) 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 Ştefan Sereny (“the applicant”),
on 27 March 2006.
The applicant was represented by Mr Corneliu
Liviu Popescu, a lawyer practising in Bucharest. The Romanian Government (“the
Government”) were represented by their Co-Agent, Ms I. Cambrea, of the Ministry
of Foreign Affairs.
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of the Rules of
Court), the President of the Court appointed Mrs Kristina Pardalos to sit as an
ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1
of the Rules of Court).
The applicant alleged, in particular, that the
absence of adequate medical care while in detention, in particular in
Ploieşti Prison and Dej Prison Hospital, the length of the proceedings
concerning his request of 22 October 2007 for the temporary suspension of
his prison sentence due to his serious medical condition, and the length of the
criminal proceedings opened against him on 2 June 1998, breached his rights guaranteed
by Articles 3 and 6 of the Convention.
On 15 September 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1953 and lives in Vienna.
A. Proceedings brought by the applicant seeking
acknowledgement of property rights to land
On 30 June 1993 a private company owned and
represented by the applicant bought a campsite by public auction from Federal
Coop Tulcea, a State-owned company. The campsite was located in the village of Jurilovca on the Black Sea coast.
On 10 October 1997 that company brought
proceedings against the Jurilovca Local Council, the Delta Dunării
Biosphere Reservation, and the State-owned company it had purchased the
campsite from, seeking a court order acknowledging its property rights over the
42,000 sq. m of land the campsite was located on.
By a judgment of 22 October 1997 the Babadag District
Court allowed the applicant’s company’s action on the merits and acknowledged
its property rights over the said 42,000 sq. m of land. The Delta Dunării
Biosphere Reservation appealed against the judgment.
Between 13 May 1998 and 11 November 1999 the
applicant’s company, claiming that the judgment of 22 October 1997 had become
final and that it was the owner of the 42,000 sq. m of land, mortgaged the land
as security for several bank loans amounting to 975,000,000 Romanian lei
(approximately 114,895 US dollars).
By a judgment of 30 June 1998 the Tulcea County
Court allowed the Delta Dunării Biosphere Reservation’s appeal against the
judgment of 22 October 1997 on the merits and dismissed the applicant’s
company’s action seeking the acknowledgment of its property rights over the
42,000 sq. m of land. On 30 June 1998 the applicant’s company lodged
an appeal on points of law (recurs) against that judgment.
By a final judgment of 30 November 1999 the
Iaşi Court of Appeal dismissed the applicant’s company’s appeal as
ill-founded.
By a final judgment of 16 February 2004 the
Braşov County Court allowed an action brought by the creditors of the applicant’s
company and held that the applicant was personally liable for his company’s
debt.
By a final judgment of 20 June 2005 the Braşov County Court declared the applicant’s company bankrupt and acknowledged the
creditors’ request for the enforcement of the judgment of 16 February 2004.
B. Criminal proceedings brought by the applicant
against third parties
On an unspecified date in 1996 the applicant
brought criminal proceedings, together with civil claims, against third parties
for the theft and destruction of private property following the alleged
destruction and disappearance of huts at his company’s campsite.
On 19 July 1999 and 10 August 2004 the applicant
was notified by the Tulcea Prosecutor’s Office that the criminal proceedings and
civil claims had been dismissed on the ground that the campsite huts had been
destroyed as a result of the applicant’s negligence and the powerful storms
that had swept the area between 1995 and 1996. There is no evidence in the file
that the applicant appealed against that decision before the domestic courts.
C. Criminal proceedings against the applicant
On an unspecified date the Tulcea Prosecutor’s Office
brought criminal proceedings against E.M., the President of the Babadag
District Court and the judge who had delivered the judgment of 22 October
1997 (see paragraph 9 above).
On 2 June 1998 E.M., brought criminal proceedings
against the applicant for fraud, acting as an accessory to forgery, and using
forged documents, on the ground that the applicant had fraudulently taken out
bank loans on the basis of a court order that had not been final, and had
mortgaged land which was public property and failed to repay the corresponding loans.
The criminal proceedings opened against the applicant were joined to the
criminal proceedings opened against E.M.
By an order of 8 July 1998 the Tulcea Prosecutor’s
Office discontinued the criminal proceedings against the applicant on the
ground that no unlawful act had been committed by him.
By an order of 1 October 1998 the Constanţa
Prosecutor’s Office quashed the order of 8 July 1998 and reopened the criminal
proceedings against the applicant.
On 18 March 1999 and 15 November 2000 respectively,
following requests by the Prosecutor’s Office the Romanian Ministry of Justice,
endorsed E.M.’s criminal investigation and indictment.
On 29 December 2000 the Constanţa
Prosecutor’s Office indicted the applicant and sent his case for trial to the
Constanţa Court of Appeal.
