CASE OF CUCU v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1977. He lives in Bucharest. 6. On 21 November 2001 the Bucharest Appeal Court found the applicant guilty of robbery and two traffic offences and sentenced him to eleven years’ imprisonment. 7. He started serving his sentence in Jilava Prison, where he was detained from 28 February 2001 to 4 March 2002; from 27 April 2002 to 23 January 2003; from 28 January to 3rd July 2003; and from 20 February 2006 to 4 December 2008. He also served a part of his sentence in Giurgiu prison from 3rd July 2003 to 26 February 2005; from 5 March 2005 to 11 February 2006; and from 25 February to 23 April 2009. 8. The further circumstances on the applicant’s conditions of detention are in dispute between the parties. 9. The applicant complained about the conditions of his detention, summarised below, in both Jilava and Giurgiu prisons. He regularly complained thereof and about the disciplinary measures taken against him to the delegate judge, who dismissed most of his complaints. For instance, in a decision of 23 March 2007, the delegate judge to Jilava Prison rejected the applicant’s complaints that he did not fully benefit from the rights granted to him by the Regulations implementing Law no. 275/2006, adopted by Decree no. 1897/2006, on the ground, inter alia, that the legal force of the regulations was inferior to that of the law, and that therefore the prison administration was under no obligation to grant detainees rights which were not provided for by Law no. 275/2006 itself. 10. The cell lacked basic hygiene, it was infested with lice, bugs and rats, the blankets were in a poor condition and the mattresses were dirty. Although the cell was very small and it was only big enough for two to three people, there were nine beds and twelve inmates in the cell (sometimes even fourteen to fifteen). 11. The cell window was very small and the cell lacked natural light. Due to the size of the window, the cell was not properly ventilated. The air was even more difficult to breathe as his cellmates were smokers, and the applicant was thus exposed to smoke almost all day long. 12. As the sanitary facilities were separated from the rest of the cell only by a makeshift partition, the smell was unbearable. 13. The water was undrinkable. 14. In addition, the applicant alleges that his daily walk schedule was not observed and that his access to cultural and educational activities was limited. 15. The conditions were similar to those in Jilava Prison: the cell was overcrowded and lacked basic hygiene; also, there were no educational and cultural activities and the walk schedule was not observed. 16. He was detained alone in a cell for more than eight months, from July 2003 to February/March 2004. During that period he had no contact with the outside world, his rights to receive visits or parcels and to make phone calls were heavily restricted, the window could not be opened and he could only go out for walks on the roof of the prison building, handcuffed, and in a group of no more than five or six prisoners. 17. On 19 March 2004 the applicant was categorised as “dangerous” and treated as such, including during his transfer from Jilava Prison to Giurgiu Prison. This measure was regularly renewed. However, the applicant considered that the decisions to categorise him as dangerous had lacked any factual basis and pointed out that since 29 March 2003 he had not committed any act of indiscipline and had integrated very well into prison life. 18. Being categorised as a dangerous prisoner had serious consequences. His rights to receive visits, parcels and correspondence were restricted, and sometimes even withdrawn. The applicant frequently had to file actions with the courts each time there was a restriction of his right to receive parcels and correspondence; most of his complaints about that were allowed by the domestic courts. However, the decision to categorise him as dangerous had other consequences: it prevented him from participating in a number of activities in the prison, and even restricted his movement; for instance, his hands were handcuffed behind his back whenever he was moved, which proved very painful. 19. Generally, the prison staff had a hostile attitude towards him. 20. On 4 July 2004 he was taken from Giurgiu Prison to Giurgiu County Court for a hearing. He did not receive any food or water until he was taken back to Giurgiu Prison. 21. The Government submitted in their observations that in general, the conditions in Jilava Prison were adequate. In 2001 and 2002 there had been a problem with the overcrowding of the cells, but as of 2003 the situation had improved, and in each cell the number of detainees corresponded to the number of beds at the most. Each cell had power supply, natural light and natural ventilation through the windows. In summer time, the cell doors remained open, being closed off only by grids for better ventilation. 22. Each cell was equipped with tables, chairs, benches and a hallstand. The cells were cleaned by the prisoners, the necessary materials being provided by the prison administration. Disinfestation services were provided by professionals at least once every three months. The sanitary facilities were cleaned every morning with disinfectants. Whenever necessary, the cells were cleaned with disinfectants. Every week, upon request, the clothing of the detainees was washed. 