CASE OF APOSTU v. ROMANIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
6. The applicant was born in 1968 and lives in Târgu Mureș. 7. The Anti-Corruption Department of the Prosecutor’s Office (“the DNA”) started a criminal investigation against the applicant, his wife and three businessmen on suspicion of repeated corruption offences committed in his capacity as mayor of Cluj Napoca. 8. The prosecutor sought authorisation for the interception of the applicant’s telephone calls. The transcripts of the intercepted telephone calls were admitted as evidence against the applicant. 9. On 9 November 2011 police officers belonging to the DNA carried out a search at the applicant’s home. They carried out another search at the applicant’s office at Cluj Napoca Town Hall. 10. The applicant was taken to the DNA’s Cluj headquarters on the basis of a summons to appear before the investigative body. 11. Newspaper and television crews were present and the events were given widespread media coverage. 12. At about 8.50 p.m. on the same day the prosecutor ordered the applicant’s remand in custody. 13. The applicant’s pre-trial detention was ordered by an interlocutory judgment delivered the next day by the Cluj Court of Appeal. The court reasoned that it was necessary to stop the criminal activity of the applicant, who was allegedly preparing to commit a new corruption offence. The court also referred to the seriousness and the continuous nature of the offences. It stressed that the applicant had acted in his capacity as mayor when he had allegedly committed the offences. It concluded that the public would be shocked if the applicant were to be released. In assessing the concrete danger to public order if the applicant were released from detention, the court stressed that the offences had allegedly been committed over a long period of time (starting in 2009, when he had been appointed mayor, until the time of his arrest), that they were repetitive and that the perpetrator was a mayor in charge of protecting legal order. The court pointed out that as the applicant’s wife was under investigation, the applicant having used her law firm to cash the money received as bribes, his release from prison would allow him to influence her position. It concluded that his release from detention would intimidate other persons in possession of information relevant for the investigation. 14. The applicant appealed. On 21 November 2011 the High Court of Cassation and Justice upheld the above judgment, holding that there were strong indications from the criminal investigation file that the accused had committed the crimes. 15. The applicant’s pre-trial detention was regularly extended by interlocutory judgments of the Cluj Court of Appeal. 16. The court reasoned that the extensions were justified on account of the nature and severity of the offences for which the applicant was under investigation, and the fact that he might obstruct the course of justice by intimidating possible witnesses and the persons who had lodged complaints against him. 17. The applicant lodged appeals against the interlocutory judgments; all the appeals were dismissed by final decisions of the High Court of Cassation and Justice. 18. The applicant lodged several applications for his release from prison under judicial supervision. He mainly emphasised that he had a stable family, two minor children and an unblemished reputation. He also pointed out that he had been accused of non-violent crimes and had no criminal record. 19. The Cluj Court of Appeal dismissed the applicant’s requests on the grounds that the evidence in the file pointed to a strong likelihood that he had committed the corruption-related offences. It held that such offences might attract a prison sentence longer than four years. It also held that releasing the applicant would give rise to a real danger to public order, given the circumstances in which the acts had been committed, and their consequences and social impact. 20. The applicant appealed, pointing out that his personal situation had changed, in that he was no longer the mayor of Cluj. The appeal court’s decisions were upheld by the High Court of Cassation and Justice. 21. On 30 November 2011 the investigation against the applicant was extended in connection with other offences allegedly committed by him, namely trading in influence, complicity in and incitement to money laundering, and complicity in and incitement to forgery. 22. On 22 December 2011 the prosecutor issued an indictment concerning five co-accused, including the applicant and his wife, and the case was registered with the Cluj Court of Appeal. The applicant was charged with passive corruption, and repeated complicity in and incitement to money laundering and forgery. 23. Following a request lodged by the applicant, the High Court of Cassation and Justice decided on 20 February 2012 to transfer the file to the Târgu Mureș Court of Appeal in order to avoid any possible partiality on the part of the judges. 24. According to the latest information, the criminal proceedings are still pending. 25. Excerpts from conversations between the applicant and other defendants or third parties, which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution, were subsequently published in several newspapers before the applicant and his co-accused had been committed for trial. 