On 6 February 2001 the applicant requested the
Constanţa Court of Appeal to adjourn the proceedings pending retention by
him of the services of a legal representative.
The Constanţa Court of Appeal adjourned the
proceedings by five interlocutory judgments delivered between February and April
2001, either at the applicant’s express request or because he had failed to
attend the hearings in person, or in order to summon him and other witnesses,
or following a request by his chosen legal representative, who could not attend
the hearings. In addition, it ordered, inter alia, that the third parties
be correctly summoned to the said hearings, and allowed a request by E.M. for
the proceedings to be adjourned on account of his illness.
By eight interlocutory judgments delivered
between 19 March and 17 July 2001, the Constanţa Court of Appeal adjourned
the proceedings pending the summoning of several witnesses in the case; the
examination of other evidence requested by the defendants; a request by the
applicant’s legal representative to be allowed to submit written observations
to it and deliberations.
By a judgment of 27 July 2001 the Constanţa
Court of Appeal ordered that the case file be transferred to the Constanţa
Prosecutor’s Office for further investigation on the ground that the evidence
available in the file concerning the alleged withdrawal by the Delta
Dunării Biosphere Reservation of its appeal against the judgment of 22
October 1997 had not been sufficiently investigated by the Prosecutor’s Office.
The Constanţa Prosecutor’s Office and E.M. appealed on points of law against
the Court of Appeal’s judgment to the Court of Cassation.
By interlocutory judgments of 14 December 2001
and 22 March 2002 the Court of Cassation adjourned the proceedings in
order to allow E.M. to retain the services of a legal representative of his
choice and to prepare his defence. It also noted that, as a result of his
medical condition, E.M. could not attend the hearing of 22 March 2002.
By an interlocutory judgment of 17 May 2002 the
Court of Cassation allowed an unconstitutionality objection raised by E.M.,
referred the case to the Constitutional Court and adjourned the proceedings
pending its decision.
By a final judgment of 7 November 2002 the Constitutional Court dismissed the unconstitutionality objection as ill-founded.
By an interlocutory judgment of 14 February 2003
the Court of Cassation adjourned the proceedings on account of the absence of E.M.’s
legal representative, and in order to summon the applicant.
On an unspecified date in 2003 the applicant
submitted written observations to the Court of Cassation for the hearing of 11
April 2003.
By an interlocutory judgment of 11 April 2003
the Court of Cassation adjourned the proceedings in order to hold deliberations.
By a final judgment of 22 April 2003 the Court
of Cassation allowed the Constanţa Prosecutor’s Office’s appeal against
the judgment of 27 July 2001, finding that the evidence in the file
concerning the alleged withdrawal by the Delta Dunării Biosphere
Reservation of its appeal against the judgment of 22 October 1997 had been
sufficiently investigated by the Prosecutor’s Office. The court also decided of
its own motion that in the best interests of justice the case should be
transferred to the Bacău Court of Appeal.
By interlocutory judgments of 30 September, 21
October and 4 November 2003, the Bacău Court of Appeal adjourned the
proceedings following requests by the applicant and his co-accused to be
allowed time to retain the services of legal representatives and to prepare
their defence, as well as the applicant’s failure to attend all the hearings.
By an interlocutory judgment of 12 November 2003
the Bacău Court of Appeal allowed an unconstitutionality objection raised
by the applicant and adjourned the proceedings pending a decision by the Constitutional Court.
By a final judgment of 4 May 2004 the
Constitutional Court dismissed the unconstitutionality objection raised by the
applicant as ill-founded.
By seven interlocutory judgments delivered
between 8 June and 28 October 2004 the Bacău Court of Appeal adjourned the
proceedings as a result of the defendants’ absence, because the applicant’s
legal representative was experiencing medical problems, because there had been
errors in the summoning of the other parties involved in the case, pending the
summoning of several witnesses and the examination of the evidence and in order
to hold deliberations.
By a judgment of 2 November 2004 the Bacău
Court of Appeal convicted the applicant of fraud, inter alia, and
sentenced him to three years and six months’ imprisonment. In addition, it
ordered the applicant to repay the bank loans and to pay penalty interest. The
applicant lodged an appeal on points of law (recurs) against the
judgment with the Court of Cassation. He argued that the first-instance court
had failed to summon one of the civil parties to the proceedings; had failed to
examine the lawfulness of minutes drafted on 27 May 1998 by the prosecutor P.V.
and the statements of some of the witnesses heard by the authorities; had
wrongfully assessed the evidence and misinterpreted the applicable legal
provisions; and had failed to determine the legal status of the 42,000 sq. m of
land on the basis of expert evidence.
By interlocutory judgments of 9 February, 23
March, 11 May and 22 June 2005, the Court of Cassation adjourned the
proceedings on account of summoning errors, a request by the defendants to be
allowed to retain the services of legal representatives and to prepare their
defence, and E.M.’s lawyer’s inability to attend on account of his medical
condition.
