MOLDOVAN v. ROMANIA
Inadmissible
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos
1. The applicant, Mr Florin Moldovan, is a Romanian national, who was born in 1980 and is currently detained in Gherla Prison. 2. The Romanian Government (“the Government”) were represented by their Agents, Mr R.-H. Radu and Ms I. Cambrea, of the Ministry of Foreign Affairs. 3. The applicant is serving an eighteen-year prison sentence for murder. He has served his sentence in various Romanian prisons. 4. From 30 January 2006 to 5 March 2009 the applicant was detained in Arad Prison. As the originals of his legal correspondence had been retained by the prison authorities, the applicant lodged a request with the prison authorities demanding that all the documents be returned to him. As he did not receive a favourable response, he lodged a complaint with the judge responsible for the execution of sentences in Arad Prison (“the judge”) on the basis of the Execution of Sentences Act (“Law no. 275/2006”). 5. By an interlocutory judgment of 26 November 2008, the judge ruled that the Arad Prison authorities were in breach of national law and of Article 8 of the Convention, and that they must therefore provide the applicant with the retained legal correspondence. The judge noted that the practice of the prison administration based on the provisions of the unpublished Order of the Minister of Justice no. 2860/C/2000 (“the order”) was one of presenting the prisoners with their correspondence, allowing them to read it and thereafter filing it in the prisoners’ personal files to which the prison authorities had access. The judge quoted the relevant provisions of the order in the interlocutory judgment. He further found that the prison authorities’ practice of retaining prisoners’ legal correspondence was contrary to Law no. 275/2006 and that the above-mentioned order should have been considered as repealed by the entry into force of that law. The judge held in conclusion that by allowing prisoners access to their prison files or by providing them with photocopies of the documents, the prison authorities had not redressed the violation of the right to correspondence. 6. On 30 December 2008, following the interlocutory judgment of 26 November 2008, the Arad Prison authorities provided the applicant with the legal correspondence that he had received during his stay in that prison. 7. On 5 March 2009 the applicant was transferred to Timişoara Prison, where he was detained until 29 July 2010. His legal correspondence and documents that arrived during his stay in that prison continued to be retained in his prison file. 8. The applicant lodged a new complaint with the judge responsible for the execution of sentences in Timişoara Prison, requesting, inter alia, the provision of correspondence and legal documents addressed to him. By an interlocutory judgment of 3 June 2009 the judge determined that no new ruling on the application was necessary, as the applicant already had a judgment in his favour whereby the prison authorities were mandated to provide him with his correspondence. 9. According to the Government’s allegations, non-contradicted by the applicant, he received, while in Timişoara Prison, photocopies of various legal and medical documents. 10. The relevant parts of Law no. 275/2006, in force at the material time, read as follows: “2. Correspondence is confidential and cannot be opened or retained, save for the limitations and the conditions provided for by law ... 4. Correspondence can be opened and retained only if there is reasonable suspicion that a crime has been committed. [The detainee] shall be informed in writing and immediately of this measure and the retained correspondence shall be stored in a special file kept by the prison authorities. 5. The opening and retaining of correspondence under paragraph 4 is possible only on the basis of a reasoned decision, delivered in writing by the judge responsible for the execution of sentences ...” 11. The Rules of Enforcement of Law no. 275/2006 were adopted by Governmental Decision no. 1897/2006. Under Article 67 of the Rules, each detainee has a personal file that contains documents and information on his legal and personal circumstances, as well as his behaviour during detention; the file is confidential and accessible to “persons and authorities authorised by law.” 12. The relevant provisions of the unpublished Order of the Ministry of Justice no. 2860/C/2000 read as follows: “Excerpts or copies of the sentencing judgments, interlocutory judgments, arrest warrants or warrants delivered in view of the execution of a sentence, as well as any other document received from the prosecutors’ offices or the courts relating to the detainees’ legal situation, shall be provided to the latter for reading and signature.” “Upon receipt of summonses or any other criminal procedure act that requires the detainee’s signature ... the prison staff shall proceed as follows: a) provide the detainee with the act for reading, only after the act has been recorded in the detention file and saved electronically; b) ask the detainee to sign an acknowledgement and the act, with due mention of the date ...; c) send the acknowledgement to the authority that delivered the act; d) if the detainee’s presence before the court or the authority in charge of the criminal proceedings is required, on the basis of the summons, the data shall be recorded for presentation to the courts ...” “Upon receipt, procedure acts or any other act that does not require the detainee’s signed acknowledgement shall be recorded in the detention file, saved electronically, communicated to the detainee with due mention of the date and the detainee’s signature, and stored (“se clasează”) in the detainee’s file”. 13. Order of the Ministry of Justice no. 2860/C/2000 was repealed by Order no. 432/C/2010 but maintained the same provisions relating to prisoners’ legal correspondence. The new order is public and entered into force on 11 March 2010. 14. A Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of legal advice in prison that may be relevant in the context of the present case. Rule 23 reads: “1. All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 2. Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. 3. Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners. 4. Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. 5. A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security. 6. Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.”