CASE OF VOICU v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1965 and lives in Bucharest. At the time of the facts of the case, the applicant was in private legal practice and was a senator. 6. On 10 December 2009 the Anti-Corruption Department of the Prosecutor’s Office attached to the High Court of Cassation and Justice (referred to herein as “the prosecutor” and “the DNA”) started criminal proceedings against the applicant (urmărirea penală) on suspicion of trading in influence (traffic de influenţă). In particular, the prosecutor alleged that: (i) the applicant had accepted 200,000 euros (EUR) from a businessman, C.C., in return for using his connection to Judge F.C. of the High Court of Cassation and Justice in order to influence the outcome of a case pending before that court which concerned a dispute between C.C.’s company and a state agency; and (ii) that he had accepted money from M.L., under the pretext of providing legal services through his law firm, in order to facilitate M.L.’s access to the head of the police with the aim of discussing criminal investigations that were being conducted against M.L. 7. On 11 December 2009 the applicant was returning home during the day in a car belonging to the Senate. Close to his home, his route was blocked by another car. Several armed individuals jumped out, dragged the applicant from his car and, in front of his neighbours and a crowd of passers-by, handcuffed him and put him in their car. He was then taken to the DNA’s headquarters, where he was informed of the criminal proceedings against him. The applicant gave a statement to the prosecutor. 8. At the DNA’s headquarters, the applicant found out that he had been under investigation for a crime against national security. However, the prosecutor had decided on 27 November 2009 not to prosecute that offence. The evidence gathered in that investigation, in particular through intercepting the applicant’s telephone, had led the investigators to suspect the commission by the applicant of the crimes of corruption for which he was currently under investigation by the DNA. 9. On the same date, the prosecutor issued an order prohibiting the applicant from leaving town for thirty days. 10. Upon the applicant’s request, on 12 January 2010 the prosecutor sent him a copy of the decision of 27 November 2009. 11. On 9 March 2010 the prosecutor sought, through the Minister of Justice, Parliament’s approval to arrest the applicant. On the same date, the DNA issued a press release informing the public that it had sought authorisation for the arrest. 12. From the moment the DNA informed the public about the proceedings against the applicant, the media took great interest in the case. Numerous panel discussions were broadcast and journalists and politicians commented publicly on the events. 13. Excerpts from conversations between the defendants which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution made it into the newspapers before the applicant and his co-accused had been committed for trial. Those excerpts gave the impression that the applicant and Judge F.C. had tried to manipulate some of the judges from the panel ruling in a commercial case involving C.C., and had reported back to the latter on the progress of those alleged manoeuvres. In the conversations among them, the applicant and the codefendants expressed in strong terms their disappointment that the outcome had not been favourable to C.C., and made assumptions as to whether the remaining judges on the panel had been influenced by someone else. 14. The transcripts of telephone conversations intercepted during the surveillance operation first appeared in the press between 18 and 22 March 2010. 15. Other pieces of evidence from the prosecution file were likewise published and commented on in the press. 16. On 24 March 2010 the Senate met to discuss the prosecutor’s request. The applicant was unable to take part in the session, as he was in the hospital at the time. The Senate allowed the prosecutor’s request. 17. Upon obtaining the Senate’s approval, the prosecutor submitted a detention order to the High Court of Cassation and Justice, which examined it in private on 30 March 2010 and endorsed it. The applicant was arrested on the same day. 18. The High Court then took a statement from the applicant and proceeded to examine the prosecutor’s application for the applicant’s pretrial detention. It heard arguments from the parties, reviewed the evidence presented by the prosecutor and concluded that there were serious indications and evidence in the file that the applicant had committed the crimes of which he was accused and that he had abused his important official position, thereby damaging the reputation of the legislature and the judiciary, as well as undermining the public’s trust in the judicial system. It therefore considered that the specific danger that the applicant posed to the public order was serious enough to justify his detention. 