CASE OF PETREA v. ROMANIA
Violation of Article 3 - Prohibition of torture (Substantive aspect)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
4. The applicant was born in 1970 and lives in Iaşi. 5. On 23 November 1999 the prosecutor attached to the Piteşti Court of Appeal issued an arrest warrant against the applicant, who was accused of tax evasion. 6. The applicant was apprehended on 5 September 2000 and was placed in police custody for a period of thirty days. The Piteşti District Court, to which the applicant was first brought on 28 September 2000, repeatedly extended his pre-trial detention, until the end of the proceedings before it. 7. The District Court gave judgment on 19 February 2002. On the basis of the depositions made by the applicant, four co-defendants and twenty-one witnesses, the court convicted the applicant under several heads of tax evasion and forgery, and sentenced him to six years and six months’ imprisonment with an obligation, under Article 113 of the Criminal Code, to undergo medical treatment for his mental disorder as identified by the medical reports adduced in the case. The court ordered that the medical treatment be administered through the prison hospitals, while the applicant was in detention, and continue after his release until his complete recovery. It also upheld the order for the applicant’s detention. 8. In a decision of 25 June 2002, the Argeş County Court allowed appeals against the judgment and, based on the evidence in the case and the defendants’ depositions, reduced the applicant’s sentence to five years and six months’ imprisonment. It upheld the remainder of the District Court’s judgment. 9. This decision was confirmed, upon an appeal on points of law by the defendants, in a final decision of 8 October 2002 of the Piteşti Court of Appeal. 10. On 20 September 2000 the applicant’s lawyer filed a request with the prosecutor for the applicant’s psychiatric evaluation. The Argeş Forensic Medicine Institute examined the applicant and concluded, on 2 October 2000, that he had been mentally competent for legal purposes both when the alleged offences had been committed and at the date of the evaluation. The applicant contested the conclusion of the report. 11. On 18 December 2000 the “Mina Minovici” Forensic Medicine Institute in Bucharest confirmed the Argeş Forensic Institute’s report, after having examined the applicant. It also recommended that, pursuant to Article 113 of the Criminal Code, the applicant be required to undergo medical treatment for his mental disorder both during the detention and after his release. 12. On 29 November 2000 the applicant underwent a full medical examination at the Argeş Forensic Medicine Institute. The medical commission concluded that the applicant’s mental disorder did not render him unfit for detention. 13. According to the detailed medical record from the period of pre-trial detention, submitted by the Government, the applicant was hospitalised seven times in prison hospitals. He was mainly diagnosed with thrombophlebitis, venous insufficiency and a mental disorder. Each time he was discharged, the doctors recommended treatment for his various illnesses, periodical re-evaluations and medical check-ups when needed. During this interval he was seen twenty-seven times by the prison doctors, on 23 and 30 October, 6, 13 and 27 November, 11 and 20 December 2001, 11 February, 17 June, 1, 8, 20, 22 and 29 July, 5, 12, 16, 19 and 26 August, 2, 9, 20, 23 and 30 September, and 7, 13 and 19 October 2002. Records indicate that medicine was systematically administered for his venous insufficiency and until 20 December 2001 for his mental disorder. The latter treatment was interrupted until 5 August 2002 and after this date was given sporadically. 14. During his detention, several disciplinary measures were taken against the applicant. Accordingly, his visit and parcel rights were withdrawn on 26 March 2001, 28 December 2001, 10 January and 8 April 2002, for possession of forbidden objects. From 4 to 14 January 2002 he was kept in solitary confinement. 15. Lastly, on 5 February 2002 the penitentiary authorities placed the applicant in restrictive confinement (“regim restrictiv”), for twelve months due to his recalcitrant behaviour and repetitive infringements of the prison regulations. However, on 14 June 2002 he was reintegrated into the normal detention regime, for good behaviour. The applicant claimed that while subject to the restrictive detention regime he had been kept in a cold cell wearing worn clothes that had been inadequate for the temperature, sometimes handcuffed with his hands above his head, and that for the first month he had not been seen by a doctor and that correspondence to and from his family had been tampered with. 16. In October 2002, after the adoption of the final decision in the case, the applicant was transferred to Iaşi high-security Prison and placed in the section designated for extremely dangerous prisoners. 17. The applicant claimed that, despite his repeated requests to be seen by a specialist doctor and administered adequate medical treatment, during the first eight months of detention he had only been examined by the prison doctor, who had consistently informed him that there had been no funds for continuing his treatment. The prison doctor had told him: “there is no problem if you die, we have a priest and there is wood in the store house” (“nu e nici o problemă dacă mori, avem preot şi scânduri la magazie”). On an unspecified date, upon repeated requests by his family to the prison authorities, the applicant was transferred to a different dormitory. 18. According to the Government, the applicant was placed in shared dormitories, the first measuring 41.12 sq. m and the latter 60.69 sq. m, which he shared respectively with nine and fifty-three other prisoners. The dormitories had windows. Hygiene facilities were permanently accessible to prisoners in a separate room. Warm water was available once a week. The applicant had daily one-hour walks, frequently received visits from members of his family and participated in the social programme of the penitentiary. His medical treatment continued. 19. On 11 July 2003, the Iaşi prison authorities informed the applicant’s counsel that the applicant was not receiving any medical treatment at that moment, but that such treatment would be administered if necessary. 20. From 3 February 2004 to 7 February 2005, the execution of the sentence was suspended for medical reasons. On 16 June 2005 the applicant was released on probation. 21. Article 195 of the Criminal Code (“CC”) and the relevant provisions of Law no. 23/1969 on the execution of sentences are described at paragraphs 23 and 25 of the Năstase-Silivestru judgment (see NăstaseSilivestru v. Romania, no. 74785/01, 4 October 2007). 22. Law 23/1969 was replaced by Emergency Ordinance no. 56/2003 (“Ordinance 56”) on the rights of prisoners, adopted by the Government on 25 June 2003 and ratified by Parliament on 7 October 2003. This Ordinance constituted a general measure taken by the Government in the execution of the judgment adopted by the Court in the case Petra v. Romania (judgment of 23 September 1998, Reports of Judgments and Decisions 1998VII; see the Committee of Minister’s Resolution CM/ResDH(2007)92). The relevant parts of the Ordinance read as follows: “(2) Prisoners may complain against the measures taken by prison authorities (...). (5) In examining a complaint, the court takes one of the following decisions: (a) allows the action and orders the annulment, revocation or change of the measure taken by the penitentiary authority; (b) dismisses the action if it is ill-founded.” 23. That Ordinance was replaced by Law no. 275/2006 on the execution of sentences, which in its Article 38 provides for a similar appeal lodged with the judge responsible for the execution of sentences, who has the powers described in Article 3 § 5 of Ordinance 56 and whose decision can be appealed against before a court. 24. The legislation on the organisation of the military prosecutors’ offices and military tribunals is summarised in paragraph 40 of the Barbu Anghelescu judgment (see Barbu Anghelescu v. Romania, no. 46430/99, 5 October 2004) and in paragraph 68 of the Bursuc judgment (see Bursuc v. Romania, no. 42066/98, 12 October 2004). Until 28 September 2004 when Law no. 293/2004 entered into force, the penitentiary commanders were active military officers (see Articles 1 and 2 of Law no. 10/1990 and Article 4 § 24 of Government Decision no. 736/2003). 25. The findings of the European Committee for the Prevention of Torture (“the CPT”) following visits to Romanian prisons, as well as the Committee’s general findings, are summarised at paragraphs 73-75 of the Bragadireanu judgment (see Bragadireanu v. Romania, no. 22088/04, 6 December 2007).