By interlocutory judgments of 7 and 21 September
2005 the Court of Cassation adjourned the proceedings on account of the
defendants’ lawyer’s inability to attend, and of summoning errors.
By a final judgment of 2 November 2005 the Court
of Cassation dismissed the applicant’s appeal on points of law against the
judgment of 2 November 2004. The court held that the failure of the
first-instance court to summon a civil party to the proceedings was contestable
by the said civil party but not the applicant; that the minutes of 27 May 1998
drafted by the prosecutor P.V. had been lawful; and that the first-instance
court had duly examined all the witness statements, dismissing some of them as
dishonest, and correctly assessed the evidence and the applicable legal
provisions, as well as the status of the 42,000 sq. m of land, on the basis of
the available evidence, which had been sufficient without the admission of
additional evidence.
D. The applicant’s medical condition and treatment
Between 18 March 2002 and 3 September 2003 the
applicant was hospitalised three times in the Târgu-Mureş Institute for
the Treatment of Cardiovascular Diseases, a State-owned hospital. He was
diagnosed with a serious heart condition. On 9 April 2002 he underwent emergency
heart surgery. He was recommended and received treatment and his condition was
monitored.
Between 11 November 2006 and 8 January 2007 the
applicant was detained in Ploieşti Prison.
On 14 November 2006 he visited the medical
office at Ploiesti Prison and was scheduled for a cardiological examination at
the Ploieşti County Emergency Hospital the following day.
On 15 November 2006 he received treatment for
his condition. He was also advised to stop smoking, to avoid physical effort, to
follow a low sodium and low calorie diet and recommended permanent treatment
with several drugs.
Between 16 November 2006 and 3 January 2007 the
applicant was taken to the prison’s medical office on nine occasions. He was
diagnosed and provided with the recommended treatment. On 16 and 23 November and
1 December 2006 he refused to accept part of the treatment provided on the
ground that he already had the necessary medication in his room.
During his detention in Ploieşti Prison he
was given a special diet.
From 23 January to 9 February 2007, from 24
December 2007 to 13 February 2008, and from 16 April to 25 May 2008 the
applicant was repeatedly hospitalised in the Dej Prison Hospital. On each occasion,
he was administered the recommended treatment for his medical condition and was
given a low sodium diet.
E. First set of proceedings seeking the postponement
of the execution of the applicant’s prison sentence
On 7 November 2005 the applicant brought
proceedings before the Bacău Court of Appeal seeking the postponement of
the execution of his prison sentence on account of his medical condition.
According to an expert medical report drawn up
by the Braşov Forensic Institute on 9 December 2005, the applicant was
suffering from, inter alia, a serious heart condition which
required revascularisation surgery that could not be performed in a prison
hospital. Consequently, the medical report recommended the suspension of the execution
of the applicant’s prison sentence for three months.
By a final judgment of 15 December 2005 the
Bacău Court of Appeal allowed the applicant’s action on the basis of the expert
medical report and postponed the execution of his prison sentence for three
months.
F. Second set of proceedings seeking the postponement
of the execution of the applicant’s prison sentence
On 6 March 2006 the applicant brought a second
set of proceedings, seeking the postponement of the execution of his prison
sentence for an additional three months. He argued that because of a dental
abscess he had been unable to undergo surgery.
According to an expert medical report drawn up
by the Braşov Forensic Institute on 29 March 2006, the applicant needed
treatment for his dental problem before surgery could be performed; the surgery
was thus re-scheduled for 5 May 2006.
By a final judgment of 13 April 2006 the
Bacău Court of Appeal allowed the applicant’s action on the basis of the expert
medical report and extended the postponement of his prison sentence for three
months, from 28 March to 28 June 2006.
G. Third set of proceedings seeking the postponement
of the execution of the applicant’s prison sentence
On 19 May 2006 the applicant brought a third set
of proceedings, seeking the postponement of the execution of his prison
sentence for an additional six months on account of his medical condition. He
argued, inter alia, that owing to circumstances beyond his
control, in particular, various infections he had contracted, he was unable to
undergo surgery.
By a final judgment of 16 October 2006 the Court
of Cassation dismissed the applicant’s action. The court held that an expert medical
report by the “Mina Minovici” Forensic Institute in Bucharest confirmed that
the applicant had a serious condition. However, the postponement of his
detention could only be justified if he needed to undergo surgery, since
alternative medical treatment in lieu of surgery was also available in prison
hospitals and according to the expert report could be provided to him with the
same results as in civilian hospitals. Moreover, the applicant’s detention had
been postponed twice by the domestic courts and he had already had the
opportunity to undergo surgery. Furthermore, his claim that his surgery had
been rescheduled from 27 May to 8 September 2006 on account of infections that
needed medical treatment prior to his operation was not supported by any
evidence in the file.
