THIRD SECTION

DECISION

Application no . 47603/10 Gheorghe TIREAN against Romania

The European Court of Human Rights (Third Section), sitting on 21 May 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria, Kristina Pardalos, Johannes Silvis, judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 10 August 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Gheorghe Tirean, is a Romanian national, who was born in 1957. He is currently detained in Gherla Prison.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s pre-trial detention in Harghita

3. By a final interlocutory judgment of 27 April 2006 the Harghita County Court ordered the applicant ’ s release from Harghita Police Department ’ s Arrest following his pre-trial detention on charges of fraud.

4. The applicant contended before the Court that during his pre-trial detention in Harghita Police Department ’ s Arrest he was beaten, threatened and offended by several police officers, he was detained with several other smoking detainees, he was forced to sleep on the higher beds, and he contracted a stomach and a spine condition. In addition, after his release police officers followed him and tapped his phone.

5. The applicant submitted before the Court a copy of his identity card which had been valid until 14 March 2007 and had the word “arrested” printed on it.

2. Criminal proceedings opened ag ainst the applicant and his pre ‑ trial detention

6. On 28 December 2009 the Cluj Department for Investigating and Combating Organised Crime and Terrorism (“the Department”) charged the applicant with aggravated fraud and organising a criminal group and placed him in police custody for twenty four hours.

7. By an interlocutory judgment of 29 December 2009 the Cluj County Court allowed the request of the Department to detain the applicant pending trial for thirty days. It held on the basis of documents, testimonial and expert evidence that there was a reasonable suspicion that the applicant had committed serious offences; that he tried to abscond and to influence witnesses; and that his release would be a danger to public order given the social impact of his offences. No alternative measures could be taken in lieu of detention as the applicant did not have a domicile. The applicant appealed on points of law ( recurs ) against the judgment. He argued inter alia that the Department had not been competent to investigate his case.

8. By a final interlocutory judgment of 6 January 2010 the Cluj Court of Appeal dismissed the applicant ’ s appeal on points of law by relying on the same arguments as the first-instance court. In addition, it held that the applicant was a danger to public order considering his modus operandi . Also, the Department had been competent to investigate his case.

9. On 21 January 2010 the Department, represented by prosecutor R.T., indicted the applicant and sent his case for trial.

10. By interlocutory judgments of 18 February, 25 March, 3 June, 22 July, 15 September, 11 October and 15 November 2010 the Cluj County Court, sitting as a single judge, in particular I.N.B., extended the applicant ’ s pre-trial detention by relying on new evidence on the ground that the reasons justifying his initial pre-trial detention remained valid. The applicant appealed on points of law against the interlocutory judgments of 18 February, 25 March and 22 July 2010.

11. By final interlocutory judgment s of 23 February, 8 April and 4 August 2010 the Cluj Court of Appeal dismissed the applicant ’ s appeals on points of law as ill-founded.

12. By a final interlocutory judgment of 18 January 2011 the Cluj Court of Appeal ordered the applicant ’ s release under the condition not to leave the country. In addition, it ordered the applicant not to contact the other suspected members of the criminal group, including his wife.

13. By a final interlocutory judgment of 21 November 2011 the Cluj County Court, sitting as a single judge, in particular I.N.B., dismissed the applicant ’ s request for a graphological expert report. It held that after hearing the defence witnesses requested by the applicant and given the evidence in the file, including a technical expert report, the graphological report was unnecessary. In addition, the court dismissed his request seeking to suspend the trial for medical reasons on the ground that according to the medical documents submitted by the applicant he was not suffering from a serious condition as required by the applicable rules of criminal procedure. Lastly, the court noted that the applicant attended all the hearings, except one when he alleged that he had been hospitalised, but he failed to submit any medical documents in support of his allegation.

14. By a judgment of 5 December 2011 the Cluj County Court, sitting as a single judge, in particular I.N.B., convicted the applicant for aggravated fraud and organising a criminal group on the basis of documents, testimonial and expert evidence and sentenced him to four years ’ imprisonment. It held inter alia that it was unlikely that his wife aided him because they had been separated de facto for years and they did not have any contact with each other. The applicant appealed against the judgment.

