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Cite as: [2012] ECHR 194

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THIRD SECTION

DECISION

Application no. 27804/10
by Bogdan Ioan BULEA
against Romania

The European Court of Human Rights (Third Section), sitting on 17 January 2012 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 17 May 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bogdan Ioan Bulea, is a Romanian national who was born in 1973 and is currently incarcerated in Bacau Prison. He is represented before the Court by Ms D. E. Dragomir, a lawyer practising in Bucharest.

A. The circumstances of the case

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

1. The criminal investigation and the preventive measures taken against the applicant

On 30 January 2003 the applicant was arrested and was charged with fraud, use of forged documents and associating with several people with the goal of committing economic crimes. The arrest warrant issued on 30 January 2003 was signed by the case prosecutor and authorised by the signature and stamp of A. V., the general prosecutor of the Prosecutor’s Office attached to the Bacau Court of Appeal.

On 24 February 2003 the investigation concluded with the applicant’s indictment for fraud, use of forged documents and associating with several people with the goal of committing economic crimes. The applicant was accused of unlawfully requesting and receiving the reimbursement of V.A.T. from the State budget through his commercial companies and with the complicity of other companies.

According to the indictment, the investigation was commenced following a complaint filed with the police by the Bacau County Public Finance Office (Direcţia Generală a Finanţelor Publice Bacău). Subsequently the Financial Inspectorate (Garda Financiară) was notified and conducted several inspections at the premises of a number of commercial companies, including the applicant’s companies. Its findings were collected in several reports submitted to the investigative authorities.

The conclusions of the investigation were based on the following evidence listed in the indictment: the accounting records and complaints filed by the Bacau Tax Office (Administraţia Financiară); the complaints filed and reports of the inspections conducted by the Financial Inspectorate; the accounting records and various other documents belonging to the companies investigated, such as purchasing contracts, invoices and payment orders; twenty-one witness statements; minutes of confrontations conducted between the persons charged and the witnesses; expert reports; and bank statements.

On 28 August 2003 the applicant’s pre-trial detention was replaced with the preventive measure of a prohibition on leaving the country.

On numerous occasions during his trial the applicant sought the annulment of this measure before the domestic courts, complaining that the unreasonably long travel ban prevented him from conducting his commercial activities and earning a living for his family. He also argued that there were no reasons to suspect that he would abscond before trial. The applicant’s requests were consistently rejected with the same reasoning, which was based on the severity of the crimes charged and the need to ensure the smooth conduct of the criminal trial.

2. The criminal trial against the applicant

On 20 April 2004 the Bacau County Court convicted the applicant of aggravated fraud, use of forged documents and associating with several people with the goal of committing crimes and sentenced him to twelve years’ imprisonment. The applicant was also obliged to return to the State budget the sum of 3,740,901,433 ROL received illegally.

The applicant filed an appeal, complaining that the first-instance court had not analysed all the evidence, had not responded to all the submissions made in his defence, had failed to hear all twenty-one witnesses listed in the indictment and had rejected his request for the hearing of three additional witnesses without giving thorough reasoning. In addition, the applicant complained that he had not been informed of some of the evidence against him during the criminal investigation.

On 22 March 2005 the appeal was partially allowed and the Galati Court of Appeal decided to send back the case for a retrial on the merits in order for the first-instance court to analyse all the evidence and hear all the proposed witnesses.

During the retrial on the merits of the case, the applicant reiterated his complaints submitted before the appeal court, mainly requesting the hearing of all witnesses listed in the indictment and of several new witnesses. The County Court rejected these requests with respect to some of the witnesses, providing detailed reasoning.

On 30 March 2007 a new judgment on the merits was issued by the Galati County Court, which found the applicant guilty of aggravated fraud, use of forged documents and associating with several people with the goal of committing crimes and sentenced him to eleven years’ imprisonment. The applicant was also obliged to return to the State budget the sum of 3,740,901,433 ROL received illegally.