19. Upon the applicant’s appeal, by a final decision of 2 April 2010 the High Court, sitting as a ninejudge bench, upheld the previous decision. At the applicant’s request, this hearing was held in secret and journalists and the public were removed from the courtroom. The High Court found that the evidence lawfully included in the file justified a reasonable suspicion that the applicant had committed the crimes under investigation. It also dismissed the applicant’s argument as to procedural flaws, in so far as it found that the prosecutor had heard the applicant on 11 December 2009 and considered that his right to mount a defence had not been disregarded because of the mere fact that a certain lapse of time had passed between the date of his statement and that of the arrest order. 20. The applicant sought his conditional release. On 12 April 2010 the High Court dismissed his application, on the grounds that the evidence in the file indicated that he had tried to influence one of the witnesses and to create false evidence in his defence. It also considered that the reasons underlying the court decision to place him in pre-trial detention were still valid, given that, in particular, such a short time had passed since that decision. This decision became final on 16 April 2010, when the High Court dismissed the applicant’s appeal. 21. The High Court examined the applicant’s pre-trial detention on ten more occasions and the applicant repeatedly applied for release pending trial conditioned on the obligation not to leave town (decisions of 23 April, 25 May, 16 June, 14 July, 10 September, 6 October, 16 November 2010, 12 January, 9 February and 4 March 2011). The High Court considered that the evidence in the file offered a reasonable indication that the applicant had committed the crimes he was accused of and that his continued detention was needed given the difficulty involved in investigating such crimes. It also referred to his attempt to influence witnesses, to his personal situation (first time on trial, family situation), his personality, his office during the alleged commission of the offences, and the nature and severity of the crimes under investigation. The High Court also took into account the fact that the proceedings on the merits had only recently started, on 20 May 2010. It referred to the European Court’s case-law and the relevant Council of Europe texts, and considered that the grounds for the applicant’s detention were still valid and the time spent in pre-trial detention was not excessive within the meaning of Article 5 of the Convention. For these reasons, it did not consider it opportune to substitute the preventive measure that had been applied with a less strict measure. 22. The appeals lodged by the applicant against each of these court orders were dismissed by a different panel of the High Court on 26 April, 31 May, 21 June, 22 July, 30 September, 13 October and 29 November 2010, 20 January, 28 February and 14 March 2011 respectively. 23. On 4 April 2011 the High Court examined a new application for release on probation lodged by the applicant and decided that he could be released. It held that the vast majority of the evidence for the prosecution had already been heard in court, thus the risk of the applicant trying to influence witnesses was no longer acute. The court ordered him not to leave town and not to contact his co-accused. 24. However, on 11 April 2011 the decision was quashed and a fivejudge panel of the High Court dismissed the applicant’s application for release. The High Court examined the suitability of releasing’s case-law on the subject. It considered that the severity of the crimes allegedly committed and the particular circumstances in which they had occurred, coupled with the applicant’s attempts to influence a witness, were sufficient factors to justify extending the applicant’s detention pending trial, which remained the only adequate preventive measure. It also considered that the overall length of the measure remained reasonable in the applicant’s particular situation. 25. On four more occasions (27 April, 11 May, 8 June and 12 July 2011) the High Court was called to examine the necessity of keeping the applicant in detention and each time it decided to release him pending trial for the same reasons as those advanced on 4 April 2011. The High Court replaced the measure with the obligation not to leave town. However, each order, save for the last one, was quashed by a five-judge panel of the High Court and the applicant’s detention was extended (on 29 April, 24 May and 17 June 2011 respectively). 