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Cite as: [2008] ECHR 492
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THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
30358/03
by William Kurt TREPTOW
against Romania
The European Court of Human Rights (Third Section), sitting on 20 May 2008 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
judges,
and Stanley
Naismith, Deputy
Section Registrar,
Having regard to the above application lodged on 10 September 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr William Kurt Treptow, is an American national who was born in 1962 and lives in Iaşi, Romania. He also has Romanian nationality.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and detention
On 11 September 2002 the applicant was arrested by the prosecutor attached to the Iaşi County Court on charges of trafficking in human beings, sexual perversion and sexual corruption of minors. The same day, the headquarters of his Foundation for Culture and Romanian Studies were searched. Several items, including his personal computer’s hard disk and a videotape which were believed to contain pornographic material, were confiscated. On 12 September 2002 the prosecutor, acting on the applicant’s motion, released the applicant and placed him under an obligation not to leave town. The order was communicated to the penitentiary. The applicant claimed that he was never informed of the obligation not to leave town, but found out about it from the media. On 12 September 2002 the criminal file was transferred to the prosecutor attached to the Supreme Court of Justice.
On 17 October 2002 the applicant was again detained, for a period of thirty days, and placed in the Bucharest police detention facilities. He claimed that no new evidence against him had been collected meanwhile.
He also alleged that during the detention he was not allowed to have a pen and paper, a watch, the Bible in English, his mother tongue, or a rosary, or to make phone calls.
He further contended that on 22 October 2002 he had kidney pains and was only seen by a doctor three hours later. He was given an injection to ease the pain, and then left alone. He claimed that the pains had been caused by certain substances that had been put in his food, but his request to have a blood sample sent to the lab for tests had gone unanswered.
On an unspecified date, he was transferred to the Iaşi police detention centre, where he was allegedly detained in similar conditions to the ones in Bucharest, in a cell infested with mice and which had no running water and no toilet facilities. He was allowed access to the toilets three times a day, although his medical condition was known to the authorities. The applicant claimed that his inmates had smoked in the cell although he was a non smoker and that the smoke had affected his health.
On 30 October 2002 he was transferred to the Iaşi Penitentiary. He claimed that he was interrogated three times by an officer from the Ministry of Justice’s Intelligence Service, without his lawyer being present or informed.
On 8 November 2002 he was attacked by a group of inmates. He claimed that after the incident he was shut in an iron box in a truck for four hours with no heating, the temperature being below zero, and only afterwards was he seen by a doctor. On 19 December 2002 the applicant reported the incidents. On 22 November 2002 the inmates responsible for the beating were punished with ten days of strict isolation.
On 16 April 2003 the applicant was again attacked by his fellow inmates. On 24 April measures were taken against the perpetrators, namely ten days of strict isolation.
On 6 July 2003 the penitentiary authorities informed the applicant’s counsel, upon his request, of the disciplinary measures taken against the applicant’s attackers and also about the medical care that the applicant received in prison. The lawyer was informed that the applicant had never complained about lack of religious services but that he had seen a Catholic priest on 14 April 2003, and that such assistance was offered by default for Easter and Christmas and upon request at any other time.
On 21 December 2006 the Government provided the Court with factual information on the applicant’s conditions in detention, in particular his detailed prison medical report, which showed that the applicant was regularly seen by doctors and that he was treated for liver and cholesterol problems and a lumbar discopathy.
On 9 April 2006 the applicant informed the Court that on 28 March 2006 the prison guard had not allowed him outside exercise or the opportunity to send correspondence.
The applicant was released at the beginning of 2007.
2. Criminal proceedings against the applicant in the first instance court
On 24 October 2002 the prosecutor committed the applicant for trial before the Iaşi District Court for sexual perversion and sexual corruption of minors, offences prohibited under Articles 198 and 200-202 of the Romanian Criminal Code. The prosecutor asked that the hearings be declared secret, in application of Article 290 of the Code of Criminal Procedure.
