CASE OF IUSTIN ROBERTINO MICU v. ROMANIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Procedure prescribed by law;Article 5 - Right to liberty and security);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos
5. The applicant was born in 1969 and lives in Bucharest. 6. By orders of 5 and 8 March 2010 the National Anticorruption Department (“the N.A.D.”) instituted criminal proceedings against the applicant and three other co-accused, all of them border guard police officers, for bribe-taking and abetting bribe-taking. It held – on the basis of testimonial, documentary and surveillance evidence of phone conversations between one of the co-accused, his wife and a third party – that there was reasonable suspicion that on 6-7 September 2007 the applicant and his colleagues had asked seven Turkish nationals to pay them money in order to allow them to leave Romania. 7. On 8 March 2009 prosecutor G.B., who was attached to the N.A.D., authorised several police officers to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name and the names of the three coaccused. According to the order to appear produced by the N.A.D., the applicant’s presence was required in order for him to be heard as an accused (ȋnvinuit) in the criminal investigation instituted against him in 2008. No other reasons or considerations were stated on the order. 8. On 9 March 2010 two police officers went to the applicant’s workplace to enforce the warrant to appear. According to the report produced by the police officers and signed by the applicant, he was shown the warrant to appear and was informed that he would be taken to the N.A.D.’s premises. He was also informed that he could contact and retain the services of a legal representative of his own choosing. He refused to do so because he considered that he did not need one. The applicant and the escorting police officers left the applicant’s workplace at 8.40 a.m. 9. On the same date, at 12 noon, G.B. informed the applicant in the presence of a publicly appointed legal representative that a criminal investigation had been opened against him for bribe-taking. According to the documents submitted before the Court, and signed by the applicant and his legal representative, he had refused to retain a legal representative of his own choosing and had accepted assistance from a publicly appointed lawyer. According to the statement made before the prosecutor, he notified the authorities that he suffered from diabetes and that he needed his insulin treatment, which would have to be brought from his workplace. In addition, he requested the authorities to notify his wife in the event of his placement in police custody. He also stated that he reaffirmed the statement he had made previously concerning the events in connection with which he was being investigated. According to the record of the applicant’s statement, he was heard as an accused by the prosecutor at N.A.D.’s offices from 12 noon to 9.34 p.m. 10. On the same date, at 7.36 p.m., the applicant was informed that at 7.08 p.m. he had been charged with bribe-taking. According to the report produced by the authorities and signed by the applicant and his legal representative he refused to make any statement as a defendant (inculpat) and reaffirmed the statement he had made as an accused. 11. By an order dated 9 March 2010 the N.A.D. placed the applicant in police custody for twenty-four hours commencing at 9.15 p.m. for bribetaking. The arrest order was signed by both the applicant and his legal representative. It stated that on the basis of the available evidence there was reasonable suspicion that the applicant had accepted money from Turkish nationals for the purpose of allowing them to return to Turkey. It also stated that the offence in question was punishable by over four years’ imprisonment and his release would constitute a danger to public order, bearing in mind that he was a border guard officer and had committed the offence at his workplace. 12. On 10 March 2010, relying on testimonial, documentary and audio surveillance evidence, the N.A.D. asked the domestic courts to detain the applicant pending trial. 13. By an interlocutory judgment of 10 March 2010 the Court of Cassation dismissed the N.A.D.’s request and ordered the applicant’s release on condition that he remain in the country. It held that the available evidence was plagued by inconsistencies which should have been resolved by the investigating authorities. In addition, except for the seriousness of the offence, none of the other legal requirements for detaining the applicant pending trial had been met. In particular, there was no evidence in the file that he had attempted to abscond or to obstruct justice. Also, it had not been proven that his release would be a danger to public order, given that the events in question had occurred in 2007 and that the applicant was not responsible for the length of the criminal investigation. Consequently, it considered that the implementation of an alternative measure was more appropriate in his case. 14. On 8 April 2010 the Court of Cassation, sitting as a second instance court, dismissed as ill-founded an appeal by the N.A.D. against the interlocutory judgment of 10 March 2010. 15. By a judgment of 17 March 2011 the Bucharest Court of Appeal convicted the applicant of bribe-taking and sentenced him to three years’ imprisonment. The applicant appealed on points of law (recurs) against the judgment. 