THIRD SECTION

Applications nos 43490/07 and 44304/07 Ciprian Vlăduț POP against Romania and Ioan Florin POP against Romania lodged on 28 September 2007 and 28 September 2007 respectively

STATEMENT OF FACTS

The applicant in the first case (“the first applicant”) , Mr Ciprian Vlăduț Pop, is a Romanian national, who was born in 1982 and lives in Tăuţii Măgherăuş , Maramureş County.

The applicant in the second case (“the second applicant”), Mr Ioan Florin Pop, is a Romanian national, who was born in 1974 and lives in Tăuţii Măgherăuş , Maramureş County.

The applicant s are brothers.

A. The circumstances of the case

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

1. The background of the case

In the summer of 2004 the first applicant was contacted on several occasions by an undercover police agent who wanted to buy ecstasy from him brought illegally from the Netherlands.

The first applicant sold Ecstasy to the undercover agent, ten tablets on 26 October 2004 and 115 tablets on 29 October 2004. After the transactions, the undercover agent asked for more drugs, so the applicant brought a new batch from the Netherlands.

Another transaction was planned to take place on 23 December 2004 in Baia Mare. The first applicant informed his brother for the first time about the fact that he had brought drugs to the country and about the deal. After having initially refused and argued extensively about it with his brother, the second applicant agreed to help, in order to save the family from potential retaliation by the Dutch seller. He took the drugs to an agreed location while the first applicant negotiated the terms of the transaction with the undercover agent.

According to the prosecutor ’ s report, the first applicant and the undercover agent then joined the second applicant; the agent was offered an ecstasy tablet for testing and then he left with the first applicant in order to set out the details of the transaction. The second applicant was to wait at the same location for the buyer to return with the money to pay the drugs. Meanwhile, the second applicant noticed that police agents were coming by taxi towards his location. He allegedly hid the bag containing drugs in a nearby bush and phoned his brother to warn him. The first applicant told the undercover agent that the transaction was cancelled.

Police agents apprehended the two applicants and recovered a bag with 4,409 ecstasy tablets from the bushes.

The applicants were taken to the police station for further investigations. They were arrested.

2. The criminal prosecution

The division responsible for fighting organised crime and terrorism from the prosecutor ’ s office attached to the Cluj Court of Appeal (“the prosecutor”) asked for the tablets purchased by the undercover agent to be tested by the Police laboratory for physical and chemical analysis (“the Police laboratory”). On 28 October, 2 November and 27 December 2004 the police laboratory rendered its reports on the three batches of tablets, concluding that they contained methylenedioxymethamphetamine (MDMA). The tablets remaining after the laboratory test were sealed and stored in a special police deposit.

The applicants and two taxi drivers who transported the police agents to the crime scene were interviewed by the prosecutor.

During the preliminary stage of the investigation, the Cluj County Court authorised the tapping of the applicants ’ phones. Some hundred CDs were recorded in the process.

On 9 March 2005 the prosecutor presented the transcripts of some of the recorded conversations along with forty CDs to the Maramureş County Court. He sought the court ’ s approval that the evidence produced before it was relevant for the case (procedure under Articles 91 3 and 91 5 of the CCP). The defence counsel asked for a postponement to allow her to study the evidence and to form an opinion on its relevance. She also expressed her wish to examine the remaining recordings which had not been produced before the court by the prosecutor. The court dismissed the requests and accepted the evidence in the file, as proposed by the prosecutor. It accepted the prosecutor ’ s opinion and ruled that the remaining CDs were not relevant to the case.

On 15 March 2005 the prosecutor committed the applicants to trial for trafficking in drugs, under Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”). The prosecutor noted that the first applicant was also a consumer, whereas his brother, the second applicant, had neither consumed drugs nor had knowledge of his brother ’ s dealing until 23 December 2004.

3. The first-instance court proceedings

The case was heard by the Maramureş County Court. The applicants ’ detention pending trial was extended at steady intervals by the court.

The first applicant gave statements before the court. It appears that at that time he was suffering from withdrawal symptoms and was under sedatives prescribed by the prison doctors in order to alleviate his ailments. There is no record of the second applicant being heard in person during the first instance proceedings.

The applicants ’ counsel asked for an expert evaluation of the tablets to establish whether they contained MDMA or a lighter drug. Relying on the principle of equality of arms, defence counsel requested the expert examination to be performed by Ministry of Justice experts and not by the Forensic Institute belonging to the Police. The prosecutor advised that the Police Forensic Institute was habitually responsible for such analysis. At the court ’ s request, the Police Forensic Institute examined the drugs and in its report of 10 August 2005 confirmed that the tablets contained MDMA.

The second applicant also asked the court to hear evidence from the undercover police agent. His request remained unanswered.

As on 26 July 2005 the first applicant, who was suffering from withdrawal symptoms, fell ill in the court building and had to be transported to the hospital, defence counsel asked for a medical evaluation of his client. Despite repeated requests by the court, the prison authorities later failed to transport the first applicant to the hospital in order to receive the expert examination ordered by the court.

At the hearing on 8 November 2005 the court heard the pleas from the prosecutor and defence counsels. The applicants did not deny the facts. However, the first applicant argued that if it had not been for the undercover police agent ’ s insistence, he would not have brought the drugs in the first place. He also argued that the undercover police agent asked on purpose for a high risk drug in order to attract a heavier penalty for the applicants, whereas if he had requested a milder drug, the sentencing would have been consequently milder. The second applicant pointed out that he had only been informed about the drug dealing on the very day when the last transaction had taken place and that by phoning his brother that day he had in fact prevented the crime from being committed.

