CASE OF BRAGADIREANU v. ROMANIA
Remainder inadmissible;No violation of Art. 3;Violation of Art. 3 (detention conditions);Violation of Art. 6-1(length);Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
David Thór Björgvinsson
5. The applicant was born in 1954 and lives in Bucharest. 6. On 9 June 1993, the applicant was placed in police custody for five days under the accusation of having murdered his partner. On 14 June 1993, the prosecutor attached to the Giurgiu County Court ordered the applicant's remand in custody. 7. On 22 October 1993, the prosecutor attached to the Giurgiu County Court committed the applicant for trial for aggravated murder, under Article 176 (a) of the Criminal Code. 8. On 4 April, 10 October, 28 November 1994, 9 January, 13 February and 15 May 1995, in the presence of the applicant and D.U., his chosen defence counsel, the County Court heard evidence from witnesses. On 10 October 1994 the applicant also gave evidence. On 15 May 1995 the County Court heard evidence from the prosecutor, the civil party and D.U. It then allowed the applicant to address the court last. 9. In a judgment of 29 May 1995 the County Court found the applicant guilty of aggravated murder and sentenced him to twenty years' imprisonment. It based its judgment on the witness testimonies, the applicant's declarations and behaviour and the medical reports concerning the death of the victim. On 16 February 1996 the sentence was confirmed, upon the applicant's appeal, by the Bucharest Court of Appeal which heard evidence from the applicant and I.C., his defence counsel. 10. The applicant appealed in cassation before the Supreme Court of Justice alleging that he had not committed the murder and that, therefore, the evidence had been wrongly interpreted by the courts. 11. The applicant was sent to the Prison Hospital from 4 August to 5 October 1995, from 4 April to 25 April 1996 and again from 8 to 22 August 1996. He underwent several surgical interventions there. In 1996 he was diagnosed with a perianal tumour but refused further surgery. Due to a severe problem with his eyes, the doctors who examined the applicant recommended his release. 12. During the proceedings before the Supreme Court, the applicant's health was in constant decline. Therefore, he was absent from most of the hearings held in the case, but allegedly requested repeatedly that the proceedings be suspended because of his illness. 13. It appears from the non-definitive decisions that the applicant was represented either by a court-appointed counsel or by a lawyer of his choice for most of the hearings. 14. On 17 February 1997, after having examined the applicant and having noted, in particular, that he had lost 20 kg in six months, the prison doctors recommended that the applicant undergo an expert examination by the Forensic Institute. On 10 March 1997, the same doctors recommended the applicant's release. 15. He was hospitalised again between 8 January and 30 May 1997. In March 2007, he was transferred under escort to the Bagdasar public Hospital in Bucharest where he underwent a colostomy. He claims that he was handcuffed to the bed. 16. On 23 April 1997, the doctors recommended his release from custody due to his severe medical condition. 17. On 15 May 1997, the Forensic Institute concluded that the applicant had to follow a three-month course of treatment, which would prevent him from participating in the proceedings. 18. On 27 May 1997 the Supreme Court suspended the trial due to the applicant's health condition, as revealed by the Forensic Institute's report adduced in the case. It also ordered the applicant's release, which took place on 30 May 1997. 19. The Supreme Court requested periodically the experts' opinion on the applicant's condition in order to assess if the reasons for the suspension of the proceedings were still valid. 20. After his release, the applicant continued to be treated for his illness. On 15 January 1998 the Forensic Institute certified that another sixmonth course of treatment was necessary and that during that time the applicant could not participate in the proceedings. 21. On 10 March 1999 the court held a hearing and noted that the medical report had not yet been submitted. It set its next hearing for 2 June 1999. 22. On 12 March 1999 the Forensic Institute informed the Supreme Court that the applicant was fit to participate in the trial. 23. On 2 June the court took note of the medical report but noted some informalities and sent it back to the Forensic Institute. It set its next hearing for 13 October. 24. On 13 October 1999, in the presence of the applicant's chosen counsel, the Supreme Court noted that neither the prosecutor nor the lower courts had ordered the applicant's psychiatric evaluation, required by law for any person prosecuted for aggravated murder. 25. Therefore, in a final decision of 25 October 1999 the Supreme Court of Justice quashed the previous decisions adopted in the case and sent the case back to the County Court, ordering the applicant's psychiatric evaluation. 