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THIRD
SECTION
CASE OF DIMAKOS v. ROMANIA
(Application
no. 10675/03)
JUDGMENT
STRASBOURG
6 July
2010
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 Dimakos v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 15 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10675/03) 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 Greek national, Mr Ioannis Dimakos (“the
applicant”), on 18 February 2003.
- The
applicant was represented by Mr Dănuţ Romică Artene, a
lawyer practising in Galaţi. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- On
12 May 2009 the President of the Third Section decided to communicate
to the Government the complaints concerning the conditions of the
applicant's detention and the alleged interference with his right to
respect for family life while in prison. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Greek Government, which have been informed of the application in view
of the applicant's nationality (Article 36 § 1 of the Convention
and Rule 44 of the Rules of Court), did not wish to intervene.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and currently lives in Certeze, Satu Mare.
A. The background of the case
- On
12 May 1997 the applicant and his associate (“T.L.”),
through their company, S.C. Harmony Shipping International
S.R.L., made an offer to buy the Romanian Company for Oceanic Fishing
Tulcea (Compania Română de Pescuit Oceanic Tulcea,
“the company”), a State-owned company specialising in
oceanic fishing, which was in the process of being privatised by the
Bucharest State Property Fund (Fondul Proprietăţii de
Stat, “FPS”). While negotiations were taking place,
FPS expressly forbade the sale of the company's ships. The applicant
and his associate gave their agreement to the prohibition in a
statement signed with FPS on 4 June 1997.
- On
26 November 1997 FPS agreed to sell the applicant and T.L. 51% of
the company's stocks.
- During
criminal proceedings against the applicant the courts found that he
and his associate had sold five of the company's ships as scrap. They
had used part of the money to pay the price asked for by FPS. With
the remaining money they had paid some of the company's debts in
order to substitute themselves for the company's creditors and thus
obtain the remaining 49% of the company's stocks.
B. Conditions of detention
- The
applicant was arrested on 10 March 1998 and released from prison on
22 June 2009, after having served his sentence. He described as
follows the conditions of detention in the various penitentiaries
where he was held. The Government's view, based on the official
documents issued by the penitentiaries, is also presented.
1. Constanţa police detention
- On
10 March 1998 the applicant was taken to the Constanţa police
detention rooms, situated in the basement of the police headquarters.
He remained there until 4 June 1998. His pre-trial detention was
endorsed and extended on several occasions by the prosecutor attached
to the Constanţa Court of Appeal.
- He
claimed that during his detention there he had not been allowed to
contact his family, counsel or co-accused either by telephone or in
writing. He had not been allowed to have a pen and paper in the cell.
He
had shared a cell with ten other detainees. The cell had been
equipped with three-tier bunk beds which occupied 12 sq. m. There was
no toilet in the cell (the inmates used a bucket for that purpose),
no running water or sewerage system, no light and no fresh air.
- According
to the information from the Constanţa police, the cells in the
police detention facilities measured 12-15 sq. m with three to four
beds each, electric light and one window. The detainees were allowed
to walk outside for one to two hours per day. Toilets were in the
corridor.
No
concrete information about the applicant's contacts with family and
counsel or about his correspondence rights was furnished by the
police, as, according to the regulations, the relevant documents are
only kept by the authorities for five years.
2. Jilava Penitentiary
- In
June 1998 the Galaţi County Court ordered the applicant's
transfer to Bucharest Jilava Penitentiary, on health grounds. He was
detained in this penitentiary on three occasions: from 4 June to 12
August 1998 and from 10 to 21 May 2005 (in the hospital section); and
from 9 October to 19 November 2003 (in the penitentiary itself).
- The
applicant claimed that during his first stay in the hospital section,
he had been handcuffed to his bed with chains around his legs after
attempting suicide. He was awoken from a period of unconsciousness by
bites from lice and bedbugs and recollected having been refused water
by a warden on one occasion during his recovery.
The
applicant also mentioned one week spent in the transit zone in Jilava
before his transfer from Poarta Albă to Galaţi Prison. He
claimed that he was placed in a dirty cell there and received no food
or water.
- According
to the information provided by the Government, the applicant was
mainly detained in a 42.08 sq. m cell with eleven beds, a separate
toilet and individual heating. The detainees were allowed two showers
per week in the common bathroom. They were allowed to walk outside
for one hour per day.
The
Government also referred to the applicant's telephone conversations,
the parcels received from home and a visit from his daughter.
The
Government have given no information about the period spent by the
applicant in the transit zone.
3. Poarta Albă Penitentiary
- The
applicant spent a few weeks in Poartă Alba Penitentiary in
Constanţa, from 12 August to 2 September 1998.
