THIRD SECTION

Application no. 41040/11 Iustin Robertino MICU against Romania lodged on 22 June 2011

STATEMENT OF FACTS

1. The applicant, Mr Iustin Robertino Micu , is a Romanian national, who was born in 1969 and lives in Bucharest .

A. The circumstances of the case

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

1. Criminal proceedings opened against the applicant and his detention pending trial

3. By orders of 5 and 8 March 2010 the National Anticorruption Department (“the N.A.D.”) opened criminal proceedings against the applicant and other co-accused, all of them border guard police officers, for bribe taking and accessory to bribe taking. It held on the basis of testimonial, document and surveillance evidence of the phone conversations between one of the co-accused, his wife and a third party that there was reasonable suspicion that on 6-7 September 2007 the applicant and his colleagues had asked seven Turkish nationals to pay them money in order to allow them to leave Romania .

4. On 9 March 2010 two police officers went to the applicant ’ s workplace to enforce an order to appear before the investigating body ( mandat de aducere ) issued by the prosecutor investigating his case. According to the report produced by the authorities and sign ed by the applicant, prior to 8: 40 a.m. he was shown the order to appear and was informed that he would be taken do the N.A.D. ’ s office. He was also informed that he could retain the services of a chosen legal representative. He refused to do so because he considered that he did not need one.

5. On the same date, at 12 p.m., the prosecutor investigating his case informed the applicant in the presence of a publicly appointed legal representative that a criminal investigation had been opened against him for bribe taking. According to the documents submitted before the Court, he refused to retain a chosen legal representative and accepted to be assisted by a publicly appointed lawyer. According to the statement made before the prosecutor, he notified the authorities that he was suffering from diabetes and that he needed his treatment with insulin which had to be recovered from his workplace. In addition, he requested in the event of his arrest that the authorities notify his wife. Moreover, he stated that he maintained the statement he had previously made before the N.A.D. in respect of the events he was investigated for.

6. On the same date, at 7: 36 p.m., the applicant was informed that he was charged with bribe taking. According to the report produced by the authorities he refused to make any other statements and he maintained the ones he had made before.

7. By an order of 9 March 2010 the N.A.D. placed the applicant in police custody for tw enty four hours starting from 9: 15 p.m. for bribe taking. The arrest order was signed by both the applicant and his legal representative. It held that according to the available evidence there was reasonable suspicion that the applicant received money from Turkish nationals in order to allow them to return to Turkey . In addition, the offence in question was punishable by more than four years imprisonment and his release was a danger to public order considering that he was a border guard officer and that he committed the offence at his workplace.

8. On 10 March 2010, by relying on testimonial, document and audio surveillance evidence, the N.A.D. asked the domestic courts to detain the applicant pending trial.

9. By an interlocutory judgment of 10 March 2010 the Court of Cassation dismissed the N.A.D. ’ s request and ordered the applicant ’ s release under the condition not to leave the country. It held that the available evidence was plagued by some inconsistencies which should have been remedied by the investigating authorities. In addition, except for the seriousness of the offence none of the other legal requirements to detain the applicant pending trial were met. In particular, there was no evidence in the file that he attempted to abscond or to obstruct justice. Also, it was not proven that his release would be a danger to public order, considering that the events in questioned happened in 2007 and that the applicant was not responsible for the length of the criminal investigation. Consequently, it considered that the use of an alternative measure was more appropriate in his case.

10. By a final interlocutory judgment of 8 April 2010 the Court of Cassation, sitting as a second instance court, dismissed as ill-founded the N.A.D. ’ s appeal against the interlocutory judgment of 10 March 2010.

11. By a judgment of 17 March 2010 the Bucharest Court of Appeal convicted the applicant for bribe taking and sentenced him to three years imprisonment. The applicant appealed on points of law ( recurs ) against the judgment.

12. The proceedings are still pending before the domestic courts.

2. Criminal proceedings opened by the applicant against prosecutor G.B.

13. On 21 April 2010 the applicant brought criminal proceedings with no civil claims against the prosecutor investigation his case, in particular G.B., for inter alia abuse of power, unlawful arrest and torture. He argued inter alia that the prosecutor had obtained testimonial evidence against him in breach of domestic and international criminal procedure rules and had detained him for thirty eight hours instead of the lawfully allowed twenty four. In addition, there was no reasonable suspicion that he had committed the offence or that the other lawfully required criteria for his detention were met. Also, he was subjected to intense physical and psychological pain because the order to appear issued by the prosecutor was unjustified and lacked any reasoning in breach of Article 183 (2) of the Romanian Code of Criminal Procedure (“the C.C.P.”). Lastly, he was refused medical examination, treatment and food for the entire time he was under the authorities ’ control although he had notified them of his medical condition.