16. On 11 February 2013 the Court of Cassation allowed the applicant’s appeal on points of law against the judgment of 17 March 2011 and acquitted him. It also noted that he had been held in police custody for twenty-four hours from 9 to 10 March 2010. 17. On 21 April 2010 the applicant instituted criminal proceedings with no civil claims against the prosecutors investigating his case – in particular G.B. – for, inter alia, abuse of office by restricting certain rights, perjury, unlawful arrest and improper investigation, torture and unlawful perversion of justice (represiune nedreaptă). He argued that the prosecutor had obtained testimonial evidence against him in breach of domestic and international criminal procedure rules and had detained him for thirty-seven hours instead of the twenty-four allowed by law. In addition, there had been no reasonable suspicion that he had committed the offence, nor had the other legally-required criteria for his detention been met. Also, he had been subjected to intense physical and psychological suffering because the order to appear issued by the prosecutor had been unjustified and devoid of grounds, in breach of Article 183 (2) of the Romanian Code of Criminal Procedure (“the C.C.P.”). Lastly, he had been refused a medical examination, medical treatment and food for the entire time he was under the authorities’ control, even though he had notified them of his medical condition. 18. On 10 May 2010 the applicant brought proceedings seeking to have prosecutor G.B. removed from the case on the grounds that he had instituted criminal proceedings against him in April 2010. 19. By a final order delivered on the same date, the hierarchically superior prosecutor attached to N.A.D., namely L.P., dismissed the applicant’s action of 10 May 2010 on the ground that there was no evidence in the file that G.B. had had a personal interest in the outcome of the case or that he had had a feud with one of the parties in the case. The fact that the applicant had instituted criminal proceedings against him was not an incompatibility ground provided for by law. 20. By a final order of 2 July 2010 the public prosecutor’s office attached to the Court of Cassation dismissed the applicant’s criminal complaint of 21 April 2010 against the prosecutor G.B. on the grounds that the offences cited by the applicant were inexistent and that his claims amounted to a complaint against the acts and measures carried out by the prosecutor during the investigation stage of the criminal proceedings instituted against him. The purpose of a criminal complaint was not, however, to censor the acts and measures carried out by a prosecutor. The lawfulness of such measures could only be examined within the framework of a complaint lodged with the hierarchically superior prosecutor against the acts and measures carried out by the investigating prosecutor. The applicant appealed against the order before the domestic courts. 21. By interlocutory judgments of 16 November 2010 and 18 January 2011 the Court of Cassation ordered that the investigation file be attached to the court’s file and that G.B. be summoned before the court. According to the applicant, neither the investigation file nor G.B. was ever presented to the court. 22. By a final judgment of 12 April 2011 the Court of Cassation dismissed the applicant’s complaint against the order of 2 July 2010. It held that the applicant’s complaints concerned investigative acts carried out by G.B. During ongoing criminal proceedings, other legal remedies are available to the accused or the defendant(s) by virtue of the criminal procedure rules, and these could have been used here to express dissatisfaction in respect of the alleged breaches of the procedural rules and of their lawful rights. In this connection, the court identified several complaints the applicant could have lodged within the framework of the criminal proceedings instituted against him, namely a complaint against the prosecutor’s orders for preventive measures and based on Article 51 et seq., Article 64 § 2, Article 67 et seq., and Articles 140 § 2, 172 § 6, 275-278, 320 and 332 of the Romanian Criminal Procedure Code. In addition to the aforementioned legal remedies, the defendants had other lawful means of lodging complaints against the person investigating or supervising the investigation of their case. However, a criminal complaint lodged against the prosecutor who had carried out the investigation in criminal proceedings that were still pending was not one of the legal means the applicant could have used, as it opened up the possibility of having aspects of legality regarding the pending criminal trial examined outside the framework expressly provided by the Criminal Procedure Code and of examining aspects of the criminal proceedings instituted against him. Moreover, the procedure allowing the prosecutor’s orders to be challenged before domestic courts did not allow the court to substitute its judgment for that of the judicial organs charged with the examination of the pending criminal proceedings instituted against him. The applicant appealed on points of law (recurs) against the judgment. 23. On 28 July 2011 the applicant brought proceedings against the Court of Cassation seeking an injunction to force that court to examine both the appeal on points of law lodged by him against the final judgment of 12 April 2011 and the unconstitutionality objections raised by him after the previously mentioned judgment was delivered. 