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Cite as: [2011] ECHR 1041

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THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22018/10
by Costel CĂŞUNEANU
against Romania

The European Court of Human Rights (Third Section), sitting on 7 June 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 12 April 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Costel Căşuneanu, is a Romanian national who was born in 1959 and lives in Oituz, Bacău. He is represented before the Court by Mr Gheorghiţă Mateuţ, a lawyer practising in Arad.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

At the relevant time the applicant was a businessman and owner of company P.

1. Criminal investigation against the applicant

On 10 December 2009 the Anti-Corruption Department of the Prosecutor’s Office attached to the High Court of Cassation and Justice (“the prosecutor” and “the DNA”) started criminal proceedings against the applicant on suspicion of trading in influence (cumpărare de influenţă). In particular, the prosecutor alleged that: (i) the applicant had asked a senator, C.V., to talk to judges of the High Court in order to influence the outcome of a case pending before that court which concerned a dispute between company P. and a state agency; (ii) that C.V. had asked F.C., the then President of the Civil Section of the High Court, to convince the judges handling the case to decide it in favour of company P.; and (iii) that he had paid C.V. and F.C. money for their intervention.

On 21 December 2009 the applicant, with his lawyer, went to the Prosecutor’s Office. The prosecutor informed the applicant that on 10 December he had started criminal proceedings against the applicant (urmărirea penală) and ordered the latter not to leave town for thirty days.

Upon the applicant’s complaint, on 29 December 2009 the High Court of Cassation and Justice, sitting as a single-judge bench, revoked the measure restricting the applicant’s freedom of movement, on the grounds that the prosecutor had failed to hear the applicant before taking the measure, despite the absence of an explicit refusal on the part of the applicant to testify, and had failed to give specific reasons for the measure. The decision was upheld by a nine-judge bench of the High Court in a final decision of 6 January 2010.

On 8 April 2010 the applicant was summoned to appear at the Prosecutor’s Office. At 12.45 p.m. the prosecutor informed the applicant that he would be taken into custody for twenty-four hours and that the criminal trial against him had been set in motion (punerea în mişcare a acţiunii penale). The prosecutor considered that the applicant represented a danger to public order, given the nature of the crime allegedly committed, the way in which he had committed the crime and the societal impact of the crime. The prosecutor maintained that the applicant was trying to protract the investigation in bad faith. In particular, the prosecutor noted that the applicant had been invited to make a statement about the matter on several occasions, and had been granted extra time to prepare his defence on several occasions, but that at every rescheduled meeting with the prosecutor at which he was supposed to make a statement, he would refuse to talk unless his various complaints about the conduct of the proceedings would be examined. The prosecutor noted that none of those complaints was in any way relevant to the applicant making a statement about the matter.

On the same date, the prosecutor dismissed the applicant’s complaint against the arrest order, informed him of the outcome and gave reasons for the dismissal.

Following the arrest of the applicant and his co-accused, the prosecutor sought, on the same date, the High Court’s approval for their pre-trial detention for twenty-nine days. The prosecutor presented the facts of the case as they appeared from the evidence gathered, including transcripts of telephone conversations between the defendants that had been intercepted during a surveillance operation. Upon the defendants’ request, the High Court, sitting in private as a single-judge bench, postponed the hearing to the next day in order to allow defence counsel to prepare their case. The thrust of the applicant’s defence was that he had not been heard during the investigation and that the prosecutor had failed to give specific reasons for his application to the court.

On 9 April 2010 the High Court held a further hearing. The applicant and the co-accused gave statements to the court. During the hearing, at 12.45 p.m., the Court noted that the applicant’s detention had expired and released him. He nevertheless remained in the courtroom of his own free will.

