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THIRD
SECTION
PARTIAL
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
22018/10
by Costel CĂŞUNEANU
against Romania
The
European Court of Human Rights (Third Section), sitting on 7 June
2011 as a Chamber composed of:
Josep
Casadevall, President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 12 April 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Costel Căşuneanu, is a Romanian national who
was born in 1959 and lives in Oituz, Bacău. He is represented
before the Court by Mr Gheorghiţă Mateuţ, a
lawyer practising in Arad.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
At
the relevant time the applicant was a businessman and owner of
company P.
1. Criminal investigation against the applicant
- On
10 December 2009 the Anti-Corruption Department of the Prosecutor’s
Office attached to the High Court of Cassation and Justice (“the
prosecutor” and “the DNA”) started criminal
proceedings against the applicant on suspicion of trading in
influence (cumpărare de influenţă). In
particular, the prosecutor alleged that: (i) the applicant had asked
a senator, C.V., to talk to judges of the High Court in order to
influence the outcome of a case pending before that court which
concerned a dispute between company P. and a state agency; (ii) that
C.V. had asked F.C., the then President of the Civil Section of the
High Court, to convince the judges handling the case to decide it in
favour of company P.; and (iii) that he had paid C.V. and F.C. money
for their intervention.
- On
21 December 2009 the applicant, with his lawyer, went to the
Prosecutor’s Office. The prosecutor informed the applicant that
on 10 December he had started criminal proceedings against the
applicant (urmărirea penală) and ordered the latter
not to leave town for thirty days.
- Upon
the applicant’s complaint, on 29 December 2009 the High Court
of Cassation and Justice, sitting as a single-judge bench, revoked
the measure restricting the applicant’s freedom of movement, on
the grounds that the prosecutor had failed to hear the applicant
before taking the measure, despite the absence of an explicit refusal
on the part of the applicant to testify, and had failed to give
specific reasons for the measure. The decision was upheld by a
nine-judge bench of the High Court in a final decision of 6 January
2010.
- On
8 April 2010 the applicant was summoned to appear at the Prosecutor’s
Office. At 12.45 p.m. the prosecutor informed the applicant that he
would be taken into custody for twenty-four hours and that the
criminal trial against him had been set in motion (punerea în
mişcare a acţiunii penale). The prosecutor considered
that the applicant represented a danger to public order, given the
nature of the crime allegedly committed, the way in which he had
committed the crime and the societal impact of the crime. The
prosecutor maintained that the applicant was trying to protract the
investigation in bad faith. In particular, the prosecutor noted that
the applicant had been invited to make a statement about the matter
on several occasions, and had been granted extra time to prepare his
defence on several occasions, but that at every rescheduled meeting
with the prosecutor at which he was supposed to make a statement, he
would refuse to talk unless his various complaints about the conduct
of the proceedings would be examined. The prosecutor noted that none
of those complaints was in any way relevant to the applicant making a
statement about the matter.
- On
the same date, the prosecutor dismissed the applicant’s
complaint against the arrest order, informed him of the outcome and
gave reasons for the dismissal.
- Following
the arrest of the applicant and his co-accused, the prosecutor
sought, on the same date, the High Court’s approval for their
pre-trial detention for twenty-nine days. The prosecutor presented
the facts of the case as they appeared from the evidence gathered,
including transcripts of telephone conversations between the
defendants that had been intercepted during a surveillance operation.
Upon the defendants’ request, the High Court, sitting in
private as a single-judge bench, postponed the hearing to the next
day in order to allow defence counsel to prepare their case. The
thrust of the applicant’s defence was that he had not been
heard during the investigation and that the prosecutor had failed to
give specific reasons for his application to the court.
- On
9 April 2010 the High Court held a further hearing. The applicant and
the co-accused gave statements to the court. During the hearing, at
12.45 p.m., the Court noted that the applicant’s detention had
expired and released him. He nevertheless remained in the courtroom
of his own free will.
- The
High Court noted that the applicant had availed himself of the right
not to make a statement throughout the investigation. It noted that
on 29 December it had already sanctioned the prosecutor’s
failure to hear the applicant, despite the absence of an unequivocal
refusal on his part to make a statement. The High Court noted that
the applicant had persisted in his approach and had sought to argue
the nullity of the prosecutor’s arrest order on the same
grounds as he had previously raised. It nonetheless considered that
the applicant was abusing his procedural rights. In particular, the
Court noted that he had tried to force the prosecutor into taking
certain actions during the investigation and had remained ambiguous
as to the extent to which he would cooperate, although this had
clearly been meant to achieve nothing more than protracting the
investigation. In the light of these findings, the High Court
reviewed the prosecutor’s acts and confirmed their legality.