- The
applicant alleged that the cells had been overcrowded and had lacked
hygiene facilities. The inmates were allowed to walk outside for two
to three hours per month and to receive one visit and one telephone
call in that time. The applicant was allowed to receive 15 kg of
food per month. According to his statement, it was the only time
during his detention when he could eat properly. His family brought
him medicines and food.
- The
Government stated that the applicant's cell measured 36.35 sq. m
and included ten beds, one window, running water, electricity,
central heating and a separate toilet room. Seven to ten persons had
shared that cell during the applicant's detention. The inmates were
allowed to walk outside for thirty minutes to one hour per day.
During his stay, the applicant received two visits and two parcels.
4. Galaţi Penitentiary
- The
applicant was held in this penitentiary on five occasions: from
2 September 1998 to 16 August 2001; from 29 January 2003 to 9
October 2003; from19 November 2003 to 26 February 2004; from 21
April 2004 to 29 June 2006; and from 5 October 2007 to 12
December 2008.
- He
alleged that the first cell where he had been detained was 25 sq. m
in size. There were twenty to twenty five detainees in the cell at
all times with an average of three persons to one bed. No outdoor
exercise was allowed. Water was available two hours per day. No
medicines were given and the food was very poor. After eight months,
because of the deterioration of his health, the applicant was moved
to a cleaner cell.
- The
Government averred that the applicant spent most of his stay in the
infirmary in a 24 sq. m cell with six beds, windows, central heating
and separate toilets. The detainees were allowed to walk outside for
three hours per day. The penitentiary also had a football field for
the detainees' use.
5. Rahova Penitentiary
- The
applicant was held in Bucharest Rahova Penitentiary on
three occasions: from 16 August 2001 to 29 January 2003; from
26 February 2004 to 21 April 2004; and from 29 June 2006 to 5
October 2007.
- According
to his statements, he was entitled to three visits per month and 60
packets of cigarettes and 15 kg of food per month − all
provided by his family.
- The
official documents submitted by the Government indicate that the
applicant shared a 19.55 sq. m cell with ten bunk beds with a maximum
of nine co-detainees. A 5.55 sq. m toilet room with cold water was
attached to the cell. Hot water was available twice per week, between
12 midday and 2 p.m. and 5 p.m. to 7 p.m. The cells and the
toilets had windows, to allow in air and natural light.
The
detainees were allowed to walk outside for one to two hours per day
and twice per week they were given access to sports fields.
Three
public phones were available and the applicant was allowed two
ten-minute phone calls per week.
6. Brăila Penitentiary
- The
Government informed the Court that the applicant had been held in
Brăila Penitentiary from 12 December 2008 to 22 June 2009.
During his stay he received 202 visits and 215 parcels.
C. Criminal proceedings against the applicant
- On
10 March 1998, the applicant gave a statement to the police in the
presence of his counsel. The next day he was taken to the prosecutor
attached to the Constanţa Court of Appeal, who informed him for
the first time that he was accused of having sold ships belonging to
the Romanian State.
On 9
October 1998 the applicant received the Greek translation of the
indictment.
- On
8 October 1999 the Galaţi County Court gave judgment in the
case, convicting the applicant of bribery, embezzlement (delapidare),
forgery and use of forged documents and smuggling (contrabandă)
and sentencing him to fifteen years' imprisonment. The County Court
awarded damages of 890,284 US dollars (USD) to the company, to
be paid by the applicant together with two other convicted persons.
It also ordered the applicant to be expelled after having served his
sentence.
- On
9 March 2001 the Constanţa Court of Appeal rejected an appeal
lodged by the applicant and upheld the judgment. According to the
applicant, the Court of Appeal refused to hear evidence from him,
claiming lack of time, and asking him to send his defence statement
in writing, from prison.
- On
27 September 2002 the Supreme Court of Justice upheld that decision,
which became final.
- On
7 November 2005 the Galaţi County Court declared inadmissible a
request by the applicant for revision of the above decisions. The
judgment was upheld in a final decision of 2 October 2006 by the High
Court of Cassation and Justice.
II. RELEVANT DOMESTIC LAW
- The
domestic legislation on the execution of sentences, in particular Law
no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance
no. 56/2003”) and Law no. 275/2006 are described in Petrea
v. Romania, no. 4792/03, §§ 21-23, 29 April 2008.
III. COUNCIL OF EUROPE DOCUMENTS
- The
relevant findings and recommendation of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) are described in Bragadireanu
v. Romania, no. 22088/04, §§ 73-75, 6 December
2007, and Artimenco v. Romania (no.