H. Proceedings seeking the suspension of the execution
of the applicant’s prison sentence
On 22 October 2007 the applicant brought proceedings
before the Cluj Court of Appeal seeking the suspension of the execution of his
prison sentence on medical grounds.
By an interlocutory judgment of 14 November 2007
the Cluj Court of Appeal ordered an expert medical report by the “Mina
Minovici” Forensic Institute in Bucharest in respect of the applicant’s medical
condition. It dismissed the applicant’s request for the court to rely on the
previous expert medical reports rather than ordering a new one, on the ground
that the applicant had filed a new request for the suspension of his prison
sentence and the Court of Appeal therefore had to administer the evidence
directly and could not rely on evidence administered by a separate court. The
proceedings were adjourned pending the completion of the expert medical report.
By an interlocutory judgment of 12 December 2007
the Cluj Court of Appeal noted, inter alia, that no expert medical
report had yet been produced by the “Mina Minovici” Forensic Institute in Bucharest, and it adjourned the proceedings pending the completion of the report. It also instructed
the “Mina Minovici” Forensic Institute to expedite the expert medical report
and informed them that the proceedings had been adjourned until 16 January
2008.
On 11 January 2008 the medical report by the
“Mina Minovici” Forensic Institute was completed; it confirmed that the
applicant was suffering, inter alia, from a serious heart condition
which required revascularisation surgery, and that his condition had worsened.
The report concluded, on the one hand, that if the applicant consented to be
operated on he would have to be admitted to a civilian hospital for surgery and
would be out of prison for approximately three months, and on the other, that
if he did not consent to surgery, medical treatment available in lieu of
surgery was also available in prison hospitals and consequently the execution of
the applicant’s sentence did not need to be suspended.
On 17 January 2008 the Cluj Court of Appeal asked
the “Mina Minovici” Forensic Institute to provide it with the expert medical
report prepared in respect of the applicant’s case.
On 4 February 2008 the Institute informed the
Cluj Court of Appeal that the completed expert medical report in the applicant’s
case had been sent to it on 16 January 2008. It also submitted a copy of the
report.
On the same date the Cluj Court of Appeal asked
the “Mina Minovici” Forensic Institute to amend the expert medical report in
order to expressly state whether the surgery was a medical emergency or whether,
on the basis of the existing medical papers and the applicant’s diagnosis, it
could be postponed until the applicant had served his prison sentence. It also
informed them that the proceedings had been adjourned until 27 February 2008.
On 28 February 2008 the Cluj Court of Appeal
asked the “Mina Minovici” Forensic Institute to urgently amend the expert medical
report in the applicant’s case by answering the question raised by it on
4 February 2008. It also informed the Forensic Institute that the
proceedings had been adjourned until 26 March 2008.
On 5 March 2008 the “Mina Minovici” Forensic
Institute informed the Cluj Court of Appeal in reply to their question of 4
February 2008 that in the absence of the applicant’s consent the surgery could
not be performed even if it was an emergency, and also that the medical
treatment available in lieu of surgery was available in prison and therefore there
was no requirement for the execution of the applicant’s sentence to be
suspended on medical grounds.
By interlocutory judgments of 26 March and 9
April 2008 the Cluj Court of Appeal adjourned the proceedings pending a reply
from the “Mina Minovici” Forensic Institute to its question of 4 February 2008,
and informed the Institute that the proceedings had been adjourned.
On 8 May 2008 the Cluj Court of Appeal asked the
Higher Forensic Commission attached to the “Mina Minovici” Forensic Institute
to answer its question of 4 February 2008 regardless of whether or not the
applicant had consented to be operated on. It also informed the Higher Forensic
Commission that the proceedings had been adjourned until 4 June 2008.
On 9 May 2008 the Higher Forensic Commission
attached to the “Mina Minovici” Forensic Institute informed the court that
surgery was recommended in the applicant’s case and that without it the risks
the applicant faced were difficult to predict and could be life threatening.
The report also noted that the surgery was not a pressing medical emergency,
given that it had been recommended since 2005, and that although the execution of
the applicant’s prison sentence had been suspended twice on account of his
medical condition, he had failed to have the surgery. At the same time, it
informed the court that the surgery in question was a high risk procedure,
having a mortality rate in excess of fifty per cent, and it was therefore
mandatory by law to obtain the consent of the patient prior to surgery.
By a judgment of 4 June 2008 the Cluj Court of
Appeal allowed the applicant’s action and ordered the suspension of the execution
of his sentence for three months from the date the judgement became final. It
held, inter alia, that according to the expert medical report available in
the case-file the applicant’s condition was life-threatening and required
surgical intervention in a civilian hospital. The court also prohibited the
applicant from leaving the country, inter alia.