- The
High Court conducted a lengthy analysis of the evidence presented by
the prosecutor and considered that there were strong indications that
the applicant and his co-accused had committed crimes. It considered,
in that context, that the defendant’s pre-trial detention was
the only appropriate preventive measure in the circumstances of the
case. It therefore approved the prosecutor’s request and
ordered that the applicant be placed in pre-trial detention for
twenty-nine days starting from 10 April 2010.
- The
applicant appealed, again relying upon the fact that he had not been
heard by the prosecutor before his pre-trial detention.
- On
12 April the High Court, sitting as a nine-judge bench,
held a hearing. It heard the accused persons and their
lawyers. It upheld the first-instance court’s findings as to
the applicant’s plea that he had not been heard by the
prosecutor. It nevertheless considered that there was no specific
danger to public order that would justify the deprivation of
the applicant’s liberty, and, on this basis, it quashed
the decision given on 10 April, annulled the detention order and
released the applicant and his co-accused. It ordered them not to
leave the country.
- On
10 May 2010 the prosecutor extended by thirty days the prohibition on
leaving the country imposed on the applicant, as he considered that
the evidence in the file showed that the initial grounds for taking
the measure were still present.
- The
applicant applied to have the measure overturned. He reiterated that
he had not been heard by the prosecutor and argued in addition that
the prosecutor had not given specific reasons for extending the
prohibition.
- On
17 May 2010 the High Court dismissed the application. The decision
was issued and given to the applicant on 12 October 2010.
- On
21 May the prosecutor committed the applicant and the other
defendants to trial before the High Court of Cassation and Justice.
- On
25 May 2010 the High Court, sitting as a three-judge bench, held a
hearing in order to review the preventive measures applied to the
accused persons. In so far as the applicant, F.C. and M.L. were
concerned, it postponed the hearing to 27 May. The applicant
complained and sought the withdrawal of some of the judges sitting in
the case. On 27 May the High Court, sitting as a differently
comprised bench, dismissed his complaints. The same day, the Court
met again to examine the legality of the preventive measures. The
applicant challenged the legality of the three-judge bench and the
Court decided that it had to send the case to a different bench for
the examination of the new complaint raised by the applicant.
- On
28 May 2010 the High Court, sitting in a different composition,
dismissed the applicant’s complaint and sent the case back to
the original bench. The applicant complained again, raising an
additional plea that the law concerning the composition of the bench
was unconstitutional. This complaint was dismissed by the High Court
on 1 June 2010 at 5.05 p.m. A new hearing was scheduled for 3
June.
- The
applicant appealed against the interlocutory judgment of 1 June, and
on 7 June 2010 a nine-judge bench of the High Court dismissed the
appeal by means of a final decision.
- Meanwhile,
on 26 May 2010, the applicant asked the High Court to note that the
preventive measure taken against him had expired on 21 May 2010 when
the prosecutor had committed the applicant and his co defendants
for trial.
- The
High Court held a hearing on 3 June 2010. The applicant was heard by
the court. He argued that the measure was not justified, as he had
willingly attended every time he had been summoned by the
investigators. He also mentioned that his business would require him
to regain his freedom of movement. The court dismissed the
applicant’s request and ordered the applicant, M.L. and F.C.
not to leave the country starting from 11 June 2010. The court
examined the evidence in the file and considered: that the measure
was in conformity with domestic law and with the requirements of the
Convention; that it was necessary, given the incipient stage of the
proceedings against the defendants, in order to ensure the proper
administration of justice; and that it was justified, given the
suspicion that the defendants might try to interfere with the
prosecution. It noted the gravity of the crimes under examination and
the nature of the relationships between the defendants and the
witnesses, considered that the measure was needed in order to prevent
the applicants from attempting to influence the witnesses and prolong
the trial and noted that at least one of the defendants had already
tried to do so before the taking of the measure. Lastly, the court
noted that the prohibition on leaving the country was not absolute,
but subject to review by the authorities. The court therefore
concluded that the prohibition on leaving the country was the most
appropriate preventive measure in the circumstances of the case.
