CASE OF ALI v. ROMANIA
Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
4. The applicant was born in 1962 and lives in Bucharest. He has had Romanian nationality since 1999, has been in business and is married to a Romanian national. 5. On 29 May 2001 the police division responsible for combating organised crime and drug trafficking (“the drug traffic division”), of their own motion, began an investigation into allegations of drug trafficking offences being committed by three persons – the applicant, together with K.M. and D.H. – with the intention of selling 1.5 kg of heroin for 10,000 United States dollars (USD). The same day, the Prosecutor's Office attached to the Supreme Court of Justice authorised the use of two undercover police agents with a view to determining the facts of the case, identifying the offenders and obtaining evidence. It also authorised them, together with one collaborator, to procure 2 kg of heroin. The Prosecutor's Office justified the issuing of the authorisation on the ground that it had good reason to believe that a drug trafficking offence was about to be committed. 6. On the same day, 29 May 2001, the applicant and D.H. met the undercover agents. According to the indictment issued in the case, D.H. asked for USD 10,000 for 1 kg of heroin. On 31 May 2001, the undercover agents met the three persons again, to discuss the details of the transaction. 7. On 1 June 2001, the undercover police agents met the suspects again in the applicant's apartment, where K.M. came with a bag. The agents reported later that they had been offered 1 kg of heroin for USD 10,000. When they left the building together, police surrounded them and took away the three suspects, while the undercover police agents left by car. The bag brought by K.M. was opened and a packet containing powder was found in it, along with shoes and food samples. At the police headquarters the applicant was informed that there were drugs in the bag. 8. The undercover agents prepared a report on the flagrant offence. The suspects denied drug trafficking; in particular the applicant declared that he thought the money was for other merchandise and not for drugs (see paragraph 13 below). 9. The police searched the suspects' apartments and found a pack of 36.56 g of heroin in K.M.'s home. No drugs were found in the applicant's home. The search reports were attached to the file. 10. During the investigation, K.M. confessed to the crime and explained that he had received the drugs (one pack of 1 kg and another of 36.56 g) from a certain “Ahmed” and that the other two suspects were also aware of the drug sale. On 4 July 2001 the police separated the investigation in respect of Ahmed and three other persons from that in respect of the applicant, D.H. and K.M. 11. On 2 June 2001 the applicant was remanded in the custody of the General Inspectorate of Police by order of the public prosecutor F.C. from the Prosecutor's Office attached to the Supreme Court of Justice. 12. On 9 July 2001 the Prosecutor's Office committed the applicant for trial for drug trafficking, an offence prohibited under Article 2 § 2 of Law no. 143/2000. F.C. drafted the indictment. 13. On 18 October 2001 the applicant gave a statement before the court. He averred that he had a company in Romania selling clothes and shoes and the two co-defendants had been his business partners. In May 2001 when K.M. asked the applicant to buy some merchandise from him, the applicant told him that he was no longer doing business but could put him in contact with D.H. The applicant, D.H. and the buyer (in fact an undercover police officer) were in the applicant's apartment when K.M. arrived with a bag containing samples of the merchandise (shoes and food). The applicant noticed that K.M. kept the bag closed in his hands throughout the visit. The applicant also described the alleged police brutality during the arrest and claimed that he was not allowed to see a doctor. 14. The co-defendants also denied any drug-related offence. They claimed not to have been aware that the bag contained drugs. 15. On 13 December 2001 and 7 February 2002 the court heard six witnesses who were present at the arrest or during the searches of the defendants' homes. On the latter date the applicant made a written statement reiterating his position, adding details to his version of the facts and claiming that he had been forced by the police into making statements. 16. The Bucharest County Court gave judgment on 21 February 2002. It convicted the applicant of drug trafficking and sentenced him to thirteen years' imprisonment. It also sentenced K.M. to fifteen years' imprisonment and D.H. to thirteen years' imprisonment. The court upheld the prosecutor's description of the facts and noted that the prosecutor's act was based on the reports from the undercover agents, the report from the arrest and from the searches of the defendants' homes as well as on witness statements. It also noted that the defendants had alleged that they had been forced by police into confessing and had denied in their statements before the court having committed the offences. However, the court considered that they had failed to adduce evidence in support for their statements and thus discarded their declarations as being in contradiction with the other evidence in the file. Furthermore, the court based its decision on the indictment, which in its view was supported by K.M.'s initial statement to the police, the arrest report, the confrontations between the co-defendants and the reports on the searches. It also noted that the defendants had not adduced evidence in their favour. 17. The applicant appealed against the judgment. He alleged that he had not been allowed by the first-instance court to adduce evidence, and asked the court to hear evidence in his defence, in particular to see the videotape recorded at the arrest and to question the undercover police officers. On 20 June 2002 the Bucharest Court of Appeal rejected the appeal without giving any specific answer to the applicant's complaints about evidence. 18. The applicant appealed again, on points of law, claiming that the entire operation was a frame-up by the police and asking again that the undercover agents and all those who participated in the operation be brought before the court as witnesses. In a final decision of 15 May 2003 the Supreme Court of Justice dismissed the appeal. 