On 6 June 2008 the Cluj Prosecutor’s Office
informed the Cluj Court of Appeal that they waived their right to an appeal on
points of law (recurs) against the judgment of 4 June 2008.
The judgment of 4 June 2008 became final on 9
June 2008. The applicant was released from prison on the same date.
On an unspecified date in June 2008 the
Târgu-Mureş Institute for Treatment of Cardiovascular Diseases informed
the applicant that he was scheduled for surgery on 23 September 2008 pending
completion of other medical tests prior to surgery.
On 26 June 2008 the applicant lodged an application
with the Bacău Court of Appeal seeking to have the suspension of the execution
of his prison sentence extended on the ground that he was scheduled for surgery
on 23 September 2008 but was due to return to prison on an earlier date.
By a final judgment of 24 July 2008 the
Bacău Court of Appeal referred the case to the Cluj Court of Appeal on the
ground that the latter was the competent court ratione loci to examine
the applicant’s application seeking to have the suspension of the execution of
his prison sentence extended, as it had also examined his application for the
suspension in question.
By a final judgment of 26 August 2008 the Cluj
Court of Appeal found that it was not competent to examine the application and
referred the case to the Court of Cassation in order for that court to decide which
Court of Appeal was competent ratione loci to examine the applicant’s
application.
On 2 September 2008 the applicant requested the
Court of Cassation to expedite the proceedings concerning the decision in
respect of the Court of Appeal competent ratione loci to examine his
application for the extension of the suspension of the execution of his prison
sentence. He asked the court, inter alia, to bring forward the hearing
of his case from 14 October 2008 to an earlier date. He argued that if the
Court of Cassation failed to expedite the proceedings, he would be recalled to
prison and that would result in him losing his appointment for the surgery.
Consequently, his heart condition would worsen further.
On 12 September 2008 the Court of Cassation
notified the applicant that the date of the hearing of his case had been brought
forward and summoned him to appear before it on 16 September 2008.
In a letter of 10 November 2008 the applicant
informed the Court that because the first hearing before the Court of Cassation
had been scheduled for 16 September 2008 and he had felt that his life was thus
being endangered by the Romanian authorities, he had decided to flee the
country. He had travelled to Austria, where he had applied for political
asylum.
II. RELEVANT DOMESTIC LAW
The relevant provisions of Government Emergency
Ordinance no. 56/2003 on the rights of those serving custodial sentences,
in force at the time of the events in the instant case, and those of the
Romanian Code of Criminal Procedure concerning suspension of prison sentences
(Articles 453 and 455), are described in Aharon Schwarz v. Romania,
no. 28304/02, §§ 66-67, 12
January 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the absence of adequate
medical care while in detention, in particular in Ploieşti Prison and Dej
Prison Hospital, and the length of the proceedings concerning his request of
22 October 2007 for the temporary suspension of the execution of his
prison sentence due to his serious medical condition amounted to inhuman and
degrading treatment under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Complaint concerning the lack of adequate medical
care in detention
Admissibility
1. Submissions of the parties
(a) The Government
The Government argued, with regard to the
applicant’s complaint concerning lack of adequate medical care while in detention,
in particular in Ploieşti Prison and Dej Prison Hospital, that that part
of the complaint had been lodged outside the six-month time limit. In addition,
they submitted that in any event the applicant had failed to complain to the
authorities about lack of adequate medical care on the basis of Law no.
275/2006 on the execution of prison sentences.
(b) The applicant
The applicant contended that given his state of
health, the absence of adequate medical treatment amounted to a continuous
situation and therefore no part of his complaint had been lodged outside the
six-month time limit. In addition, the authorities had failed to inform him of
his right to bring proceedings on the basis of Law no. 275/2006. Moreover, they
had been fully aware of his poor medical condition because of the repeated expert
medical reports produced in his case and the decisions to postpone the execution
of his prison sentence. Consequently, the authorities had had a positive
obligation to automatically provide him with adequate medical care.
2. The Court’s assessment
The Court finds that it is not necessary to
examine the Government’s preliminary objections because it considers that this
part of the applicant’s complaint is in any event inadmissible for the
following reasons.
The Court reiterates that Article 3, while it
cannot be construed as laying down a general obligation to release detainees on
health grounds, imposes an obligation on the State to protect the physical
well-being of persons deprived of their liberty. The Court accepts that the
medical assistance available in prison may not always be of the same level as
in the medical institutions for the general public. Nevertheless, the State
must ensure that the health of detainees is adequately secured by, among other
things, providing them with the appropriate medical assistance (see Kudła v. Poland [GC],
no. 30210/96, § 94, ECHR 2000-XI; Hurtado v. Switzerland, 28
January 1994, Series A no. 280-A; and Kalashnikov v. Russia,
no. 47095/99, §§ 95 and 100, ECHR 2002-VI).