26. Even the headlines of the articles published in the press during that period referred to the fact that they contained excerpts of the recorded conversations. Thus on 16 December 2011, the newspaper Evenimentul zilei published an article with the headline, “Exclusive: Shocking revelations in the Apostu file. The names of all the persons under investigation and new excerpts from the telephone conversations. Evidence that M. Apostu received clothes as a bribe” (Exclusiv: Dezvăluiri tari din Dosarul Apostu. Surprize mari: numele tuturor celor cercetați și interceptări noi. Dovada că M. Apostu lua șpagă în haine). 27. On 16 November 2011 the newspaper Cancan published an article with the headline, “Excerpts of intercepted phone conversations: Sorin Apostu, the mayor of Cluj, acknowledged that he had at home three telephones with pre-paid cards, in order not to be intercepted” (Stenograme: Sorin Apostu, primarul Clujului, recunoaște că avea în casă trei telefoane cu cartele preplătite, ca să nu poată fi interceptate). 28. On the same day another article containing excerpts of the applicant’s recorded telephone conversations was published on the website of the newspaper National. It started with the following statement: “Pure coincidence, the excerpts of the telephone conversations offered for publication in the investigation of mayor Sorin Apostu for corruptionrelated offences stops, with suspense, exactly when the Romanian Prime Minister enters the scene”. 29. The publication of excerpts from the applicant’s recorded telephone conversations continued after the applicant had been committed for trial. 30. Other pieces of evidence from the prosecution file were likewise published and commented on in the press. On 18 December 2011 the newspaper Ora de Cluj published an article with the headline, “Complete document. The reasoning of the interlocutory judgment ordering the pretrial detention of mayor Sorin Apostu and businessman C. S.” (Document integral. Motivarea sentinței de arestare a primarului Sorin Apostu și a omului de afaceri C. S.). 31. Several press articles contained excerpts of telephone conversations between the applicant and persons not involved in the criminal proceedings. On 5 February 2012 Ora de Cluj published an article with the headline, “Interception. Three-way conversation: businessman S. D., mayor Sorin Apostu and driver J.” 32. Many of the press articles referred to aspects of the applicant’s private life without any connection to the criminal proceedings instituted against him. They were based on information found in his criminal file. On 6 February 2012 the newspaper Cancan published an article with the headline, “Juicy details from the private life of mayor Sorin Apostu! The mayor of Cluj, romance with a subordinate”. Only a few days later, on 10 February 2012, the daily newspaper Evenimentul zilei published an article about a search carried out at the home of the mayor’s subordinate with the headline, “Bombshell in the ‘Apostu’ file: five-hour search at home of his supposed sweetheart”. 33. The applicant was detained in the detention facility of Cluj police station between 9 November 2011 and 6 January 2012, except for two short periods (from 8 to 9 December and from 28 to 29 December 2011) when he was detained in the Bucharest central remand facility on account of his presence before the High Court of Cassation and Justice. 34. The applicant claimed that he had been detained in a small cell measuring approximately five sq m with four tiers of bunk beds. Access to a toilet was very difficult as the toilets were in the corridor. The cell lacked natural light and ventilation and the smells from the sewage system were noxious. 35. The applicant was held in cell no. 2, which measured 6.97 sq m, and in cell no. 3, which measured 11.31 sq m. The first cell had two metal beds, foam mattresses, bedrolls, two metallic nightstands, a table and two chairs. The second cell had three metal beds and was similarly furnished. The applicant was detained alone in both cells. Moreover, he was allowed to keep a television set in the cell. 36. The cells had natural and artificial light, and the applicant was allowed to use an extra lamp to improve the lighting. The cells were ventilated through windows covered with wire netting. 37. The sanitary facilities and the showers were in the corridor. The applicant had permanent access to the sanitary facilities and to the showers during daylight hours, whenever he requested it. 38. The time spent outside the cells was one hour per day. 39. On 6 January 2012 the applicant was transferred to Gherla Prison. He was detained there for the following periods: between 6 and 12 January 2012; between 17 and 30 January 2012; between 16 February and 22 March 2012. 40. The applicant complained of overcrowding. However, he did not mention the number of detainees in the cell or the size of the cell. He merely claimed that there were eighteen beds in the cell. He also claimed that the temperature had been very low and the conditions of hygiene poor. He had been allowed to take only two showers per week. 41. On 9 January 2012 the applicant applied for protection as a vulnerable person under Article 7 § 5 of the Rules of Application of Law no. 275/2006. Subsequently, he carried out all activities separately from the other detainees. 