The first hearing took place on 11 November 2002 under judge L.T.’s presidency. The applicant and L.B., his chosen counsel, were present. The court extended the applicant’s and the co-defendant’s detention and declared the court hearing secret, bearing in mind the moral values that had allegedly been infringed and the fact that some of the parties were under age. On an application from counsel for one of the victims, the court postponed the case to 25 November, in order to allow the parties time to prepare their case.
On 18 November 2002 judge L.T.’s motion to be withdrawn from the case was allowed by the Iaşi District Court, sitting in a different composition. She was replaced by judge I.G., who participated further in the proceedings. The applicant claimed that judge L.T., who was his counsel’s god-daughter, had been forced to step down and replaced by a judge who was favourable to the Government, although the family connection between L.T. and the applicant’s counsel was not of a nature that would make her partial.
The next hearing took place on 25 November 2002. The court allowed L.B.’s motion and heard testimony from the applicant and from the co defendant separately in order to clarify the contradictions between the respective statements they had made during the investigations and to prevent their influencing each other. The court read the two statements in the presence of both defendants and then asked them supplementary questions. The applicant’s counsel were present throughout the hearing. The victims and some witnesses also testified. L.B. lodged in the file documents on the applicant’s moral and social profile.
The next hearing was scheduled for 9 December 2002. Other witnesses gave testimony, in the presence of the applicant and his counsel. The court considered, upon the prosecutor’s proposal, agreed to by the parties, that it was no longer necessary to view the videotape confiscated from the Foundation headquarters. The parties and their lawyers addressed the court on the merits of the accusations. The applicant’s counsel reiterated that his client had been honest and cooperative throughout the proceedings and that every time they had met during the applicant’s detention the latter had showed remorse and asked for another chance and for the possibility to continue and finalise his ongoing scientific projects. The counsel made a brief presentation of the applicant’s scientific work on Romanian history and stressed the difficulties he faced in adapting to a different country and culture than his own. He asked the court not to allow the wide media coverage of the case to influence the outcome. The applicant addressed the court last. He reiterated his counsel’s statements.
In a decision of 11 December 2002 the District Court found the applicant guilty of various acts of sexual perversion and sexual corruption of minors and sentenced him to seven years in prison, from which it deducted the time he had spent in pre-trial detention. It ordered the applicant and the co defendant to pay together 25,000 American dollars (USD) to the first victim and USD 10 000 to the second victim in respect of non pecuniary damage, plus court fees.
The District Court examined in detail the elements of the file and all the arguments presented by the defence. It considered that the charges were confirmed by the evidence, namely the report of the search of the Foundation premises, the images copied from the applicant’s personal computer, the video tapes, the expert report on the authenticity of the above material, the expert report on the victims’ medical examinations and the statements made during the prosecution phase and before the court by the witnesses, the victims, the applicant and the co-defendant.
In establishing the sentence, the court took into account the fact that, while the defendants admitted to having committed the acts, they had a dishonest attitude concerning their respective responsibility. It also considered that the applicant’s behaviour and not his scientific profile was under review and therefore rejected as irrelevant the applicant’s claims that his professional achievements should constitute mitigating circumstances in his favour.
The parties appealed against this judgment. The applicant criticised the characterisation given by the court to the acts committed, the sentence and the amount of damages awarded to the victims. The Iaşi County Court examined the case on 17 February 2003 and gave its decision on 24 February 2003, upholding the first-instance judgment. It analysed all the arguments relied on and stated its reasons for rejecting each one of them.
The applicant appealed in cassation against the County Court’s decision, relying on the same arguments as in his appeal. In an amply reasoned final decision of 28 March 2003, after hearing the parties’ counsels and the defendants in person, the Iaşi Court of Appeal upheld the previous decisions. In his last address to the court, besides reiterating the reasons for the appeal presented by his counsel, the applicant claimed that he felt persecuted due to his American nationality.
3. Publicity surrounding the case
On 13 December 2002 D.H., V.C.’s partner (one of the victims’ mother) received the Iaşi District Court’s permission to study the criminal file. He presented himself as V.C.’s representative.