12535/04, §§ 22-23, 30 June 2009). The Court notes,
in particular, that in a report on visits made by them between 2002
and 2003, the CPT expressed concern about the restricted living space
both actually available to prisoners and provided for by the
regulations in place at that date. It also noted that prisoners were
sometimes obliged to share a bed and that the toilets were not
adequately separated from the living space in the cells.
- During
its 1999 visit to Romania, the CPT found that the Jilava transit area
was the most overcrowded prison facility at that time − the
number of detainees exceeding more than twice its capacity.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention contravened
the requirements of 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. Admissibility
1. The parties' submissions
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies, in so far as the applicant had not complained to
the authorities about the conditions of his detention or the alleged
lack of medical treatment, either before or after the coming into
force of Ordinance no. 56/2003. In addition, they averred that
the applicant could have lodged a civil law complaint with the
domestic courts against the prison authorities about the conditions
of his detention.
- Furthermore,
the Government considered that the applicant had not complied with
the six-month rule in so far as his complaints referred to his
detention in the Constanţa police headquarters. They relied on
an a contrario interpretation of Kokoshkina
v. Russia, no. 2052/08, §
53, 28 May 2009.
- The
applicant contended that he had observed the admissibility
requirements.
2. The Court's assessment
- The
Court notes that the applicant complained mainly of overcrowding and
conditions of poor hygiene in all the detention facilities in which
he was imprisoned. It sees no reason to make an artificial
distinction between the period spent in the Constanţa police
headquarters and the other detention facilities (see Kokoshkina,
cited above, § 53, and Brânduşe v. Romania,
no. 6586/03, § 42, ECHR 2009 ... (extracts)). Furthermore,
it points out that as regards the general conditions of the
detention, such as those complained of in the case at hand, the
applicant could not be expected to have recourse to any remedy (see
Kalashnikov v. Russia (dec.), no. 47095/99, 18
September 2001, and Solovyev v. Russia (dec.),
no. 76114/01, 27 September 2007).
- It
therefore rejects the Government's preliminary pleas.
- The
Court also notes that this complaint 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
Government contended that the authorities made an effort to ensure
that the applicant enjoyed adequate living conditions while in
detention.
- The
applicant contested the Government's position.
- The
Court refers to the principles established in its case-law regarding
the conditions of detention (see, for reference, Petrea, cited
above, § 43).
- It
also states that Convention proceedings, such as the present
application, do not, in all cases, lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he
who alleges something must prove that allegation) because in certain
instances the respondent Government alone have access to information
capable of corroborating or refuting these allegations. A failure on
a government's part to submit such information without a satisfactory
explanation may give rise to the drawing of inferences as to the
well-foundedness of the applicant's allegations (see Kokoshkina,
cited above, § 59).
- The
focal point in the case at hand is the assessment by the Court of the
living space afforded to the applicant in the detention centres where
he was held, in particular in Galaţi and Rahova Penitentiaries
where the applicant spent most of his time (about seven years in
Galaţi and three years in Rahova).
- The
Court notes that, particularly as regards the two detention centres
mentioned above, the applicant did not contradict the Government's
submissions on the size of the cells. What is contested between the
parties is the real occupancy of those cells: while the Government
submitted that the number of persons in a cell was always inferior or
equal to the designed occupancy, the applicant claimed that sometimes
prisoners had even been obliged to share beds.
However,
even at the occupancy rate put forward by the Government, the
applicant's living space seems to have been below 3 sq. m in Rahova,
which falls short of the standards imposed by the case-law (see
Kokoshkina, cited above, § 62, and Orchowski v.
Poland, no. 17885/04, § 122, ECHR 2009 ...(extracts)).
The amount of outdoor exercise claimed by the Government to have been
available to the applicant, cannot compensate, in this case, for his
severe lack of personal space (see, a contrario, Sulejmanovic
v. Italy, no. 22635/03, §§
8-49, 16 July 2009).
Moreover,
the applicant's description of the overcrowding, in particular in
Galaţi Penitentiary, corresponds to the findings made by the CPT
(see paragraphs 32-33 above).
- Furthermore,
the Court considers that, in comparing each party's claims regarding
the sanitary conditions with the findings of the CPT reports, it can
only conclude that the applicant was deprived of the possibility of
maintaining adequate bodily hygiene in prison.
- Lastly,
the Court notes that the applicant was transferred fourteen times
during his eleven years in detention. Such frequent transfers may
increase the feelings of distress experienced by a person deprived of
liberty and held in conditions which fall short of the Convention's
standards (see, mutatis mutandis, Orchowski, cited
above, § 133, and Khider v. France, no. 39364/05, §§
110-111, 9 July 2009).