- On
9 June 2010 a nine-judge bench of the High Court dismissed the
applicant’s appeal by way of a final decision.
- On
24 June the applicant asked the High Court to allow him to leave the
country for a limited period of time. On 25 June the Court refused to
grant his request.
- On
9 February 2011 the applicant asked the High Court to examine the
lawfulness of the prohibition on leaving the country. At the same
time, the applicant lodged a constitutional appeal arguing that the
extension of the measure had been automatic and done without proper
judicial review.
On 16
February 2011, the High Court forwarded the constitutional appeal to
the Constitutional Court and dismissed the applicant’s request
concerning the revocation of the measure.
Considering
that the High Court had erred in interpreting his appeal as a request
for revocation, the applicant asked the High Court to correct the
error in its decision. His request was dismissed on 4 March 2011.
- On
4 March 2011 the applicant requested that the High Court revoke the
preventive measure taken against him.
His
request was allowed on the same date by the High Court, sitting as a
three-judge bench.
However,
by a final decision of 14 March 2011, a five-judge bench of the High
Court allowed an appeal against the above decision brought by the
prosecutor, quashed the previous ruling and dismissed the applicant’s
request. The prohibition on leaving the country is thus still in
force.
- The
case is currently under examination by the High Court of Cassation
and Justice acting as a first-instance court.
2. The applicant’s public appearance during the
prosecution
- On
8 April 2010 the applicant was arrested at the DNA’s
headquarters. Later that day, he was handcuffed to a co-accused and
taken out of the building through the main door with a view to his
transfer to a police detention facility.
- The
applicant and the co accused to whom he was being handcuffed had
to get into a police van through the back door, despite it being
clear that they were encountering difficulties climbing in. They had
to drag each other into the van while journalists were pressing close
to them seeking statements. They were accompanied by police officers
of the special intervention forces, who were wearing masks. Newspaper
and television crews were present and the events were given
widespread media coverage. Footage of the applicant’s arrest
was broadcast live and shown again on the main channels’
evening news programmes.
- News
reports about the prosecution, accompanied by images of the
defendants wearing handcuffs, were given a lot of airtime. Numerous
panel discussions were broadcast and journalists and politicians
commented publicly on the events. Excerpts from conversations between
the defendants which had been obtained through telephone tapping
during a criminal surveillance operation made it into the newspapers.
Other pieces of evidence from the prosecution file were likewise
published and commented on in the press.
- When
he was brought from the police detention facility for court hearings,
the applicant’s transport to and from the High Court, as well
as inside the High Court building, was undertaken in the following
manner: the applicant was handcuffed to a co accused, surrounded
by masked police officers and exposed to journalists for
photographing and filming. The footage obtained by the journalists
was broadcast afterward.
3. The applicant’s pre-trial detention
- The
applicant was held in the police detention facility from 8 April 2010
until the evening of 12 April 2010, when he was released.
- The
applicant describes the conditions of his detention as follows: he
was strip searched when he arrived at the police detention
facility; and was searched every time he was taken out from, or back
to, his cell.
- Throughout
his detention, he was held in cell no. 10P along with three other
detainees. The cell measured 9 sq. m and had four bunk beds, a squat
toilet and a sink. The pipes carrying water to the sink were broken,
so there was water around the sink. On top of the toilet, there was
an improvised shower made out of a plastic barrel with a hose
connecting it to the sink. Privacy was ensured by an oilcloth screen.
The cell had a window measuring 40x60 cm with iron bars over it. The
cell looked onto the interior courtyard of the building. The window
was the only source of fresh air, but the amount of air let through
was insufficient to clear bad smells from the cell. The only
furniture in the cell was a table made out of carton boxes. A
fluorescent lamp above the bed was constantly switched on, which made
it difficult to sleep in the cell.
- The
applicant and his fellow detainees were allowed twenty minutes of
daily outdoor exercise, which took place in a small yard measuring
6x4 m, surrounded by a brick wall. The yard had a metal door and
was covered with a wire net.
B. Relevant domestic law
- The
relevant provisions of domestic law concerning the use of handcuffs
are described in Ali v. Romania, no. 20307/02, § 46, 9
November 2010. In particular, the use of handcuffs is expressly
forbidden by the Criminal Justice and Sentencing Act (Law no. 275 of
20 July 2006), save for in exceptional circumstances
(Article 37), and cannot be used as a sanction (Article 71).