24. On 12 September 2011, by a final judgment delivered in private, the Court of Cassation dismissed the applicant’s appeal on points of law against the judgment of 12 April 2011 as inadmissible. It held that, following recent law reforms, judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor’s decision not to institute criminal proceedings were no longer appealable before two levels of jurisdiction. 25. By a judgment of 28 November 2011 the Bucharest Court of Appeal dismissed the applicant’s action of 28 July 2011. It held that ordering the Court of Cassation to examine his appeal on points of law would breach the principle of legal certainty. In addition, an unconstitutionality objection had been raised by the applicant after the proceedings had ended on 12 April 2011 and there was no legal framework that would allow the Court of Appeal to force another court to examine them. The applicant appealed on points of law against the judgment of 28 November 2011 and according to him, the appeal was dismissed as ill-founded. 26. On 31 May 2010 the applicant brought criminal proceedings with no civil claims against the prosecutor L.P. for abuse of office against the public interest, incitement to the unlawful exercise of a profession and to perjury, incitement to unlawful perversion of justice, and incitement to the retention and destruction of documents. He claimed that, as G.B.’s hierarchically superior prosecutor, L.P. had approved the criminal-investigation measures undertaken by G.B., including the evidence dismissed and gathered by him, and had allowed G.B. to detain him and institute the criminal proceedings against him, even though he had been aware that he was innocent. 27. By a final order of 28 October 2010 the public prosecutor’s office attached to the Court of Cassation dismissed the applicant’s criminal complaint against L.P. on the grounds that the offences cited by the applicant were non-existent. It held that the complaints lodged by the applicant against L.P. were related to those lodged by him against G.B. In the latter’s case the public prosecutor’s office had already discontinued the criminal investigation for similar reasons. The applicant appealed against the order before the domestic courts. 28. By a final judgment of 28 March 2011 the Court of Cassation dismissed the applicant’s complaint against the order of 28 October 2010. It held that L.P. had neither investigated the applicant’s case nor undertaken any acts or measures in this respect. He had merely approved the proposal submitted by G.B. before the domestic courts to detain the applicant pending trial. The fact that he had examined and dismissed the applicant’s complaints in respect of the legality of the criminal proceedings instituted against him did not engage his criminal liability. In the absence of evidence to suggest that the prosecutor had acted unlawfully or that he had breached his duties, the applicant’s arguments in support of his complaint could not be assessed within the framework of a criminal investigation. Most of the applicant’s complaints were in fact arguments in his defence based on challenges to the way the evidence had been produced, the measures undertaken and the procedural flaws. According to the relevant criminal procedure rules, such complaints could be raised by the applicant before the domestic courts examining his case but could not be interpreted as constituting the elements of an offence. The applicant appealed on points of law against the judgment. 29. On 21 November 2011, by a final judgment delivered in private, the Court of Cassation dismissed the applicant’s appeal on points of law against the judgment of 28 March 2011 as inadmissible. It held that, following recent law reforms, judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor’s decision not to institute criminal proceedings were no longer appealable before two degrees of jurisdiction. 30. On 4 August 2011 the applicant brought criminal proceedings with no civil claims against prosecutors G.B. and L.P. for breach of the secrecy of his correspondence, amongst other things. He argued that the two prosecutors had unlawfully monitored his electronic mail correspondence during the spring of 2010 and in June 2010 had publicly presented the content of one of his electronic mails in court. 31. By a final judgment of 12 June 2012 the Court of Cassation dismissed the criminal proceedings with no civil claims that had been brought by the applicant against prosecutor G.B. for forgery and use of forged documents during the course of the criminal proceedings conducted by the said prosecutor against him. It held that the offences alleged by him were in fact allegations of breaches of procedural rules by the prosecutor investigating his case, which could have been examined by the appellate courts over the course of the criminal proceedings instituted against him, particularly since the proceedings in question were still pending before the domestic courts. 32. By a final order of 26 June 2012 the Prosecutor’s Office attached to the Court of Cassation dismissed criminal proceedings that had been instituted by the applicant against prosecutors G.B. and L.P. on 4 August 2011 on the grounds that no unlawful act had been committed. The applicant did not appeal against the order before the domestic courts. 