CASE OF TORAN AND SCHYMIK v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are German nationals born in 1979 and 1978 respectively. They are currently serving prison sentences in Germany, following their conviction by the Romanian authorities for drug trafficking, as described below. A. Criminal proceedings against the applicants 6. At the time of the impugned events, S.R.B., one of the applicants’ acquaintances, was in police custody accused of drug-related offences. In the context of a covert operation, S.R.B. agreed to contact the applicants by phone in order to arrange a drug transaction. It appears that following several phone conversations between S.R.B. and the first applicant, the latter agreed to deliver 5,000 Ecstasy pills to Romania. 7. On 9 November 2007 the prosecutor in charge of investigating S.R.B.’s case issued an order (ordonanta) in which he authorised the intervention of three undercover agents, namely D.D., N.A. and L.C., who were mandated to purchase 6,000 Ecstasy pills with the assistance of S.R.B. The justification given for such an intervention was that, based on S.R.B.’s statements, there existed a strong indication that individuals as yet unknown to the police intended to commit the offence of drug trafficking. The undercover agents were necessary in the operation because the individuals in question “belonged to a drug-dealing network which acted very cautiously, taking a lot of precautions in their activities and relying exclusively on highly trustworthy persons”. On the same date, the prosecutor authorised the undercover agents N.A. and L.C. to be provided with 35,000 euros (EUR), to be taken from the special funds of the police, with the purpose of using it to purchase the drugs. 8. On the night of 9 to 10 November 2007 the applicants entered Romania and met S.R.B. in a petrol station in Timişoara. Subsequently, they requested to be directed to a mechanical workshop, where they asked to be left alone. S.R.B. was asked to wait for their phone call before returning to the garage with the money for the drugs. 9. The applicants’ activity of removing the drugs from hidden compartments under the front passenger seat of the vehicle was video recorded by the investigators, based on an authorisation issued by the court on 25 October 2007. After more than an hour, the applicants called S.R.B. to return to the garage together with the buyers, who were the undercover agents. One of them, N.A., handed over EUR 35,000, and the second applicant verified the authenticity of some of the bank notes with a special pencil. At the same time, the applicants presented the drugs, packed in zip-locked plastic bags, to the undercover agents. The investigators then intervened in order to ensure that the applicants were caught in flagrante delicto. 10. On the same day the applicants were placed in custody in the detention facility of the Timiş police station, in connection with drug-trafficking charges. 11. In his statement given before the prosecutor on 10 November 2007, the first applicant declared that he and the second applicant had come to Romania for personal reasons, namely to visit relatives. He claimed that they had intended to spend the night at the home of S.R.B., a friend of theirs, and that they had no knowledge of the content of the plastic bags found in the garage. The second applicant refused to give any statements, claiming that he was overwhelmed by the situation. On 5 December 2007 the first applicant specified before the prosecutor that when they had been in the garage, the two individuals who had entered with S.R.B. had taken some plastic bags out of another car that was parked in the garage, and had placed them on a table. A third person who had come in later had taken out some money and asked him and the second applicant to count it, without indicating why. 12. In his statement given before the prosecutor on 10 November 2007 in the presence of his lawyer, S.R.B. admitted that he had agreed to cooperate with the police in order to benefit from the provisions of Law no. 143/2000 granting certain benefits to those who contributed to or facilitated the identification of perpetrators of crime; he had therefore told the police that he had knowledge of a group of people who was involved in the international trafficking of Ecstasy pills. With the permission of the prosecutor, he then contacted the first applicant on the phone; the latter agreed to bring to Romania 5,000 Ecstasy pills for the price of 40,000 EUR. Several other phone calls were made in order to arrange the details of the transaction, which took place on the night of 9 to 10 November. S.R.B. confirmed that the phone calls and his being taken out of custody for the operation had been approved by the prosecutor. 13. On 6 March 2008 the applicants and S.R.B., were charged with drug-related offences. 14. During the proceedings before the first-instance court, namely until the hearing of 4 February 2009 (see paragraph 16 below), the applicants pleaded not guilty, claiming that they had had no knowledge of the plastic bags, which they believed had been placed in the garage by the three persons who had accompanied S.R.B., in order to set them up. Up until the same hearing, S.R.B., legally assisted by Mr Fanu Moca Adrian and his substitute lawyer, Mr S.D., maintained the statements he had given before the investigating authorities. 15. At the hearing of 16 October 2008 the court watched the video recordings made on the night of 9 to 10 November 2007, in the presence of the applicants, S.R.B. and their respective lawyers. The recordings were not contested and their authenticity was not questioned. 16. At the hearing of 4 February 2009, the applicants, then represented by lawyer S.D., changed their plea and claimed that they had been pushed to commit the offence by the investigators, who had acted as agents provocateurs. They invoked in their defence the Court’s case-law in relation to police entrapment, namely Teixeira de Castro v. Portugal (9 June 1998, Reports of Judgments and Decisions 1998-IV) and Ramanauskas v. Lithuania ([GC], no. 74420/01, ECHR 2008). The applicants contended that they had first declined S.R.B.’s proposal, but had finally agreed to deliver the drugs to Romania in order to help S.R.B., who had claimed that he had been facing financial difficulties. The first applicant stated that he had been called by S.R.B. on a daily basis for one month. Each time he had refused S.R.B.’s proposal, and each time the latter had increased his offer, namely from 3 euros per pill initially to the final price of 8 euros per pill. At the same hearing, S.R.B. also changed his statement and alleged that he had been coerced by the police to act as he had. He stated that during the telephone negotiations, the investigating authorities had asked him to increase both the quantity of pills requested and their price so that the first applicant would accept the transaction. He claimed that he had known the applicants as drug consumers, but not as drug dealers. He mentioned that some of the conversations he had had with the first applicant on a mobile phone had been recorded. 