- The
Court has frequently found a violation of Article 3 of the Convention
on account of the lack of personal space afforded to detainees and
unsatisfactory sanitary conditions (see, in particular, Ciorap
v. Moldova, no. 12066/02, § 70, 19 June 2007;
Kalashnikov v. Russia, no. 47095/99, §§ 97 et
seq., ECHR 2002-VI, and Kokoshkina, § 64, and Petrea,
§§ 49-50, judgments cited above).
In
the case at hand, the Government failed to put forward any argument
that would allow the Court to reach a different conclusion.
- In
light of the above, the Court considers that the conditions of the
applicant's detention caused him distress that exceeded the
unavoidable level of suffering inherent in detention and that
attained the threshold of degrading treatment proscribed by Article
3.
There
has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- Invoking
Article 8 of the Convention, the applicant complained that his right
to respect for family life has been jeopardised, as the authorities
have not allowed his family to visit him in prison. He also claims
that his correspondence was censored until 2000.
- The
Government raised a plea of non-exhaustion of domestic remedies and
of non-observance of the six-month rule, based on the same arguments
as those invoked under Article 3 above (see paragraphs 35-36 above).
- In
his observations the applicant claimed that his correspondence had
been censored until 2003.
- The
Court has already had the opportunity to examine a similar objection
raised by the Government in the case Petrea, cited above. It
concluded that before the entry into force of Ordinance no. 56/2003,
on 27 June 2003, there was no effective remedy for the situation
complained of by the applicant. However, after that date, persons in
the applicant's situation did have an effective remedy to complain
about the alleged interference with their correspondence and family
life even if their applications were already pending with the Court
at that time (see Petrea, cited above, §§ 35-36).
- The
Court sees no reason to depart in the present case from the
conclusions it reached in Petrea.
- It
therefore considers that after the entry into force of Ordinance
no. 56/2003, the applicant should have lodged a complaint with
the domestic courts about the alleged interference with his Article 8
rights. There is no evidence in the file that he had done so.
It
follows that the part of the complaint concerning the alleged breach
of Article 8 after 27 June 2003 should be rejected for non-exhaustion
of domestic remedies.
- Lastly,
the Court finds no evidence in the file of any other potential breach
of the applicant's right to correspondence and family life before the
entry into force of Ordinance no. 56/2003.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
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 complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained, under Article 5 of the Convention, that he was
arrested by a prosecutor and was not brought promptly before a judge.
In addition, he complains that his detention was not extended every
thirty days as required by the Code of Criminal Procedure and that he
had no possibility of appealing against the interlocutory judgments
extending his detention.
- The
Court notes that from 28 February 2000, when the applicant was
convicted by the County Court, his continued detention was justified,
for the purpose of Article 5, by that decision. His complaints refer,
therefore, to the period before the adoption of the County Court
decision. However, the applicant lodged them on 6 August 2001, that
is, more than six months after the date when the situation complained
of ended (see Mujea v. Romania (dec.), no. 44696/98,
10 September 2002, and Negoescu v. Romania (dec.),
no. 55450/00, 17 March 2005).
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
- The
applicant complained of various violations of Articles 6 §§
1, 2 and 3, 7, 14 and 17 of the Convention. In particular, he
denied that the acts he had committed had constituted the crimes of
which he had been convicted. He disagreed with the manner in which
the courts had assessed the evidence and claimed that they had
disregarded evidence in his favour. He complained that he had been
treated as a convicted person from the time of his arrest. He
complained that he had not been informed promptly in Greek of the
nature and cause of the accusations against him and that the
decisions adopted had not been communicated to him in Greek so he
could effectively defend himself. Lastly, he complained that he was
treated differently and had fewer rights and facilities than the
Romanian detainees.
Under
Article 10 of the Convention he complained that he had not been
allowed to speak during the investigations and court proceedings.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that 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 these complaints are manifestly ill-founded and must be
rejected in accordance with 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 458,792,500 euros (EUR) in respect of pecuniary and
non-pecuniary damage, representing his share of the company's
capital. He considered that EUR 10,000,000 of this amount represented
just satisfaction for the non-pecuniary damage incurred.
- The
Government contended that the applicant's claims were unjustified and
that they lacked any causal link with the violations alleged. They
also considered that finding a violation could offer sufficient
compensation for the non-pecuniary damage incurred by the applicant.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant suffered distress as
a result of the conditions of his detention and it awards him EUR
6,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant made no claim for the costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the conditions
of detention under Article 3 admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