On 16 and 17 December D.H. was authorised by the president of the District Court to copy 194 pages from the file in order to prepare the appeal. Some of the documents photocopied were photographs of the applicant in sexually explicit postures with various partners. They were published by newspapers and presented on television channels accompanied by explanations, including the age of some of the minors that appeared in them. The partners’ eyes and the sexually explicit parts of the pictures were blacked out.
On 8 January 2003 the applicant’s counsel lodged with the prosecutor attached to the Iaşi County Court a criminal complaint against V.C. and D.H., considering that, by commercialising the material copied from his criminal file with the purpose of gaining financial benefits, they had committed the crime of child pornography. He contended that the publication of that material made the applicant’s right to defence illusory, as it transferred his trial from the court room to the media. The prosecutor attached to the Iaşi Court of Appeal decided not to press charges, on the grounds that D.H.’s intention was to encourage other possible victims to testify and that he had not sought or gained any financial benefit from this publication.
The applicant sent to the Court numerous articles that appeared in the press during the proceedings. His picture, wearing civilian clothes, sometimes a suit and tie, accompanied most of those publications.
B. Relevant domestic law
Article 290 § 2 of the Code of Criminal Procedure states as follows:
“Upon the prosecutor’s or a party’s request, or of its own motion, the court may declare the hearing of a case secret … if a public trial might adversely affect state interests, morals, dignity or a person’s private life.”
COMPLAINTS
He was further dissatisfied with the fact that it had taken the authorities ten days to start an official investigation into the incident of 8 November 2002, and that only the inmates who had beaten him up on that occasion had been punished and not the prisons guards who, in his view, had facilitated the incident. In contrast, he considered that the authorities had been very prompt in examining and punishing the inmates responsible for the April 2003 attack.
He also complained that for three months he had had to share a two-bed cell with seven other persons and for six months he had been kept in a cell where smoking was allowed although he was not a smoker himself and the smoke was damaging to his health.
Lastly, he claimed that he had been brought to the court hearings in a prison uniform, although the law prohibited this, and that no measures had been taken when his lawyer had complained about it.
He also considered that his detention after the end of the first appeal proceedings had been illegal in so far as the appeal court had not dealt with the extension of his detention, which, in his view, should have automatically led to his release.
Furthermore, in his view the court hearings had been too close together, which had not allowed the judges enough time to prepare the case.
He considered that his right to defence had been infringed in that he had not been allowed to take notes or to contact his counsel during the court hearing and he had been interrupted during his last address to the first instance court.
He contented that the sentence imposed on him had not taken into account the mitigating circumstances of the case, namely his repentant attitude during the investigations and his scientific and professional achievements.
Lastly, he considered that the fact that he could not contest the outcome of the proceedings before the Supreme Court infringed his right to a fair hearing.
THE LAW
A. Article 3 of the Convention
The applicant complained about various matters concerning his detention which, in his view, amounted to a violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Conditions in pre-trial detention
The Court notes that the applicant was held in the Bucharest and Iaşi Police Detention facilities from 11 to 12 September 2002, when he was released, and from 17 to 30 October 2002 when he was transferred to the Iaşi Penitentiary.
The Court reiterates that the object of the six-month time-limit under Article 35 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1534, at p. 1547, §§ 32-33).
The Court notes that this application was only lodged with the Court on 10 September 2003, more than six months after the end of the pre trial detention.
Therefore this part of the complaint is out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. Effective investigation into the 8 November 2002 incidents
The Court notes that the attacks complained of took place on 8 November 2002 and the investigation ended on 22 November 2002, while the application was only lodged on 10 September 2003. Bearing in mind the six-month rule, the Court considers that this part of the complaint must likewise be declared inadmissible as out of time, in accordance with Article 35 §§ 1 and 4 of the Convention.
3. Alleged obligation to wear prison clothes
The applicant claimed that he had been taken to the court hearings wearing prison clothes.
The Court notes that the applicant failed to provide any factual information that would support his allegations and nothing in the file indicates that he was forced to wear prison clothes.
