In the case of Retunscaia 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,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 4 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 25251/04)
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
Moldovan national, Ms Alisa Retunscaia (“the applicant”), on 28 May 2004. The applicant was represented by Mr Dan
Ioan, a lawyer practising in Bucharest. The Romanian
Government (“the Government”) were initially represented by their co-Agent, Ms Irina
Cambrea, and subsequently by their Agent, Ms Catrinel Brumar.
On 9 March 2010 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).
Written observations on its admissibility were filed by both
parties. The Moldovan Government did not make use of their right to intervene
in the proceedings (Article 36 § 1 of the Convention).
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respect of Romania, had withdrawn from the case (Rule 28 of the Rules of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 Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 §
4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1979 and lives in Chişinău
(Moldova).
A. The applicant’s arrest and first criminal trial
On 22 November 2002, at Frankfurt Airport, the German customs authorities discovered a box containing 10,000 LSD pills, addressed
to M.U., a Romanian national.
The German and Romanian police authorities
decided to track the box in order to identify who was involved in the
transportation of the LSD pills.
On 26 November 2002 M.U. and I.M. collected the
box from a post office. Later the same day, M.U. and I.M. were arrested.
I.M. decided to take advantage of the statutory
leniency provisions. At the police station he declared that the box should have
been collected by his girlfriend, O.L., and passed on to the applicant.
Later the same day a group of armed police broke
into the applicant’s flat with the intention of searching it. The applicant
argued that the policemen did not show a search warrant and no witnesses were
present.
The search lasted for four hours. During this time, the
applicant was kept immobilised, was not offered water and could not go to the
toilet. The applicant alleges that the policemen who broke into her flat kicked
her on the head, heels and legs with booted feet and hit her around the face
with her passport.
A report was issued at the end of the search
that included pictures of the drugs found. Two technical reports were drafted
as well concerning the identification of the drugs as LSD.
On the same day, the applicant was taken to the
public prosecutor’s office, who remanded her in custody. She was informed that
she was accused of illegal drug use and drug trafficking, illegal border
crossing and falsification of documents.
The applicant was informed that she had the
right to a lawyer during the criminal trial.
Later the same day the applicant made two
statements.
In the first declaration, signed by her, the applicant
stated that during the search operation performed that day the police had found
in her flat several bags containing cannabis, a gas pistol and several
documents with her picture. She acknowledged that the passport was false and
that she had bought it in the Czech Republic for 200 United States dollars
(USD).
The applicant went on to state that her boyfriend had asked her
to send some LSD to Romania, for which she was supposed to receive USD 1,000.
As she was not in Romania at the time, O.L. agreed to receive the LSD drugs for
her. The applicant stated that O.L. had already received 500 LSD pills and that
she was supposed to sell them and transfer USD 2,000 to the Netherlands.
The applicant further stated that one month after O.L. had
received the drugs she had transferred USD 1,000 to the Netherlands.
The applicant also claimed that she occasionally consumed
cannabis herself.
The applicant confirmed the above account of
events in her second declaration, signed both by the applicant and by her
lawyer appointed by the Bar, D.D.
According to the applicant, during interrogation
by the public prosecutor she was beaten, threatened with a long prison sentence
(up to twenty-five years) and forced to sign self-incriminating declarations,
which were written in illegible handwriting by a police officer. Owing to the
illegible handwriting and the fact that the applicant’s mother tongue is
Russian, she could barely understand the declarations she was forced to sign.
During this time she was allegedly not provided with drinking water and could
not go to the toilet.
On 10 December 2002 the applicant was
interrogated again by the public prosecutor. The barely readable declaration of
that date reads that the applicant refused to be assisted by the lawyer
appointed by her parents, D. I., “because he was being paid by her
boyfriend, who is an international drug dealer”.
The applicant claimed that the drug transports were
initiated by her boyfriend, whom she helped because she loved him and because
she was consuming cocaine, ecstasy and marijuana.
The applicant also expressed the wish to cooperate with the
investigating authorities to identify other drug dealers and to benefit from
this as mitigating circumstances.
The statement given by the applicant was signed by the
applicant and by her two chosen lawyers, U.V. and S.M.
Later the same day the applicant was informed, in the
presence of her chosen lawyer U.V. that the criminal investigation against her
had been completed.
The content of the criminal file was presented
to the applicant, who had allegedly only fifteen minutes to view the content of
the criminal file against her. The Government did not contest these
allegations.