14. By a final order of 2 July 2010 the Public Prosecutor ’ s Office attached to the Court of Cassation dismissed the applicant ’ s criminal complaint against the prosecutor G.B. on the grounds that the offences invoked by the applicant were inexistent and that his claims amounted to a complaint against the acts and measures carried out by the prosecutor during the investigation stage of the criminal proceedings opened against him. The scope of a criminal complaint was not, however, to censor the acts and measures carried out by the prosecutor. The lawfulness of such measures could only be examined within the framework of a complaint lodged with the hierarchical prosecutor against the acts and measures carried out by the investigating prosecutor. The applicant appealed against the order before the domestic courts and argued that the public prosecutors failed to investigate his complaints.

15. By final interlocutory judgm ents of 16 November 2010 and 18 January 2011 the Court of Cassation ordered that the investigation file be attached to the court ’ s file and that G.B. be summoned before the court. According to the applicant neither the investigation file nor G.B. were presented before the court.

16. By a final judgment of 12 April 2011 the Court of Cassation dismissed the applicant ’ s complaint against the order of 2 July 2010. It held that the applicant had other legal remedies provided for by the criminal procedure rules which he could have exhausted in respect of his complaints against the acts and measures taken by the prosecutor during the criminal proceedings opened against him. In this connection it identified several complaints he could have lodged with the hierarchical prosecutor against the acts and measures undertaken by the investigating authorities and which he could have used within the framework of the criminal proceedings opened against him. In addition, it held that a criminal complaint lodged against the prosecutor investigating his case was not one of the remedies he could have used to express his dissatisfaction with the said prosecutor, as it gave him the possibility to have aspects of lawfulness concerning the pending criminal trial examined outside the framework of the criminal proceedings opened against him. Moreover, the procedure allowing the prosecutor ’ s orders to be challenged before domestic courts, did not allow it to substitute its judgment to that of the judicial organs charged with the examination of the pending criminal proceedings opened against him. The applicant appealed on points of law ( recurs ) against the judgment.

17. By a final judgment of 12 September 2011, delivered in private, the Court of Cassation dismissed the applicant ’ s appeal on points of law against the judgment of 12 April 2011 as inadmissible. It held that following recent law reforms, the judgment delivered by the domestic courts in proceedings challenging the lawfulness of the prosecutor ’ s decision not to initiate criminal proceedings were no longer subject to appeal.

18. On 28 July 2011 the applicant brought proceedings against the Court of Cassation seeking an injunction to force the said court to examine the appeal on points of law ( recurs ) lodged by him against the final judgment of 12 April 2011 as well as the unconstitutionality objections raised by him after the previously mentioned judgment was delivered.

19. By a judgment of 28 November 2011 the Bucharest Court of Appeal dismissed the applicant ’ s action of 28 July 2011. It held that to order the Court of Cassation to examine his appeal on points of law would breach the principle of legal certainty. In addition, the unconstitutionality objections in question had been raised by the applicant after the proceedings ended on 12 April 2011 and there was no legal framework that would allow the Court of Appeal to force another court to examine them. The applicant appealed on points of law against the judgment. According to him, the appeal on points of law was dismissed as ill-founded.

3. Criminal proceedings opened by the applicant against prosecutor L.P.

20. On 31 May 2010 the applicant brought criminal proceedings with no civil claims against the prosecutor L.P., G.B. ’ s hierarchical prosecutor, for abuse of power, instigation to perjury, unlawful repression and retention and destruction of documents. He claimed that, as G.B. ’ s hierarchical prosecutor, L.P. had approved the criminal investigation measures taken by G.B., including the evidence dismissed and gathered by him, and allowed G.B. to detain him and initiate the criminal proceedings against him although he was aware that he was innocent.

21. By a final order of 28 October 2010 the Public Prosecutor ’ s Office attached to the Court of Cassation dismissed the applicant ’ s criminal complaint against the prosecutor L.P. on the ground that the offences invoked by the applicant were inexistent. It held inter alia that the complaints lodged by the applicant against L.P. were linked to those lodged by him against G.B. In the latter ’ s case the Prosecutor ’ s Office had already discontinued the criminal investigation for similar reasons. The applicant appealed against the order before domestic courts and argued that the public prosecutors failed to investigate his complaints.

