THIRD SECTION

DECISION

Application no . 22016/10 Florin COSTINIU against Romania

The European Court of Human Rights (Third Section), sitting on 19 February 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Kristina Pardalos , Valeriu Griţco , judges, a nd Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 19 September 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the decision taken by the President of the Chamber to appoint Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan , the judge elected in respect of Romania, ha d withdrawn from the case (Rule 28 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

1. The applicant, Mr Florin Costiniu , is a Romanian national, who was born in 1954 and lives in Bucharest . He was represented before the Court by Mr Corneliu Liviu Popescu , a lawyer practising in Bucharest .

The Romanian Government (“the Government”) were represented by their Agent, M r s Irina Cambrea , of the Ministry of Foreign Affairs .

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

3. At the relevant time, the applicant, a judge by profession, was the president of the Civil Section of the High Court of Cassation and Justice. On 8 September 2010, at his request, the President of Ro mania approved his retirement.

4. On 10 December 2009 the Anti-Corruption Department (“DNA”) of the Prosecutor ’ s Office attached to the High Court of Cassation and Justice (“the prosecutor”) started criminal proceedings ( începerea urmăririi penale ) against the applicant on suspicion of trading in influence ( traffic de influenţă ). In particular, it was alleged that the applicant had promised C.V. that he would ensure a favourable outcome for C.C., a businessman, in a case pending before the High Court, in exchange for the payment of a sum of money by C.C. to the applicant. C.C., C.V. and a fourth individual were also accuse d of having committed offences.

5. On 17 December 2009 the applicant was heard by the prosecutor and informed of the decision taken on 10 December 2009 .

6 . On 8 April 2010, at 3.55 p.m., the prosecutor decided, after hearing him again, to take the applicant into custody for twenty-four hours. The applicant was arrested at the DNA ’ s headquarters. Later that day he was handcuffed to one of the co-accused and taken out of the building through the main door with a view to his transfer to a police detention facility, where he arrived at 5.30 p.m. and was taken into custody in accordance with the applicable rules.

7. The applicant and the co ‑ accused to whom he was handcuffed had to climb into a police van through the back door. They had to drag each other into the van while journalists were pressing close to them seeking statements. They were accompanied by police officers from the special intervention forces, who were wearing masks. Newspaper and television crews were present and the events were given widespread media coverage. Footage of the applicant ’ s arrest was broadcast live and shown again on the main channels ’ evening news programmes. Pictures of him wearing handcuffs were also published in newspapers.

8 . The Judges ’ Association of Romania issued an official protest concerning the use of handcuffs on the applicant. They argued that the measure had not been justified, had been abusive, contradicted Convention standards in the matter, and had been used as a means of intimidating and discrediting the judiciary.

9. On 8 April 2010 the prosecutor sought the High Court ’ s approval for the applicant ’ s pre-trial detention for twenty-nine days. That evening the applicant and his co-accused were taken from the police detention facility to the High Court for a hearing. At the defendants ’ request, the High Court postponed the hearing to the next day, when the defendants were brought before it again.

During the hearing, at 3.55 p.m., the Court noted that the applicant ’ s detention had expired and released him. He nevertheless remained in the courtroom of his own free will.

The High Court approved the prosecutor ’ s request and ordered that the applicant be placed in pre-trial detention for twenty-nine days starting on 10 April 2010.

10. At the end of the hearing, the applicant decided to go to the police detention facility and wait there for the new detention order to take effect.

11. Acting upon an appeal lodged by the applicant, on 12 April 2010 the High Court quashed the decision given on 10 April and annulled the detention order. On the evening of 12 April the applicant wa s released from police custody.

12. During his pre-trial detention, each time the applicant was conveyed from the police detention facility to the High Court and back he was taken through the main doors of the building handcuffed to a co ‑ accused and surrounded by masked police officers and was exposed to journalists for photographing and filming. The footage obtained by the journalists was then broadcast.

13. The merits of the case against the applicant and his co-accused are currently under examination by the High Court of Cassation and Justice.

B. Relevant domestic law

According to Article 81 § 1 of Law no. 275/2006, the organisation and functioning of pre-trial detention facilities is regulated by common Instructions adopted by the Ministry of Justice and the Ministry of Administration and the Interior. Such instructions have not yet been published in the Official Bulletin.

The rules of application of Law no. 275/2006 ( Regulament de aplicare a Legii nr. 275/2006 privind executarea pedepselor şi a măsurilor dispuse de organele judiciare în cursul procesului penal ), applicable primarily to the detention of convicted persons, were published in the Official Bulletin on 16 January 2007. They provide that during transportation, detained persons are only to be handcuffed in justified situations (Article 101). The underlying principle in respect of the use of methods of restraint, including handcuffs, is the proportionality of that measure, which should not overstep what is absolutely necessary (Articles 197-198).