26. On 10 March 2000 the file was sent to the Giurgiu County Court, which held the first hearing on 10 April 2000, and then several more, the applicant being absent due to his health problems. He was, however, represented in the proceedings mainly by D.U., a lawyer of his choice. 27. Evidence in the file showed that on 31 May 2000 he had been released from hospital. 28. On 20 November 2000 the County Court referred the case back to the prosecutor to order the psychiatric evaluation. 29. The prosecutor's appeal against this judgment was allowed by the Bucharest Court of Appeal in a final decision of 1 March 2001 which instructed the County Court to order the applicant's evaluation itself, as decided by the Supreme Court on 25 October 1999. 30. On 23 April 2001 the case was restored to the County Court's list of cases. 31. Some twenty hearings took place before the County Court, the case being repeatedly postponed due to the absence of the expert reports or for erroneous summoning of the parties. It appears that the applicant did not attend any of these hearings but was represented at most of them by D.U., his defence counsel. 32. On 15 June 2001 the applicant was hospitalised for another operation. 33. On 14 September 2001 the Forensic Institute estimated that the applicant required a four-month course of medical treatment that could not be administered in prison. However, on 29 October 2001, upon the County Court's request, it concluded that the applicant was fit to participate in the trial. 34. On 5 November 2001 the applicant appeared before the medical commission for his psychiatric examination. 35. On 27 March 2002 the psychiatric expert report was adduced in the case. It confirmed that the applicant had been mentally competent for legal purposes at the time of the victim's murder. The County Court heard evidence from the applicant's lawyer and the prosecutor on 20 May 2002 and pronounced its judgment on 10 June 2002. Due to the applicant's repeated absence on account of his medical condition, the County Court could not hear evidence from him in person. 36. The court re-examined the evidence already in the file and based its decision on the corroboration of witness testimonies gathered by the investigators and the courts, the expert reports concerning the victim's death and the applicant's behaviour towards his partner, towards his former wives (witnesses in the case) and during the criminal investigations and court proceedings – including the assessment of the answers he gave during a polygraph test that he had agreed to take on 12 June 1993 and in the course of which he had not been assisted by a lawyer – and the psychiatric evaluation of the applicant. The County Court found him guilty of aggravated murder and sentenced him to twenty years' imprisonment. 37. The applicant, through his lawyer, lodged an appeal against this judgment challenging the interpretation of facts and law by the County Court. He claimed his innocence and alternatively asked the court to reduce his sentence. His appeal was rejected as out of time in a decision of 13 November 2002 of the Bucharest Court of Appeal. 38. However, on 28 February 2003 the Supreme Court of Justice, upon the applicant's request, quashed the decision and referred the case back to the Bucharest Court of Appeal for a re-examination of the appeal. It considered that the applicant had respected the time limits for lodging his appeal. 39. The applicant did not attend any of the four hearings held before the Court of Appeal. I.C., his chosen representative, attended one of these hearings. The court noted that both the applicant and his lawyer alleged that their health had prevented them from attending the hearings. However, the Court of Appeal found that the applicant was not hospitalised at that time and that his lawyer had failed to designate a substitute, although the court had requested him to do so, in compliance with the law. 40. On 29 May 2003 the Court of Appeal designated of its own motion a representative for the applicant. The same day it examined and rejected the appeal, the applicant not being present at the hearing. It found that the evidence confirmed the applicant'imposed by the District Court was justified. The courtappointed counsel pleaded for the applicant's innocence and alternatively asked the court to lower the sentence imposed. 41. The applicant appealed in cassation against this decision with the Supreme Court of Justice, challenging, as before, the interpretation of facts and law by the courts. The applicant did not attend any of the three hearings on the merits held in the case. At the first hearing, his personal assistant appeared (see paragraph 42 below), informed the Court of the applicant's poor health and asked for a postponement to allow the applicant to appoint a representative. The court postponed the case and appointed a lawyer for the applicant. Before the next hearing, I.C., the applicant's defence council who had represented him in the appeal above, made a written request for another postponement on the ground that he did not have time to study the whole file. In the presence of the court-appointed counsel and of the prosecutor, the court allowed the request. However, I.C. failed to appear at the last hearing of 12 February 2004. The courtappointed counsel participated on behalf of the applicant. In a final decision rendered on the same day, after reassessing the evidence adduced in the case, the Supreme Court upheld the sentence. 