The County Court rendered its judgment on 25 November 2005, based on the evidence in the file, namely the witness testimonies, the transcripts of the telephone interceptions and the expert reports concerning the content of the tablets. It reiterated the facts as they had been established in the indictment act and concluded that the applicants were guilty of the offences they had been accused of. The court gave no further answers to the arguments raised by the defence. It convicted both applicants and sentenced the first applicant to seven years and six months ’ imprisonment and the second applicant to three years and six months ’ imprisonment.

4. The appeal proceedings

The applicants reiterated their complaints concerning the alleged breach of the principle of equality of arms in that the tablets had been evaluated in the police laboratories and not by an independent expert. Finally they renewed their request to have all the transcripts of the intercepted conversations produced before the court and complained that they could not have access to them as the remaining recordings had been destroyed.

Throughout the proceedings, the second applicant made repeated requests to be allowed to study his file, but received no answer from the court.

On 5 October 2006 the Mina Minovici National Forensic Institute examined the first applicant. On 19 January 2007 it rendered its medical report which was examined at the court hearing held on 31 January 2007.

The Cluj Napoca Court of Appeal deliv ered its decision on 7 February 2007. Concerning the defence ’ s arguments on the lack of access to the telephone interceptions the court reiterated that on 9 March 2005 it had already been decided which ones of the transcripts were useful to the case.

The court of appeal maintained to a great extent the conclusions of the first instance court.

The applicants appealed on points of law and reiterated their main defence arguments. However, their appeal was dismissed in a final decision rendered on 29 March 2007 by the High Court of Cassation and Justice.

5. The conditions of the second applicant ’ s detention

The second applicant described his detention as follows. He was arrested on 23 December 2004 and remained imprisoned until 1 May 2007. He spent the first three months of detention in the police detention facilities, the following eight to nine months in Baia Mare Prison, then 13 months in Gherla Prison and the remaining time in Jilava Prison. He had to share the cell with smokers although he was a non-smoker himself. He repeatedly asked the prison administration to place him in a cell with non-smokers. No such arrangements could be made for him as the pre-trial detention facilities were already overcrowded and there were no places available in the non ‑ smoking cells; according to the applicant, in Baia Mare Prison the ratio was of 39 bunk beds, placed on three levels, for sixty inmates. When he was detained in Gherla Prison, he complained about being placed with smokers and about overcrowding in prison, notably that he did not have 4 sq. m of personal living space in the cell. On 5 February 2007 his complaint was dismissed by the judge delegated by the court to supervise the observance of the prisoners ’ rights, under Law no. 275/2006 on the execution of sentences. The delegate judge noted that there was no obligation under the Romanian law to place a detainee in a non-smoking cell or to ensure him a certain living space. According to the applicant, the cells were overall dirty and infested with bugs.

The second applicant also described an episode where he was hit by a prison guard; he explained that he had gotten scared and became agitated because he had his brother suffering of withdrawal and had been persuaded that his brother was about to die without anybody willing to come to his rescue. He pressed charges against the warden, but on 31 March 2006 the prosecutor decided not to prosecute.

Lastly, the second applicant described that for one month he had been held handcuffed to a bed in his cell, in Baia Mare Prison.

The applicant went on hunger strike and tried on several occasions to commit suicide while in detention.

B. Relevant domestic and international law

The relevant provisions of the Code of Criminal Procedure and o f Law no. 143 are set out in Constantin and Stoian v. Romania (nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009). A comparative law study on the use of undercover agents conducted by the Court is presented in Veselov and Others v. Russia (nos. 23200/10, 24009/07 and 556/10 , §§ 50 ‑ 63, 2 October 2012).

The Council of Europe ’ s texts on the use of special investigative techniques are detailed in Ramanauskas v. Lithuania ([GC], no. 74420/01 , §§ 35-37, ECHR 2008).

COMPLAINTS

1. The second applicant complains about the conditions of his detention in the various detention centres where he was held.

2. Without invoking any Article of the Convention, the applicants complain that if it had not been for the undercover police agent ’ s insistence, the first applicant would not have procured and sold the drugs and the second applicant would not have been compelled to help his brother out with the deal.

3. The second applicant complains under Article 6 § 3 (b) that he was denied by the court of appeal the right to study the case file.

4. Both applicants complain under Article 6 § 3 (d) of the Convention about the fact that they could not obtain an expert evaluation of the drugs by an independent body; they argue that so long as the laboratories were subordinate to the Police, which was an interested party in the case, the principle of equality of arms was breached.

5. They also consider that there has been an interference with their right to defence in so far as the courts excluded from the file most of the CDs containing the recordings of their conversations, without hearing them first and without allowing their lawyer to appreciate their utility for the defence. The second applicant adds that he discovered a conversation between his brother and the undercover police agent which could have proved that he had not been involved in the drug trafficking.

QUESTIONS TO THE PARTIES

1. Have the applicants been incited to commit crimes by the undercover police officer (see Ramanauskas v. Lithuania [GC], no. 74420/01 , § 55, ECHR 2008)?

2. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the access to the evidence gathered through telephone tapping, the possibility to study the court file and the denial by the courts to request the opinion of an independent expert?

3. Was Mr Ioan Florin Pop afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?

4. Were the applicants able to examine witnesses against them, as required by Article 6 § 3 (d) of the Convention, in particular as concerns the request to hear evidence from the undercover police agent?

5. Were the conditions of detention during Mr Ioan Florin Pop ’ s stay in prison in breach of the requirements of Article 3 of the Convention?

The Government are invited to provide information on the material conditions of detention of this applicant, in particular as regards the size and occupancy as well as the cleanliness and facilities of the cells in which he was held and the prison authorities ’ response to the applicant ’ s situation (attempted suicides and hunger strike).