European Court of Human Rights
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Cite as: [2007] ECHR 1107
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THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
20307/02
by Ali AHMAD
against Romania
The European Court of Human Rights (Third Section), sitting on 29 November 2007as a Chamber composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr S.
Quesada, Section Registrar,
Having regard to the above application lodged on 15 April 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ali Ahmad, is both a Syrian and a Romanian national who was born in 1962 and lives in Bucharest.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 29 May 2001, the police, of their own motion, began an investigation into drug trafficking offences being committed by three persons – the applicant, together with K.M. (of Turkish nationality) and D.H. (of Syrian nationality) – with the intention of selling 1.5 kilos of heroin for 10,000 United States Dollars (USD). The same day, the Prosecutor’s Office attached to the Supreme Court of Justice, considering that it had good reason to believe that a drug trafficking offence was about to be committed, issued authorisation no. 17/2001 for the use of two undercover agents with a view to determining the facts of the case, identifying the offenders and obtaining evidence. It also issued authorisation no. 18/2001 allowing the policemen who were to act as undercover agents, together with one other person, to procure 2 kilos of heroin.
On the same day, 29 May 2001, the applicant and D.H. met the policemen who were acting as undercover agents and D.H. asked for USD 10,000 for 1 kilo of heroin. On 31 May 2001, the undercover agents met the three persons again, to discuss the details of the transaction.
On 1st June 2001, the undercover police agents met the suspects again and were offered one kilo of heroin for USD 10,000. They apprehended the suspects in the act and in possession of one kilo of heroin. The undercover agents prepared a report on the flagrant offence. The police report, which was signed by the applicant, mentioned that the applicant had stated that he spoke and understood Romanian very well, and that he thought that the money was for other merchandise, and not for drugs. However, in a letter of 12 October 2005 the applicant informed the Court that the two co-accused (of Turkish and Syrian nationality respectively) did not speak Romanian and that they needed translators. The applicant has had Romanian nationality since 1999, he has completed university studies in Romania (he graduated from the Faculty of Medicine in 1990), and he has been in business and is married to a Romanian national.
1. Criminal proceedings against the applicant
On 2 June 2001, the Public Prosecutor F.C. issued a provisional detention warrant against the applicant for a period of thirty days. The applicant was remanded in the custody of the General Inspectorate of Police.
On 9 July 2001, on an application by F.C., Public Prosecutor, attached to the Supreme Court, the applicant was committed for trial before the Bucharest Regional Court for drug trafficking, an offence prohibited under the second paragraph of section 2 of Law no. 143/2000. The prosecutor’s indictment mentioned that the case file had been shown to the applicant and to the two co-accused in the presence of defence counsel and translators and that an official report had been prepared in this connection.
On 28 August, 20 September, 18 October, 15 November, 13 December 2001 and 10 January and 7 February 2002, the Bucharest Regional Court decided to extend the applicant’s pre-trial detention by thirty days. Throughout these hearings, the applicant was assisted by his own defence counsel. On 18 October 2001, he was heard by the judge and his lawyer insisted that the six witnesses referred to in the documents be heard. The witnesses were heard on 13 December 2001 and 7 February 2002. On 5 March 2002, the Bucharest Court of Appeal rejected an appeal by the applicant against the decision of 10 January 2002, which had extended his pre-trial detention.
During the trial on the merits, the applicant alleged that he had been forced by the police into making statements. On 21 February 2002, the Bucharest Regional Court convicted the applicant, who was assisted by a lawyer of his own choice, of drug trafficking and sentenced him to 13 years’ imprisonment. According to the judgment, the applicant did not provide evidence in his defence. Subsequent appeals by the applicant were rejected, first on 20 June 2002 by the Bucharest Court of Appeal and then on 15 May 2003 by a final decision of the Supreme Court of Justice. During the appeal proceedings the applicant was assisted by an officially appointed defence counsel; an Arabic interpreter was also present. According to the applicant, he remained handcuffed during the public hearings before the judges.
2. Complaints of ill-treatment against the authorities
According to the applicant, while in pre-trial detention in the General Inspectorate of Police (from 2 June to July 2001 at the latest) he was the victim of ill-treatment by the police. Thus, he claimed to have been dragged daily from his cell, over a period of 15-20 days, and put in a toilet for 15-30 minutes until the investigator eventually found the time to question him. He claimed to have then been undressed completely for 30-40 minutes, searched and verbally abused by the police officers. He alleged that this had lasted for 6 hours daily.