33. By a final order of 12 September 2012, the public prosecutor’s office attached to the Court of Cassation dismissed criminal proceedings that had been instituted by the applicant against, inter alia, prosecutors G.B. and L.P. for slanderous denunciation, unlawful arrest and abusive investigation, and forgery on the grounds that, amongst other things, the available evidence did not suggest the existence of any offence committed by the aforementioned prosecutors. The applicant did not challenge the decision before the domestic courts. 34. According to the applicant’s medical papers he has been suffering from type-two diabetes since 1997 and has been treated with insulin since 2009. 35. On 9 March 2010 at 10.30 p.m., prior to being placed in a detention cell, the applicant was examined by the detention center’s medical nurse. According to the report produced on that day, the applicant’s general condition was relatively good. He informed the medical nurse that he required insulin treatment twice a day, in the morning and in the evening. He said that he had tested his own blood sugar level using his own tester at 9 p.m. and that his blood sugar level was high. 36. On 10 March 2010 the applicant was examined by a doctor specialising in diabetes and nutrition. According to the medical certificate produced on the same day, the applicant was following a programme of treatment involving two insulin injections per day, one in the morning and one in the evening. 37. Between 12 March 2010 and 16 May 2012 the applicant was examined by specialist doctors and was tested ten times. According to the medical certificates produced on those dates, he continued to receive two injections of insulin per day until November 2011, but the dosage was increased twice. In addition, doctors recommended that he take sick leave on six occasions. Furthermore, on 11 February 2011 it was recommended that he take his evening insulin dosage no earlier than 8 p.m. In November 2011 he was advised to administer three insulin injections per day. 38. In his initial submission to the Court on 22 June 2011 the applicant stated that on 9 March 2010 at about 7.30 a.m. the two police officers holding the warrant to appear had taken him to the N.A.D.’s office. At the N.A.D.’s office he had been left waiting in a room until 12 noon, when the police officers informed him that he needed to retain the services of a legal representative. Afterwards, he had again been left waiting for hours. 39. At about 7 p.m. a publicly appointed legal representative had arrived and the applicant had been questioned by prosecutor G.B. in her presence. He had been asked two short questions and afterwards he had once more been left waiting. 40. At about 9 p.m. prosecutor G.B. had informed the applicant that he had been placed in police custody for twenty-four hours. 41. At about 10 p.m. he had been handcuffed and taken to the detention center. At the detention center the police guards had taken away from him the syringe, the insulin and the device for measuring blood sugar levels he had had on him. The applicant had informed the police guards that he was suffering from diabetes and retinopathy and that he had not eaten the entire day. His request for a medical test to be carried out by a doctor had been dismissed and he had been visited by a nurse. 42. In his submission before the Court on 16 August 2012 the applicant stated that on 9 March 2010 after being taken to the N.A.D.’s office, he had been locked in a room and guarded by armed guards. Although he had informed the prosecutor investigating his case that he had been suffering from diabetes requiring insulin treatment and retinopathy, the latter had refused to allow him to eat for the purposes of being able to take his insulin treatment. 43. On the same date, according to the applicant, his two mobile phones had been confiscated by the police officers who accompanied him to the N.A.D.’s office without producing a report attesting to this confiscation measure. Also, he had been denied contact with his family and had not been allowed to retain the services of a legal representative of his own choosing. During his placement in police custody he had not been provided with food appropriate to his condition or with plates, glasses or cutlery to be able to eat the food. 44. On 11 April 2013 the N.A.D. informed the Government that as soon as the applicant had informed the prosecutor investigating his case that he suffered from diabetes and needed his insulin treatment ‒ which would have to be brought from his workplace ‒ steps had been taken to retrieve the applicant’s treatment from his workplace. Within thirty minutes the applicant had had access to his treatment kit and had been allowed to use it without any restriction. In addition, the police officer who had brought the treatment kit from the applicant’s workplace had also bought food for the applicant using his own money and had allowed him to eat. 45. On the same date the N.A.D. informed the Government that the applicant had been questioned by the prosecutor as an accused from 12 noon to 12.34 p.m. The fact that the record of the applicant’s statement mentioned 9.34 p.m. (21.34) as the time when the hearing had ended had been an error, given that the next procedural act carried out by the prosecutor had started at 12.45 p.m. In addition, the N.A.D. stated and provided evidence that for the rest of the time the prosecutor had not been hearing or carrying out procedural acts in relation to the applicant, but rather had been working on procedural acts and measures undertaken in relation to the three remaining co-accused and the available witnesses.