The Court notes at the outset that the applicant
was diagnosed and treated for serious heart-related conditions prior to his
detention (see paragraph 42 above). Therefore, it does not appear that the
applicant’s medical condition was caused exclusively by his detention, or that
the authorities can be held responsible for it (see, mutatis mutandis, Viorel
Burzo v. Romania, no. 75109/01 and 12639/02, § 81, 30 June 2009).
With regard to the medical treatment received by
the applicant while he was detained in Ploieşti Prison and in Dej Prison Hospital, the Court notes that the authorities took concrete measures to meet
the applicant’s health needs by regularly taking him to prison or civilian doctors
or by hospitalising him. Moreover, the Court observes that the applicant was
prescribed and administered the recommended medical treatment on a regular
basis whenever he did not refuse to accept it. Furthermore, there is no
indication in the file of any negligence on the part of the medical services in
administering the treatment to him, or that the said treatment did not have a
stabilizing effect on his health.
Furthermore, the Court notes that the applicant
did not submit any details indicating that the conditions of his detention
either in prison or in the prison hospital were particularly difficult, or that
they caused him any hardship other than that inherent in detention.
Having regard to the foregoing, the Court
considers that this part of the applicant’s complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Complaint concerning the length of the proceedings regarding
his request for the temporary suspension of the execution of his prison
sentence
Admissibility
1. Submissions of the parties
(a) The Government
The Government submitted that while the
proceedings concerning the suspension of the execution of the applicant’s
prison sentence had lasted more than seven months, the Cluj Court of Appeal had
allowed his request and the Prosecutor’s Office had expressly waived their
right of appeal against the decision. Therefore, the instant case should be
clearly distinguished from Aharon Schwarz v. Romania, no. 28304/02, §§ 101-105, 12 January 2010, where the
proceedings lasted for two years and three months and the decision of the
first-instance court was quashed because of various failings in the expert
medical report.
. They also contended that the
proceedings before the Cluj Court of Appeal concerning the suspension of the
execution of the applicant’s prison sentence had been carried out diligently
and expeditiously. Between November 2007 and May 2008 the domestic courts had
ordered and obtained a medical evaluation of the applicant’s medical condition
and carried out a complex risk-assessment exercise concerning the medical
options available to him.
. In addition, they argued that if the
applicant had been serious about undergoing surgery he could have arranged a
date for it with a civilian hospital of his choice well in advance of his
release. Alternatively, he could have been escorted to the hospital for the
surgery under guard, without the need for any interruption in his detention. In
any event, the proceedings concerning the suspension of the execution of his
prison sentence had had little bearing on the applicant’s state of health as
there was no indication that he had been hindered in or precluded from
undergoing surgery.
The Government also underlined that the
revascularisation surgery sought by the applicant had been recommended to him
in 2005 and had been the reason why he had obtained two postponements of his
incarceration. However, he had failed to undergo the surgical procedure, both
before his incarceration in November 2006 and after his release in June 2008.
(b) The applicant
The applicant reiterated that the proceedings
concerning the suspension of the execution of his prison sentence had been excessively
lengthy and caused him to feel anxious and to fear for his health and his life.
He argued that the authorities had had a duty to examine his request speedily,
given that it concerned his physical and mental well-being in circumstances
where he was suffering from a serious medical condition which had been brought
to the authorities’ attention by repeated expert medical reports. In addition,
the fact that he was unable to undergo surgery within the period allowed for
the suspension of his prison sentence and that the domestic courts failed to speedily
examine his request to have that suspension extended had caused him to flee the
country in order to protect his life and his health.
2. The Court’s assessment
The Court reiterates that it has previously stressed
the need for national legal systems to implement judicial procedures for
dealing with requests by detainees for release for medical reasons. It
considers that such procedures for guaranteeing the protection of prisoners’
health and well-being must be reconciled by the State with the legitimate
requirements of punishments that deprive a detainee of liberty (see Tekin Yıldız
v. Turkey, no. 22913/04, § 73, 10 November 2005, and Mouisel v.
France, no. 67263/01, §§ 4546, ECHR 2002-IX).
In this context, the Court considers that the
general interdiction provided in Article 3 of the Convention, as well as the
special obligations that this Article imposes on the Contracting States with
respect to measures of deprivation of liberty, would be deprived of their
contents in the absence in the domestic legal systems of such mechanisms and in
the absence of supervision by the Court of the effectiveness of the mechanism
in specific cases (see Verbinţ v. Romania, no. 7842/04, § 74, 3 April
2012).
The Court notes that in the present case, the
applicant, referring to his medical condition, submitted his request for the
suspension of the execution of his prison sentence on 22 October 2007.