On 11 February 2003 the applicant was handed a
copy of the indictment.
On the same occasion the applicant made a new
statement to the public prosecutor in which she declared that she stood only
partly by the declarations made during the investigation stage.
The applicant stated that she had never sent any package of
drugs to O.L. and that during the pre-trial investigation she had signed the
declarations because of the pressure placed on her. She claimed that all the
declarations were dictated to her.
She stated that she had returned from the Netherlands to Romania on 24 November 2002, and that prior to her return her flat was
occupied by G.O.
The applicant claimed that the false passport and student card
was used by her in her work as a model and to benefit from various reductions.
She also stated that she was not consuming drugs.
1. First-instance proceedings
On 8 April 2003 the applicant lodged written
observations with the Bucharest Tribunal. The applicant alleged that the
prosecution had failed to prove the accusations against her. She highlighted
that she was accused of drug trafficking, but the prosecution had failed to
prove that she had sent or received the packages at issue. On the contrary, at
no point in the criminal investigation was it shown that the applicant was the
owner of the packages received on 26 November 2002 by M.U. and I.M. In
addition, the Romanian Post confirmed that no other packages had been sent or
received by her.
The applicant also highlighted that she was retracting the
declarations she had made during the criminal investigation.
By a decision of 14 April 2003 the Bucharest
Tribunal convicted the applicant of drug trafficking, bringing illegal drugs
into Romania, consumption of illegal drugs, falsification of documents,
falsification of identity documents and illegal crossing of borders, and
sentenced her to six years’ imprisonment.
The Bucharest Tribunal based the applicant’s conviction on the
police and technical reports issued on 26 November 2002 and on the statements
made by the applicant, the co-accused and the witnesses.
The Bucharest Tribunal held that the prosecution
had failed to prove that the applicant had repeatedly brought drugs into Romania. First, the Bucharest Tribunal showed that the applicant had retracted the
declarations she had made during the pre-trial stage.
Second, the Bucharest Tribunal pointed out that
the Romanian Post had confirmed that no packages had been sent or received by
the applicant prior to the investigation.
2. Appellate proceedings
On 26 June 2003 the public prosecutor lodged an
appeal against the decision of 14 April 2003 of the Bucharest Tribunal, alleging
that the applicant had acknowledged that she had repeatedly smuggled and
consumed drugs in Romania.
The prosecution insisted that the applicant should be found
guilty of trafficking in highly dangerous drugs and not of simple drug
trafficking.
On 28 July 2003 the applicant lodged an appeal
against the 14 April 2003 decision of the Bucharest Tribunal.
The applicant alleged that the Bucharest
Tribunal had convicted her of drug trafficking on the basis of declarations she
had made at the pre-trial stage which were later retracted. The applicant
highlighted that the Bucharest Tribunal had rejected parts of the declarations
she had made before the investigating authorities and accepted parts of them without
offering a justification for this differentiated treatment.
The applicant claimed that the declarations made
by her at the pre-trial stage should all be rejected, because they had
been obtained using illegal methods of investigation. The applicant argued that
she and all the other accused had been threatened that if they failed to
cooperate they would receive the maximum sentence of twenty-five years. Also,
they were incited by the investigating officers to make incriminating
statements about their co-accused for the purpose of benefiting from the
leniency provisions.
The applicant alleged that it was in this
context that she had signed the declarations presented to her. She claimed that
it was clear from the wording of the declarations that a Russian-speaking
Moldovan citizen could not know or use such expressions or formulations as
those used in her pre-trial statements.
The applicant attached particular importance to
the report presented by the Romanian Post that she had never sent or received
packages, the package under investigation having been sent in fact from Brazil by B.M.
Lastly, the applicant highlighted that on 10
December 2002, when the most important procedural act was performed, namely the
presentation of the criminal file, she was forced to sign a declaration
refusing the services of the lawyer appointed by her family. As a result, she
was not represented on that day.
By a decision of 4 September 2003 the Bucharest
Court of Appeal admitted the appeal lodged by the public prosecutor and the
applicant in part and quashed in part the Bucharest Tribunal decision of 14
April 2003.
Upon retrial, the Bucharest Court of Appeal
convicted the applicant of trafficking and consumption of highly dangerous
drugs, upheld the six-year sentence applied by the Bucharest Tribunal and
ordered the confiscation of 810 United States dollars (USD) which had been
found in her flat.
