THIRD SECTION

Application no . 22765/12 Sorin APOSTU against Romania lodged on 13 April 2012

STATEMENT OF FACTS

The app licant, Mr Sorin Apostu , is a Romanian national, who was born in 1968 . He is currently detained in T â rgu- Mureş Prison . He is represented before the Court by Mr . G. Mateuţ , a lawyer practising in Arad.

The circumstances of the case

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

1. The criminal investigation against the applicant

On 8 November 2011 the Anti-Corruption Department of the Prosecutor ’ s Office ( “the DNA”) started a criminal investigation against the applicant , his wife and three other businessmen , on suspicion of repeated corruption offences committed in his capacity of mayor of Cluj ‑ Napoca .

The prosecutor sought an order for the interception of the applicant ’ telephone calls. The transcripts of the telephone interceptions were admitted as evidence against the applicant.

Excerpts from these conversations were subsequently published in several newspapers despite the fact that the criminal investigation was still pending . Other pieces of evidence from the prosecution file were likewise published and commented in the press.

2. The events of 9 November 2011

On 9 November 2011 police officers belonging to the DNA carried out a search at the applicant ’ s home. They carried out another search at the applicant ’ s office on the premises of Cluj - Napoca Town Hall .

The applicant was taken to the Cluj DNA ’ s headquarters on the basis of an order to appear before the investigation body.

Newspaper and television crews were present and the events were g iven widespread media coverage.

At about 8.50 p.m. on the same day the prosecutor ordered the applicant ’ s remand in custody.

3. The applicant ’ s pre-trial detention

The applicant ’ s pre-trial detention was ordered by an interlocutory judgment delivered by the Cluj Court of Appeal on the next day. The court justified the detention on the necessity to stop the criminal activity of the applicant who allegedly was preparing to commit a new corruption offence. The court also referred to the gravity of the charge and the continuous nature of the offences. It also stressed that the applicant had acted in his capacity of mayor when he had allegedly committed the offences. It concluded that the public order would be shocked if the applicant was to be released. In assessing the concrete danger for the public order of the applicant ’ s release from detention, the court stressed that the facts were allegedly committed during a lon g period of time (starting from 2009 when he was appointed as mayor until the moment of his arrest), that the facts were repetitive and the perpetrator was mayor in charge with the protection of legal order. The court pointed out that as the applicant ’ s wife was under investigation, the applicant having used her law office in order to cash the money received as bribe, his release from prison would allow him to influence her position. It concluded that his release from detention would intimidate other persons in possession of relevant information for the investigation.

The applicant appealed.

On 21 November 2011 the High Court of Cassation and Justice upheld the above judgment, holding that it was clear from the criminal investigation file that there were strong indications that the accused had committed the crimes .

The applicant ’ s pre-trial detention was regularly extended by interlocutory judgments of the Cluj Court of Appeal until present .

The court provided as reasons to justify the extension: the nature and severity of the offences for which the applicant was under investigation , the fact that he might obstruct the course of justice by intimidating possible witnesses and the persons who lodged complaints against him.

The applicant lodged appeals against the interlocutory judgment s; all the appeals were dismisse d by final decisions of the High Court of Cassation and Justice.

The applicant lodged several applications for his release from prison under judicial control. He mainly insisted on the fact that he had a stable family, two minor children and an unblemished reputation. He also pointed out that he was accused of non-violent crimes and he did not have any criminal record.

The Cluj Court of Appeal dismissed his applications on the ground that the evidence in the file pointed to a strong likelihood that he had committed the corruption-related offences. It held that such offences might attract a sentence of imprisonment longer than four years. It also held that releasing the applicant would give rise to a real danger to public order, given the circumstances in which the acts were committed and the consequences and social resonance which such acts created among the public.

The applicant appealed pointing out that his personal situation had changed, namely that he was no longer the mayor of Cluj . The appeal court ’ s decisions were upheld by the High Court of Cassation and Justice.

4. Criminal proceedings against the applicant

On 30 November 2011 the investigation against the applicant was extended in connection with other offences allegedly committed by the applicant, namely traffic of influence, complicity and instigation to money laundering and complicity and instigation to forgery.

On 22 December 2011 the prosecutor issue d an indictment concerning five co ‑ accused, including the applicant and his wife, and the case was registered with the Cluj Court of Appeal. The applicant was charged with passive corruption, complicity and instigation to money laundering and forgery in continuous form.

By a decision of the High Court of Cassation and J ustice delivered on 20 February 2012 the file was transferred to T ârgu-Mureş Court of Appeal upon the applicant ’ s request in order to avoid any possible lack of impartiality of the judges.

According to the latest information, the criminal proceedings are still pending and no judgment on the merits has been delivered yet.

5 . The applicant ’ s conditions of detention

a) Cluj Police Station

The applicant was transported to the detent ion facility of the Cluj Police Station immediately after his pre-trial detention had been ordered by the court. He claims that he was detained in a small cell of approximately five sq.m . with four tiers of bunk beds. According to the applicant, a ccess to the toilet was very difficult as the toilets were in the corridor. The cell lacked natural light and ventilation and the smells from the sewage system were pestilential.

b) Gherla Prison

On 6 January 2012 he was transferred to Gherla Prison. There the applicant was detained for the following periods:

- between 6 and 12 January 2012;

- between 17 and 30 January 2012;

- between 16 February and 22 March 2012.