On 21 June 2001, the applicant was allegedly hit on the head by a police officer, in the prosecutor’s presence, because he had refused to sign the record of the acts performed by the police during the undercover operation which had led to his arrest. On the same day, the Bucharest Emergency Hospital recorded, in a medical report, that the applicant had been hospitalised for craniocerebral trauma with moderate post-concussion and an “atrocious cephalalgia” with consciousness disorder. The computer tomograph examination revealed a hypodense area of 1 cm in the left T pole, with continuing inflammation. Subsequent medical reports (31 May 2005 and 3 August 2006) also mention craniocerebral trauma with moderate post-concussion and a left periorbital ecchymosis. On 22 June 2001, the applicant was transferred to the prison hospital, where he stayed until 4 July 2001.
On 18 October 2001, the applicant made a statement before the Bucharest Regional Court mentioning, inter alia, the violence of 21 June 2001. Moreover, it seems that he lodged several complaints with the Military Prosecutor in that connection. On 28 August 2003, the Prosecutor’s Office attached to the Supreme Court of Justice dismissed the accusations with the following explanation: “the documents show that the craniocerebral trauma for which you were brought to the Bucharest Emergency Hospital on 21 June 2001 was the consequence of falling from a bed and not of an assault”.
The applicant claimed that he had challenged the decision of the Prosecutor attached to the Supreme Court of 28 August 2003, both before the hierarchically superior prosecutor and before the courts. On 4 May 2004, the applicant’s complaint was dismissed.
In 2005, the applicant also lodged a criminal complaint with the Prosecutor’s Office attached to the Bucharest Regional Court against four police officers and three certified translators, alleging that the police officers had used violence, threats and inducements in order to obtain evidence for the police report for the flagrant offence of 1 June 2001. In a decision of 14 November 2006, the Prosecutor attached to the Bucharest Regional Court considered that some of the “offences” had not been made out and that therefore there was no reason to commit the police officers for trial, whereas for the rest of the alleged offences - regarding both the police officers and the certified translators - he declined jurisdiction in favour of the Prosecutor’s Office attached to the Bucharest Court of First Instance (Criminal Division). The proceedings are still pending.
3. Conditions of detention
On 2 June 2001, the applicant was remanded in the custody of the General Inspectorate of Police. By July 2001 at the latest, he had been transferred to Jilava Prison. Subsequently, on an unknown date, before 20 September 2001, he was transferred to Rahova Prison.
(a) In the General Inspectorate of Police
During his hospitalisation in the prison hospital (22 July – 4 August 2001), the applicant allegedly did not receive proper medication because of a lack of funds for medicine. A medical report certifies that on 6 August 2001 the applicant had tuberculosis and piles.
According to the applicant, in the same place of detention he was also underfed, kept in a damp cell and was not allowed to receive books in Arabic, parcels, visitors and correspondence. Further, in his statement of 18 October 2001, mentioned above and given before the Bucharest Regional Court, the applicant expressly complained that he had not been taken to a doctor and that he had been forbidden to receive books (especially the Koran), parcels and visits. As a Muslim, he had a different diet and although he was receiving special food from outside, he claims that his meals were being kept for 2-3 days by the authorities, so they had already gone off when he received them. The applicant did not formally complain to the competent authorities regarding the books and the meals; he made only verbal requests.
(b) In Rahova Prison
According to the applicant, the conditions of detention in Rahova Prison are equally inappropriate: it is extremely cold in winter, when the heating system functions for a short time only, there is hot water for only half an hour per week, there are 10-12 persons in a cell with 10 beds, the food is unclean and there is almost no meat. Since his transfer, the applicant has had some health problems: scabies, articular rheumatism, renal and abdominal aches. The existing medical reports certify left renal microlithiasis, bladder lithiasis and right basal pachypleuritis. Moreover, the applicant allegedly has not received medical treatment for his needs. As for his request for a Koran, he eventually received one from the Bucharest Islamic League soon after his transfer to Rahova Prison.
B. Relevant domestic law
The relevant domestic law is described in Dumitru Popescu v. Romania (no. 1) (no. 49234/99, §§ 43-46, 26 April 2007).