The Bucharest Court of Appeal held that the
adduced evidence showed that the applicant had on various occasions sent drugs
to Romania which were later sold on the Romanian market.
3. Further appeal proceedings
On 23 November 2003 both the public prosecutor
and the applicant lodged further appeals against the decision of the Bucharest
Court of Appeal of 4 September 2003.
The prosecution argued that the applicant should
not benefit from any mitigating circumstances, since she is unemployed and is
thus predisposed to criminal activities. The prosecution also requested the
expulsion of the applicant because she is not a Romanian citizen.
The applicant complained that she was convicted
on the basis of evidence which was obtained under duress, which was not
supported by any other evidence and which was retracted during the trial.
The applicant also complained about the confiscation of money
ordered by the Bucharest Court of Appeal, arguing that it had not been proven
that the 810 USD found in her flat had been obtained through illegal
operations.
By a final decision of 10 February 2004 the High
Court of Cassation and Justice rejected the applicant’s further appeal as
unfounded.
The High Court of Cassation and Justice held that the evidence
adduced by the inferior courts had been correctly collected and presented. The
High Court of Cassation and Justice attached particular importance to the fact
that the applicant acknowledged at the pre-trial stage that she had committed
the offences she was accused of.
The High Court of Cassation and Justice held
that the amount of 810 USD found in the applicant’s flat had been obtained
by selling drugs and that the confiscation ordered by the Bucharest Court of
Appeal was legal.
B. The applicant’s second criminal trial
On 23 November 2003 the police performed a
search of a bag seized from the applicant’s flat on 26 November 2002. The
expert report concluded that the bag had a double bottom that contained 12,500
LSD pills.
On 10 March 2004 the applicant was charged under
sections 2 and 3 of Law no. 143/2000 with drug possession and drug
trafficking.
By a final decision of 22 February 2005, the
Bucharest County Court dismissed the charges against the applicant on res
judicata grounds.
C. Detention and transport conditions during the applicant’s
first and second criminal trials
1. The applicant’s detention at Bucharest Police
Station
On 26 November 2002 the applicant was placed in
pre-trial detention at Bucharest Police Station, where she remained until
19 December 2002.
The conditions of the applicant’s detention were
disputed between the parties.
The applicant alleged that during her pre-trial
detention she was placed in a room full of cockroaches and other insects. The
applicant also alleged that the cell was overcrowded and there were only ten
beds for thirty people, who had to take turns to sleep. Furthermore, there was
no hot water, no ventilation, no space for physical exercise and no provision
of sanitary supplies. The applicant alleges that the TV and electric light were
always on, which made sleeping difficult.
The Government provided a certificate issued on
5 July 2010 by the Ministry of the Interior and Administration, which concluded
that the Romanian authorities had respected the applicant’s rights.
The certificate indicates that the applicant was
informed about her rights upon arrival, was seen by a doctor and was provided
with bed sheets. It also appears from the certificate that the detention
facility at the Bucharest Police Station was formed of rooms for four or six
people, with separate showers and toilets.
The Government further stated that there were
windows in the applicant’s room.
2. Conditions of the applicant’s transport to and from
the courthouse
The conditions of the applicant’s transport to
and from the courthouse were disputed between the parties.
The applicant alleged that during the second
criminal trial she was transported nine times to the Bucharest County Court in
an overcrowded patrol van.
The Government submitted two certificates issued
by the Ministry of Justice on 2 July 2010 describing the applicant’s transport
conditions during her second trial.
The Government alleged in the two certificates
that the applicant was transferred to the following prisons during the
execution of her sentence:
- on 19
December 2002 the applicant was transferred from Bucharest Police Station to
Rahova prison;
- on 1
March 2003 the applicant was transferred from Rahova prison to Târgşor
prison;
- on 19
April 2003 the applicant was transferred from Târgşor prison to Rahova
prison;
- on 14
October 2006 the applicant was transferred from Rahova prison to Târgşor
prison.
