Communicated on 21 July 2016

FOURTH SECTION

Application no. 73352/14 Marin BUȘCU against Romania lodged on 10 November 2014

STATEMENT OF FACTS

The applicant, Mr Marin Bușcu , is a Romanian national who was born in 1945. He is currently detained in Pelendava Prison. He is represented before the Court by his son, Mr D.N. Bușcu .

A. The circumstances of the case

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

1. Criminal proceedings opened against the applicant

On 29 March 2010 the National Anticorruption Department ( Departamentul Național Anticorupție – “the DNA”) notified the applicant that criminal proceedings had been opened ( ȋ nceperea urm ă ririi penale ) against him for abuse of office, complicity in embezzlement and forgery.

According to the applicant, the DNA interviewed him for the first time in respect of the circumstances of the case on that same day, even though he did not have a legal representative.

On 6 May 2010 the DNA indicted the applicant on charges of abuse of office, complicity in embezzlement and forgery, and sent his case for trial.

On 30 June 2011 the Olt County Court acquitted the applicant of the charges brought against him on the basis of the documentary and testimonial evidence. The court noted that thirty-five witnesses had been interviewed during the judicial investigation of the case. The DNA appealed against the judgment.

On 5 December 2012 the Craiova Court of Appeal dismissed the DNA ’ s appeal and upheld the applicant ’ s acquittal on the basis of the available documentary and testimonial evidence. The DNA lodged an appeal on points of law ( recurs ) against the judgment with the Court of Cassation by relying on Article 385 9 § 1(14) and (17 2 ).

During the hearing of 16 April 2014 the Court of Cassation interviewed three of the witnesses in the case for a second time. It noted that it had invited the applicant to give a statement before the court in respect of the circumstances of the case and had informed him of his right to remain silent and of the fact that any statement he made could be used against him. It also noted that the applicant declared that he did not want to give further statements in respect of the circumstances of the case and wished to remain silent.

By a final judgment of 14 May 2014 the Court of Cassation allowed the DNA ’ s appeal on points of law on the basis of Article 385 9 § 1(14) and (17 2 ), quashed the judgments of the lower courts, convicted the applicant for abuse of office and abetting embezzlement and forgery, and sentenced him to five years ’ imprisonment. It based its decision on the available documentary and testimonial evidence, including the testimonies of the three witnesses who reappeared before the court on 16 April 2014.

2. The applicant ’ s conditions of detention, including non-segregation of smokers and non-smokers

In his letters to the Court the applicant sta ted that from 15 May to 10 July 2014 he had been detained in Craiova Prison. He had been incarcerated in conditions of quarantine in cell no. 108, together with 36 other inmates in a cell measuring 35 square metres which had thirty ‑ seven bunk beds arranged on three levels. The applicant and his fellow inmates had been put in isolation following an outbreak of rubella in the cell. Even though the applicant was a non-smoker, he had been detained with smokers who smoked all the time. The cell had one small window and the applicant had developed lung and throat problems because of the cigarette smoke. Moreover, the cell was infested with insects, including bedbugs and lice, and the applicant had insect bite-marks all over his body. During the night the light in the cell was left on all the time in an attempt to prevent the insects from biting the inmates. The cell had no table, lockers or hanging space. Luggage had been kept under the beds and the inmates had eaten their food either in their beds or standing up. Warm water was available twice a week for an hour and the cold water was unsuitable for drinking. The prison authorities had refused to disinfect the cell even after the inmates had asked them to do so. The cell had only one bathroom with two toilets and three sinks. The applicant was taken out of his cell for a walk for one hour a day.