15. At the hearing of 29 May 2012 the Cluj Court of Appeal, sitting in a panel of three judges, including L.H., dismissed the applicant ’ s request to adjourn the proceedings because he had been hospitalised at the Orthopaedic Unit of the Oradea County Hospital and in order to retain a chosen legal representative on the ground that he abused his procedural rights as he had failed to honour his commitment although he had lodged similar requests at previous hearings. By a judgment delivered on the same date the Court of Appeal dismissed the applicant ’ s appeal as ill-founded. He appealed on points of law ( recurs ) against the judgment.

16. At the hearing of 24 September 2012 the Court of Cassation dismissed the applicant ’ s request to adjourn the proceedings in order to allow his newly appointed chosen legal representative to prepare his defence on the ground that on 29 August 2012 the proceedings were adjourned for the same reason. However, the court suspended the proceedings to allow the applicant ’ s legal representative to study the case.

17. By a final judgment delivered on the same date the Court of Cassation dismissed the applicant ’ s appeal on points of law as ill-founded.

3. Proceedings brought by the applicant

18. On 17 June 2010 the applicant brought civil proceedings against the Romanian Ministries of Finance and Justice seeking financial compensation for the violent treatment he was subjected to during the criminal investigation opened against him and the lack of adequate medical treatment during his pre-trial detention.

19. By judgments of 9 December 2010, 27 June and 13 September 2011 the Court of Cassation dismissed as ill-founded the applicant ’ s requests to order the transfer of the criminal proceedings opened against him to a different County Court. The applicant failed to submit full copies of the said judgments.

20. By a final judgment of 7 January 2011 the Cluj County Court dismissed the applicant ’ s action of 17 June 2010 as inadmissible on the ground that it was not competent ratione loci to examine his claim. It referred the case to the Bihor County Court. The proceedings appear to be still pending before the domestic courts.

4. Other relevant information

21. The applicant contended before the Court, without providing details, that during the criminal proceedings opened against him in 2009 he was beaten by police officers. In addition, in Aiud, Gherla, Rahova, Jilava, Slobozia, Dej and Miercurea-Ciuc Prisons he was forced to share his cells with between thirty and forty-five detainees who were smokers although he was a non-smoker, were noisy and violent. Also, he was constantly transferred from one prison to another, sometimes for distances of up to four hundred kilometres, by car together with between thirty and forty detainees who smoked, ate and were noisy. Moreover, he had to sleep on concrete floors because he was assigned the highest bed and he could not reach it on account of his weakness caused by a hunger strike; he contracted stomach, spine and liver illnesses and he was not provided with adequate medical care. Furthermore, he was not allowed to receive packages and vitamins required for his recovery from a hunger strike and on an unspecified date the Slobozia Prosecutor ’ s Office heard him for eight hours although he was on a hunger strike. Lastly, on 14 February 2010 he was beaten by ten masked prison guards in Jilava Prison and the criminal complaint he lodged against the prison guards who beat him remained unanswered.

22. From 18 February to 3 March 2010 the applicant was hospitalised in Dej Prison Hospital where he was diagnosed and treated inter alia for gastritis.

23. On 31 May 2012 the applicant submitted before the Court three notarised testimonies of three of his friends who attested that from 1990 to 1992 he had a romantic relationship with I.N.B. and a business relationship with I.N.B. ’ s father and that both relationships ended badly on account of unsuccessful business transactions. One of the witnesses also stated that in August 2010 he tried to talk to I.N.B. about the applicant ’ s circumstances, but she refused to talk to him and allegedly told him that the applicant could not avoid punishment as long as she would be a judge at the Cluj County Court.

B. Relevant domestic law

24. Excerpts from the relevant provisions concerning the rights of detainees, namely Law no. 275/2006, are given in Petrea v. Romania (no. 4792/03, §§ 22-23, 29 April 2008) and Mariana Marinescu v. Romania (no. 36110/03, § 53, 2 February 2010).

25. Excerpts from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are given in Bragadireanu v. Romania (no. 22088/04, §§ 73-75, 6 December 2007).