The Government stated
that during 2004-2005, the applicant was transported to the Bucharest Tribunal
eight times for hearings:
- on 30
March 2004 the applicant was escorted together with forty-one other detainees
in a van with a forty-two-seat capacity;
- on 25
May 2004 the applicant was escorted together with fifty-seven other detainees
in two vans with a total capacity of sixty seats;
- on 22
June 2004 the applicant was escorted together with fifty-seven other detainees
in two vans with a total capacity of sixty seats;
- on 14 September
2004 the applicant was escorted together with sixty-four other detainees
in two vans with a total capacity of sixty-four seats;
- on 12
October 2004 the applicant was escorted together with sixty-four other
detainees in two vans with a total capacity of sixty-four seats;
- on 9
November 2004 the applicant was escorted together with sixty-five other
detainees in two vans with a total capacity of sixty-eight seats;
- on 7
December 2004 the applicant was escorted together with fifty-three other
detainees in two vans with a total capacity of sixty-three seats;
- on 1
February 2005 the applicant was escorted together with forty-six other
detainees in two vans with a total capacity of sixty-three seats.
The certificates further stated that the
applicant was kept in a berth separate from the other detainees she was
transported with. This was necessary in order to ensure the separation of the
detainees according to their sex.
The Government
submitted that the vans used for the transportation of the detainees are of the
following types:
- ROMAN
AB-16230, containing seven seats for officers, four berths and thirty-three
other seats. The van is 9.5 m long, 2.49 m wide and 3.25 m high;
- ROMAN AB-16230,
containing seven seats for officers, four berths and thirty other seats. The
van is 8.71 m long, 2.49 m wide and 3.5 m high;
- ROMAN
RD-10215, containing seven seats for officers, four berths and forty other
seats. The van is 8.5 m long, 2.5 m wide and 3.56 m high;
3. Conditions of the applicant’s detention in the
courthouse
The applicant alleged that, during the hearings
held before the national courts, she was placed in a courthouse cell which was
dirty, overcrowded and lacked ventilation. Furthermore, there were only two
benches for twenty people in the courthouse cell. Owing to this fact, the
applicant had to sit on cold concrete for more than four hours. During the
waiting time, the applicant did not receive food or water and had limited
access to the toilets.
The Government submitted that they had no
information on that matter.
II. RELEVANT DOMESTIC LAW
The relevant provisions concerning the rights of
convicted people are contained in Government Emergency Ordinance 56 of
27 June 2003 (“Ordinance 56/2003”) regarding certain rights of
convicted people, repealed and replaced by Law no. 275 of 20 July 2006 (“Law
no. 275”).
Neither Ordinance 56/2003 nor Law no. 275 refer
to transport conditions or detention conditions in court-house cells in respect
of detainees.
The provisions of Law no. 143/2000 on the
fight against drug trafficking and illegal drug use (“Law no. 143/2000”) are
described in Constantin
and Stoian v. Romania, nos. 23782/06 and 46629/06,
§§ 33-34, 29 September 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that she had been
ill-treated during her pre-trial detention. She also complained about the
conditions of detention during her pre-trial detention.
In addition, she complained about the transport conditions and
the detention conditions in the courthouse cells.
She relied on 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 Government’s objection under the six-month rule
with regard to the alleged ill-treatment and the conditions of detention at the
Bucharest police office
The applicant submitted that while detained at Bucharest police station she was subjected to ill-treatment. She also complained about the
conditions of detention at the Bucharest police station.
The Government alleged that the complaints were
lodged out of time.
The Court notes that whereas the applicant was
detained at the Bucharest police station from 26 November to 19 December 2002,
the present application was lodged on 28 May 2004, which is more than six
months after the date of the relevant events.
Therefore the applicant’s complaints concerning
the alleged ill-treatment and the conditions of detention at the
Bucharest police station are out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
2. The complaint concerning the transport conditions
and the detention conditions in the courthouse cell
The Court notes that the applicant’s 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
1. The parties’ submissions
(a) The Government
The Government contended that the applicant’s
transport conditions were adequate and did not breach Article 3 of the
Convention.
The Government did not contest the factual
allegations concerning the detention in the courthouse cells, but claimed in
relation to the courthouse cells of the Bucharest Tribunal that, taking into
account its limited duration, the alleged treatment did not attain the
threshold of degrading treatment proscribed by Article 3 of the Convention.
(b) The applicant
The applicant complained that during her second trial,
which lasted from 30 March 2004 to 1 February 2005, she was transported
nine times to and from the Bucharest Tribunal in an overcrowded van. The
applicant insisted that this unjustifiably added to the physical and
psychological suffering encountered during the proceedings.