The Government Emergency Ordinance no. 56 of 27 June 2003 (“Ordinance no. 56/2003”) regarding certain rights of convicted persons states, in Article 3, that convicted persons have the right to bring legal proceedings before the court of first instance concerning the implementing measures taken by the prison authorities in connection with their rights. Ordinance no. 56/2003 has been repealed and replaced by Law no. 275 of 20 July 2006, which has restated the content of Article 3 mentioned above in section 38, which provides that a judge shall have jurisdiction over complaints by convicted persons against the measures taken by the prison authorities.
The main provisions of the Code of Criminal Procedure referred to in the instant case are as follows:
Article 68
“1. It is forbidden to use violence, threats or other means of coercion, as well as inducements, in order to obtain evidence.
2. It is also forbidden to incite a person to commit or continue committing a criminal offence, with the purpose of obtaining evidence.”
The relevant provisions of Law no. 143 of 26 July 2000 are as follows:
Article 1
“In the present Act the terms and expressions below shall have the following meaning:
(...)
(k) Undercover agents: policemen specifically designated to carry out, with the prosecutor’s authorisation, investigations with a view to collecting data regarding the existence of the offence and the identification of the offender and precursory acts, under another identity than their real one, which shall be conferred for a given time only.”
Article 21
“1. The prosecutor may authorise the use of undercover agents to determine the facts, identify the offender and obtain evidence when there is good reason to believe that a criminal offence as defined in the present Act has been perpetrated or is about to be committed.”
Article 22
“1. The policemen from the special units who act as undercover agents, as well as persons acting with them, are allowed to procure drugs, base and compound chemical substances, with the prosecutor’s prior authorisation, with a view to discovering the criminal activities and identifying the persons involved in these kinds of activities.
2. The results of the actions of the policemen, and persons acting with them, who were referred to in paragraph 1, may constitute evidence.”
C. Other elements
On 2 April 2004, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) drew up a report following visits of September 2002–February 2003 to, inter alia, the General Inspectorate of Police. The conclusions reached were that “the conditions of detention were generally mediocre, associated in certain cases, in the CPT’s view, with inhuman or degrading treatment (the cells were crowded, the premises were battered and dirty, the windows were obstructed, poor ventilation and lack of beds)” (paragraph 140).
As far as Rahova Prison is concerned, the Romanian NGO Association for the Defence of Human Rights – the Helsinki Committee (Apador-CH) – prepared four reports regarding conditions of detention following visits to the Minors’ and Women’s Sections and to the Penitentiary Hospital of Rahova Prison in 2002, 2003 and 2005. Besides case-related conclusions, the reports stated that the prison was overcrowded and that meat was almost completely lacking from meals.
COMPLAINTS
THE LAW
ill-treatment by the authorities and of their refusal to give him the Koran and other books in Arabic, and to allow him to receive parcels, visits and correspondence while in the General Inspectorate of Police and in the prison hospital. He also complained about the conditions of detention and of the fact that he had become ill while in both the General Inspectorate of Police and Rahova Prison, and of the lack of medical treatment.
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 the part of the complaint regarding other books in Arabic, parcels, visits and correspondence should be regarded as a complaint under Article 8, whereas the refusal of the authorities to give the applicant the Koran should be regarded as a complaint under Article 9. It will return to these complaints below.
For the other complaints under Article 3 – ill-treatment by the authorities, the conditions of detention, becoming ill while in detention and the lack of medical treatment – 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.
The applicant has not given any reasons for doubting the competence of the Bucharest Regional Court, which convicted him at first instance on 21 February 2002, or the lawfulness of his detention following that date. The Court therefore considers that the complaint under Article 5 § 1 (a) is manifestly ill-founded. As for the complaint under Article 5 § 1 (c), related to the period of pre-trial detention which ended on 21 February 2002, the Court observes that it was submitted on 28 July 2003, which is outside the six month time-limit.
It follows that these complaints are either manifestly ill-founded or outside the six month time-limit, and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.
It follows that this part of the application is outside the six month time-limit and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.
The Court considers that the applicant cannot rely on a right to compensation unless a violation of Article 5 of the Convention has been established (see Florică v. Romania (dec.), no. 49781/99, 10 June 2003).
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.
The Court observes that the final decision of 15 May 2003 of the Supreme Court of Justice does mention that the judgment was publicly pronounced. Moreover, the applicant’s complaint regarding the courts’ independence and impartiality is unsubstantiated and there is no evidence in the file in relation to these allegations.