- The
relevant provisions of Decree No. 31/1954 concerning remedies for
persons claiming damage to their dignity or reputation are available
in Rotaru v. Romania ([GC], no. 28341/95, § 29, ECHR
2000 V).
C. The findings of the European Committee for the
Prevention of Torture (“the CPT”)
- The
CPT visited a number of police detention facilities in Romania in
2006. Its general observations were: that the living space available
to detainees was about 2 sq. m per person, which fell short of its
requirements of 4 sq. m.; that overcrowding remained a problem; that
there was not enough natural light and fresh air; and that food was
not satisfactory. Another visit was carried out in September 2010,
but the report is not yet available.
COMPLAINTS
- The
applicant complained under Article 3 of the Convention of being made
to wear handcuffs whilst being taken from official buildings and into
court during his pre-trial detention. He considered that this
treatment had been disproportionate in the circumstances of the case.
He further alleged that the authorities had acted with a view to
humiliating and debasing him.
- Under
the same Article, he complained of the conditions of his detention.
In particular, he considered that the living space in his cell had
been below the standards set by the European Committee for the
Prevention of Torture, and that this, in his view, had constituted
degrading treatment. Furthermore, he maintained that the lack of
hygiene and privacy in the cell had amounted to inhuman treatment.
- Citing
Article 5 § 1 (c) of the Convention, the applicant complained
that he had been arrested even though there had not been any
reasonable suspicion that he had committed a crime and though the
prosecutor had not given specific reasons for his arrest.
- Under
Article 5 § 2 of the Convention, he complained that the
prosecutor had not provided him with reasons for his arrest and
placement in pre-trial detention.
- Citing
Article 6 § 1 of the Convention, the applicant complained that
the decision of 17 May 2010 had been delivered with significant delay
attributable to the High Court, in violation of his right to a trial
within a reasonable time.
- The
applicant further complained that the presumption of innocence
guaranteed by Article 6 § 2 of the Convention had been breached
when he had been taken to the public hearings in handcuffs.
- Relying
upon Article 8 of the Convention, the applicant complained that
telephone conversations between him and his co-defendants which had
been intercepted by the authorities had ended up being published in
the press.
- Lastly,
he complained that his freedom of movement, guaranteed by Article 2
of Protocol No. 4 to the Convention, had been unjustifiably
restricted for the following reasons: the measure had been taken and
extended automatically without specific reasons being provided; the
prosecutor had extended the measure taken by the court, although he
had lacked the necessary independence and impartiality to assess the
necessity of the measure; and the measure taken by the court after
the criminal trial started had been an automatic prohibition on the
freedom of movement, ordered for an indefinite period.
THE LAW
A. Complaints under Article 3 of the Convention
- The
applicant complained that he had been handcuffed and publicly exposed
in a degrading manner, treatment which had not been made necessary by
the criminal investigation, in violation of the requirements of
Article 3 of the Convention. Under the same Article, he
complained of the conditions of his detention.
Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
B. Complaint under Article 8 of the Convention
- The
applicant complained of publication of excerpts from the prosecution
file – in particular, telephone conversations that had been
intercepted by the authorities during a surveillance operation. He
relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
C. Complaints under Article 2 of Protocol No. 4 to the
Convention and 6 § 1 of the Convention
- The
applicant complained that his freedom of movement guaranteed by
Article 2 of Protocol No. 4 to the Convention had been unjustifiably
restricted by the prohibition on him leaving the country, both as
regards the measure itself and the procedure by which it had been
taken. He also argued that the issuance of the High Court decision of
17 May 2010 had taken too long, in violation of his right to a trial
within a reasonable time guaranteed by Article 6 § 1 of the
Convention.
Article
2 of Protocol No. 4 reads as follows:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
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.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
Article
6 § 1 of the Convention reads as follows, in so far as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Court is master of the characterisation to be given in law to the
facts, and can decide under what Article to examine complaints
submitted to it by an applicant (see, mutatis mutandis,
Raimondo v. Italy, 22 February 1994, § 39, Series A no.
281 A; and Guerra and Others v. Italy, 19 February
1998, § 44, Reports of Judgments and Decisions 1998 I).
It
therefore shall examine these complaints solely under Article 2 of
Protocol No. 4 to the Convention.