19. The applicant requested the revision of the final decision, arguing again that the courts should hear the undercover police agents and allow the confrontation between the applicant and those agents. He also argued that in fact one of the undercover agents had brought the heroin to K.M. while the other agent was the alleged buyer of the drugs. On 23 June 2006 the Bucharest County Court dismissed the application, on the ground that the extraordinary court could not re-examine the evidence in the file. It noted: “The decision under review was based on substantial evidence; the undercover agents did not have a decisive role, they merely contributed evidence that corroborated the suspects' statements, the report on the flagrant offence, and the home search reports.” The appeals lodged by the applicant were dismissed, first by the Bucharest Court of Appeal on 30 May 2007 and then by the High Court of Cassation and Justice, in a final decision of 11 January 2008. 20. According to the applicant, he remained handcuffed during the public hearings before the judges in the ordinary proceedings on the merits. In its letter to the Government dated 14 February 2008 describing the conditions of detention in the police detention facilities, the General Inspectorate of Police mentioned that: “...the detainees were handcuffed when they left the arrest centre... When presented to the courts, the detainees remained handcuffed, unless the president of the court expressly asked that the handcuffs be removed ([Ministry of Interior's] Regulation no. 901/1999).” 21. 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. He claimed to have been dragged daily from his cell over a period of fifteen to twenty days, and put in a toilet for fifteen to thirty minutes until the investigator eventually found the time to question him. He claimed to have then been stripped naked for thirty to forty minutes, searched and verbally abused by the police officers. He alleged that this had lasted for six hours daily. 22. On 21 June 2001, the applicant was allegedly hit on the head by a police officer in the prosecutor F.C.'s presence, because he had refused to sign the record of the police actions during the undercover operation which had led to his arrest. 23. On 5 April 2002 the applicant lodged a criminal complaint with the Military Prosecutor's Office concerning the alleged ill-treatment suffered at the hands of police and prosecutor F.C. He also alleged that he gave USD 5,000 to a prosecutor, through an intermediary, to help in the proceedings; he requested that the sum be reimbursed by F.C. and the middle man. On 28 June 2002 he gave a statement before the prosecutor, indicating the identity of the alleged culprits and asking that they be pursued for abuse of position, abusive behaviour and abusive investigation. 24. On 6 February 2003 the military prosecutor transferred the file to the Prosecutor's Office at the Bacău Court of Appeal, following the demilitarisation of the police. 25. Several referrals between the prosecutors' offices took place, and on 27 August 2003 the Prosecutor's Office attached to the Supreme Court of Justice dismissed the accusations on the ground that there was no evidence to support the allegations of abuse during the investigation. 26. According to the information from the domestic authorities, the applicant did not challenge the prosecutor's decision of 27 August 2003. 27. The complaint concerning the alleged acts of corruption by F.C. and the middle man was referred to the Prosecutor's Anti-Corruption Office, which on 14 January 2004 decided not to prosecute. On 6 May 2004 the applicant was informed of the decision. 28. A similar complaint lodged by C.D., the applicant's fellow inmate, on behalf of the applicant, alleging criminal offences committed by the prosecutor F.C. during the investigations, was also dismissed by the Prosecutor to the High Court of Cassation and Justice (the new Supreme Court) on 12 December 2005. The applicant's objection to the prosecutor's decision was dismissed by the High Court on 30 March 2006 for failure to exhaust the administrative complaint procedure set out in Article 2781 of the Code of Criminal Procedure, before lodging the complaint with the court (the decision became final on 16 October 2006 when the applicant's appeal on points of law was dismissed by the High Court, sitting as a panel of nine judges). 29. In 2005 the applicant also lodged a criminal complaint with the Prosecutor's Office attached to the Bucharest Regional Court against four police officers from the drug traffic division and three certified translators, alleging mainly that the police officers had used violence, threats and inducements in order to obtain evidence for the police report for the offence of 1 June 2001. On 14 November 2006, the Prosecutor attached to the Bucharest County Court dismissed the complaint concerning abusive investigation against the police officers on the grounds that the allegations had already been examined by the courts in the criminal proceedings against the applicant (which had been terminated by a final decision) and that there was nothing in the file to substantiate the idea that the investigation had been abusive. The prosecutor sent the case to the Prosecutor's Office to the Bucharest District Court for the remaining offences, regarding both the police officers and the certified translators. The Court has received no recent information from the parties on the development of these proceedings. 30. According to the information provided by the Government from the domestic authorities, the applicant did not challenge the 14 November 2006 decision. 31. On 2 June 2001, the applicant was remanded in the custody of the General Inspectorate of Police. He remained there until 18 July 2001, except for the period from 22 June to 4 July when he was hospitalised in Jilava Prison Hospital. On 18 July, he was transferred again to Jilava where he remained until 13 August 2001, when he was transferred to Rahova Prison where he remained until 2008. According to the information available to the Court, the applicant is currently being held in Jilava Prison. 32. According to the applicant, in the same place of detention he was also underfed and kept in a damp cell. He claimed that he did not receive a suitable Muslim diet, but had to get marmalade, butter and tea from his two fellow inmates or biscuits and tea from the prison. He claimed that he had tuberculosis. A medical report certifies that on 6 August 2001 the applicant had tuberculosis and piles. 