THIRD SECTION

Application no. 53150/12 Vasile Emilian CUTEAN against Romania lodged on 3 August 2012

STATEMENT OF FACTS

The applicant, Mr Vasile Emilian Cutean , is a Romanian national, who was born in 1965. He is currently detained in Jilava Prison. He is represented before the Court by Mr R. Chiriţă , a lawyer pr actising in Cluj Napoca .

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

A. Background to the case

From 29 November 2002 to 20 December 2004 the applicant was appointed to the post of Secretary of State for the State Secretariat for the Problems of the December 1989 Revolutionaries (“the State Secretariat”) by a decision of the Romanian Prime-Minister.

On 7 December 2002 the applicant delegated his duties as president of the Revolutionary Association “Club 22” (“the Association”) to the vice ‑ president of the said organisation as a result of his appointment to the post of Secretary of State. According to the agreement signed on the same date he did not delegate his right of signature in the bank and other duties of utmost importance for the organisation and its members which were to be determined by mutual agreement at a later date.

By a final interlocutory judgment of 25 May 2005 the Romanian Court of Auditors ( Curtea de Conturi a României ) examined the report produced after the inspection of the financial documents and activity of the State Secretariat for the year 2004. It noted inter alia that although the applicant was dismissed from his post on 20 December 2004 he continued even after that date to sign and order payments on behalf of the State Secretariat. By unlawfully using his power to order payments, he approved the financing of the Association with 2,907,902,590 Romanian lei (ROL) (approximately 75,190 euros (EUR)) from public funds as aid to cover rent and utility charges incurred by the Association, in the absence inter alia of a lawfully required legal agreement with the said association. Consequently, it referred the case to the Bucharest Court of Appeal and Public Prosecutor ’ s Office attached to the Court of Cassation in order to investigate the applicant ’ s administrative and criminal liability, respectively.

B. Criminal proceedings opened against the applicant

On 25 January 2006 the National Anticorruption Department opened criminal proceedings against the applicant for using his influence and non ‑ public information for obtaining undeserved material gains for him or for others. It held inter alia that on 21 and 22 December 2004 the applicant, although he had already been revoked from his post of State Secretary, authorised payments of approximately EUR 75,000 from the account of the Secretariat to the account of the Association of which he was a president. No lawfully required legal agreement had been signed between the two organisations and although he was not registered as a tenant, the applicant domiciled in the building occupied by the offices of the Association.

On an unspecified date the National Anticorruption Department indicted the applicant for using his influence and non-public information for obtaining undeserved material gains for him or for others and sent his case to trial.

At the hearing of 1 November 2006 the Court of Cassation heard the applicant in respect of the charges brought against him.

At the hearings of 29 November 2006, 21 February, 21 March, 23 April and 26 September 2007 the Court of Cassation heard the witnesses in the case.

By an interlocutory judgment of 12 January 2009 the Court of Cassation referred the applicant ’ s case to the Bucharest District Court on the ground that the applicant ’ s mandate as Member of the Romanian Parliament had expired and the Court of Cassation was not competent anymore to examine his case.

By a judgment of 15 June 2009 the Bucharest District Court convicted the applicant for using his influence and non-public information for obtaining undeserved material gains for him or for others on the basis of documents, expert and testimonial evidence and sentenced him to five years ’ imprisonment. The applicant and the witnesses were not heard directly by the District Court. The applicant appealed against the judgment.

By a judgment of 1 April 2011 the Bucharest County Court, after having examined the applicant ’ s submissions and arguments, dismissed his appeal as ill-founded. The applicant and the witnesses were not heard directly by the County Court. The applicant appealed on points of law ( recurs ) against the judgment.

Without providing additional information in respect of their identity or whether they were part of the group heard by the Court of Cassation, the applicant contended before the Court that the first and second instance courts failed to provide reasons for dismissing the statements of twenty witnesses There is no evidence in the file that he challenged the alleged decisions of the said courts.

By a final judgment of 7 February 2012, after having examined the applicant ’ s submissions and arguments for his appeal on points of law and without hearing him or the witnesses, the Bucharest Court of Appeal dismissed it as ill-founded. The applicant lodged an appeal of annulment ( contestaţie în anulare ) against the judgment. He argued that although he had been heard by the Court of Cassation on 1 November 2006, none of the courts who convicted him heard him directly although they had a lawful duty to do so.

By a final judgment of 24 February 2012 the Bucharest Court of Appeal dismissed the applicant ’ s appeal of annulment. It held that it could not conclude that the applicant was not heard by the first-instance court, considering that he was heard by the Court of Cassation and that according to the relevant criminal procedure rules the court to which the case was referred to could use the acts and measures undertaken by the court from which the case was referred.

C. Other relevant information

The applicant contended before the Court that in the Bucharest Police Department ’ s Arrest, Jilava Prison Hospital and Rahova Prison his cells were overcrowded and were not separated from the bathroom facilities. In addition, in Jilava Prison the detentions cells were overcrowded and he was forced to constantly lie on the bed on account of the lack of space; the hygiene conditions were inappropriate and the sanitary installations were defective; the warm water was not running permanently and he was allowed to wash only twice a week together with another hundred persons; the outdoor physical exercise was limited to only one hour a day and the food was inadequate. Also, he had to share his cell with recidivists and other detainees convicted for violent offences in breach of the domestic legislation. Lastly, the prison authorities transported him regularly for approximately one hour before domestic courts together with other detainees in cars which lacked windows or artificial light and any form of ven tilation.

COMPLAINTS

1. Relying on Article 3 of the Convention the applicant complains that he was subjected to inhuman and degrading treatment by the authorities in the Bucharest Police Department ’ s Arrest, Jilava Prison Hospital and Rahova Prison in that his cells were overcrowded and were not separated from the bathroom facilities. In addition, in Jilava Prison the detentions cells were overcrowded and he was forced to constantly lie on the bed on account of the lack of space; the hygiene conditions were inappropriate and the sanitary installations were defective; the warm water was not running permanently and he was allowed to wash only twice a week together with another hundred persons; the outdoor physical exercise was limited to only one hour a day and the food was inadequate. Also, he had to share his cell with recidivists and other detainees convicted for violent offences in breach of the domestic legislation. Lastly, the prison authorities transported him regularly for approximately one hour before domestic courts together with other detainees in cars which lacked windows or artificial lig ht and any form of ventilation.

2. Invoking Article 6 of the Convention the applicant complains about the unfairness of the criminal proceedings opened against him in so far the courts wrongfully assessed the evidence and misinterpreted the applicable legal provisions; he and the witnesses were not heard by the courts which convicted him; the courts failed to provide reasons for dismissing the statements of twenty witnesses, his submissions and his reasons for appeals including his argument concerning his conviction for acts which lacked the required elements for the criminal offences with which he was charged .

3. Relying on Article 7 of the Convention the applicant complains that he was convicted for acts which did not constitute criminal offences at the time they were committed in so far as his acts lacked the required elements for the criminal offences with which he was charged.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention on account of :

a) the material conditions of his detention in the Bucharest Police Department ’ s Arrest, Jilava Prison Hospital, Rahova and Jilava Prisons;

b) his transport conditions ?

2. May the applicant claim to be a victim of a violation of Article 6 of the Convention, in view of the circumstances of the case, in particular the fact that he and the witnesses were heard by the Court of Cassation?

3. If so, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention in so far as the domestic courts which convicted him failed to hear him and the witnesses directly?