CASE OF CIPRIAN VLĂDUȚ AND IOAN FLORIN POP v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
4. The applicants, two brothers, were born in 1982 and 1974 respectively and live in Tautii Magheraus. 5. According to the first applicant, in the summer of 2004 he was contacted on several occasions by an undercover police agent who wanted to buy ecstasy from him, brought into the country from the Netherlands. According to the prosecutor’s report, the police gained knowledge of the first applicant’s alleged involvement in drug trafficking at the beginning of September 2004. 6. It was established by the prosecutor and domestic courts that some time in September the first applicant brought a batch of drugs into the country and sold ten tablets to the undercover agent on 26 October 2004 and 115 tablets on 29 October 2004. According to the transcripts of the conversations intercepted between the first applicant and the police agent, on 28 October the latter called the first applicant, asked him if he had “any left” and at the applicant’s confirmation that some 150 remained, the undercover agent calculated their price at 1,000 euros, and advised the applicant on where and how to meet the next day for him to buy them all. 7. On 29 October 2004 the police intercepted a conversation between the undercover agent and the first applicant when they met for the drug transaction. The police agent told the applicant that the day before he had been offered a batch of “1,000 pieces” (1,000 de bucăţi) which would be available the next week, and that he would not want to miss such an opportunity. The applicant offered to bring the same amount for him. The police agent agreed, and asked how much more he could bring. They settled for 5,000 pieces. The undercover agent warned the first applicant repeatedly during their conversation that if he did not receive his supply from the applicant he would go to the other provider. During the conversation it appeared that the applicant had meanwhile sold some twenty more tablets. The first applicant called someone on his mobile phone and discussed in English getting 5,000 or 10,000 tablets. He then reported to the agent that he could get him some stronger tablets, and described the sensations he had had when he had used them himself. The agent proposed the place and arrangements for their next transaction. 8. The new transaction was postponed for various reasons and was finally planned to take place on 23 December 2004 in Baia Mare. That day the first applicant informed his brother for the first time that he had brought drugs into the country and about the deal. After having initially refused and argued extensively about it with his brother, the second applicant agreed to help, in order to save the family from potential retaliation by the Dutch seller. That evening he took the drugs to an agreed location while the first applicant negotiated the terms of the transaction with the undercover agent. 9. The first applicant and the undercover agent then joined the second applicant; the agent was offered an ecstasy tablet for testing and then left with the first applicant in order to set out the details of the transaction. The second applicant was to wait at the same location for the buyer to return with the money to pay for the drugs. Meanwhile, the second applicant saw police agents approaching in a taxi. He threw the bag containing the drugs into a nearby bush and phoned his brother to warn him. The first applicant told the undercover agent that the transaction was cancelled. 10. Police agents apprehended the two applicants and later recovered a bag containing 4,409 ecstasy tablets from the bushes. 11. The applicants were taken to the police station for further questioning. After consultation with their counsel they refused to make any statements. They were arrested. 12. On 25 October 2004 the organised crime and terrorism division of the prosecutor’s office attached to the Cluj Court of Appeal (“the prosecutor”) identified the first applicant as being apparently involved with trafficking in drugs and drug consumption, the merchandise being brought from the Netherlands. 13. On 26 October 2004 the prosecutor authorised the use of an undercover police agent to infiltrate the applicants’ circle in order to obtain information and evidence about the drug trafficking. It also authorised the undercover agent to purchase 150 ecstasy tablets. After each transaction the undercover agent wrote a report on the meeting with the first applicant. The prosecutor noted as follows: “there are strong indications that the crime of drug trafficking has occurred/is about to occur ... as Ciprian Vlăduț Pop bought in 2004 high-risk drugs from the Netherlands, namely ecstasy tablets (MDMA), which he is selling in Baia Mare and Cluj-Napoca.” 14. On 29 October 2004 the prosecutor started criminal prosecutions against the first applicant on suspicion that he had both consumed and sold drugs. On 23 December 2004 the prosecution was extended to the second applicant. 15. On 27 October and 11 and 18 November 2004 the Cluj County Court authorised for a period of thirty days, at the prosecutor’s request, the tapping of the first applicant’s telephone and that of the undercover police agent. On 24 November and 22 December the authorisation was extended by thirty days on each occasion. Some 100 CDs were recorded in the process. 16. The prosecutor asked for the tablets purchased by the undercover agent to be tested by the police laboratory for physical and chemical analysis (“the police laboratory”). On 28 October, 2 November, and 27 December 2004 the police laboratory submitted its reports on the three batches of tablets, concluding that they contained methylenedioxymethamphetamine (MDMA). The tablets remaining after the laboratory test were sealed and stored in a special police depository. The applicants and two taxi drivers who transported the police agents to the crime scene were interviewed by the prosecutor. 