33. According to the information from the Bucharest Police, the cells in the police detention facilities measured 20 sq. m and had four to five beds and three 2.5 sq. m windows each. The toilets and showers were situated in the cells and hot water was constantly available. The inmates had access to the windows to ensure ventilation of the cell. No concrete information about the applicant's stay was furnished, as, according to the applicable regulations, the relevant documents are kept by the prison authorities only for five years, which has already expired in the applicant's case. 34. According to the applicant, the conditions of detention in Rahova Prison are equally inappropriate: it was extremely cold in winter, when the heating system functioned for a short time only, there was hot water for only half an hour per week, there were ten to twelve inmates in a cell with ten beds, the food was not clean and there was almost no meat. Since his transfer to Rahova, the applicant has had some health problems: scabies, articular rheumatism and renal and abdominal pain. The existing medical reports certify left renal microlithiasis, bladder lithiasis and right basal pachypleuritis. Moreover, the applicant allegedly did not receive the medical treatment he needed. 35. Based on the information from the National Prison Administration, the Government indicated that the applicant had been placed in cells measuring 18.8 sq. m with four to five bunk beds, or 24.6 sq. m with five to six bunk beds. The toilet room was attached to the cells and both had windows, to allow in air and natural light. The Government did not provide concrete information on the occupancy rate of the applicant's respective cells, except for the last part of his stay, when he allegedly shared a 30.5 sq. m cell with ten bunk beds with nine codetainees. A separate room with toilet, sinks and showers was attached to the cell. They both had windows. 36. Hot water in the prison was available once a week before 6 June 2007 and twice a week after that date, between 12 noon and 1 p.m. and 5 p.m. to 6.30 p.m. Detainees received cleaning equipment from the prison administration. No information on the actual heating schedules was provided. 37. Lastly, the Government contended that the applicant had received food prepared in accordance with Muslim dietary norms. 38. From 21 to 22 June 2001 the applicant was an in-patient in Bucharest Emergency Hospital, which recorded in a medical report that he had craniocerebral trauma with moderate post-concussion and an “atrocious cephalalgia” with consciousness disorder. 39. From 22 June to 4 July 2001 the applicant was in Bucharest Jilava Prison Hospital. He alleged that he did not receive proper medication because of lack of funds for medicine. The official documents issued by the National Prison Administration at the Government's request as well as the medical register from the prison indicate that the applicant received treatment and food adequate to his medical conditions. 40. From 26 June to 31 July 2003 the applicant went on hunger strike; his condition was monitored and his health did not suffer significant deterioration. 41. In his statement of 18 October 2001 given before the Bucharest County Court, the applicant expressly complained that he had not been taken to a doctor. 42. During his detention the applicant did not request early release from prison on medical grounds, nor did he request specialised medical examination, nor to be taken to a civilian hospital for investigations. According to the applicant's medical record from prison, his treatment for his various conditions is continuing. 43. The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor statutes are set out in Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43-46, 26 April 2007), and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004). In paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004, “ Law no. 281/2003”). 44. 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 Article 38, which provides that a judge shall have jurisdiction over complaints by convicted persons against the measures taken by the prison authorities (see also Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008). 45. The provisions of Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”) are described in Constantin and Stoian v. Romania, nos. 23782/06 and 46629/06, §§ 33-34 , 29 September 2009). 46. The Ministry of the Interior's Instruction no. 901/1999 on the organisation and functioning of preventive detention facilities under the control of the Ministry of the Interior was not published in the Official Bulletin. On 13 November 2003 the Ministry of Justice issued Instruction no. 3352 on the rights and obligations of persons in preventive arrest which made no mention on the policy concerning the use of handcuffs and only repealed previous legislation that contradicted the new regulations. Ordinance no. 56/2003 makes no mention of it either. It is only in Law no. 275/2006, referred to above, that the use of handcuffs is expressly forbidden save for exceptional circumstances (Article 37) and cannot be used as sanction (Article 71). It appears that in 2006 the Instruction no. 901/1999 was still in force, in so far as it concerned transport to the courts of persons in preventive detention (see Decision no. 980/2007 by the High Court of Cassation and Justice). 47. Article 68 § 2 of the Code of Criminal Procedure prohibits incitement to commit or continue committing a criminal offence with the purpose of obtaining evidence. 48. The relevant findings and recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). In particular, the Court notes that in the report on the 2002-2003 visits, the CPT expressed concerns over the limited living space available to prisoners and the insufficient space provided by the regulations in place at that date. It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not sufficiently separate from the living space. 49. As far as Rahova Prison is concerned, the Romanian NGO Human Rights Defence Association Helsinki Committee (Apador-CH) prepared four reports regarding conditions of detention following visits to the Minors' and Women's Sections and to Rahova Prison Hospital in 2002, 2003 and 2005. Besides case-related conclusions, the reports stated that the prison was overcrowded and that meat was almost completely absent from the meals. 50. The Council of Europe's texts on the use of special investigative techniques are detailed in Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 35-37, ECHR 2008-....