23. Drinking water was permanently available. The quality of the water was checked monthly by a company under contract with the prison administration; according to the reports of that company, the water was drinkable. 24. The applicant was detained in cells nos. 203, 304, 307, 210, 208, 405, 404, 401, 403, 412. During 2001-2003 the applicant was entitled to a daily thirty-minute walk; after Law no. 275/2006 entered into force in July 2006, he was entitled to a three-hour walk. In 2006 and 2007 the applicant also took part in educative programmes. 25. The fact that the applicant was registered as a detainee with an increased degree of risk did not restrict his right to receive packages, visits, or correspondence; however, appropriate security measures were taken when granting these rights. Moreover, the applicant complained dozens of times both about the security measures and the way they interfered with his rights, as well as about the improper conditions of his detention. The delegated judge often granted the applicant’s appeals concerning disciplinary sanctions against him. The appeals concerning his registration as dangerous and the material conditions of detention were dismissed, on the ground that no breach of law could be found. For instance, on 25 May 2007, the applicant’s complaints about the improper material conditions in his cell and about the lack of medical treatment by a dentist were dismissed by the delegate judge. He found, upon examination of the information submitted to him by Jilava Prison administration, that the conditions of the applicant’s detention did not amount to inhuman or degrading treatment and that, although there was no dentist in Jilava Prison, a competition for hiring a dentist in that prison was being organised by the Ministry of Justice. The delegated judge concluded that no breach of Law no. 275/2006 could be found. 26. The cells in the prison had two or six beds, and were equipped in compliance with the law. Each detainee had an individual bed and a bedroll. 27. The two-bed detention cells measured 10.24 square metres, access to natural light and ventilation through four windows, and were equipped with one sink with utensils, one television stand, one table, one 220V lamp and one night watch light. 28. The six-bed detention rooms measured 21.76 square metres, access to natural light and ventilation through six windows, and were equipped with one sink with utensils, one television stand, three tables, one bench, a hallstand, one 220V lamp and one night watch lamp. 29. The sanitary facility was separated from the detention room and conformed to hygiene standards and privacy requirements. The detention rooms and water for twice weekly baths were heated by the prison’s own power station. Drinking and non-drinking water was provided by the Giurgiu city supply network and was checked periodically. 30. The applicant was registered as a detainee with an increased degree of risk, and therefore security measures were taken when according his rights. For instance, his daily walk took place in one of the eight courtyards specially designed for very dangerous detainees, located on block C. 31. Between July 2003 and March 2004 the applicant was detained alone in a cell equipped in a similar way to the other cells. After March 2004 the applicant shared his cell with another detainee. The daily programme was respected by the prison administration, his rights to visits and packages were observed, and he was even able to participate in the football games organised by the penitentiary authorities. 32. The applicant’s registration as a detainee with an increased degree of risk was well-founded and repeatedly prolonged throughout his detention in Giurgiu Prison. The applicant complained dozens of times about his conditions of detention, including material conditions, lack of medical treatment and restrictions to his rights as a result of his registration as dangerous. The delegated judge often granted the applicant’s appeals concerning disciplinary sanctions against him. The appeals concerning his registration as dangerous and the material conditions of detention were dismissed, on the ground that no breach of law could be found. 33. The circumstances surrounding the events on 10 and 11 November 2005 are in dispute between the parties. 34. The applicant alleged that on 10 and 11 November 2005, while in Giurgiu Prison, he had been beaten by members of the Giurgiu Prison intervention squad wearing balaclavas. His requests to be examined by a forensic doctor immediately after the violent incidents had been ignored. He further alleged that he had immediately duly informed the prison authorities about the violent behaviour of the members of the intervention squad. 35. The Government submitted in their observations that on 10 November 2005, upon his return from a court hearing, the applicant had asked to be taken to the prison store room to pick up some personal effects. The officers had informed him that his request would be granted only after all the formalities applicable to detainees returning from court to their cells had been complied with. Unhappy that his request had not been granted immediately, the applicant had become violent, and while he was being taken to the detention room, he had managed to undo his handcuffs and hit C.C., one of the members of the intervention unit, in the face. The incident was settled calmly and the applicant was placed in his cell without further difficulty. The next day C.C. had been taken to a doctor, who had established that he had “a minor head injury of level 0-1”, which required nine days of medical treatment. 