The applicant filed an appeal, complaining that several witnesses had been heard before the court during sessions at which his attorney was not present. The applicant further complained that the first-instance court’s judgment had mainly been based on the reports of the inspections conducted by the Financial Inspectorate which, in his opinion, had not fulfilled the formal requirements provided by law. He also restated his complaints concerning the unfounded rejection of his requests that more witnesses be heard by the court.

By a judgment of 18 December 2008 the Galati Court of Appeal dismissed the applicant’s complaints concerning the witnesses with the reasoning that the applicant’s attorney had not been present at several sessions without ensuring his substitution and that, upon his return, he could have requested the rehearing of the respective witnesses. The Court of Appeal held that the decision to reject the applicant’s request to hear additional witnesses had been legal and thoroughly reasoned by the lower court. The court further analysed the Financial Inspectorate’s reports and held that they constituted valid evidence which could be corroborated by the rest of the evidence produced in the case.

With respect to the merits of the case, the court of appeal decided to change the legal qualification of the crime of aggravated fraud to unlawfully obtaining a V.A.T. reimbursement and sentenced the applicant to five years’ imprisonment. The sum received illegally from the State budget was recalculated and the applicant was obliged to return 2,962,100,866 ROL. The court further considered the applicant’s sentence pardoned in accordance with the law in force.

Both the applicant and the prosecutor filed appeals on points of law (recurs) against the judgment of 18 December 2008. The applicant reiterated the complaints raised on appeal.

Eight hearings took place before the High Court of Justice and Cassation. In one hearing on 27 November 2009, in addition to the presiding judge (who participated in all hearings), the panel of three judges included A. V., the former general prosecutor of the Prosecutor’s Office attached to the Bacau Court of Appeal. At this hearing a postponement of the case was decided due to a procedural error in the summons.

By a final judgment of 18 March 2010 the High Court of Justice and Cassation allowed the prosecutor’s appeal and convicted the applicant of aggravated fraud and associating with several people with the goal of committing crimes and sentenced him to ten years’ imprisonment. The obligation to reimburse the sum illegally received from the State budget, as set forth by the 18 December 2008 judgment of the appeal court, was upheld.

3. The conditions of the applicant’s detention in Bacau Prison

On 8 April 2010 the applicant started serving his sentence in Bacau Prison.

In his application form of 17 May 2010 the applicant complained that the atmosphere in the prison cell was terrifying and amounted to psychological pressure.

In his letter of 9 July 2010 the applicant complained that his prison cell was overcrowded, measuring 24 sq. m and having twenty-seven beds arranged in three-level bunks separated by a space of one metre. The applicant also complained that the cell only has one window of 1 sq. m and has no ventilation. In addition, he complained that he is being held in the same cell as very dangerous criminals.

4. The detention regime assigned to the applicant

As provided by law, the applicant was incarcerated in a “closed” detention regime based on the length of his sentence.

On 28 April 2010 the applicant asked the prison administration to change his detention regime from “closed” to “semi open”. The applicant alleged that the closed detention regime violated his right to private life, in that he was only allowed to receive visits through a glass window and he could not see his children. He maintained that the law allowed a change of detention regime and that his personal circumstances, namely the fact that he had not committed a dangerous crime and that he was not a repeat offender, qualified him for reassignment to a less severe regime.

By a final judgment of 22 June 2010 the Bacau County Court rejected the applicant’s request with the reasoning that the legal requirements for imposing a less severe detention regime were not met in the applicant’s case. The court noted that the severity of the crime, the lengthy sentence received and the fact that the applicant had just started serving his sentence justified the maintenance of the “closed” detention regime.

B. Relevant domestic law and practice

1. Relevant domestic law concerning freedom of movement and the prohibition on leaving the country

Article 25 of the 2003 Constitution provides that:

“The right to freedom of movement is guaranteed within the country and abroad. The enforcement of this right is regulated by law.”