42. On 28 August 2003 the applicant was examined by a commission of doctors from the Commission for the protection of handicapped persons. They established that his condition amounted to a severe functional deficiency which entitled him to a personal assistant. 43. On 19 February 2004 the applicant lodged a request for the postponement of the execution of the sentence for medical reasons. Later on he reformulated it, asking for the suspension of the sentence. 44. On 1 March 2004 the applicant was referred to the Forensic Institute for an opinion on whether he was fit to serve the sentence. 45. The Forensic Institute doctors re-examined the applicant and concluded that the stage of his illness permitted the continuation of his imprisonment and that his medical treatment could be continued in prison hospitals: “The pathology ... is severe, with unpredictable evolution, possibly towards a fatal prognosis which can happen regardless of whether [the applicant] is in prison or released.” The doctors submitted their report on 30 September 2004. 46. Based on this evidence, the applicant's request for suspension was rejected on 18 October 2004 by the Giurgiu County Court. The decision was upheld by the Bucharest Court of Appeal on 22 November 2004. The applicant did not appeal on points of law and thus this latter decision became final. 47. On 24 October 2006 the Forensic Institute started a new expert examination of the applicant in order to assess the possibility of interrupting the execution of his sentence. However, on 30 August 2006 the applicant refused to continue with this examination, as he considered that it would not benefit him. 48. On 10 March 2004 the applicant was imprisoned in order to serve the remainder of the sentence. He claimed that he had been placed in a cell with thirty beds arranged at three levels and with badly damaged mattresses, with two detainees in each bed, two toilets and no shower or warm water in the room. Due to his medical condition (as he had an artificial anus, he was unable to control his bowel movements) he asked to be transferred to a single-bed cell, but his request was rejected on the ground that no such cells existed in that penitentiary, except those for solitary confinement. 49. According to the applicant, he repeatedly requested to be examined by a doctor, but to no avail. He claimed that his medicine had not been provided by the authorities for lack of funds, and his family had had to send it to him. 50. The Government sent the applicant's medical file along with a letter from the Administration of Penitentiaries dated 26 September 2006 which detailed the medical care that the applicant received in prison. 51. It appears that from 10 to 22 March 2004 he was hospitalised in the Jilava Penitentiary Hospital where he was examined by the penitentiary doctors. He underwent laboratory tests and an oncological evaluation in public hospitals. 52. Subsequently he was examined periodically by the penitentiary doctors and often sent for specialist check-ups. 53. From 8 May to 22 July 2004 the applicant was hospitalised again in the Jilava Penitentiary Hospital. Laboratory analyses were performed and he was also sent to the public hospital for more detailed examinations. 54. He was hospitalised again in Jilava from 8 to 28 August 2004. On 18 August 2004 the doctors performed an abdominal ultrasound scan and recommended check-ups every three months. 55. On 6 August 2004 the applicant received from his family thirty tubes of Pentoxifilin. 56. His medical surveillance continued throughout 2004, 2005 and 2006. He underwent ophthalmologic check-ups, was seen by specialist doctors at least every other month, and received through the penitentiary pharmacies the prescribed medicines every month. 57. On 28 June 2005 the applicant informed the authorities that he refused to be examined in the Jilava Penitentiary Hospital, bearing in mind his criminal complaint of ill treatment against the penitentiary doctors (see paragraphs 61-62 below). 58. He was hospitalised again in Jilava from 23 to 31 August 2006. 59. It appears that the applicant received medicine from the penitentiary pharmacies as prescribed by the doctors that had examined him. 60. Between the periods of hospitalisation, the applicant was detained in the penitentiaries in Rahova and Giurgiu. 61. On 4 June 2004 the applicant lodged a criminal complaint against the penitentiary doctors that had operated on him while in detention. He accused them of intentional harm and malpractice during the surgical intervention. On 1 April 2005 the Bucharest Military Prosecutor's Office dismissed the complaint as out of time. The applicant appealed against this decision. In his letter to the Prosecutor's Office, he invoked the fact that he was “transported to and kept in the Bagdasar-Arseni Hospital under escort”. The criminal complaint was re-examined and dismissed again, on 28 July 2005, by the Bucharest Military Prosecutor. In a decision of 18 April 2006 the Bucharest Military County Court upheld the Prosecutor's decision, on the grounds that the accusation against the penitentiary doctors was unfounded and that, in any case, due to the time lapse between the operations and the lodging of the criminal complaint, responsibility for any of the alleged crimes was time-barred. 