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THIRD
SECTION
DECISION
Application no. 47754/10
Laurenţiu Viorel URSA and
Others
against Romania
The
European Court of Human Rights (Third Section), sitting
on 6 March 2012 as a Chamber
composed of:
Josep
Casadevall,
President,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos, judges,
and Marialena
Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 26 July 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Laurenţiu Viorel Ursa (“the
first applicant”), Mr Paul Ovidiu Mureşan (“the
second applicant”) and Mr Cornel Rusu (“the third
applicant”) are Romanian national who were born in 1975, 1986
and 1985 respectively and live in Bistriţa Năsăud
county.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
1. Criminal proceedings against the applicants
- On
19 November 2004 the applicants were arrested by the police under
suspicion of having falsified documents to obtain visas for the
United States of America (“the USA”) and of bank fraud.
On the same date searches were conducted of the first and third
applicants’ flats in their absence. The police confiscated
certain sums of money found in the two flats. Upon their arrest, the
applicants were interrogated without a lawyer and confessed to having
committed the crimes. Few hours later, the same day, they repeated
their statements in the presence of counsel hired by the first
applicant’s wife and designated by police as legal-aid lawyer
for the other applicants.
- On
20 November 2004 the applicants were placed in pre-trial detention by
order of the Bistriţa County Court. The measure was regularly
extended, and the applicants were kept in detention until 25 January
2007 (the third applicant) and 9 February 2007 (the first and second
applicants) when they were released under judicial supervision.
- On
12 May 2005 the applicants were committed to trial on multiple
charges. They were essentially accused of having forged official
documents, which they used in order to assist different persons to
obtain visas for the United States; and of belonged to an organised
criminal group which printed fake bank cards, using data obtained
from the internet or from different providers, and then used those
fake cards to withdraw money. A computer forensic report was drawn
up, listing all the bank data stored on the computer found during the
searches.
- During
the criminal investigation, by order of a prosecutor, certain amounts
of money were seized from the applicants.
- The
Bistriţa Năsăud County Court examined the merits of
the case. It relied on a large body of evidence (such as reports of
the flat searches and computer searches, notes from the banks whose
ATM machines were used and from the exchange offices where the
defendants changed money, a graphology report on the fake documents
that the applicants were providing to persons who wanted to apply for
US visas, accounting reports, statements by the defendants and
witnesses, and records of confrontations between some of the
defendants). The applicants were represented by elected counsels.
- The
court gave judgment on 10 October 2007, finding the applicants guilty
of forgery and financial fraud. The first applicant was sentenced to
five years’ imprisonment and the second and third to four
years’ imprisonment each. The applicants were automatically
deprived of their right to vote for the duration of the sentence. As
an additional penalty, they were deprived of the right to vote and to
stand for election for two years after serving their sentences.
- Based
on a forensic accounting report, the County Court determined that the
applicants had used the forged bank cards to withdraw
1,113,490 Romanian lei. It ordered the confiscation of the money
found on all of the defendants, including from the first applicant’s
bank locker and it ordered them to pay jointly the outstanding amount
of 38,000 euros.
- The
County Court also annulled several forged documents, including a
contract by virtue of which the third applicant allegedly bought an
apartment from a third party. The court established that the parties
to the contract gave false information to the notary in order to
cover unlawful transactions between them.
- The
applicants appealed against that decision. The first applicant argued
mainly that he had only been the driver for the two other defendants,
that they had been the ones who put in place the fake bank cards
scheme and that he had not been aware of what they were doing. The
third applicants also argued that the searches conducted in flats had
been illegal and that the evidence thus gathered was unlawful and
considered that the district court had given an erroneous
interpretation of the evidence in the file and had erred in
convicting and sentencing them.
In a
thoroughly reasoned decision of 10 October 2008, the Cluj Court
of Appeal dismissed the appeals as unsubstantiated.
- The
applicants lodged an appeal on points of law reiterating their
complaints concerning the legality of the evidence and contesting the
interpretation of facts by the lower courts. They also complained
that the bill of indictment had been unlawful and the criminal file
incomplete, that the prosecutor and courts failed to determine
properly all aspects o the case.
- In
a final decision of 5 March 2010, the High Court of Cassation and
Justice upheld the first-instance judgment, confirming the reasoning
of the lower courts. Answering to the pleas raised by the applicants,
it ruled that there was no reason to refer the case back to the
prosecutor and that the case had been lawfully referred to the
judicial courts. It further held that the forensic accounting report
determined the amounts that had been withdrawn using the fake cards,
taking into account the bank account details found on one of the
computers in the flat where the applicants lived. The court further
confirmed the proportionality of the sentence applied to each of the
accused and dismissed all the appeals on points of law.
2. Applicants’ detention
- From
their arrest on 19 November 2004 until 17 May 2005, the applicants
were detained at Bistriţa police station. On the latter date
they were transferred to the pre-trial detention section in Bistriţa
Prison, where they remained until their release pending trial, in
2007 (see paragraph 4 above).