Article 136 of the Criminal Procedure Code provides the following:

“(1) In cases concerning offences punishable with imprisonment, in order to ensure the good conduct of the criminal trial or to prevent the suspect or the defendant from absconding during the criminal investigation, trial or during the execution of the sentence, one of the following preventive measures may be imposed on the person:

(8) The measure to be taken shall be chosen having account of its purpose, the severity of the crime, the health, age, previous convictions [of] and any other circumstances concerning the person against whom the measure is imposed.”

Article 139 of the Criminal Procedure Code provides that:

“(2) When there are no reasons to justify the maintenance of the preventive measure, it must be revoked automatically or upon request.”

2. Relevant domestic and international law and practice concerning the conditions of detention

The general domestic legal provisions concerning the execution of sentences are partially described in the judgments of Gagiu v. Romania, no. 63258/00, §§ 41-42, 24 February 2009, and Măciucă v. Romania, no. 25763/03, § 14, 26 May 2009.

The national practice concerning domestic remedies with respect to complaints of overcrowding in Romanian prisons is described in the judgment of Porumb v. Romania, no. 19832/04, §§ 41-43, 7 December 2010.

According to the order on the required minimum conditions of detention issued by the Minister of Justice (Order no. 433/C of 5 February 2010, published in Official Journal no. 105 on 15 February 2010), prison cells must provide a minimum space of 4 sq. m per detainee for detainees who are confined to their cells (including those in the “closed” detention regime).

Excerpts from the relevant parts of the general recommendations of the European Committee for the Prevention of Torture (CPT), as well as its reports concerning detention conditions in Romanian prisons, can be consulted in Bragadireanu v. Romania (no. 22088/04, §§ 73-75, 6 December 2007).

In addition, in its most recent report concerning its 2006 visit to Romania, the CPT described the conditions in Bacau Prison as follows:

“Overcrowding remains a central problem in this prison whose incarcerated population amounted to 1,036 persons at the time of the visit as opposed to an official capacity of 456 places. ...

The living space in practically all cells fell at a minimum of under 0.6 sq m per detainee, the maximum being 1.5 sq m; the beds (superposed on three levels) and the mattresses were barely enough and the ones existent were in a severely bad condition.”

COMPLAINTS

The applicant complained under Article 5 §§ 1 (c), 2 and 3 of the Convention of the unlawfulness and length of his pre-trial detention and of the fact that he had not been informed of the reasons for his arrest.

The applicant complained under Article 6 § 1 of the Convention that he had not had the benefit of an impartial tribunal, as the chief prosecutor who had countersigned his arrest warrant had taken part as a judge in the trial before the High Court of Justice and Cassation. The applicant further complained that that he had not been informed of some of the evidence against him.

Relying in substance on Article 6 § 3 of the Convention, the applicant complained that he had not had adequate time and facilities to prepare his defence and that some of the evidence and witnesses proposed by him had been rejected by the courts, while some of the witnesses had been heard by the trial court in the absence of his attorney.

The applicant further complained under Article 8 of the Convention of inhuman and degrading detention conditions, both during his pre-trial arrest and during his ongoing detention in Bacau Prison following his final conviction. In addition, the applicant complained that the restrictions imposed on his visitation rights due to his assignment to the “closed” detention regime breach his right to private and family life under the same Article.

Citing Article 1 of Protocol No. 1 to the Convention, the applicant contested the sum of money he had been obliged to reimburse to the State budget.

Finally, the applicant complained under Article 2 of Protocol No. 4 to the Convention that the prohibition on leaving Romania imposed on him by the authorities had been unreasonably long in duration and disproportionate.

THE LAW

A. Complaints under Article 3 of the Convention

The applicant complained of inhuman and degrading detention conditions, both during his pre-trial arrest and during his ongoing detention in Bacau Prison, citing Article 8 of the Convention. In this respect, it must be noted that the Court is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by an applicant (see Guerra and Others v. Italy, no. 14967/89, § 44, 19 February 1998). Therefore, the above-mentioned complaint will be further analysed under Article 3, which reads as follows:

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

Concerning the complaint of inhuman detention conditions during the pre-trial arrest, the Court notes that the applicant’s pre-trial detention was ended by the domestic courts on 28 August 2003, seven years before the submission of the current application before the Court.