It follows that this complaint under Article 6 § 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of 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 it to the respondent Government.
As regards the applicant’s allegation that he had been handcuffed continually, especially during the public hearings before the judges, the Court considers that this part of the complaint should be re-qualified and analysed under Article 3 cited above. However, 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 it to the respondent Government.
As for the remainder of the complaints under Article 6 § 2 of the Convention, the Court notes that the applicant has not provided any evidence regarding these allegations. 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.
The Court notes that it is mentioned in the prosecutor’s indictment of 9 July 2001 that the case file had been shown to the applicant and to the two co-accused in the presence of defence counsel and translators, and that an official report had been prepared in this respect. Moreover, the applicant has had Romanian nationality since 1999, has completed university studies in Romania (he graduated from the Faculty of Medicine in 1990), has been in business in Romania and is married to a Romanian woman.
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.
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair (...) hearing (...) by an independent and impartial tribunal (...).
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;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(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 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 them to the respondent Government.
The Court notes that Article 6 § 3 (e) does not state that every accused person has the right to receive the free assistance of an interpreter at the oral hearing; it states that this right is accorded to him “if he cannot understand or speak the language used in court” (see Luedicke, Belkacem and Koç v Germany, judgment of 28 November 1978, Series A no. 29, p. 20, § 48). The Court has also held that, in the context of application of paragraph 3 (e), the issue of the defendant’s linguistic knowledge is vital (see Hermi v. Italy [GC], no. 18114/02, § 71, ECHR 2006 ...). Moreover, paragraph 3 (e) does not go so far as to require a written translation of all items of written evidence or official documents in the procedure, which suggests that oral linguistic assistance may satisfy the requirements of the Convention (see Husain v. Italy (dec.), no. 18913/03, 24 February 2005).
As
stated in respect of Article 6 § 3 (a) above, the applicant
cannot pretend that he does not have any knowledge of the Romanian
language. In a letter of 12 October 2005, the applicant informed the
Court that the two co-accused (of Turkish and of Syrian nationality
respectively) did not speak Romanian and that they needed
translators. Moreover, the police report regarding the flagrant
offence of 1st June 2001, which was signed by the
applicant, mentions that the applicant stated that he spoke and
understood Romanian very well. He also gave his first statement on
18 October 2001 before the Bucharest Regional Court in
Romanian. Further, taking the proceedings as a whole, the Court
observes that a record dated 18 October 2001 of the
Bucharest Regional Court related to the
first-instance
proceedings, as well as the appeal decision of 20 June 2002 of the
Bucharest Court of Appeal and the final decision of 15 May 2003 of
the Supreme Court of Justice, do mention the presence of an Arabic
interpreter. Having regard to the foregoing and to the fact that the
applicant did not mention the absence of an interpreter during
pre-trial investigations in his appeals as a reason to repeat the
investigations, it follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
Having regard to the lack of domestic remedies for the alleged interference in 1999 and in May 2001, the Court notes that this complaint is outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Regarding the authorities’ refusal to give the applicant books in Arabic and to allow him to receive parcels, visits and correspondence while in the General Inspectorate of Police and in the prison hospital, the Court notes that the complaint was raised on 28 July 2003 and refers to the period while the applicant was in the prison hospital, which ended on 4 August 2001, and to the period while in pre-trial detention in the General Inspectorate of Police, from where the applicant was taken to Rahova Prison on 20 September 2001 (at the latest). It follows that the complaint must be rejected as outside the six-month time-limit, pursuant to Article 35 §§ 1 and 4 of the Convention.
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The
Court notes that the part of the complaint concerning the Koran was
raised on 28 July 2003 and expressly refers to the period while in
pre-trial detention in the General Inspectorate of Police, from where
the applicant was taken to Rahova Prison on 20 September 2001 (at the
latest). It follows that the complaint regarding the Koran must be
rejected as outside the
six-month time-limit, pursuant to Article
35 §§ 1 and 4 of the Convention.
Regarding the prayer room, 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 it to the respondent Government.
The applicant has not given any evidence in support of his allegations. 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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Articles 3, 6 §§ 1 and 3 (b) to (d) and 9 of the Convention;
Declares the remainder of the application inadmissible.
Santiago
Quesada Boštjan M. Zupančič
Registrar President