26. On 18 July 2011 the High Court dismissed an appeal lodged by the prosecutor against the court order of 12 July 2011. As a consequence, the applicant was released from detention on the same day. 27. The applicant was arrested on 30 March 2010 and remained in pretrial detention until 12 July 2011. He described the overall conditions of his detention as follows: it was very cold in the cell, hot water was only available for one hour a week and basic hygiene was lacking. He had to share a 9 sq. m cell with ten other inmates and the lack of space triggered violent clashes within the cell. 28. The Prison Administration submitted a full record of the applicant’s stay in prison, giving details of the cells the applicant was kept in, their occupancy and the facilities offered. According to this information, the applicant was held in Bucharest Remand Centre No. 1 (“Bucharest Remand Centre”) on 30 March 2010 and again from 16 April 2010 to 13 July 2010. He was held in two separate cells, one of 9 sq. m with four beds and another of 14.57 sq. m with six beds. The cells were at full occupancy at that time. Each cell was equipped with beds, a table, chairs, a squat toilet, a sink with cold and hot water and a shower separated from the living space by a curtain. The inmates cleaned the cell themselves with products provided by the administration or purchased by them. 29. The applicant described these cells as badly lit and ventilated, humid and foul smelling. He further explained that because the toilet was not partitioned off from the beds, the inmates lacked privacy when using it. The tap for washing dishes and clothes and for showering was placed above the toilet and the water ran straight into the toilet. There was frequently no running water at all, which rendered it impossible to flush the toilet. The hot water was never sufficient for all of the inmates to take showers. 30. The records show that from 30 March to 16 April 2010 the applicant was held in Jilava Prison Hospital in a hospital room measuring 30 sq. m which was equipped with five beds and had access to hot water twice a week. 31. The applicant spent the remainder of his pre-trial detention in Bucharest-Rahova Prison, where he was held, at his request and because of his position as a senator, in a cell for vulnerable individuals. The cell measured 24.59 sq. m, had eight bunk beds and was at full occupancy at that time. The cell had a window which allowed in natural light and ventilation. The detainees had at their disposal a table, benches, shelves and a TV set. Adjacent to the cell there was a bathroom equipped with a toilet, sinks and a shower. Cold water was continually available and hot water was available twice a week. The cell was heated to 18oC during the winter. The applicant explained that it was very hot in the summer and very cold in the winter; the heating system was old and broke down frequently, leaving the cells brutally cold. Hot water was scarce and there was never enough for all of the inmates to take showers. 32. On 28 February 2011 the applicant was transported from BucharestRahova Prison to the prosecutor’s office in Piteşti and back, a trip of around two hours each way. According to the applicant, they left in the morning from Bucharest-Rahova Prison. He was transported in the back of a prison van. Although the outside temperature was no more than 2-3oC, there was no heating in the van; in addition cold air from outside was able to enter the van through two hatches in the roof which could not be closed completely. There was insufficient light in the van because there were no windows in the detainee’s compartment, the only source of light being a small window separating the detainee’s compartment from the driver’s cabin. The applicant, who was alone in the back of the van, had nothing to sit on or lean against, thus having to stand up during the entire journey with nothing to hold on to. When the van arrived in Piteşti and returned to Bucharest, he was allowed to stretch, warm up and do some physical exercise. 33. The Prison Administration informed the Government that the applicant had been transported in a van designed for transporting sixteen people, as follows: two people in the forward cabin, ten detainees on chairs in a separate compartment, and four guards in another separate compartment in the back of the van. The van had natural and artificial ventilation, a heating system, and artificial light, which was kept on throughout each journey in order to allow the guards to keep watch over the detainees. The applicant had been transported alone, thus having ten chairs at his disposal. The journey had started at 8.45 am and ended at 1.35 pm. 34. In his observations in reply to the official information supplied by the Prison Administration, the applicant explained that the back of the van where he had been held had been completely opaque without any natural light and that the artificial lighting and the heating system had not been working. He reiterated that the two hatches on the roof had remained open during the journey, resulting in freezing temperatures inside the van. The guards had had blankets to cover themselves during the journey, but he had not been given one. In addition, the seats in the detainees’ compartment had not been fitted with safety belts, which had made it difficult to keep his balance.