COMPLAINTS

26. Relying on Articles 5 and 6 of the Convention the applicant complained that he was subjected to inhuman and degrading treatment and that his life was endangered by the authorities in Aiud, Gherla, Rahova, Jilava, Slobozia, Dej and Miercurea-Ciuc Prisons in that he was constantly transferred from one prison to another, sometimes for distances of up to four hundred kilometres, by car together with between thirty and forty detainees who smoked, ate and were noisy; and that he was forced to share his cells with between thirty or forty-five detainees who were smokers although he was a non-smoker, were noisy and violent. In addition, he was beaten by police officers during the criminal investigation opened against him.

27. He also complained that, during his detention he had to sleep on concrete floors because he was assigned the highest bed and he could not reach it on account of his weakness caused by a hunger strike; he contracted stomach, spine and liver illnesses and he was not provided with adequate medical care. In addition, he was not allowed to receive packages and vitamins required for his recovery from a hunger strike. Moreover, the Slobozia Prosecutor ’ s Office heard the applicant for eight hours although he was on a hunger strike. Moreover, on 14 February 2010 he was beaten by ten masked prison guards in Jilava Prison and the criminal complaint he lodged against the prison guards who beat him remained unanswered. Lastly, in 2006 during his pre-trial detention at the Harghita Police Department ’ s Arrest he was beaten, threatened and offended by several police officers; he was detained with several other smoking detainees; he was forced to sleep on the higher beds; and he contracted a stomach and a spine condition.

28. Invoking Article 5 of the Convention the applicant complained of the unlawfulness of his pre-trial detention as there was no reasonable suspicion for it because the evidence relied on by the courts to justify his detention had been raised by a non-competent investigating authority and was therefore invalid. In addition, his pre-trail detention was excessively lengthy and the domestic courts relied constantly on the same reasons to extend it. Lastly, judge I.N.B., lacked impartiality when extending his pre-trial detention because she was his former lover and the daughter of a former business partner and their relationship ended with her bearing a grudge against him.

29. Invoking Article 6 of the Convention the applicant complained that prosecutor R.T. and judges I.N.B. and L.H. lacked impartiality as R.T. was the godson of I.N.B. and I.N.B. was the sister-in law of L.H. In addition, I.N.B. refused to summon all the defence witnesses and to order a graphological expert report; and to suspend the trial on medical grounds. Lastly, the appellate courts breached his right of defence as they dismissed his requests of adjournment of the criminal proceedings opened against him in order to allow him to retain chosen legal representation and to prepare his defence.

30. Relying in substance on Article 8 of the Convention the applicant complained that after his release from Harghita Police Department ’ s Arrest in 2006 the police officers followed him and tapped his phone. At the same time, he was constantly detained by the police and he was unable to find a place of work because upon his release in 2006 the authorities issued him with a temporary identity card which had the word “arrested” printed on it. Lastly, upon his release on 18 January 2011 he was prohibited from contacting his wife.

31. Relying in substance on Article 14 of the Convention the applicant complained that he was the only member of the criminal group who was detained pending trial.

THE LAW

A. Complaints under Article 3 of the Convention

32. Relying on Articles 5 and 6 of the Convention, the applicant complained that he was subjected to inhuman and degrading treatment and that his life was endangered by the authorities in Aiud, Gherla, Rahova, Jilava, Slobozia, Dej and Miercurea-Ciuc Prisons in that he was constantly transferred from one prison to another, sometimes for distances of up to four hundred kilometres, by car together with between thirty and forty detainees who smoked, ate and were noisy; and that he was forced to share his cells with between thirty or forty-five detainees who were smokers although he was a non-smoker, were noisy and violent. In addition, he was beaten by police officers during the criminal investigation opened against him and he was not provided with adequate medical care during his pre-trial detention.

33. The Court considers that the applicant ’ s allegations should be examined under Article 3 of the Convention alone, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”

34. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the applicant ’ s complaints under Article 3 of the Convention and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Remainder of the applicant ’ s complaints

35. The Court has examined the remaining complaints submitted by the applicant (see paragraphs 27-31 above). However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these r easons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints under Article 3 of the Convention concerning the conditions of transport and detention in Aiud, Gherla, Rahova, Jilava, S lobozia, Dej and Miercurea ‑ Ciuc Prisons; the alleged ill-treatment he was subjected to by police officers during the criminal investigation opened against him; and the lack of adequate medical care during his pre-trial detention;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President