15 . By Instruction ( Ordin ) no. 988 of 21 October 2005 the Minister of Administration and the Interior approved the Regulation on the organisation and functioning of preventive detention facilities in police headquarters ( Regulamentul privind organizarea şi funcţionarea locurilor de reţinere şi arest preventiv din unităţile de poliţie ale Ministerului Administraţiei şi Internelor ). By the same act, the Minister abolished Instruction no. 901 of 10 May 1999 (for details concerning the latter act, see Ali v. Romania , no. 20307/02 , § 46, 9 November 2010). Neither the Instruction nor the Regulation approved by it was published in the Official Bulletin, but they were disseminated through hierarchical channels to all law enforcement agents.

The relevant provisions on the use of handcuffs from that Regulation read as follows:

Article 85

“Handcuffs ... may be used temporarily in order to immobilise persons in pre ‑ trial detention in the following situations:

(a) during transportation to a court, prosecutor ’ s office or prison, as a measure to prevent any attempt to escape, in well justified circumstances.”

Article 100

“Persons in pre-trial detention will be handcuffed during transportation ...”

16 . On 27 October 2008 the General Police Inspectorate issued the Norm on the procedure for immobilisation of persons ( Procedură privind imobilizarea p e rsoanelor ). This norm was not published in the Official Bulletin, but was distributed through hierarchical channels to law enforcement agents.

According to the norm, as a general rule:

“Immobilisation is a coercive measure taken by police in order to prevent a person from fleeing, being aggressive towards a police officer or another person, or from initiating or continuing a violent act.

...

In any situation, restraint methods should not be used, if possible, beyond what is absolutely necessary to prevent or neutralise aggressive behaviour.”

On the use of handcuffs, in particular, the norm stated:

“Handcuffing is a preventive and safety measure taken by the police which consists of applying handcuffs to a person ’ s wrists with a view to limiting his or her physical mobility.

Handcuffing is mandatory for ... persons in preventive detention, during transfer or escort.

It is forbidden to keep a handcuffed person in awkward positions (kneeling, lying down etc.) after immobilisation, or to expose him or her in public places or in police headquarters where media representatives are able to film (photograph) him or her.”

COMPLAINTS

The applicant considered that the authorities ’ attitude showed their intention to humiliate him, to put him in distressing situations and to deliberately offer journalists the opportunity to photog raph him in such circumstances.

20. Relying on Article 8 of the Convention, the applicant considered that his public exposure by the authorities had infringed his right to respect for his privacy, in so far as it had related to his image, dignity, honour and reputation.

21. Lastly, the applicant cited Article 13 of the Convention and claimed that there had not been any mechanism at his disposal to complain of the alleged violation of his rights protected by Articles 3 and 8. In his view, an action based on Article 54 of Decree n o. 31/1954 would not have constituted an effective remedy. He relied on Rotaru (cited above, § 70). He also pointed out that the civil courts had systematically declared such actions inadmissible on the grounds that they lacked jurisdiction to deal with aspects of criminal proceedings.

THE LAW

A. On the complaint raised under Article 3 of the Convention

22. The applicant complained that he had suffered humiliation each time he had been taken to a public place handcuffed. He relied on Article 3 of the Convention, which reads as follows:

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

1. The parties ’ arguments

23. The Government raised an objection of non-exhaustion of domestic remedies. In their view, the applicant should have lodged either a complaint about the wearing of handcuffs in public, under Law no. 275/2006, or a criminal complaint of abuse of office or ill-treatment against the police officers wh o had exposed him to the press.

24. The applicant contested the effectiveness of those r emedies in his particular case.

25. As to the remedy provided for by Law no. 275/2006, he argued that the judge responsible for examining the actions lodged under that law ( judecatorul delegat - “the delegate judge”) could only deal with matters concerning the detention centre and not concerning the police officers responsible for the transportation of detainees, who belonged to a different structure; his case thus did not fall under the delegate judge ’ s competence ratione personae , at least from 3.55 p.m. to 5.30 p.m. on 8 April 2010, when the first instance of being transported in humiliating conditions occurred (see paragraph 6 above). On the basis of Article 29 of Law no. 275/2006, he further argued that, at least during his first transportation from the prosecutor ’ s office to the court, he had not been under the responsibility of a detention centre, and thus that law was not applicable ratione temporis to his case. He also noted that the Government had failed to adduce any examples of domestic case-law in which such actions had been successful before the do mestic courts.

26. As to the criminal complaint, the applicant put forward the argument that despite the significant number of situations where public figures had been exposed in debasing circumstances by the authorities during criminal proceedings, no prosecutor had ever initiated investigations of his own motion; moreover, the Government had not been able to produce any decision by the domestic courts in a relevant case. He also argued that the prosecutors were not independent and impartial as they belonged to a hierarchical institution and were ultimately subordinated to the Ministry of Justice. He relied on Vasilescu v. Romania (22 May 1998, Reports of Judgments and Decisions 1998 ‑ III) and Pantea v. Romania (no. 33343/96, ECHR 2003 ‑ VI (extracts)).

27. Lastly, the applicant averr ed that an action under Decree n o. 31/1954 would not stand a fair chance of success. He made reference to Rotaru , cited above.