There is no record of the applicant or of his lawyer having protested against the wearing of a prison uniform. Leaving aside the issue of whether or not this would be an effective remedy, the Court considers that such complaint could have offered a prima facie substantiation of the allegations made. The Court notes that the applicant and his lawyer did complain about other aspects of the proceedings (preventive measures taken against the applicant, the beatings in detention) and produced evidence of their actions. Therefore, it could be expected that, if they complained about the wearing of the prison uniform, they would be able to forward to the Court proof of their motions.
Lastly, the Court cannot but observe that in the press cuttings which the applicant sent from the period during the trial, as well as in those in the Court’s possession relating to the applicant’s release, he appears in civilian clothes.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. Other aspects of the complaint
The Court notes that the applicant complained about two episodes of overcrowding and bad sanitary conditions during his detention, one lasting three months and the other six months.
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.
B. Article 5 of the Convention
The applicant complained under Article 5 § 3 about his arrest and pre trial detention as well as about the fact that he had not been informed of the obligation not to leave town.
He also considered that his detention after the end of the first appeal proceedings was illegal in so far as the appeal court did not deal with the extension of his detention, which, in his view, should have automatically led to his release from custody.
The relevant parts of Article 5 read as follows:
“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:
(a) the lawful detention of a person after conviction by a competent court;
…
(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;
…
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Court notes that the applicant was first released from custody on 12 September 2002, while the present application was lodged with the Court on 10 September 2003, that is, more than six months after the situation complained of had ended. It further notes that the second arrest was confirmed by a judge on 11 November 2002, also more than six months before the date of the lodging of this application (see Mujea v. Romania (dec.), no. 44696/98, 10 September 2002).
The Court also considers that the six-month period for the complaint concerning the obligation not to leave town started running at the latest on 17 October 2002, the date when this obligation ended, as the applicant was again remanded in custody.
It follows that these parts of the complaint were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As far as the detention during the appeal proceedings is concerned, the Court has already decided that for the purpose of Article 5 the control of lawfulness of the applicant’s detention is incorporated in the first-instance judgment (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, p. 26, § 18; Negoescu v. Romania (dec.), no. 55450/00, 17 March 2005; and Bujac v. Romania (dec.), no. 37217/03, 4 October 2007).
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Article 6 § 1 of the Convention
The applicant complained of a violation of Article 6 § 1 of the Convention (right to a fair trial) on account of several aspects of the criminal proceedings against him. The relevant part of Article 6 § 1 reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an independent and impartial tribunal...”
The Court notes from the outset that the first-instance court held three hearings in the case, at regular two-week intervals, and allowed itself two extra days for the pronouncement of the judgment. It heard testimonies from the defendants, the victims and witnesses and examined the material evidence adduced in the case. Its decision was amply reasoned, based on all the evidence available. The two appeals concerned the interpretation of facts and the qualification given by the first-instance court to the acts committed. The parties did not produce new evidence. The applicant was present at all hearings and freely addressed the courts. No evidence of him being interrupted by the court during his address was adduced. His chosen counsel assured his active and efficient representation throughout the proceedings.
In these circumstances, the Court does not consider that the periods between the hearings were too short and it finds that the judges were in no way prevented from studying the material in the file. The decisions rendered confirm the thoroughness of their examination.
The Court also reiterates that Article 6 § 1 does not guarantee a right of appeal as such. Even Article 2 of Protocol No. 7, which guarantees the right of appeal in criminal proceedings, does not prescribe an obligation for each case to be heard in the last resort by the Supreme Court. In the case under review, three distinct courts, corresponding to three different levels of jurisdiction, heard the case. No issue thus arises concerning the fact that the applicant could not bring his case all the way to the Supreme Court.
The applicant did not complain before the national courts about his alleged interrogation while in detention without his counsel being present. In any case, the courts heard evidence from the applicant in person and based their decision on the corroboration of several elements of proof, no particular weight being attached to the applicant’s statements during the investigation. Moreover, the first instance court allowed the defence counsel’s motion and heard testimony from the applicant and from the co defendant separately in order to remedy the alleged discrepancies.