- On
17 March 2010 (in the case of the first and second applicants) and 6
April 2010 (in the case of the third applicant) the applicants were
returned to Bistriţa Prison, where they served the remainder of
their prison sentences. According to their statements to the Court,
they were held in cells measuring 28 sq. m together with seven other
inmates. In the cell, a light was permanently on, even at night,
preventing them from having proper rest. They developed eyesight
problems because of this lighting system. They were allowed to take
only a shower a week from September to May and twice a week from June
to August. The shower room measured 30 sq. m and contained
approximately 35-40 showers. There were no shower screens, and
therefore no privacy. The shower room was poorly ventilated and the
hygiene conditions were very poor. In addition, the third applicant
who is non smoker was held from April to May 2010 in a cell with
smokers.
- The
first applicant was released from prison on 22 March 2011, whereas
the second and third applicants were released on 26 October 2010.
B. Relevant domestic law and practice
- The
relevant articles of the Romanian Criminal Code concerning the ban on
voting and legislative amendments made to these provisions can be
found in the judgment of Calmanovici
v. Romania, (no. 42250/02, §
49, 1 July 2008).
COMPLAINTS
- The
applicants complained under Article 3 of the
Convention that they had been detained in inhuman and degrading
conditions at Bistriţa police station and in Bistriţa
Prison. They also submitted that they had developed eye problems
because of the permanent light in the cells. The third applicant also
complained about being held in cells with smokers despite him being a
non-smoker.
- Relying
on Article 5 of the Convention, the applicants complained that they
had been unlawfully deprived of their liberty on 19 November 2004,
that the duration of the pre-trial detention had been unreasonable
and that there had been no sufficient reasons justifying it.
- Relying
on Article 6 §§ 1 and 3 of the Convention the applicants
complained that they had not been assisted by a lawyer during the
first questioning and that during most of the criminal investigation
they had been represented by the same lawyer, even though they had
had conflicting interests in the case.
Under
the same Article, they reiterated some of the arguments raised before
the domestic courts, in particular the alleged unlawfulness of the
bill of indictment; the failure by prosecutor and courts to properly
establish all aspects of the case; and the unlawfulness of the
searches in their apartments and of their computers. They also
complained that the domestic courts had not responded to all the
arguments raised by the defence.
Furthermore,
the applicants argued that one of the judges on the first instance
panel and one of the judges on the appeal panel should not have ruled
on the case, as they had loans with the banks whose ATM machines had
been used for money withdrawals.
Lastly,
they complained that the duration of the criminal proceedings had
been unreasonably lengthy.
- Under
Article 6 § 2 of the Convention, the applicants considered that
their right to be presumed innocent had been breached as during the
criminal investigation, a press release had been issued by the State
authorities in which they had been identified and presented as
members of a criminal organisation.
- Relying
on Article 8 of the Convention, the fist and third applicants
complained that the searches conducted in their flats and of their
computers had been unlawful.
- They
complained under Article 1 of Protocol No. 1 to the Convention about
the fact that money found on them and on the first applicant’s
bank locker had been confiscated and that they had been ordered to
pay damages in addition to the confiscated amounts. The third
applicant also complained about the fact that the courts annulled the
contract by means of which he purchased an apartment.
- Lastly,
the applicants complained under Article 3 of Protocol No. 1 to the
Convention that by virtue of their criminal conviction they had been
automatically deprived of the right to vote and to stand for
election.
THE LAW
A. Complaint under Article 3 of the Convention
- The
applicants complained under Article 3 of the
Convention that they had been detained in inhuman and degrading
conditions at Bistriţa police station and in Bistriţa
Prison. They also submitted that they had developed eye problems
because of the permanent light in the cells.
- The
Court notes that the applicants were detained at Bistriţa police
station from 19 November 2004 until 17 May 2005. Furthermore, the
detention in Bistriţa Prison was divided into two distinct
periods: one which started on 14 May 2005 and ended in 2007, when
they were released, and one which started on 17 March 2010 for the
first and second applicants and on 6 April 2010 for the third
applicant and ended on 22 March 2011 for the first applicant and on
26 October 2010 for the second and third applicants.
Taking
into account that the application with the Court was lodged on
26 July 2010, the Court finds that the complaints concerning the
applicants’ detention at Bistriţa police station and the
first period of detention in Bistriţa Prison were lodged outside
the six-month time-limit and should be declared inadmissible in
accordance with Article 35 §§ 1 and 4 of the Convention.
- As
regards the complaint raised concerning the material conditions of
detention during the applicants’ second period of detention in
Bistriţa Prison, the Court considers that
it cannot, on the basis of the case file, determine its admissibility
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 3 of Protocol No. 1 to the
Convention
- The
applicants complained that the voting ban imposed on them by the
final decision of 5 March 2010 violated Article 3 of Protocol No. 1
to the Convention.
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of this complaint 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. Remaining complaints
- 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 all the other complaints
raised by the applicant 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 must be rejected in accordance with
Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicants’
complaints under Article 3 of the Convention concerning the material
conditions of detention in Bistriţa Prison from 17 March
2010 (the first and second applicants) and 6 April 2010 (the third
applicant) to 22 March 2011 (the first applicant) and 26 October 2010
(the second and third applicants); and under Article 3
of Protocol No. 1 to the Convention concerning the voting ban imposed
on them by the final decision of 5 March 2010;
Declares the remainder of
the application inadmissible.
Marialena
Tsirli Josep Casadevall Deputy Registrar President