42. The applicant was detained in four different cells: - on 6 January 2012 he was detained in cell EG 5.3 in the hospital wing, which measured 15.26 sq m, contained three beds and which he shared with only one detainee; - between 6 and 10 January 2012 he was detained in cell EG 1.7 in the quarantine wing, which measured 43.25 sq m, contained twenty-one beds and which he shared with two other detainees; - between 10 and 12 January and 17 and 27 January 2012 he was detained in cell EG 1.4 in the quarantine wing, which measured 16.24 sq m, contained four beds and which he shared with two other detainees; - between 27 and 30 January and 15 February and 22 March 2012 he was detained in cell EG 3.20, which measured 16.24 sq m, contained nine beds and which he shared with three other detainees. 43. The prison’s central heating system was in good working order and ensured an appropriate temperature inside the prison. There were no registered complaints by the detainees in this respect. 44. The prisoners were entitled to two showers per week and the hygiene conditions were adequate. 45. The applicant spent two hours per day outside the cell. 46. On 12 January 2012 the applicant was transported to Rahova Prison in order to attend a hearing of the High Court of Cassation and Justice in the appeal on points of law lodged by him against an interlocutory judgment. He spent five days in that prison. 47. The applicant complained of overcrowding and very low temperatures in the cell. He claimed that the cell had had no heating and that he had had nothing to eat for about three days because food had been thrown into the cell by other detainees, who had made death threats against him. 48. On 12 January 2012 the applicant was detained in cell no. 538, reserved for vulnerable persons, which measured 19.58 sq m and which he shared with seven other detainees. 49. Between 13 and 16 January 2012 the applicant was detained in cell no. 219, which measured 19.3 sq m and which he shared with only one other detainee. 50. The cells and sanitary facilities were ventilated through double windows. The heating of the cells was ensured by radiators connected to the prison’s thermal station. 51. Food was served in the cells as the prison had no dining hall designed for persons under pre-trial detention. Food distribution was supervised by the prison staff and coordinated by the section head. The Government underlined that by placing the applicant in a cell for vulnerable detainees (persons who had held official functions), the prison authorities had complied with their obligation to take proper measures to ensure the safety of those persons. 52. All daily activities concerning the vulnerable detainees, as well as their transfer to the court, were carried out separately from other categories of detainee. Additional security measures were taken in respect of those persons. 53. The Government contended that the applicant had not lodged any complaint with the delegated judge against the prison staff or in connection with conflicts with other detainees during his detention in Rahova Prison. 54. Between 30 January and 16 February 2012 the applicant was admitted to the hospital wing of Dej Prison. 55. On 22 March 2012 the applicant was transferred to Târgu Mureș Prison. He did not complain about the conditions of his detention in Târgu Mureș Prison. 56. On 12 January 2012 the applicant was transported from Gherla Prison to Rahova Prison. 57. The applicant complained of the inappropriate conditions in which he had been transported in a prison van for about seventeen hours on 12 January 2012. He claimed that the prison van had been overcrowded and that the natural ventilation of the van through the hatches had been insufficient. He also complained that the van had not been heated and had had no windows or internal lighting, and that he had had no opportunity to use the toilet during the journey. 58. The applicant also alleged that he had been deprived of food and water during transportation. 59. The applicant lodged a complaint with the prison authorities regarding the conditions in which he had been transported from Gherla Prison to Rahova Prison. In a letter of 22 February 2012 the National Administration of Prisons acknowledged that he had been transported in a small-capacity van belonging to Gherla Prison, as the prison did not have at its disposal another van. 60. According to the Government, a special journey was for the applicant and a co-defendant in order to ensure their attendance at the hearing scheduled by the High Court and Cassation for the following day. The vehicle left Gherla Prison at 5 p.m. on 12 January 2012 and arrived at Rahova Prison at 1.30 a.m. on 13 January 2012. The vehicle was fully equipped and adapted for detainees. On 12 January 2012 the applicant and his co-defendant were the sole detainees transported. 61. The vehicle disposed of a heating system. The applicant benefitted from space, light and an adequate temperature. He was provided with water and food in conformity with the applicable regulation and had been allowed to carry three pieces of personal luggage and an object of value. 62. Smoking was forbidden during the transportation. 63. On 26 January 2012 the applicant lodged a request with the Gherla Prison authorities, asking them to ensure that he had appropriate conditions for preparing his defence in the presence of his lawyer. He alleged that under the current conditions he had been unable to consult the file and have direct contact with his lawyer. In a letter submitted to the prison authorities the following day he asked for direct contact with his lawyer, since at that time he had been separated from his lawyer by a glass partition and had had to speak through a microphone. He lodged another similar request on 20 March 2012. 64. The prison authorities justified the applicant’s separation from his lawyer by a glass partition by citing the existing legal provisions.