62. On 3 August 2005 the applicant lodged a complaint with the Bucharest District Court under the Government's Ordinance no. 56/2003. He considered that his right to information, to the protection of his health and to a healthy environment had been infringed in prison. Furthermore he claimed that the prison conditions had amounted to torture. Accordingly, he argued that despite his severe medical condition the prison authorities had refused to put him in a cell by himself. He also claimed lack of access to his medical and criminal files. 63. In a decision of 17 October 2005 the District Court dismissed his action. It considered that the quality of medical care did not fall under the ordinance invoked; the applicant should have lodged an action in civil responsibility against the doctors. In any case, the evidence showed that the applicant had been given adequate medical care, seen by various doctors and examined and afforded the aftercare that had been prescribed. 64. The court dismissed as unfounded the applicant's allegation of lack of access to his medical file. It noted that the said file had been adduced in the case, both the applicant and his representative having thus had access to it. 65. Lastly, the District Court recalled that the Ordinance did not impose an obligation on the prison authorities to ensure access for the applicant to his criminal file. It recalled that the applicant had the right to designate a representative to study it. 66. The applicant's appeal was also dismissed by the Bucharest County Court, in a final decision of 5 December 2005. The County Court noted that the Penitentiary had refused to move the applicant to an individual cell on the ground that he would be soon transferred to a new section, to a room that would be better suited to his medical requirements. It appears that the court estimated that the applicant's allegations concerning the negative influence on his health of the conditions of his detention were unfounded. The court also recalled that it was for the prison authorities to provide his personal assistant. 67. In a letter of 16 December 2005 the Commission for the Protection of handicapped persons informed the applicant that as long as he was imprisoned he was not entitled to any special allowance for his own needs or for hiring a personal assistant, since it was for the penitentiary to provide care for him. 68. To date, the applicant is still in prison. It seems that he has not been transferred to an individual cell. 69. The relevant provision of the Code of Criminal Procedure on the psychiatric evaluation of a person charged with a criminal offence reads as follows: “(1) The psychiatric evaluation is mandatory in cases of aggravated murder...” 70. The Code of Criminal Procedure provides that informalities in the trial such as the courts not hearing evidence from the accused in person, constitute an infringement of the rights to defence which shall lead to declaring the decision taken null and void. The relevant provisions of domestic law and practice are described in detail in the case of Ilişescu and Chiforec v. Romania (no. 77364/01, §§ 18-19, 1 December 2005). 71. The relevant part of law no. 51/1995 on the organization and exercise of lawyers' practice reads: “The lawyer shall study the case thoroughly..., shall attend every court hearing...” 72. The relevant part of the statutes of the lawyers' practice reads: “(2) When the lawyer is prevented from fulfilling his professional duties, he shall provide a substitute...” 73. Extract from the 11th General Report of the European Committee for the Prevention of Torture (CPT) (CPT/Inf (2001) 16) “29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions. No doubt, various factors - including those of a cultural nature - can make it preferable in certain countries to provide multi-occupancy accommodation for prisoners rather than individual cells. However, there is little to be said in favour of - and a lot to be said against - arrangements under which tens of prisoners live and sleep together in the same dormitory.” 74. The CPT standards (“Substantive” sections of the CPT's Annual General Reports) “50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners... [Prisoners unsuited for continued detention] 70. Typical examples of this kind of prisoner are those who are the subject of a shortterm fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” 75. The CPT visited Romania in 1995, 1999, 2001, 2002, 2003, 2004 and 2006. All but its most recent visit report have since been made public. Overcrowding of prisons and lack of reasonable hygiene facilities were constantly stressed by the CPT. 76. Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison reads: “C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis 50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. 51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.”