The applicant complains about overcrowding. However, he did not mention the number of detainees in the cell and the surface of the cell. He just claims that there were 18 beds in the cell. He also claims that the temperature was very low and the conditions of hygiene were improper. He could have only two showers per week.

c) Rahova Prison

On 12 January 2012 the appl icant was transported to Rahova Prison in order to attend the hearing of the High Court of Cassation and Justice in the appeal on points of law lodged by him against an interlocutory judgment. He spent five days in that prison.

The applicant complains about overcrowding and the very low temperatures in the cell. He claims that the cell had no heating. He claims that he did not eat anything for about three days because food was brought and thrown in their cell by other detainees who threatened him with death.

Between 30 January 2012 and 16 February 2012 the applicant was hosp italised in the Prison Hospital Dej .

On 22 Mar ch 2012 he was transferred to Târgu ‑ MureÅŸ Prison, where he is still in detention. The applicant did not complain about the conditions of his detention in Târgu ‑ MureÅŸ Prison.

6. The applicant ’ s transportati on from Gherla Prison to Rahova Prison

On 12 January 2012 the applicant was transported from Gherla Prison to Rahova Prison.

He complains about the inappropriate conditions under which he was transported in the prison van for about seven teen hours.

The applicant claims that the prison van was overcrowded and that the natural ventilation of the van through the hatches was insufficient. Besides, the van was not heated. It was impossible to use the toilet during the journey. The van had no windows or internal lighting.

The applicant also alleges that he was deprived of food and water during transportation.

The applicant lodged a complaint with the prison authorities regarding the conditions under which he h ad been transported from Gherla Prison to Rahova Prison. In a letter of 22 February the National Administration of Prisons acknowledged that he had been transported in a small capacity van belonging to Gherla Prison as they did not have at their disposal an adequate van belonging to the National Administration of Prisons.

7. The applicant ’ s complaints lodged with domestic authorities

On 26 January 2012 the applicant l odged a request with the Gherla Prison ’ s authorities. He asked the prison authorities to ensure the conditions for preparing his defence in the presence of his lawyer. He alleged that under the present conditions he could not consult the file and have direct contact with his lawyer. In a subsequent letter submitted to the prison authorities on the next day he asked to have direct contact with his lawyer since at that time he was separated from his lawyer by a glass wall and had to speak on a microphone. A similar request wa s lodged by the applicant on 20 March 2012.

The prison ’ s authorities justified the separation by a glass wall by relying on the existing legal provisions.

COMPLAINTS

1. Under Article 3 of the Convention the applicant complains about the conditions of his detention on the premises of the Cluj Police Station detention facility, and in Gherla and Rahova Prisons, mainly of overcrowding, lack of natural light, ventilation and heating. He also alleges that the inadequate cond itions of transport from Gherla Prison to Rahova Prison on 12 January 2012 caused him physical and psychological distress which amounted to inhuman and degrading treatment.

2. Citing Article 5 § 1 c) of the Convention, the applicant complains that he was arrested even though there was no reasonable suspicion that he had committed a crime and though the prosecutor had not given specific reasons for his arrest.

3. Relying on Article 5 § 3 of the Convention, the applicant claims that the domestic courts did not provide sufficient reasons for his pre ‑ trial detention. He alleges that, in extending his pre-trial detention, the domestic courts had generally referred to the gravity and repetitive character of the offences he was charged with and his potential to interfere with the establishment of truth, without pointing out to any factors capable of showing that the risks relied upon actually existed.

Under the same article the applicant complains that the domestic courts did not consider the replacement of pre-trial detention with more lenient preventive measures .

4. The applicant complains under Article 5 § 4 of the Convention that the fact that he and his lawyer were separated by a glass partition in Gherla Prison affected his right to defence as they could not exchange documents and discuss confidential issues relevant to his defence and challenging his detention on remand.

5. Under Article 8 of the Convention the applicant complains that private telephone conversations (not connected to the case) which were intercepted by the authorities ended up being published in the press.

QUESTIONS to the parties

1 . Were the conditions of the applicant ’ s detention on the premises of the Cluj Police Station and in Gherla and Rahova Prisons in breach of the requirements of Article 3 of the Conv ention, taking into account his allegations regarding the overcrowding , lack of natural light, ventilation and heating ?

The Government are invited to provide additional information concerning the conditions of the applicant ’ s detention, in particular concerning the size of the cells, the number of the detainees in the cells at the time the applicant was detained and the facilities available.

2 . Were the conditions of the applicant ’ s tr ansportation between Gherla Prison and Rahova Prison c ompatible with Article 3 of the Convention?

The Government are invited to submit information concerning the conditions of the applicant transportation from Gherl a Prison to Rahova Prison on 12 January 2012.

3 . Did the applicant have the opportunity to freely communicate in a confidential manner with his lawyer while detained in Gherla Prison? In this respect, has th ere been a violation of Article 5 § 4 of the Convention?

4 . Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 of the Convention, in so far as transcripts of his intercepted telephone conversations from the prosecution file were published in the press ?

If so, was this interferenc e necessary in terms of Article 8 § 2?