The High Court noted that the applicant had availed himself of the right not to make a statement throughout the investigation. It noted that on 29 December it had already sanctioned the prosecutor’s failure to hear the applicant, despite the absence of an unequivocal refusal on his part to make a statement. The High Court noted that the applicant had persisted in his approach and had sought to argue the nullity of the prosecutor’s arrest order on the same grounds as he had previously raised. It nonetheless considered that the applicant was abusing his procedural rights. In particular, the Court noted that he had tried to force the prosecutor into taking certain actions during the investigation and had remained ambiguous as to the extent to which he would cooperate, although this had clearly been meant to achieve nothing more than protracting the investigation. In the light of these findings, the High Court reviewed the prosecutor’s acts and confirmed their legality.

The High Court conducted a lengthy analysis of the evidence presented by the prosecutor and considered that there were strong indications that the applicant and his co-accused had committed crimes. It considered, in that context, that the defendant’s pre-trial detention was the only appropriate preventive measure in the circumstances of the case. It therefore approved the prosecutor’s request and ordered that the applicant be placed in pre-trial detention for twenty-nine days starting from 10 April 2010.

The applicant appealed, again relying upon the fact that he had not been heard by the prosecutor before his pre-trial detention.

On 12 April the High Court, sitting as a nine-judge bench, held a hearing. It heard the accused persons and their lawyers. It upheld the first-instance court’s findings as to the applicant’s plea that he had not been heard by the prosecutor. It nevertheless considered that there was no specific danger to public order that would justify the deprivation of the applicant’s liberty, and, on this basis, it quashed the decision given on 10 April, annulled the detention order and released the applicant and his co-accused. It ordered them not to leave the country.

On 10 May 2010 the prosecutor extended by thirty days the prohibition on leaving the country imposed on the applicant, as he considered that the evidence in the file showed that the initial grounds for taking the measure were still present.

The applicant applied to have the measure overturned. He reiterated that he had not been heard by the prosecutor and argued in addition that the prosecutor had not given specific reasons for extending the prohibition.

On 17 May 2010 the High Court dismissed the application. The decision was issued and given to the applicant on 12 October 2010.

On 21 May the prosecutor committed the applicant and the other defendants to trial before the High Court of Cassation and Justice.

On 25 May 2010 the High Court, sitting as a three-judge bench, held a hearing in order to review the preventive measures applied to the accused persons. In so far as the applicant, F.C. and M.L. were concerned, it postponed the hearing to 27 May. The applicant complained and sought the withdrawal of some of the judges sitting in the case. On 27 May the High Court, sitting as a differently comprised bench, dismissed his complaints. The same day, the Court met again to examine the legality of the preventive measures. The applicant challenged the legality of the three-judge bench and the Court decided that it had to send the case to a different bench for the examination of the new complaint raised by the applicant.

On 28 May 2010 the High Court, sitting in a different composition, dismissed the applicant’s complaint and sent the case back to the original bench. The applicant complained again, raising an additional plea that the law concerning the composition of the bench was unconstitutional. This complaint was dismissed by the High Court on 1 June 2010 at 5.05 p.m. A new hearing was scheduled for 3 June.

The applicant appealed against the interlocutory judgment of 1 June, and on 7 June 2010 a nine-judge bench of the High Court dismissed the appeal by means of a final decision.

Meanwhile, on 26 May 2010, the applicant asked the High Court to note that the preventive measure taken against him had expired on 21 May 2010 when the prosecutor had committed the applicant and his co defendants for trial.

The High Court held a hearing on 3 June 2010. The applicant was heard by the court. He argued that the measure was not justified, as he had willingly attended every time he had been summoned by the investigators. He also mentioned that his business would require him to regain his freedom of movement. The court dismissed the applicant’s request and ordered the applicant, M.L. and F.C. not to leave the country starting from 11 June 2010. The court examined the evidence in the file and considered: that the measure was in conformity with domestic law and with the requirements of the Convention; that it was necessary, given the incipient stage of the proceedings against the defendants, in order to ensure the proper administration of justice; and that it was justified, given the suspicion that the defendants might try to interfere with the prosecution. It noted the gravity of the crimes under examination and the nature of the relationships between the defendants and the witnesses, considered that the measure was needed in order to prevent the applicants from attempting to influence the witnesses and prolong the trial and noted that at least one of the defendants had already tried to do so before the taking of the measure. Lastly, the court noted that the prohibition on leaving the country was not absolute, but subject to review by the authorities. The court therefore concluded that the prohibition on leaving the country was the most appropriate preventive measure in the circumstances of the case.