Furthermore, the applicant did not inform the courts about the alleged impossibility of communicating with his counsel during the proceedings. The Court notes that the lawyer himself mentioned several meetings with the applicant while the latter had been in detention and had not complained of any hindrance. The Court considers that the applicant’s defence was effectively ensured by L.B., who demonstrated a thorough knowledge of the case-file, of the applicant’s personality and professional achievements and of his rights.
The Court notes that the applicant did not complain during the court proceedings about the search of his Foundation’s headquarters on 11 September 2002. Even assuming that he exhausted the domestic remedies available and that he complied with the six month rule, the Court notes that the consequences that this search had for the proceedings were negligible. The first-instance court did not view the videotape confiscated and did not base its conclusions solely on the materials seized at the Foundation. In any event, the applicant did not deny the charges which those materials were used to substantiate.
As for the allegations that the courts did not take into account the applicant’s professional achievements in determining the sentence, the Court notes that the first-instance court examined and gave an answer to this argument raised by the applicant and his counsel. Moreover, the courts allowed the counsel to present testimony on the applicant’s personality and achievements and took into account, when establishing the sentence, the applicant’s attitude during the proceedings.
Lastly, the Court notes that judge L.T. asked to be replaced herself, and her motion was allowed by the court. Should the applicant’s complaint be understood as referring to the alleged lack of independence of the judge that replaced her, the Court reiterates that the applicant did not challenge the latter for bias. In any event, the Court does not find anything in the file that could substantiate a lack of impartiality or independence of the judge who tried the case.
For all these reasons, the Court considers that the internal proceedings offered all the guarantees of fairness required by Article 6 § 1.
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. Articles 6 § 2 and 8 of the Convention
The applicant complained, under Articles 6 § 2, 8, 9 and 10 that the presumption of his innocence had not been observed by the authorities throughout his trial. In particular, he complained that D.H. had been allowed to copy important parts of the criminal file, which ended up in the media, and that the authorities had decided not to press charges although the criminal proceedings in the applicant’s case had been declared secret. He considered lastly that the authorities’ lack of reaction had proved that he had had no effective remedy at his disposal to obtain redress for the alleged violations, in contradiction with the requirements of Article 13 of the Convention.
The Court considers that this complaint should be examined under Articles 6 § 2 (presumption of innocence) and 8 (right to respect for private life) of the Convention.
However, it 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.
E. Article 8 of the Convention in so far as the secrecy of correspondence is concerned
The applicant complained of a violation of Article 8 of the Convention during his stay in the Iaşi Penitentiary in so far as the prison authorities had limited his time for phone calls, written down all the numbers he dialled and opened his incoming mail.
Article 8 reads in its relevant part:
“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 notes that the applicant could not produce any evidence to substantiate his allegations of infringement of his right to correspondence by the prison authorities. His general remarks that the prison authorities were monitoring his phone conversations and opening his incoming mail are not in themselves sufficient to raise a prima facie issue under Article 8 (see, a contrario, Cotleţ v. Romania, no. 38565/97, § 44, 3 June 2003).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
F. Complaint under Article 14 taken in conjunction with Article 6 § 1
Lastly, the applicant considered that the flaws in the criminal proceedings, in particular the way the courts had assessed the evidence and decided on the sentence, had been caused by the fact that he was an American national, in violation of Article 14 taken in conjunction with Article 6 § 1 of the Convention.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court reiterates that the proceedings in the applicant’s case were fair and that his right to defence was observed by the authorities and effectively ensured by his chosen counsel. It does not discern any discrimination in the way the courts assessed the evidence and treated the applicant’s case.
Therefore, the Court considers that the evidence before it does not disclose any appearance of a violation of the applicant’s rights under Articles 14 and 6 combined.
It follows that this complaint 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 concerning the overcrowding and bad sanitary conditions in detention and the alleged infringement of the presumption of his innocence and of the right to respect for his private life in connection with the publication by the press of materials copied from the criminal file;
Declares the remainder of the application inadmissible.
Stanley Naismith Josep Casadevall
Deputy Registrar President