The applicant also complains that during the
hearings that took place during the two criminal trials initiated against her,
she was detained in degrading conditions in courthouse cells in domestic
courts.
She alleges that during the first criminal trial, the courthouse
cells were dirty, overcrowded and lacked ventilation. Furthermore, there were
only two benches for twenty people. Owing to this, the applicant had to sit on
cold concrete, each time for more than four hours. During this time, the applicant
did not receive sufficient or wholesome food and drink, and was unable to go to
the toilet.
The applicant
also alleges that during the second criminal trial she was held in a courthouse
cell - a cellar - which was situated in the basement of the Bucharest County
Court and lacked ventilation and minimum conditions of hygiene. The applicant
alleges that the conditions of the courthouse cells in the Bucharest County
Court were degrading and humiliating and unnecessarily intensified her state
of anguish.
2. The Court’s assessment
(a) General principles
The Court refers first of all to the principles
established in its case-law regarding the transport of detainees, and
highlights that the transport of detainees raises a separate issue under
Article 3 of the Convention. In this latter respect, it recalls that the
European Committee for the Prevention of Torture and Inhuman and Degrading
Treatment and Punishment has considered individual compartments measuring 0.4,
0.5 or even 0.8 square metres to be unsuitable for transporting a person, no
matter how short the duration (see Yakovenko v. Ukraine,
no. 15825/06, § 108, 25 October 2007).
It further points out that it has previously
found a violation of Article 3 in a case where an applicant was afforded
0.4 square metres of personal space in the course of his transportation. It
considered such travel arrangements impermissible, irrespective of their
duration (see Yakovenko cited above, §§ 108-113).
The Court has also found a violation of Article
3 in a case where an applicant was transported together with another detainee
in a single-occupancy cubicle which measured one square metre. Even
though the journey time did not exceed one hour, the Court considered such
transport arrangements unacceptable (see Khudoyorov v. Russia, no. 6847/02, §§ 118-120, 12 April 2006).
Lastly, the Court - attaching a particular
importance to the fact that the Government were unable to provide any detailed
information on the conditions in which the applicant was transported to and
from the courthouse - could not find it conceivable that thirty-six persons in
ZIL vans or twenty-five persons in GAZ vans were provided with adequate seating
and space for transport under humane conditions (Idalov v. Russia [GC], no. 5826/03, § 103, 22 May 2012).
As to the detention at the courthouse, a
violation of Article 3 of the Convention was found where the applicant had
remained in cramped conditions for several hours a day, occasionally for as
long as eight to ten hours a day. The Court found that the cumulative effect of
the applicant’s detention in the extremely small cells of the transport facility,
without ventilation, food, drink or free access to a toilet, must have been of
such intensity as to induce physical suffering and mental weariness (see, for
example, Khudoyorov, cited above, §§ 118-120; Starokadomskiy v.
Russia, no. 42239/02, §§ 53-60, 31 July 2008; Moiseyev v. Russia,
no. 62936/00, §§ 137-43, 9 October 2008; Idalov, cited above, §§ 104-108).
(b) Application of these principles to the present
case
The Court observes that the Government were
unable to provide, apart from the description of the vans, any detailed
description of the conditions in which the applicant was transported to and
from the courthouse. In any event, the Court finds that the information
submitted by the Government corroborates the applicant’s allegations of
insufficient personal space during transportation.
Thus, the Government indicated that the vans used for the
applicant’s transport could seat forty-one, forty-four and fifty-one people
respectively, including each time seven seats for officers. It also appears
from the Government’s observations that the applicant was transported on each
occasion with forty-one to sixty-three other detainees, which not only is more
than the maximum of capacity put forward by the Government but also afforded
less than 0.5 square metres of personal space (see above paragraphs 55 and 57).
As to the applicant’s detention at the
courthouse, the Government have not provided any official data as to the
duration of such detention or any other details on the cells in which the
applicant was held. The Court therefore accepts the applicant’s account and
finds that she was confined in cramped and inhumane conditions during her
detention in the courthouse.
The above considerations, taken cumulatively,
are sufficient to warrant the conclusion that the applicant was subjected to
inhuman and degrading treatment in breach of Article 3 of the Convention whilst
detained at and during her transfer to and from the courthouse. There has
therefore been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that she had been
convicted on the basis of self-incriminating evidence obtained under physical
and psychological pressure during the pre-trial investigation, that she did not
have the time to properly prepare her defence, and that she had not received
proper legal assistance during the pre-trial investigation.