17. On 11 January and 10 March 2005 the first applicant stated that he had visited the Netherlands in the summer of 2004 and met P., who had afterwards visited Romania and spent a few weeks at the applicant’s home. P. found out that ecstasy sold very well in Romania, and offered to obtain some for the first applicant. The applicant brought a first batch of 250 tablets and sold some of them to the undercover police agent; the remaining tablets he either consumed himself or gave away to others. During the night of 22/23 December 2004 the applicant returned from the Netherlands with a batch of 5,000 ecstasy tablets from P. He contacted several individuals to offer to sell them tablets, but the undercover police agent offered to buy them all. 18. The second applicant gave statements on 11 January 2005. He declared that before 23 December 2004 he had not known of any dealings in drugs that his brother might have had, that during the night of 22/23 December he had returned with his brother from the Netherlands but had not been aware until later that day that his brother, who had crossed the border on his own on foot, had brought drugs into the country. He further explained that he had agreed to help his brother because he feared his brother was in danger of being attacked and killed by the drug dealers, given the large amount of money involved in the transaction. He further explained that it was morally impossible for him, at the time of the crime, to denounce his brother to the authorities. He also explained that he had never taken drugs himself. 19. On 2 March 2005 the prosecutor presented the transcripts of some of the recorded conversations, along with forty CDs, to the Maramureş County Court. He sought confirmation from the court that the evidence produced before it was relevant to the case (procedure under Articles 913 and 915 of the CCP). The hearing took place on 9 March 2005. Defence counsel asked for an adjournment to allow her to study the evidence and form an opinion on the relevance of the CDs. She also expressed the wish to examine the remaining recordings which had not been produced before the court by the prosecutor. The court dismissed the requests and accepted the evidence in the file, as proposed by the prosecutor. It agreed with the prosecutor’s opinion and ruled that the remaining CDs were not relevant to the case. 20. On 10 March 2005 the applicants, in the presence of their counsel, acquainted themselves with the prosecution file. 21. On 15 March 2005 the prosecutor committed the applicants to trial for trafficking in drugs, under Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”). The prosecutor noted that the first applicant was also a drug user, whereas his brother, the second applicant, was not and had had no knowledge of his brother’s dealing before 23 December 2004. The prosecutor also noted that the first applicant had a prior conviction for theft and breach of firearms regulations (nerespectarea regimului armelor). 22. The case was heard by the Maramureş County Court. The applicants’ detention pending trial was extended at regular intervals by the court. 23. On 5 April 2005 the applicants gave statements before the court, reiterating their declarations from the prosecution phase. It appears that at that time the first applicant was suffering from withdrawal symptoms and was under sedatives prescribed by the prison doctors to alleviate his symptoms. 24. The applicants’ counsel asked for an expert evaluation of the tablets to establish whether they contained MDMA or a lighter drug. Relying on the principle of equality of arms, defence counsel requested that the expert examination be performed by experts from the Ministry of Justice and not by experts from the Forensic Institute, as the latter institution was attached to the police. The prosecutor advised that the Police Forensic Institute was normally responsible for such analyses. On 11 July 2005 the Ministry of Justice informed the court that it would not be possible for their experts to perform the requested tests. 25. The second applicant also asked the court to hear evidence from the undercover police agent. His request remained unanswered. 26. On 26 July 2005 the first applicant, who was suffering from withdrawal symptoms, became ill in the court building and had to be taken to hospital. Defence counsel asked for a medical assessment of his client. Despite repeated requests by the court, the prison authorities later failed to take the first applicant to hospital so he could receive the expert examination ordered by the court. 27. On 10 August 2005, at the court’s request, the Police Forensic Institute re-examined the drugs and in a comprehensive report confirmed that the tablets contained MDMA. 28. On 8 November 2005 the court heard pleadings from counsel for the prosecution and the defence. The applicants did not deny the substance of the charges. The first applicant admitted that the police operation respected the domestic legislation, but doubted its morality; in particular, he argued that if it had not been for the undercover police agent’s insistence he would not have bought ecstasy in the first place. In his view the undercover police agent asked on purpose for a high-risk drug to attract a heavier penalty for the applicants, whereas if he had requested a milder drug the sentencing would have been consequently lighter. The prosecutor replied that as it was known that the first applicant had brought ecstasy into the country in the summer of 2004, the undercover agent had done no more than follow that lead; it would have made no sense for him to ask for another drug so long as there was no indication that the applicant had dealt in any other type of drugs. The second applicant pointed out that he had only been informed about the drug dealing on the very day when the last transaction had taken place, and that by telephoning his brother that day he had in fact prevented the crime from being committed. 29. The County Court rendered its judgment on 25 November 2005, based on the evidence in the file, namely the police reports from the undercover operation, witness statements (the two taxi drivers who had brought the police officers to the scene of the transaction and who had seen the applicants handcuffed and the police retrieving the bag containing the drugs from the bushes), the transcripts of the intercepted telephone calls and the expert reports concerning the content of the tablets. It reiterated the history as it had been established in the bill of indictment, and concluded that the applicants were guilty of the offences they had been accused of. The court gave no further answers to the arguments raised by the defence. It convicted both applicants and sentenced the first applicant to seven years and six months’ imprisonment and the second applicant to three years and six months’ imprisonment. 