On 9 June 2010 a nine-judge bench of the High Court dismissed the applicant’s appeal by way of a final decision.

On 24 June the applicant asked the High Court to allow him to leave the country for a limited period of time. On 25 June the Court refused to grant his request.

On 9 February 2011 the applicant asked the High Court to examine the lawfulness of the prohibition on leaving the country. At the same time, the applicant lodged a constitutional appeal arguing that the extension of the measure had been automatic and done without proper judicial review.

On 16 February 2011, the High Court forwarded the constitutional appeal to the Constitutional Court and dismissed the applicant’s request concerning the revocation of the measure.

Considering that the High Court had erred in interpreting his appeal as a request for revocation, the applicant asked the High Court to correct the error in its decision. His request was dismissed on 4 March 2011.

On 4 March 2011 the applicant requested that the High Court revoke the preventive measure taken against him.

His request was allowed on the same date by the High Court, sitting as a three-judge bench.

However, by a final decision of 14 March 2011, a five-judge bench of the High Court allowed an appeal against the above decision brought by the prosecutor, quashed the previous ruling and dismissed the applicant’s request. The prohibition on leaving the country is thus still in force.

The case is currently under examination by the High Court of Cassation and Justice acting as a first-instance court.

2. The applicant’s public appearance during the prosecution

On 8 April 2010 the applicant was arrested at the DNA’s headquarters. Later that day, he was handcuffed to a co-accused and taken out of the building through the main door with a view to his transfer to a police detention facility.

The applicant and the co accused to whom he was being handcuffed had to get into a police van through the back door, despite it being clear that they were encountering difficulties climbing in. They had to drag each other into the van while journalists were pressing close to them seeking statements. They were accompanied by police officers of the special intervention forces, who were wearing masks. Newspaper and television crews were present and the events were given widespread media coverage. Footage of the applicant’s arrest was broadcast live and shown again on the main channels’ evening news programmes.

News reports about the prosecution, accompanied by images of the defendants wearing handcuffs, were given a lot of airtime. Numerous panel discussions were broadcast and journalists and politicians commented publicly on the events. Excerpts from conversations between the defendants which had been obtained through telephone tapping during a criminal surveillance operation made it into the newspapers. Other pieces of evidence from the prosecution file were likewise published and commented on in the press.

When he was brought from the police detention facility for court hearings, the applicant’s transport to and from the High Court, as well as inside the High Court building, was undertaken in the following manner: the applicant was handcuffed to a co accused, surrounded by masked police officers and exposed to journalists for photographing and filming. The footage obtained by the journalists was broadcast afterward.

3. The applicant’s pre-trial detention

The applicant was held in the police detention facility from 8 April 2010 until the evening of 12 April 2010, when he was released.

The applicant describes the conditions of his detention as follows: he was strip searched when he arrived at the police detention facility; and was searched every time he was taken out from, or back to, his cell.

Throughout his detention, he was held in cell no. 10P along with three other detainees. The cell measured 9 sq. m and had four bunk beds, a squat toilet and a sink. The pipes carrying water to the sink were broken, so there was water around the sink. On top of the toilet, there was an improvised shower made out of a plastic barrel with a hose connecting it to the sink. Privacy was ensured by an oilcloth screen. The cell had a window measuring 40x60 cm with iron bars over it. The cell looked onto the interior courtyard of the building. The window was the only source of fresh air, but the amount of air let through was insufficient to clear bad smells from the cell. The only furniture in the cell was a table made out of carton boxes. A fluorescent lamp above the bed was constantly switched on, which made it difficult to sleep in the cell.

The applicant and his fellow detainees were allowed twenty minutes of daily outdoor exercise, which took place in a small yard measuring 6x4 m, surrounded by a brick wall. The yard had a metal door and was covered with a wire net.

