CASE OF DIMAKOS v. ROMANIA
Violation of Art. 3 (substantive aspect)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1951 and currently lives in Certeze, Satu Mare. 6. On 12 May 1997 the applicant and his associate (“T.L.”), through their company, S.C. Harmony Shipping International S.R.L., made an offer to buy the Romanian Company for Oceanic Fishing Tulcea (Compania Română de Pescuit Oceanic Tulcea, “the company”), a State-owned company specialising in oceanic fishing, which was in the process of being privatised by the Bucharest State Property Fund (Fondul Proprietăţii de Stat, “FPS”). While negotiations were taking place, FPS expressly forbade the sale of the company's ships. The applicant and his associate gave their agreement to the prohibition in a statement signed with FPS on 4 June 1997. 7. On 26 November 1997 FPS agreed to sell the applicant and T.L. 51% of the company's stocks. 8. During criminal proceedings against the applicant the courts found that he and his associate had sold five of the company's ships as scrap. They had used part of the money to pay the price asked for by FPS. With the remaining money they had paid some of the company's debts in order to substitute themselves for the company's creditors and thus obtain the remaining 49% of the company's stocks. 9. The applicant was arrested on 10 March 1998 and released from prison on 22 June 2009, after having served his sentence. He described as follows the conditions of detention in the various penitentiaries where he was held. The Government's view, based on the official documents issued by the penitentiaries, is also presented. 10. On 10 March 1998 the applicant was taken to the Constanţa police detention rooms, situated in the basement of the police headquarters. He remained there until 4 June 1998. His pre-trial detention was endorsed and extended on several occasions by the prosecutor attached to the Constanţa Court of Appeal. 11. He claimed that during his detention there he had not been allowed to contact his family, counsel or co-accused either by telephone or in writing. He had not been allowed to have a pen and paper in the cell. He had shared a cell with ten other detainees. The cell had been equipped with three-tier bunk beds which occupied 12 sq. m. There was no toilet in the cell (the inmates used a bucket for that purpose), no running water or sewerage system, no light and no fresh air. 12. According to the information from the Constanţa police, the cells in the police detention facilities measured 12-15 sq. m with three to four beds each, electric light and one window. The detainees were allowed to walk outside for one to two hours per day. Toilets were in the corridor. No concrete information about the applicant's contacts with family and counsel or about his correspondence rights was furnished by the police, as, according to the regulations, the relevant documents are only kept by the authorities for five years. 13. In June 1998 the Galaţi County Court ordered the applicant's transfer to Bucharest Jilava Penitentiary, on health grounds. He was detained in this penitentiary on three occasions: from 4 June to 12 August 1998 and from 10 to 21 May 2005 (in the hospital section); and from 9 October to 19 November 2003 (in the penitentiary itself). 14. The applicant claimed that during his first stay in the hospital section, he had been handcuffed to his bed with chains around his legs after attempting suicide. He was awoken from a period of unconsciousness by bites from lice and bedbugs and recollected having been refused water by a warden on one occasion during his recovery. The applicant also mentioned one week spent in the transit zone in Jilava before his transfer from Poarta Albă to Galaţi Prison. He claimed that he was placed in a dirty cell there and received no food or water. 15. According to the information provided by the Government, the applicant was mainly detained in a 42.08 sq. m cell with eleven beds, a separate toilet and individual heating. The detainees were allowed two showers per week in the common bathroom. They were allowed to walk outside for one hour per day. The Government also referred to the applicant's telephone conversations, the parcels received from home and a visit from his daughter. The Government have given no information about the period spent by the applicant in the transit zone. 16. The applicant spent a few weeks in Poartă Alba Penitentiary in Constanţa, from 12 August to 2 September 1998. 17. The applicant alleged that the cells had been overcrowded and had lacked hygiene facilities. The inmates were allowed to walk outside for two to three hours per month and to receive one visit and one telephone call in that time. The applicant was allowed to receive 15 kg of food per month. According to his statement, it was the only time during his detention when he could eat properly. His family brought him medicines and food. 18. The Government stated that the applicant's cell measured 36.35 sq. m and included ten beds, one window, running water, electricity, central heating and a separate toilet room. Seven to ten persons had shared that cell during the applicant's detention. The inmates were allowed to walk outside for thirty minutes to one hour per day. During his stay, the applicant received two visits and two parcels. 