Communicated on 9 March 2015

THIRD SECTION

Application no. 55461/09 Constantin MITU-PAPAI against Romania lodged on 5 October 2009

STATEMENT OF FACTS

The applicant, Mr Constantin Mitu-Papai , is a Romanian national, who was born in 1973 and is currently detained in Arad Prison . He is represented before the Court by Ms H.-L. Mitu-Papai , his wife .

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

On 13 June 2008 a seven-year-old girl was sexually abused close to her home. It was day time and she was in an alley between two buildings heading home from her parents ’ small shop in the area. The aggressor fitted the applicant ’ s description. The girl ’ s father found the applicant nearby and as the girl had identified him, he beat the applicant up severely. The applicant was admitted to the hospital where he remained until 16 June 2008. He filed a criminal complaint against his aggressor. It was dismissed on 24 March 2009 by the prosecutor ’ s office attached to the Resita District Court.

On 14 June 2008, while in the hospital, the applicant made an oral statement to the police about the events. He explained that he had stopped to look for a friend ’ s phone number when his aggressor had come at him and started hitting him. He had lost consciousness and woke up later in the hospital. He denied having met anyone, including a child, before the aggression.

On 16 June 2008 two police officers met the applicant when he was released from the hospital and took him and his parents to the police station to give information concerning the alleged sexual abuse. He was interrogated alone and was not assisted by counsel. He stated as follows:

“... In that place [the alley between the buildings] a girl of approximately five years was running towards me; she was wearing a blouse and skirt of dark colours. When she came close to me she lost her balance and was about to fall; at that point I ran to her, I caught her arm with my left hand and with my right hand I helped her up. My hand slid between the little girl ’ s legs. At that point I introduced one of my fingers, a little bit, in her vagina, without any sexual intention. When I released the girl and took my hand away from between her legs I realised that she was bleeding at her genitalia. She started running again, disappearing behind the building. I did not talk a lot with the little girl, I just told her not to be afraid because I was not going to hurt her.”

On 5 August 2008 the applicant was informed by the police that he was accused of rape. He asked to be interrogated on 11 August when he would come accompanied by counsel.

On 11 August 2008 the applicant, accompanied by his counsel, refused to make any statements or to participate in the investigation. On 3 September 2008 he reiterated his position and explained that he wished to abstain from making statements in order not to influence in any manner the investigations in the criminal complaint he had lodged against the victim ’ s father. The prosecutor interviewed the girl, her father and several witnesses. Witness E.R. declared that she had heard the girl scream and cry, and had seen her running between the buildings. When she had asked what had happened, the girl had recounted the sexual assault.

On 3 September 2008 the prosecutor ’ s office attached to the Caras ‑ Severin County Court indicted the applicant for rape.

Before the county court the applicant declared on two occasions (on 4 and 25 September) that he had helped the girl, who had been about to fall, by lifting her from her armpits. He denied having touched any other parts of her body. He maintained this position throughout the court proceedings and retracted the statement given to the police. He explained that he had been coerced by the police into giving that statement (they had been telling him how lucky he was that they had found him first, as they had information that the victim ’ s father was out to kill him), that he had not been assisted by counsel and that he was not thinking straight as he had just been released from hospital and was still under influence of medication (statements of 19 December 2008 and 13 March 2009). Throughout the court proceedings he was assisted by counsel.

On 30 October 2008 the Caras-Severin County Court convicted the applicant for rape and sentenced him to seventeen years ’ imprisonment. Concerning the applicant ’ s position about the facts, the court noted as follows:

“When he was interrogated, before the beginning of the court proceedings, the [applicant] did not deny having met the victim on 13 June 2008.

He stated that the victim had lost balance and that he had tried to stop her from falling and that during that attempt his right hand had landed between the victim ’ s legs when he ‘ put his finger a little bit in the girl ’ s vagina, without any sexual intention ’ ...

Before the prosecutor he refused to give statements...

The [applicant ’ s] statements ... are true and confirm the fact that [he] met ... the victim.

[The applicant] denies assaulting the victim in all but one of his statements, the one in question being handwritten by him...

Corroborating the statement in question to the remaining evidence in the file: victim ’ s statements, witness statements, reconstitution of the events and the medical expert evaluation report, the court finds without doubt that [the applicant] assaulted the victim... deflowering her with his finger.”

The decision was upheld by the Timisoara Court of Appeal in a decision of 12 February 2009. The court of appeal heard evidence from the applicant and relied on the evidence in the file. It noted, in particular, that the applicant had not denied having met the girl on 13 June 2008 or having put his finger in her vagina. It also considered that the applicant had failed to offer an explanation for his gesture. In a final decision of 10 April 2009 the High Court of Cassation and Justice upheld the previous decisions relying on the first statements given by the applicant before the police.

COMPLAINT

The applicant complains under Article s 5, 6 §§ 1 and 3 (d) and 7 of the Convention about the legal classification given to the facts by the domestic courts .

Relying on the same Articles, the applicant complains that he had been heard by the police without the presence of counsel and that statement, although consistently retracted throughout the subsequent proceedings, constituted the basis of his conviction.

QUESTION TO THE PARTIES

Has there been a violation of Article 6 § 1 of the Convention , on account of the lack of legal assistance to the applicant during the first police interrogation ( Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 )?