36. The applicant also alleged that on 14 November 2005, during the morning call, he had been hit and insulted by a supervising officer, N.I., and two members of the intervention unit. 37. After the incidents on 10, 11 and 14 November 2005, the applicant lodged with the Prosecution Office attached to the Giurgiu District Court a criminal complaint against the following prison officers: a) C.C. and other members of the intervention unit, for hitting him on the evening of 10 November 2005 upon his return from a court hearing; b) S.C., S.V., C.C. and other members of the intervention unit for allegedly beating, threatening and insulting him on 11 November 2005; c) prison warden I.N. for allegedly insulting and hitting him during the morning call on 14 November 2005. 38. On 24 November 2005 the applicant was brought before the Giurgiu District Court concerning his request that the prison administration’s decision to grade him as a “dangerous detainee” be revoked (see paragraph 18 above). During the hearing, he complained that he had been repeatedly beaten in Giurgiu Prison by State agents and that his body still bore bruises, and that he suffered pain in the right rib cage. He also indicated that he had filed complaints with the prosecutor and the prison administration, asking to see a doctor, but that he had received no answer. The court took note of the criminal complaints lodged by the applicant and forwarded them to the prosecutor for further investigation. It also ordered the Giurgiu Prison administration to allow a doctor to see the applicant in order to have a medical certificate drawn up in relation to his allegations of ill-treatment. 39. Following the Giurgiu District Court’s order, the applicant was examined by a doctor the next day, on 25 November 2005. A forensic medical report was drawn up, indicating multiple bruises in the area of the applicant’s thighs and lower legs, which were deemed to still require some two to three days’ medical treatment. The report also stated that the bruises could have been caused on 10 or 11 November 2005 by impact with hard objects. 40. On 12 December 2005 the Prosecution Office indicted the applicant for assault on a State agent, for having hit C.C. on 10 November 2005 (see paragraphs 46 et seq. below). 41. On 31 October 2006 the Prosecution Office decided not to open criminal proceedings against I.N. in relation to the alleged incident on 14 November 2005, on the ground that the complaint had not been substantiated. The prosecution established that the only witness who had supported the applicant’s version of events, S.M., had not been an eyewitness; he had only heard screams and shouting involving the applicant and I.N from his cell. The other witnesses, who had been sharing the cell with the applicant, had not seen anything. 42. The decision not to open criminal proceedings against I.N. was upheld by the higher prosecutor on 22 January 2007. 43. On 20 March 2008 Giurgiu County Court upheld the decision not to open proceedings. The court reached this decision upon examination of the file produced by the prosecution, without any evidence being administered or any witnesses being heard. 44. On 12 December 2006 the Prosecution Office decided not to open criminal proceedings in relation to the alleged incidents of 10 and 11 November. The prosecutor established that on 10 November 2005, due to the fact that the applicant had been denied a particular request, he had succeeded in freeing one hand from his handcuffs and hitting one of the agents of the special intervention unit, C.C., in the face. The intervention squad had managed to immobilize the applicant. The prosecutor considered that the forensic certificate drawn up on 25 November 2005 could not constitute evidence showing that the injuries had been inflicted by I.N. and C.C., since there was a possibility that those injuries had been inflicted during the immobilization of the applicant. The prosecutor further indicated that the statements made by those witnesses who were also detainees were subjective, due to the fact that they had been the applicant’s fellow inmates; moreover, they had presented the facts differently. 45. The decision not to open criminal proceedings in relation to the alleged incidents of 10 and 11 November 2005 was upheld by the higher prosecutor on 7 February 2007. 46. On 11 February 2008 the Giurgiu District Court upheld the decision of 7 February 2007. The court reached its decision upon examination of the file produced by the prosecution, without administering evidence or hearing witnesses. The court found that the witnesses did not confirm the applicant’s allegations. In particular, those witnesses in Giurgiu Prison who had seen the applicant being hit by agents wearing balaclavas were unable to provide the names of those agents, while other witnesses had no knowledge at all of the said events. The court found the statement by an inmate, S.M., to the effect that one of the two agents wearing balaclavas who had beaten the applicant had been C.C., unconvincing on the ground that the agents’ faces had been covered by the balaclavas. The court further found, with respect to the forensic medical certificate, that “the mere existence of those bruises does not indicate the respondents’ guilt.” 