17. On 19 March 2009 the Timiş District Court sentenced the applicants to fifteen years’ imprisonment for drug trafficking. In its ruling, the court relied on the video recordings made on the day on which the applicants had been caught red-handed by Timiş police officers, as well as on the statements given by witnesses, including S.R.B. and the undercover agents. The court ruled that the procedure used by the applicants to conceal the drugs showed that they were experienced in international trafficking of narcotic drugs and had sought to make a significant profit, while the operation to catch them red-handed could not be considered as entrapment. The court found that the method used by the applicants to hide the drugs in the cavities of the front passenger seat of the vehicle and the large quantity of drugs that they managed to transport across several borders showed that they were not unfamiliar with drug trafficking. The court held that S.R.B.’s change of testimony could not be taken into account, as there was no other evidence to corroborate it and it contradicted his previous testimonies. 18. The applicants appealed against that judgment. 19. On 18 June 2009 the Timişoara Court of Appeal heard the applicants and S.R.B. They all maintained their previous statements according to which S.R.B., coerced by the police, had incited the applicants to commit the crime. 20. At the hearing, the applicants also submitted a request that the prosecution make available the recordings of the telephone conversations between S.R.B. and the first applicant, or at least a list of those conversations and of the telephones used. The applicants argued that the recordings proved on the one hand that S.R.B. had been coerced to cooperate with the police and on the other hand that there had been a high degree of incitement in the negotiations in order to persuade them to accept the deal. The court allowed the request. On 14 July 2009 the prosecutor’s office attached to the High Court of Cassation and Justice submitted that such recordings did not exist because the court had not been requested to authorise the recording of the phone conversations. Furthermore, according to the indictment, it was S.R.B. who had asked to be allowed to contact the applicants, under the supervision of the prosecutor, in order to take advantage of the lenient conditions prescribed in section 16 of Law no. 143/2000. 21. By its judgment of 21 October 2009, the appellate court upheld the lower court’s judgment. The court stated that the authorities had been legally entitled to bring to the attention of S.R.B. the benefits of cooperating with the police by virtue of section 16 of Law 143/2000, a reduction of his sentence. The applicants’ allegation that they had been entrapped was refuted by the court, which noted that the international case-law they had invoked was not applicable. In the case of Teixeira, the undercover agent and the collaborator had dealt with the applicant in person, while in Ramanauskas the applicant had been contacted by the agent claiming to be an acquaintance of the collaborator, whereas in the present case the applicants had never been contacted by the undercover agents, since S.R.B. had taken the initiative to ask to be allowed to make contact with the applicants in order to benefit from section 16 of Law no. 143/2000. Furthermore, in the present case the applicants had freely chosen to travel to Romania with the drugs. Nothing had prevented them from refusing S.R.B.’s proposal. 22. The applicants further appealed against that judgment. They maintained before the High Court of Cassation and Justice that they had been entrapped, having been incited to sell drugs by S.R.B. He in turn had been forced to incite them to do so by the investigators, who had promised him a reduction in his sentence. The applicants also denounced the use of the undercover officer N.A., who had sought, through S.R.B., to purchase the drugs. 23. By a judgment of 28 January 2010, the High Court of Cassation and Justice, taking into account as a mitigating factor the applicants’ lack of a previous criminal record, partly allowed the appeal and reduced their sentences to seven years’ imprisonment. The High Court upheld the lower courts’ reasoning in dismissing the entrapment pleas. It held that S.R.B., interested in the reduction of his sentence, had collaborated with the police and contacted the applicants in order to buy drugs; however, the applicants had had the opportunity to refuse the transaction proposed by him. Therefore, the court considered that the applicants’ pleas of entrapment were unfounded. B. Conditions of detention 24. As from 10 November 2007, the applicants were remanded in custody in the Timiş police station detention facility. According to the Government, the applicants were placed in separate cells measuring 12 square metres, which they shared with five other inmates. On 11 March 2008 the applicants were transferred to Timişoara Prison. The Government submitted that the cells in which the applicants had been placed measured 21 square metres, and were shared by a total of nine inmates. On 7 December 2009 the applicants were transferred to Rahova Prison, where they were placed in cells measuring 19.58 square metres with ten beds. On 29 July 2010 the applicants were transferred to Giurgiu Prison, where they remained until 28 July 2011 (the first applicant) and 17 August 2011 (the second applicant), when they were transferred to the Giurgiu Police Inspectorate in order to be transferred to serve the remainder of their sentence in Germany. The Government pointed out that the applicants had had access to clean sanitary facilities as well as to hot and cold water, in accordance with a specific schedule.