- According
to the Court’s case-law, it is not in itself questionable that
a State may apply various preventive measures restricting the liberty
of an accused person in order to ensure the efficient conduct of a
criminal prosecution, in so far as such a measure, and in particular
its duration, is proportionate to the aims sought (see, mutatis
mutandis, Nagy v. Hungary (dec.), no. 6437/02, 6 July
2004; Fedorov and Fedorova v. Russia, no. 31008/02,
§ 41, 13 October 2005; and Petre v. Romania,
no. 71649/01, § 47, 27 June 2006). To assess the
proportionality of the measure it is essential, on the one hand, that
the authorities give reasons for taking it and, on the other hand,
that it be accompanied by appropriate procedural safeguards by which
the authorities assess the continued justification for the measure
and prevent arbitrariness.
- In
the case at hand the Court notes that in its decision of 12 April
2010 the High Court gave extensive reasons why the applicant should
not be kept in detention, but offered no specific reasons why the
prohibition on his leaving the country would be necessary for the
prosecution of the case, but took it rather automatically. The High
Court however offered extensive and convincing reasons for the
measure under review in its decision of 3 June 2010.
Furthermore, the Court notes that the applicant formulated several
complaints about the measure, all of which were examined by the
domestic courts, with the appropriate safeguards in place for the
applicant.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
D. Other complaints
1. Complaints under Article 5 §§ 1 (c) and 2
of the Convention
- Citing
Article 5 § 1 (c) of the Convention, the applicant complained
that he had been arrested even though there had not been any
reasonable suspicion that he had committed a crime and though the
prosecutor had not given specific reasons for his arrest. He further
alleged, under Article 5 § 2, that the prosecutor had not
provided him with reasons for his arrest and placement in pre-trial
detention. Article 5 reads as follows, in so far as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- The Court refers to the general principles established
in its case law concerning the requirements of lawfulness and lack of
arbitrariness of any deprivation of liberty (see, among many other
cases, Mooren v. Germany [GC], no. 11364/03, §§
72-81, ECHR 2009 ...). It also reiterates that Article 5 §
2 contains the elementary safeguard that any person arrested should
know why he or she is being deprived of his or her liberty. This
provision is an integral part of the scheme of protection afforded by
Article 5: by virtue of Article 5 § 2 any person arrested
must be told, in simple, non-technical language that can be easily
understood, the essential legal and factual grounds for their arrest,
so as to be able, if he or she sees fit, to apply to a court to
challenge its lawfulness in accordance with Article 5 § 4
(see, mutatis mutandis, Abdolkhani and Karimnia v. Turkey,
no. 30471/08, § 136, ECHR 2009 ... (extracts)).
- In
particular, the Court notes that the applicant successfully raised
his complaint of a lack of reasonable suspicion for his arrest before
the domestic courts. In addition, the applicant did not seek
compensation for his detention under Articles 504 and 505 of the Code
of Criminal Procedure, and failed to give reasons why this remedy
would not have been effective in his case.
- Concerning
the complaint under Article 5 § 2, the Court notes that, despite
the applicant’s claims to the contrary, it appears that the
prosecutor duly informed him and his lawyer of all the procedural
steps taken in the case. Even assuming that these communications did
not take place, the applicant, who was arrested on 8 April 2010,
complained to the domestic authorities about his pre-trial detention
as follows: on the same date to the prosecutor and on the next day to
the High Court. His complaints were dismissed in reasoned decisions
which should have allowed him to understand the reasons for his
arrest.
Therefore, the period of alleged lack of information about the
reasons for his arrest was so short that it could not in any way have
affected the applicant’s right to challenge the lawfulness of
his arrest, which is the main purpose of the guarantee enshrined in
Article 5 § 2 (see Kokavecz v. Hungary, dec., no.
27312/95, 20 April 1999, and Mikhail Borisovich Khodorkovskiy
v. Russia (dec.), no. 5829/04 , 7 May 2009).
- 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.
2. Complaint under Article 6 § 2 of the Convention
- The
applicant complained of an alleged infringement of the presumption of
innocence in his favour because he had been made to wear handcuffs in
public. He relied on Article 6 § 2 of the Convention, which
reads as follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The
Court notes that the criminal case against the applicant is still
pending before a court that has the power to examine such a complaint
from the applicant.
It
follows that this complaint is premature and must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s
complaints concerning Articles 3 and 8 § 1 of the Convention;
Declares the remainder of the application inadmissible.
Marialena Tsirli Josep Casadevall
Deputy
Registrar President