19. The applicant was held in this penitentiary on five occasions: from 2 September 1998 to 16 August 2001; from 29 January 2003 to 9 October 2003; from19 November 2003 to 26 February 2004; from 21 April 2004 to 29 June 2006; and from 5 October 2007 to 12 December 2008. 20. He alleged that the first cell where he had been detained was 25 sq. m in size. There were twenty to twenty five detainees in the cell at all times with an average of three persons to one bed. No outdoor exercise was allowed. Water was available two hours per day. No medicines were given and the food was very poor. After eight months, because of the deterioration of his health, the applicant was moved to a cleaner cell. 21. The Government averred that the applicant spent most of his stay in the infirmary in a 24 sq. m cell with six beds, windows, central heating and separate toilets. The detainees were allowed to walk outside for three hours per day. The penitentiary also had a football field for the detainees' use. 22. The applicant was held in Bucharest Rahova Penitentiary on three occasions: from 16 August 2001 to 29 January 2003; from 26 February 2004 to 21 April 2004; and from 29 June 2006 to 5 October 2007. 23. According to his statements, he was entitled to three visits per month and 60 packets of cigarettes and 15 kg of food per month − all provided by his family. 24. The official documents submitted by the Government indicate that the applicant shared a 19.55 sq. m cell with ten bunk beds with a maximum of nine co-detainees. A 5.55 sq. m toilet room with cold water was attached to the cell. Hot water was available twice per week, between 12 midday and 2 p.m. and 5 p.m. to 7 p.m. The cells and the toilets had windows, to allow in air and natural light. The detainees were allowed to walk outside for one to two hours per day and twice per week they were given access to sports fields. Three public phones were available and the applicant was allowed two ten-minute phone calls per week. 25. The Government informed the Court that the applicant had been held in Brăila Penitentiary from 12 December 2008 to 22 June 2009. During his stay he received 202 visits and 215 parcels. 26. On 10 March 1998, the applicant gave a statement to the police in the presence of his counsel. The next day he was taken to the prosecutor attached to the Constanţa Court of Appeal, who informed him for the first time that he was accused of having sold ships belonging to the Romanian State. On 9 October 1998 the applicant received the Greek translation of the indictment. 27. On 8 October 1999 the Galaţi County Court gave judgment in the case, convicting the applicant of bribery, embezzlement (delapidare), forgery and use of forged documents and smuggling (contrabandă) and sentencing him to fifteen years' imprisonment. The County Court awarded damages of 890,284 US dollars (USD) to the company, to be paid by the applicant together with two other convicted persons. It also ordered the applicant to be expelled after having served his sentence. 28. On 9 March 2001 the Constanţa Court of Appeal rejected an appeal lodged by the applicant and upheld the judgment. According to the applicant, the Court of Appeal refused to hear evidence from him, claiming lack of time, and asking him to send his defence statement in writing, from prison. 29. On 27 September 2002 the Supreme Court of Justice upheld that decision, which became final. 30. On 7 November 2005 the Galaţi County Court declared inadmissible a request by the applicant for revision of the above decisions. The judgment was upheld in a final decision of 2 October 2006 by the High Court of Cassation and Justice. 31. The domestic legislation on the execution of sentences, in particular Law no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance no. 56/2003”) and Law no. 275/2006 are described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008. 32. 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 Bragadireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007, and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). The Court notes, in particular, that in a report on visits made by them between 2002 and 2003, the CPT expressed concern about the restricted living space both actually available to prisoners and provided for by the regulations in place at that date. It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not adequately separated from the living space in the cells. 33. During its 1999 visit to Romania, the CPT found that the Jilava transit area was the most overcrowded prison facility at that time − the number of detainees exceeding more than twice its capacity.