47. On 15 May 2008 Giurgiu County Court upheld the decision of 11 February 2008, finding that the applicant’s allegations had not been fully substantiated. The court reached its decision upon examination of the file produced by the prosecution. It concluded that despite a number of witnesses confirming the occurrence of incidents between the applicant and the prison wardens in Giurgiu Prison, none of those witnesses had identified the applicant’s aggressors as the defendants indicated by the applicant. 48. On 12 December 2005 the Prosecution Office indicted the applicant for assault on a State agent, for having hit C.C. on 10 November 2005. After questioning witnesses to the incident on 10 November 2005 and in the light of the medical certificate issued on 11 November 2005, indicating that C.C. had needed eight to nine days of medical care, the prosecutor established that the applicant had voluntarily hit C.C. on 10 November 2005. 49. Before the Giurgiu District Court the applicant claimed that he had not hit C.C. on 10 November 2005. He contended that while he had been vehemently protesting against the guards’ refusal to take him to the store room, two members of the intervention squad had approached him and hit him. During his attempts to defend himself from the blows, one of the agents might have accidentally been hurt. He claimed, however, that he had not behaved aggressively and had not resisted the immobilisation manoeuvres. He relied on the statements of all the witnesses to the incident, which had shown that he had not acted violently when the agents had attempted to immobilize him. He further stressed that numerous witnesses had stated that the State agents had assaulted him, and pointed to the incoherency of the statements of the agents who claimed that he had voluntarily hit C.C. He finally asked the court to hear evidence from all witnesses to the incident, inmates and State agents. 50. On 22 May 2006 the Giurgiu District Court convicted the applicant of assault on a State agent, C.C., sentenced him to seven years’ imprisonment and, as required by Article 71 of the Criminal Code read in conjunction with Article 64 a) of the Criminal Code, deprived him of his right to vote as an additional penalty. The court firstly noted that the inmates who had witnessed the incident of 10 November 2005 had withdrawn the statements they had made to the prosecutor in which they had indicated that the applicant had hit C.C. Before the court, they had stated that those statements had been made under duress. They submitted to the court that it was the applicant who had been assaulted by the State agents. The court found those statements irrelevant, on the ground that they merely proved an alleged provocation by the State agents, and did not exculpate the applicant from the injuries he had caused to C.C. The court further found that those injuries had been caused with intent, as the statements given by the State agents questioned in the court showed. 51. Following an amendment of the Criminal Code on certain sentences, an appeal by the applicant was allowed on 18 June 2007 by the Giurgiu County Court, with regard to the prison sentence only, which was reduced to one year. The decision was upheld by the Bucharest Court of Appeal on 7 January 2008. 52. On 29 April 2004 the Giurgiu prison administration informed the applicant that his common-law wife, P.N.M., was not allowed to visit him, since the prison records indicated that he was married to another woman. Her name was therefore not put on the list of people allowed to visit the applicant. 53. On 18 March 2005, relying on Government Ordinance no. 56/2003, the applicant challenged the refusal of the Giurgiu Prison administration to allow him visits from P.N.M. with the Giurgiu District Court. By a decision of 31 March 2005 the court found for the applicant and ordered the decision in question to be quashed and the applicant to be entitled to visits from P.N.M. The decision became final. 54. The prison records do not indicate that there were visits from P.N.M. after the judgment of 31 March 2005. They do, however, indicate that he was visited by members of his family on a regular basis. 55. Whether the decision of 31 March 2005 was enforced or not is in dispute between the parties. The applicant claimed that the decision of 31 March 2005 had not been enforced and that P.N.M. had not been put on the list of people allowed to visit him. He did not provide, however, specific information as to any attempts by P.N.M. to visit him after 31 March 2005. In their observations, the Government claimed that, on the contrary, after the decision of 31 March 2005, P.N.M. did not ask to visit the applicant. 56. The domestic legislation on the execution of sentences, in particular Law no. 23/1969 and Emergency Ordinance no. 56/2003 (“Ordinance no. 56/2003”) are described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008. On 20 October 2006 Law no. 275/2006 on the execution of sentences entered into force, which replaced Law no. 23/1969 and Ordinance no. 56/2003. Article 38 of Law no. 275/2006 provides the right of a detainee to complain to the delegate judge about any measure taken by the prison administration which infringes the rights granted to him by that Law. The decision taken by the delegate judge is subject to appeal before the District Court. No provision of Law no. 275/2006 deals with the structural quality of the place of detention or the space provided to detainees. 