While the Forensic Institute submitted the final
amendment to the medical report on 9 May 2008, the Court does not discern any
indication in the file that the domestic authorities unduly delayed the proceedings,
or that the courts failed to examine his request speedily and to allow his
release from prison (see, a contrario, Aharon
Schwarz, cited above, § 102). The Forensic Institute produced an
updated medical report and amended it repeatedly following prompt requests from
the courts examining the applicant’s circumstances (see, a contrario, Verbinţ, cited above, § 76). In addition, it does not
appear from the available evidence that between October 2007 and June 2008 the
applicant motioned the courts to expedite the proceedings by bringing forward
the dates of the hearings examining his request.
Having regard to the foregoing, the Court
considers that this part of the applicant’s case is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that
the criminal proceedings brought against him on 2 June 1998 had been unreasonably
lengthy. He relied on Article 6 § 1 of the Convention, which, in so far as
relevant, reads as follows:
“In the determination of ... any criminal charge against him
... everyone is entitled to a fair and public hearing within a reasonable time by
[a] ... tribunal ...”
A. Admissibility
1. Submissions of the parties
(a) The Government
The Government submitted that the applicant had
not been detained during the proceedings and he had only rarely attended hearings.
Consequently, he had not suffered any significant disadvantage as a result of
the length of proceedings.
(b) The applicant
The applicant disagreed.
2. The Court’s assessment
The Court notes that the main element of the
criterion set by Article 35 § 3 (b) of the Convention is
whether the applicant has suffered any significant disadvantage (see Adrian
Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010,
and Korolev v. Russia (dec.), no. 25551/05, 1 July 2010).
. Inspired
by the general principle of de minimis non curat praetor, this
admissibility criterion hinges on the idea that a violation of a right, however
real from a purely legal point of view, should attain a minimum level of
severity to warrant consideration by an international court. The
assessment of this minimum level is, in the nature of things, relative, and
depends on all the circumstances of the case. The severity of a violation
should be assessed taking into account both the applicant’s subjective
perceptions and what is objectively at stake in a particular case (see Korolev,
cited above). In other words, the absence of any significant disadvantage can
be based on criteria such as the financial impact of the matter in dispute or
the importance of the case for the applicant (see Adrian Mihai Ionescu,
cited above).
In the present case, the Court notes that the
applicant was involved for more than seven years in criminal proceedings
brought against him for fraud, inter alia, which also had a civil claim
component. In the criminal proceedings, the domestic courts eventually
convicted the applicant and sentenced him to three years and six months’
imprisonment. They also ordered him to return the bank loans he had taken out and
to pay penalty interest.
The Court also takes note of the fact that the
domestic proceedings which are the subject of the complaint before it had a
public-interest component in that they were aimed at determining the applicant’s
guilt or innocence in respect of the offences he had allegedly committed.
Therefore, in addition to the pecuniary damages he was eventually forced to
return, it is also necessary to take into account the fact that the proceedings
concerned a question of principle for the applicant, namely his right to have a
criminal charge determined against him within a reasonable time in order to
avoid a prolonged state of uncertainty.
Under these circumstances, in the Court’s view,
the applicant must have suffered a significant disadvantage, and it accordingly
dismisses the Government’s objection.
The Court further notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. Submissions of the parties
(a) The applicant
The applicant argued that although his case
lacked any complexity, the criminal proceedings against him had lasted for
seven years and five months for two levels of jurisdiction and for the period
the proceedings were adjourned pending the decision of the Constitutional Court,
that is, from 2 June 1998 to 2 November 2005. He also submitted that the
national authorities had been responsible for most of the delays and that even on
those rare occasions where he had contributed to the delays, the proceedings
would have been adjourned in any case on account of procedural errors by the
domestic authorities.
(b) The Government
The Government contended that the start date
for the criminal proceedings against the applicant was 1 October 1998. In
addition, they submitted that the applicant had caused delays in the
proceedings by requesting repeated adjournments of the hearings, by not
attending them, and by making full use of the procedures available to him under
domestic law, including pleas of unconstitutionality. As a result, they
considered that the actual length of the criminal proceedings against the
applicant was in fact four years and nine months. They also contended that the
case was rather complex owing, inter alia, to the large volume of
evidence gathered and examined by the courts. At the same time, they argued
that no substantial periods of inaction were attributable to the authorities,
and that they had acted diligently in examining the applicant’s case.
2. The Court’s assessment
The Court reiterates that the period to be
taken into consideration under Article 6 § 1 of the Convention must be
determined autonomously. It begins at the time when formal charges are brought
against a person or when that person has otherwise been substantially affected
by actions taken by the authorities as a result of a suspicion against him
(see, among other authorities, Eckle v. Germany, judgment of 15
July 1982, Series A no. 51, § 73).
The Court further 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, the conduct of the applicant and the relevant
authorities, and what was at stake for the applicant in the dispute (see, among
many other authorities, Frydlender v. France [GC], no. 30979/96, § 43,
ECHR 2000-VII).