30. The applicants reiterated their complaints concerning breach of the principle of equality of arms, in that the tablets had been analysed in police laboratories and not by an independent expert. Finally they renewed their request to have all the transcripts of the intercepted conversations produced before the court, and complained that they could not have access to them as the remaining recordings had been destroyed. Before the court, they also argued that the unlawfully obtained evidence should be removed from the file and reiterated that the police operation had started only from a suspicion that the first applicant was a drug user. Throughout the proceedings, the second applicant made repeated requests to be allowed to study his file, but received no answer from the court. 31. On 5 October 2006 the Mina Minovici National Forensic Institute examined the first applicant and his medical record. On 19 January 2007 it rendered its medical report, which was examined at the court hearing held on 31 January 2007. The experts concluded that the applicant’s drug addiction could be treated in the prison hospitals and that the medication he had received so far had been adequate; as he was not experiencing withdrawal symptoms, he did not need to be placed in a special drug withdrawal programme; they also considered that his medical condition was compatible with detention. 32. The Cluj Napoca Court of Appeal delivered its decision on 7 February 2007. Concerning the defence’s arguments about lack of access to the transcripts of the intercepted telephone calls the court reiterated that on 9 March 2005 it had decided which transcripts were useful to the case. The court dismissed their complaints concerning the secret police operation; in doing so, it relied on the report drafted by the undercover agent and by the prosecutor, and observed that the applicants’ own statements to the police and before the courts corroborated those reports. The court of appeal substantially maintained the conclusions of the firstinstance court. 33. The applicants appealed on points of law and reiterated their main defence arguments. However, their appeal was dismissed in a final decision rendered on 29 March 2007 by the High Court of Cassation and Justice. 34. The second applicant described his detention as follows. He was arrested on 23 December 2004 and remained imprisoned until 1 May 2007. He spent the first three months of detention in police detention facilities, the following eight to nine months in Baia Mare Prison, then thirteen months in Gherla Prison; he spent the remaining time in Jilava Prison. 35. He had to share cells with smokers, although he was a non-smoker himself. He repeatedly asked the prison administration to place him in a cell with non-smokers. No such arrangements could be made for him, as the pretrial detention facilities were already overcrowded and there were no places available in the nonsmoking cells; according to the applicant, in Baia Mare Prison the ratio was of thirty-nine bunk beds, placed on three levels, for sixty inmates. When in Baia Mare Prison the applicant went on hunger strike from 13 to 16 April 2007 because he was placed in smoking cells despite being a non-smoker; he ended his protest when a nonsmoking cell became available after refurbishment. 36. When he was detained in Gherla Prison, he complained about being placed with smokers and about overcrowding in prison, notably that he did not have 4 sq. m of personal living space in the cell. On 5 February 2007 his complaint was dismissed by the judge delegated by the court to supervise the observance of the prisoners’ rights, under Law no. 275/2006 on the execution of sentences (“the post-sentencing judge”). The post-sentencing judge noted that there was no obligation in Romanian law to place a detainee in a non-smoking cell or to provide him with a certain amount of living space. According to the applicant, the cells were all dirty and infested with bugs. 37. According to information provided by the prison service, during his detention the applicant occupied altogether eleven cells in three prisons (Baia Mare, Gherla, and Jilava), sharing with between five and forty-three others; his personal living space was on average 1.91 sq. m at all times. In addition he spent three days in a cell alone in Baia Mare when he was on hunger strike, and two days alone in Gherla Prison infirmary; on those two occasions his living space was 16 sq. m. 38. The second applicant also described an episode where he was hit by a prison guard; he explained that he had got scared and become agitated because he had seen his brother suffering from withdrawal and was sure that his brother was about to die without anybody willing to come to his rescue. He pressed charges against the guard, and on 31 March 2006 the prosecutor decided not to prosecute. 39. He tried on two occasions to commit suicide by hanging himself (13 September 2005 and 2 December 2005). As a consequence of his attempted suicide of 2 December 2005, the second applicant was handcuffed to his bed for a month, according to his statements. The prison service explained that on 2 December 2005 he had been handcuffed to his bed as a means of preventing him from repeating his suicide attempt; he had been kept thus handcuffed while he remained “agitated and psychologically vulnerable”. On 2 December 2005 he was seen by the prison doctor, who noted his agitation, lack of cooperation and headache, and concluded that he could be treated in the medical infirmary. He was not known to have a mental disorder, and no recurrence of the suicidal behaviour was recorded while he was in detention. 40. On 9 March 2006 the second applicant complained before the Cluj Court of Appeal, within the appeal proceedings on the merits of the accusations against him, about the conditions of his detention, in particular the fact that he shared a large dormitory with smokers. He requested to be medically examined in order to demonstrate the negative consequences of the passive smoking on his health. He also complained of lingering pain in his right leg on which he had fallen from a three-metre height on 2 December 2005, when he had tried to hang himself from a suspended bar; he had sought medical examination, which he alleged had been refused by the prison doctors until 23 December 2005. The applicant made full statements about his attempted suicide on 2 December 2005, and described how he had been handcuffed to his bed and left without medical care. He received no answer to these complaints.