From 10 July 2014 to 2 June 2015 the applicant had been detained in Colibaşi Prison. During this time he had been incarcerated in two cells each measuring 24 square metres. One of the cells had six bunk beds and the applicant had shared it with five other inmates. The other cell had nine bunk beds and the applicant had shared it with eight other inmates. Warm water was available twice a week for an hour and the prison authorities had disinfected the cells only once during his detention there. The cold water was not suitable for drinking. The inmates ’ luggage had to be stored under the beds and the cell had a small TV table and a small shelf for dishes. The cell with nine beds had been infested with bedbugs which the detainees caught by hand. The meals had been served in the cell and the inmates had eaten them in bed, or sitting on plastic buckets or on wooden boxes, or while standing up. The cell was cold and heating was available only during the night. The rest of the times the inmates had worn their outdoor clothes to keep warm. The applicant was taken out of his cell for a walk in a very small enclosure for one hour a day.

From 2 to 22 June 2015 the applicant had been detained in Drobeta Turnu Severin Prison. He had been incarcerated in a cell measuring 60 square metres which accommodated 24 bunk beds and which he had shared with 23 other inmates. The cell had a small table which could be used by only one person at a time for eating. It had no lockers or hanging space. Warm water was available twice a week for an hour, when the 24 inmates in the room had access to two showers. Here, too, the applicant had been incarcerated with smokers who smoked all the time.

From 22 June 2015 to date the applicant has been detained in Pelendava Prison in two different cells. The first cell measured 60 square metres and had 24 bunk beds. He had to share that cell with 23 other inmates. The cell had a small TV table. Warm water was available four times a week for an hour and during that time one hundred detainees had to share fifteen showers. The second cell measured 150 square metres and had 70 bunk beds. The applicant had to share that cell with 69 other inmates. The cell had no table, locker or hanging space and had been disinfected only once during the period of his detention. The detainees were forced to store their clothes under their beds or under their mattresses. Warm water was available four times a week for two hours, during which time the detainees had five showers at their disposal.

B. Relevant domestic law

Article 171 of the former Romanian Code of Criminal Procedure provided inter alia that the official suspect or the defendant had the right to the assistance of a legal representative during the criminal proceedings instituted against them and during the trial. Moreover, the judicial bodies were obliged to inform them of that right.

Article 385 15 § 2 (d) of the former Romanian Code of Criminal Procedure provided inter alia that the court which examined the appeal on points of law could decide to re-examine the case in the circumstances set out in Article 385 9 § 1(11) - (20).

Article 385 16 § 1 of the former Romanian Code of Criminal Procedure provided that if the court which examined the appeal on points of law quashed the judgment of the lower court and retained the case for re ‑ examination according to Article 385 15 § 2 (d), it was obliged to issue a decision in respect of the evidence to be adduced and establish a date for re ‑ examination of the case. On the date set for re-examination of the case, the court had to hear the defendant ’ s testimony if it had not previously been heard by the lower courts, or if the lower courts had acquitted him.

Excerpts from the relevant legal provisions concerning the rights of detainees ‒ namely Law no. 254/2013 ‒ and the reports compiled by the European Committee for the Prevention of Torture are quoted in the cases of Iacov Stanciu v. Romania (no. 35972/05, §§ 116-29, 24 July 2012), and Verdeş v. Romania (no. 6215/14, § 36, 24 November 2015).

COMPLAINTS

Relying on Article 3 of the Convention, the applicant complains about the inhuman and degrading conditions of his detention, including the failure to segregate smokers and non-smokers, in Craiova, ColibaÅŸi , Drobeta Turnu Severin and Pelendava Prisons.

Relying on Article 6 of the Convention, the applicant complains that he did not have a fair trial before the Court of Cassation in so far as the aforementioned court convicted him without hearing either his testimony or that of many of the witnesses after his acquittal by the lower courts. Moreover, on 29 March 2010 the DNA had interviewed him for the first time in respect of the circumstances of the case even though no legal representative had been appointed to assist him.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, on account of the physical conditions of his detention, including the lack of segregation between smokers and non-smokers, in Craiova, ColibaÅŸi , Drobeta Turnu Severin and Pelendava Prisons?

2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 and 3(c) of the Convention in so far as the last-instance court failed to hear testimony from him and a large number of witnesses prior to his conviction and in so far as he did not have a legal representative on 29 March 2010 during his first statement before the prosecuting authorities?