The Court observes that the parties disagreed
as to the start date of the criminal proceedings against the applicant. While
the Government argued that the date in question was 1 October 1998, the
applicant claimed that it was 2 June 1998.
The Court considers that the applicant was
substantially affected by the proceedings in the present case when on 8 July
1998 the Tulcea Prosecutor’s Office issued the non-final order to discontinue
the criminal proceedings against him. Thus, for the purposes of Article 6 § 1,
the period to be taken into consideration began on 8 July 1998 and ended on
2 November 2005, after seven years and four months.
The Court notes that there were repeated procedural
delays over the entire course of the proceedings. It can accept that the case
against the applicant and his co-accused can be seen as being to some degree complex,
and that the applicant was also responsible for some of the delays. That being
said, it cannot but note that the proceedings lasted over seven years for two
levels of jurisdiction and for the period the proceedings were adjourned
pending the decision of the Constitutional Court. The length of this period cannot
be justified by the complexity of the case and the adjournments requested by
the applicant alone. In the Court’s opinion, the length of the proceedings can
only be explained by the failure of the domestic courts to deal with the case
diligently (see Gümüşten v. Turkey, no.
47116/99, §§ 24-26, 30 November 2004).
Having regard to all the evidence before it,
the Court finds that the length of the proceedings in issue does not satisfy
the “reasonable time” requirement.
There has accordingly been a breach of Article
6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying on Article 5 of the Convention, the
applicant complained that his detention had been unlawful. Moreover, invoking Article 6 of the Convention, he complained that the
domestic courts had lacked impartiality, refused to admit part of the evidence
requested by him, wrongfully assessed the evidence, misinterpreted the
applicable legal provisions, failed to provide reasons for their decisions and
for their refusal to admit some of the evidence, and breached his right to the presumption
of innocence as a result of alleged outside pressure; he also complained that
he had not been allowed the time and facilities to mount a proper defence and had
not been informed promptly of the accusation against him. Relying on the same
Article of the Convention, he also complained that
the criminal proceedings with civil claims brought by him against third parties
had been unfair in so far as they had been unreasonably lengthy and the
domestic authorities had wrongly assessed the evidence. Furthermore, invoking Article 13 of the Convention, he complained of lack
of an effective remedy in that he had not been able to appeal against the final
judgment of 22 April 2003 transferring his case to the Bacău Court of
Appeal. Lastly, relying on Article 1 of Protocol No. 1 to the Convention, he
complained of a breach of his property rights in that he had been deprived of
42,000 sq. m of land and the huts located on it.
. The
Court has examined these complaints as submitted by the applicant. However,
having regard to all the material in its possession, and in so far as they fall
within its jurisdiction, the Court finds that they 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
as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. 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 15,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the sum claimed to be
excessive.
The Court observes that it has found a breach
of the rights guaranteed by the Convention on account of the length of the criminal
proceedings opened against the applicant.
The Court considers that as a result of the
violation found, the applicant undeniably suffered non-pecuniary damage which
cannot be made good merely by the finding of a violation.
Consequently, ruling on an equitable basis, the
Court awards him EUR 1,800 in respect of non-pecuniary damage, plus any amount
that may be chargeable in tax.
B. Costs and expenses
The applicant also claimed EUR 22,904 for
lawyer’s fees and other costs and expenses incurred before the Court. He submitted a number of invoices and a contract for
legal assistance concluded with his lawyer, as well as a detailed document
indicating that the lawyer spent eighty-one hours and fifty minutes preparing
the case, and giving the number of hours worked broken down according to each
type of activity, and the hourly rate.
The Government disputed the hourly rate charged
by the applicant’s legal representative and contended that the amount claimed
by the applicant was excessive as the supporting documents submitted by him had
been full of inconsistencies and did not justify the amount claimed. They
further submitted that some of the expenses incurred by the applicant had not
been necessary for the case and were unreasonable as to the quantum.
The Court reiterates that in order for costs
and expenses to be reimbursed under Article 41, it must be established that
they were actually and necessarily incurred and are reasonable as to quantum
(see, for example, Nilsen
and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII,
and Boicenco v. Moldova, no.
41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the
Rules of Court, itemised particulars of all claims must be submitted, failing
which the Chamber may reject the claim in whole or in part.
In the present case, having regard to the above
criteria, the supporting documents submitted by the applicant, the nature of
the issues dealt with, and the work of the lawyer from 28 March 2011, when he
started assisting the applicant in respect of the case, the Court considers it
reasonable to award the sum of EUR 3,000 to cover the costs and expenses for
the proceedings before it.
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 regarding the
length of the criminal proceedings opened against the applicant 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 of the date on which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into the national currency of the respondent State at the
rate applicable at the date of settlement:
(i) EUR 1,800 (one thousand eight hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts 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 18 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