It follows that this part of the application is inadmissible for
non-compliance with the six-month rule and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

With respect to the complaint of inhuman conditions of the applicant’s ongoing detention in Bacau Prison, 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. Complaint under Article 2 of Protocol No. 4 to 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 excessive length and lack of proportionality of the prohibition on leaving the country imposed on him.

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 public order, 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.”

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

C. Other complaints

1. Complaints under Article 5 §§ 1 (c), 2 and 3 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. He further alleged that the prosecutor had not provided him with reasons for his arrest and that the length of his pre-trial detention had been excessive. Article 5 reads, in its relevant parts, 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:

...

(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 notes that the applicant had the opportunity to raise these complaints before the domestic courts within the proceedings challenging his pre-trial detention but that he failed to do so. Moreover, the applicant’s pre-trial detention was ended by the domestic courts on 28 August 2003, seven years before the submission of the current application before the Court.

It follows that this part of the application is inadmissible for non compliance with the six-month rule and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Complaints under Article 6 of the Convention

The applicant complained of the lack of impartiality and independence of the domestic courts and of the unfairness of the criminal trial against him. The applicant further complained that he had not been informed of some of the evidence against him. He also complained that he had not had adequate time and facilities to prepare his defence and that some of the evidence and witnesses proposed by him had been rejected by the courts, while some of the witnesses had been heard by the trial court in the absence of his attorney. The relevant parts of Article 6 read as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

...

“3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(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;

...”

As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those two provisions taken together (see, among many other authorities, Windisch v. Austria, 27 September 1990, § 23, Series A no. 186, and Lüdi v. Switzerland, 15 June 1992, § 43, Series A no. 238).

The Court reiterates that it is not its task to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The assessment of evidence is primarily a matter for the national courts, which enjoy a wide margin of appreciation in this respect. The Court’s role under Article 6 § 1 is not to assess the facts which led the domestic courts to adopt one decision rather than another and Article 6 § 1 does not guarantee that the “right result” will be reached by the domestic courts (see Klasen v. Germany, no. 75204/01, § 43, 5 October 2006).

The Court notes that the applicant had full opportunities to present his case before the courts and to bring the evidence he deemed necessary. The domestic courts addressed all the relevant submissions made by him and the reasons upon which they based their decisions are sufficient to rule out the assumption that their evaluation of the case was arbitrary. Moreover, the Court finds that any limitations which might have been imposed on the rights of defence were not such as to deprive the applicant of a fair trial.

As concerns the complaint about the lack of impartiality of the domestic courts, the Court notes that judge A.V. participated only in one hearing of the eight which took place before the High Court, a hearing during which it was decided to postpone the case; hence he was not involved in the adoption of the decision on the merits. Therefore, the Court finds that this fact alone did not infringe the impartiality of the domestic courts.

Accordingly, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that nothing in the file discloses any appearance of arbitrariness or any infringement of the guarantees set forth by Article 6 of the Convention. Therefore, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Complaints under Articles 8 of the Convention and 1 of Protocol No. 1 to the Convention

The applicant complained that the restrictions imposed on his visitation rights due to his assignment to the “closed” detention regime breach his right to private and family life. He also contested the sum of money he had been obliged to reimburse to the State budget.

The Court notes that the applicant raised the complaint concerning the “closed” detention regime before the prison authorities and further before the domestic courts, which examined it in the course of adversarial proceedings and decided that it was not well-founded. The Court sees no reason to depart from the findings of the domestic courts in the present case. Moreover, the Court considers that nothing in the file discloses any appearance of arbitrariness or any infringement of the guarantees set forth by Article 1 of Protocol No. 1 to the Convention.

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 Article 3 of the Convention (conditions of detention in Bacau Prison) and Article 2 of Protocol No. 4 to the Convention;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall
Deputy Registrar President