2. The Court ’ s assessment

28. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing the States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with this rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see , among many other authorities, Aksoy v. Turkey , 18 December 1996, §§ 51-52 , Reports 1996 ‑ VI , and Selmouni v. France [GC], no. 25803/94, §§ 74-75 , ECHR 1999-IV).

It further reiterates that the applicants ’ mere doubts as to the prospect of success and the effectiveness of the available domestic remedies, unsupported by any convincing evidence, is not a plausible reason for failure to make use of these remedies (see Kunqurova v. Azerbaijan ( dec .) , no. 5117/03, 23 June 2005, and Guliyev and Ramazanov v. Azerbaijan ( dec .), no. 34553/02, 14 February 2006).

29 . On the facts of the present case, the Court observes that the applicant did not complain to any national authority (such as the courts, prosecutor ’ s office, detention centre or police) about the treatment to which he had been subjected.

However, the national laws dictate that the use of handcuffs should be limited to exceptional circumstances and not exceed what is absolutely necessary, thus placing the principle of proportionality at the core of the matter (see paragraph 14 above). Therefore, the applicant could not claim to be certain of the lack of any prospect of success of a complaint about the use of handcuffs. In fact, by failing to lodge any sort of complaint with the national authorities, he made it impossible for the latter to test the legality of the implementing norms and regulations adopted by the Executive and the police, which admittedly seem to have made the use of handcuffs for the transportation of detainees the default practice (see paragraphs 15 and 16 above).

30. The Court will consider the possible remedies suggested by the Government, namely, an action under Law no. 275/2006 and a criminal complaint.

31. As regards the first remedy, the Court notes the applicant ’ s argument that, at least on the first occasion, on 8 April 2010, before he was officially taken into the custody of the pre-trial detention centre, the provisions of Law no. 275/2006 were not applicable to him as he was not under the authority of the detention centre (see paragraph 6 above). The Court further observers that the instructions issued by the police and the Ministry of Administration and the Interior do indeed indicate that any transportation between detention centres and courts is under the responsibility of the police and not the pre-trial detention centres. However, the Court also notes that the police instruction prohibits immobilisation in awkward positions or public exposure of handcuffed persons (see paragraph 16 in fine above).

Reiterating that it is not its role to examine the national law in abstract (see Klass and Others v. Germany , 6 September 1978, § 33, Series A no. 28) , the Court considers, given the ele ments at its disposal, that the applicant could not claim to be certain of the lack of any prospect of success of a complaint raised under these circumstances (see also paragraph 29 above).

32. The applicant also contested the effectiveness of a criminal complaint as a remedy for abuse of office or ill-treatment. He mainly argued that the prosecutors would not be independent and impartial, and that it was for the authorities to initiate the investigation proprio motu .

33. The Court observes that the applicant did not adduce any evidence in support of his allegations that the prosecutors lacked independence and impartiality in this particular case. It notes that if dissatisfied with the prosecutor ’ s decision, an applicant can lodge a complaint with the courts which are ultimately responsible for examining the merits of the criminal case (see, among many other authorities, Archip , cited above, § 22).

In any event, as the applicant failed to complain to the authorities about his situation, the Court cannot speculate as to what would have been the outcome of such an action. The applicant in Archip (cited above, §§ 10-11 and 16-24) lodged such a criminal complaint against the police officers who had handcuffed him to a tree in the courtyard of the police station for few hours and that complaint was examined on the merits by the courts; the fact alone that it was ultimately dismissed by the domestic courts does not render such a complaint ineffective for the purposes of the Convention.

34 . As to the second argument put forward by the applicant, the mere fact that the authorities could have examined the situation at their own initiative does not exonerate the applicant from his obligation to bring the matter to their attention himself. In fact, the applicant may still lodge such a complaint with the authorities and thus give them an opportunity to deal with the matter, as the time-limits for lodging a criminal complaint have not yet expired. Only by so doing will the applicant observe the principle of subsidiarity which lies at the basis of the applicability of the Convention.

35 . For all these reasons, the Court considers that the applicant should have complained to the authorities about the fact that he had been kept handcuffed in public places.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. On the other complaints

36. Relying on Article 8 of the Convention, the applicant considered that his public exposure by the authorities had infringed his right to respect for his privacy in so far as it related to his image, dignity, honour and reputation.

3 7 . Having regard to the finding relating to Article 3 (see paragraph 35 above), the Court considers that this complaint is likewise inadmissible for non-exhaustion of domestic remedies and must be rejected under Article 35 §§ 1 and 4 of the Convention .

3 8 . Lastly, under Article 13 of the Convention the applicant claimed that there had not been any mechanism at his disposal for complaining of the alleged violation of his rights protected by Articles 3 and 8. In his view, an action based on Article 54 of Decree n o. 31/1954 would not have constituted an effective remedy. He relied on Rotaru (cited above, § 70). He also pointed out that the civil courts had systematically declared such actions inadmissible on the ground that they lacked jurisdiction to deal with aspects of criminal proceedings.

39 . The Court has found that the applicant had an effective remedy at his disposal to complain about the alleged violation of his rights. Therefore, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they 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 complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President