B. Relevant domestic law

The relevant provisions of domestic law concerning the use of handcuffs are described in Ali v. Romania, no. 20307/02, § 46, 9 November 2010. In particular, the use of handcuffs is expressly forbidden by the Criminal Justice and Sentencing Act (Law no. 275 of 20 July 2006), save for in exceptional circumstances (Article 37), and cannot be used as a sanction (Article 71).

The relevant provisions of Decree No. 31/1954 concerning remedies for persons claiming damage to their dignity or reputation are available in Rotaru v. Romania ([GC], no. 28341/95, § 29, ECHR 2000 V).

C. The findings of the European Committee for the Prevention of Torture (“the CPT”)

The CPT visited a number of police detention facilities in Romania in 2006. Its general observations were: that the living space available to detainees was about 2 sq. m per person, which fell short of its requirements of 4 sq. m.; that overcrowding remained a problem; that there was not enough natural light and fresh air; and that food was not satisfactory. Another visit was carried out in September 2010, but the report is not yet available.

COMPLAINTS

The applicant complained under Article 3 of the Convention of being made to wear handcuffs whilst being taken from official buildings and into court during his pre-trial detention. He considered that this treatment had been disproportionate in the circumstances of the case. He further alleged that the authorities had acted with a view to humiliating and debasing him.

Under the same Article, he complained of the conditions of his detention. In particular, he considered that the living space in his cell had been below the standards set by the European Committee for the Prevention of Torture, and that this, in his view, had constituted degrading treatment. Furthermore, he maintained that the lack of hygiene and privacy in the cell had amounted to inhuman treatment.

Under Article 5 § 2 of the Convention, he complained that the prosecutor had not provided him with reasons for his arrest and placement in pre-trial detention.

Citing Article 6 § 1 of the Convention, the applicant complained that the decision of 17 May 2010 had been delivered with significant delay attributable to the High Court, in violation of his right to a trial within a reasonable time.

The applicant further complained that the presumption of innocence guaranteed by Article 6 § 2 of the Convention had been breached when he had been taken to the public hearings in handcuffs.

Relying upon Article 8 of the Convention, the applicant complained that telephone conversations between him and his co-defendants which had been intercepted by the authorities had ended up being published in the press.

Lastly, he complained that his freedom of movement, guaranteed by Article 2 of Protocol No. 4 to the Convention, had been unjustifiably restricted for the following reasons: the measure had been taken and extended automatically without specific reasons being provided; the prosecutor had extended the measure taken by the court, although he had lacked the necessary independence and impartiality to assess the necessity of the measure; and the measure taken by the court after the criminal trial started had been an automatic prohibition on the freedom of movement, ordered for an indefinite period.

THE LAW

A. Complaints under Article 3 of the Convention

The applicant complained that he had been handcuffed and publicly exposed in a degrading manner, treatment which had not been made necessary by the criminal investigation, in violation of the requirements of Article 3 of the Convention. Under the same Article, he complained of the conditions of his detention.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaint under Article 8 of the Convention

The applicant complained of publication of excerpts from the prosecution file – in particular, telephone conversations that had been intercepted by the authorities during a surveillance operation. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

C. Complaints under Article 2 of Protocol No. 4 to the Convention and 6 § 1 of the Convention

The applicant complained that his freedom of movement guaranteed by Article 2 of Protocol No. 4 to the Convention had been unjustifiably restricted by the prohibition on him leaving the country, both as regards the measure itself and the procedure by which it had been taken. He also argued that the issuance of the High Court decision of 17 May 2010 had taken too long, in violation of his right to a trial within a reasonable time guaranteed by Article 6 § 1 of the Convention.

Article 2 of Protocol No. 4 reads as follows:

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

Article 6 § 1 of the Convention reads as follows, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court is master of the characterisation to be given in law to the facts, and can decide under what Article to examine complaints submitted to it by an applicant (see, mutatis mutandis, Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281 A; and Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 I).