57. The relevant provisions of the Code of Criminal Procedure concerning complaints about decisions by the prosecutor are set out in Dumitru Popescu v. Romania (no. 1), no. 49234/99, §§ 43-45, 26 April 2007). 58. The relevant provisions of the Criminal Code providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows: “Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty: (a) the right to vote and to be elected to bodies of a public authority or to public elective office; ...” “The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64. (2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...” 59. In a decision of 5 November 2007 (following an appeal in the interests of the law) which became mandatory on the date of its publication in the Official Gazette on 18 July 2008, the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention, and thus assess in each case the necessity of the withdrawal of the right to vote. 60. The Government submitted copies of various decisions given by the domestic courts applying Ordinance no. 56/2003 and Law no. 275/2006. These decisions deal mainly with complaints by detainees which challenged before the national courts various disciplinary measures, or related to the regime of imprisonment, the right to correspondence or medical care. The Government also submitted two cases, one concerning a complaint about poor sanitary installation and lack of observance of a shower schedule, and one concerning a complaint regarding overcrowding, lack of air, and the presence of ill inmates. Both of them were dismissed by the domestic courts on the ground, inter alia, that they “did not regard any of the rights provided by Law no. 275/2006”. 61. Following a visit to Romania by the Commissioner for Human Rights from 13 to 17 September 2004, a report was published on 29 March 2006, providing information on Bucharest-Jilava Prison. The report describes the conditions of detention in this facility as “particularly difficult” and the situation as “alarming”. It further described the facilities as “outdated, windows unable to filter the cold and furniture from another era”. 62. The relevant findings and recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in the cases Brăgădireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007, and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). 63. With regard to Jilava Prison, excerpts from the CPT’s findings following the visits of 1999 and 2006 are given in the case of Eugen Gabriel Radu v. Romania (no. 3036/04, §§ 14-17, 13 October 2009). In particular, the CPT expressed concern about the restricted living space, as the number of detainees exceeded more than twice the prison’s capacity, the shortage of beds, the lack of adequate separation between the toilets and the living space in the cells, and qualified the conditions as “lacking privacy” and “an affront to human dignity”. 64. Following visits in June 2006 to several prisons in Romania, the CPT published a report on 11 December 2008, in which it stated, inter alia: “70. (...) the Committee is gravely concerned that the lack of beds remains an ongoing problem not only in the establishments visited, but also at the national level, and has been since the first visit to Romania in 1995. It is high time that major steps are taken to put an end to this unacceptable situation. The CPT calls upon the Romanian authorities to take decisive priority action to ensure that that each inmate housed in a prison has a bed. However, the Committee welcomes the fact that shortly after the visit in June 2006, the official standard of living space per inmate in the cell was increased from 6 m3 (which amounted to an area of about 2 square metres per detainee) to 4 m2 or 8 m3. The CPT recommends that the Romanian authorities take the necessary steps to meet the standard of 4 m² of living space per inmate in shared cells in all prisons in Romania”. 65. With respect to the practice of prison administrations employing special intervention units, in its report of 2006 the CPT found that special intervention units wearing masks were dispatched to surveillance departments in order to control violent and/or unmanageable and rebellious detainees. According to the CPT, the presence of such units creates an oppressive atmosphere, whereas the wearing of masks makes it difficult to identify a potential suspect if and when an allegation of ill-treatment is made. The CPT recommended that members of the special intervention units should be forbidden from wearing masks in the exercise of their duties in a prison environment, irrespective of the circumstances. The CPT further recommended that the Romanian authorities remind the members of the special intervention units that all forms of ill-treatment against detainees (including verbal provocation and insults) are unacceptable and are to be severely sanctioned, and that the use of force in order to control violent and/or recalcitrant prisoners must be limited to occasions when it is strictly necessary.