She relied on Article 6 of the Convention, which provides in
its relevant parts:
“1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law.
(...)
3. Everyone charged with a criminal offence has the
following minimum rights:
(b) to have adequate time and facilities for the
preparation of his defence;
(...)
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him.
(...)”
The Government urged the Court to dismiss the
complaints as inadmissible. They alleged that the proceedings against the
applicant were fair, that she was assisted by a lawyer during the proceedings
and that she had had the opportunity to adduce evidence. The Government
highlighted that the applicant had adopted a consistent position during the
criminal trial, acknowledging that she had committed the offence.
The applicant alleged that she had been convicted on the basis of confessions
obtained by investigators using physical and psychological pressure. She
claimed that, in order to force her to sign self-incriminating declarations,
the investigators had beaten her, threatened her with severe punishments, and
deprived her of water. Furthermore, she alleged that during the criminal
investigation she had been obliged to sign documents written in illegible
handwriting or which she did not understand.
Also, the applicant alleged that she did not have the time to
properly prepare her defence and that she had not received proper legal
assistance during the pre-trial investigation.
The Court notes that it has already examined situations similar to the one
presented in the case at issue. On one occasion, it held that the use of
evidence obtained in violation of Article 3 in criminal proceedings may
infringe the fairness of those proceedings, even if the admission of evidence
was not decisive in securing a conviction (see Jalloh v. Germany [GC],
no. 54810/00, § 95, 11 July 2006).
Also, it has
held that there was a violation of Article 6 §§ 1 and 3 in a case in which no
preliminary admissibility test was performed by the national courts concerning
evidence obtained under duress, when these statements were used as the main
evidence in a judgment convicting the applicant and when these statements were
obtained in the absence of his lawyer (see Söylemez v. Turkey,
no. 46661/99, §§ 123-124, 21 September 2006).
Turning to the instant case, the Court notes
that it has never been established that the applicant was ill-treated during
the criminal investigation. Nor has there been established a nexus between her
allegation of ill-treatment and her statements.
More precisely, the Court observes that the applicant gave
three self-incriminating declarations during the pre-trial investigation:
two statements on 26 November 2002 and one on 10 December 2002. On each
occasion she declared that she had previously been involved in drug trafficking
operations. Two of these declarations were made in the presence of her lawyers,
on 26 November 2002 a Bar appointed lawyer, and on 10 December 2002 two
lawyers chosen by her.
On 11 February 2003 the applicant retracted the declarations
made during the pre-trial investigation. She argued that she had made them
under duress and the threat of lengthy sentences. She also stated that the
lawyers present at the interrogations had advised her to sign the declarations
in order to benefit from the leniency provisions.
The Court observes that the domestic courts
examined in detail all evidence presented in the applicant’s case. The
applicant’s conviction appears to be the result of corroborated evidence that
comprised not only her declarations, but also the police report issued after
the search which had been carried out on 26 November 2002, the technical
reports concerning the identification of the drugs found in the applicant’s
flat and the statements made by the co-accused and the witnesses.
In the light of the above, the Court
concludes that the applicant’s trial, when regarded as a whole, cannot be
considered to have been conducted in a manner contrary to Article 6 §§ 1 and 3
of the Convention.
It follows that the
present complaint is manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Under Articles 5, 6 § 2, 6 § 3 (e), 7, 14 and Article 4 of Protocol No. 7
to the Convention, the applicant complained about various breaches of her
rights.
Having regard to 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 application 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 requested 200,000 euros (EUR) in
compensation for pecuniary and non-pecuniary damage.
The Government contested these claims.
The Court notes that it has found a violation of
Article 3 of the Convention on account of the conditions of the applicant’s
detention in the courthouse cells and transport during the criminal trial.
Making its assessment on an equitable basis, the Court awards
the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
The Court observes that the applicant’s claim
for reimbursement of costs and expenses was made outside the time-limit set to
her for this purpose; it therefore rejects this claim.
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
1. Declares admissible the complaints under
Article 3 of the Convention concerning the conditions of transport during the
criminal trial and the conditions of detention in the courthouse cells, and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention concerning the conditions of transport and of
detention in the courthouse cells;
3. Holds
(a) that the respondent State is to pay to the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicant;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 8 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