It therefore shall examine these complaints solely under Article 2 of Protocol No. 4 to the Convention.

According to the Court’s case-law, it is not in itself questionable that a State may apply various preventive measures restricting the liberty of an accused person in order to ensure the efficient conduct of a criminal prosecution, in so far as such a measure, and in particular its duration, is proportionate to the aims sought (see, mutatis mutandis, Nagy v. Hungary (dec.), no. 6437/02, 6 July 2004; Fedorov and Fedorova v. Russia, no. 31008/02, § 41, 13 October 2005; and Petre v. Romania, no. 71649/01, § 47, 27 June 2006). To assess the proportionality of the measure it is essential, on the one hand, that the authorities give reasons for taking it and, on the other hand, that it be accompanied by appropriate procedural safeguards by which the authorities assess the continued justification for the measure and prevent arbitrariness.

In the case at hand the Court notes that in its decision of 12 April 2010 the High Court gave extensive reasons why the applicant should not be kept in detention, but offered no specific reasons why the prohibition on his leaving the country would be necessary for the prosecution of the case, but took it rather automatically. The High Court however offered extensive and convincing reasons for the measure under review in its decision of 3 June 2010. Furthermore, the Court notes that the applicant formulated several complaints about the measure, all of which were examined by the domestic courts, with the appropriate safeguards in place for the applicant.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D. Other complaints

1. Complaints under Article 5 §§ 1 (c) and 2 of the Convention

Citing Article 5 § 1 (c) of the Convention, the applicant complained that he had been arrested even though there had not been any reasonable suspicion that he had committed a crime and though the prosecutor had not given specific reasons for his arrest. He further alleged, under Article 5 § 2, that the prosecutor had not provided him with reasons for his arrest and placement in pre-trial detention. Article 5 reads as follows, in so far as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court refers to the general principles established in its case law concerning the requirements of lawfulness and lack of arbitrariness of any deprivation of liberty (see, among many other cases, Mooren v. Germany [GC], no. 11364/03, §§ 72-81, ECHR 2009 ...). It also reiterates that Article 5 § 2 contains the elementary safeguard that any person arrested should know why he or she is being deprived of his or her liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of Article 5 § 2 any person arrested must be told, in simple, non-technical language that can be easily understood, the essential legal and factual grounds for their arrest, so as to be able, if he or she sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4 (see, mutatis mutandis, Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 136, ECHR 2009 ... (extracts)).

In particular, the Court notes that the applicant successfully raised his complaint of a lack of reasonable suspicion for his arrest before the domestic courts. In addition, the applicant did not seek compensation for his detention under Articles 504 and 505 of the Code of Criminal Procedure, and failed to give reasons why this remedy would not have been effective in his case.

Concerning the complaint under Article 5 § 2, the Court notes that, despite the applicant’s claims to the contrary, it appears that the prosecutor duly informed him and his lawyer of all the procedural steps taken in the case. Even assuming that these communications did not take place, the applicant, who was arrested on 8 April 2010, complained to the domestic authorities about his pre-trial detention as follows: on the same date to the prosecutor and on the next day to the High Court. His complaints were dismissed in reasoned decisions which should have allowed him to understand the reasons for his arrest.

Therefore, the period of alleged lack of information about the reasons for his arrest was so short that it could not in any way have affected the applicant’s right to challenge the lawfulness of his arrest, which is the main purpose of the guarantee enshrined in Article 5 § 2 (see Kokavecz v. Hungary, dec., no. 27312/95, 20 April 1999, and Mikhail Borisovich Khodorkovskiy v. Russia (dec.), no. 5829/04 , 7 May 2009).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Complaint under Article 6 § 2 of the Convention

The applicant complained of an alleged infringement of the presumption of innocence in his favour because he had been made to wear handcuffs in public. He relied on Article 6 § 2 of the Convention, which reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court notes that the criminal case against the applicant is still pending before a court that has the power to examine such a complaint from the applicant.

It follows that this complaint is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning Articles 3 and 8 § 1 of the Convention;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall
Deputy Registrar President