22. By a final judgment of 28 March 2011 the Court of Cassation dismissed the applicant ’ s complaint against the order of 28 October 2010. It held that L.P. had not investigated the applicant ’ s case and had not taken any acts and measures in this respect. The fact that he examined and dismissed his complaints in respect of the lawfulness of the criminal proceedings opened against him does not engage his criminal liability in the absence of evidence to suggest otherwise. In addition, the applicant ’ s complaints concern mainly challenges against the evidence raised against him in the course of the criminal proceedings opened by the authorities and can be examined only within the framework of the said set of criminal proceedings.

4. Other sets of criminal proceedings opened by the applicant against prosecutors G.B. and L.P.

23. On 4 August 2011 the applicant brought criminal proceedings with no civil claims against prosecutors G.B. and L.P. for breach of the secrecy of his correspondence. He argued that the two prosecutors had unlawfully surveyed his electronic mail correspondence during the spring of 2010 and that in June 2010 had publicly presented to the courts the content of one of his electronic mails.

24. By a final judgement of 12 June 2012 the Court of Cassation dismissed the criminal proceedings with no civil claims brought by the applicant against prosecutor G.B. inter alia for forgery and use of forged documents over the course of the criminal proceedings conducted by the said prosecutor against him. It held inter alia that the offences alleged by him were in fact allegations of breaches of procedural rules by the prosecutor investigating his case which could have been examined by the appellate courts over the course of the criminal proceedings opened against him, particularly since the said proceedings were still pending before the domestic courts.

25. By a final order of 26 June 2012 the Prosecutor ’ s Office attached to the Court of Cassation dismissed the criminal proceedings opened by the applicant against prosecutors G.B. and L.P. on 4 August 2011 on the ground that no unlawful act had been committed. The applicant did not appeal against the order before the domestic courts.

5. The applicant ’ s medical condition

26. According to the medical papers submitted by the appli cant he was suffering from type- two diabetes since 1997.

27. On 9 March 2010 at 10: 30 p.m., prior to being placed in a detention cell, the applicant was examined by the detention centre ’ s medical nurse. According to the report produced on that day the applicant ’ s condition was generally good. Also he informed the medial nurse inter alia that he required insulin treatment twice a day and that his blood sugar level was high.

28. On 10 March 2010 the applicant was examined by a specialist doctor in diabetes and nutrition. According to the medical certificate produced on the same day the applicant was following a treatment inter alia with two insulin injections per day.

29. Between 12 March 2010 and 16 May 2012 the applicant was examined by specialist doctors and was tested ten times. According to the medical certificates submitted by him his blood sugar level was high and he continued to receive two injections of insulin per day, but the dosage was increased twice.

6. Other relevant information

30. In his initial submission before the court on 22 June 2011 the applicant stated that on 9 March 2010 around 7.30 a.m. two police officers, holding an order to appear before the investigating body ( mandat de aducere ) issued by a prosecutor attached to the N.A.D., took him from his workplace to the N.A.D. ’ s office. At the N.A.D. ’ s office he was left to wait in a room until 12 p.m. when the police officers informed him that he needed to retain the services of a legal representative. Around 10 p.m. he was handcuffed and taken to the detention centre. At the detention centre he informed the police guards that he was suffering from diabetes and retinopathy and he had not eaten the entire day. His request for a medical test to be carried out by a doctor was dismissed and he was visited by a nurse.

31. In his submission before the Court on 16 August 2012 the applicant stated that on 8 March 2010 his two mobile phones were confiscated by the police officers who accompanied him to the N.A.D. ’ s office without producing a report attesting to the confiscation measure. Also, he was denied contact with his family and he was not allowed to retain the services of a chosen legal representative. During his placement in police custody he was not provided with adequate food for his condition or with plates, glasses or cutlery to be able to eat his food.

B. Relevant domestic law

32. The definition of the order to appear before the courts ( mandatul de aducere ) was, at the material time, provided for by Article 183 of the Romanian Criminal Procedure Code and reads as follows:

Article 183

“(1) A person may be brought before [a] criminal-investigation body or [a] court on the basis of an order to appear, ... , if, having been previously summoned, he/she has not appeared, and his/her hearing or presence is necessary.

(2) An offender or a defendant may be brought [before the authorities] on the basis of an order to appear even before being summoned, if the criminal-investigation body or the court considers that and provides reasons why this measure is necessary for the determination of the case. ”

COMPLAINTS

1. Invoking Articles 3 of the Convention, the applicant complains that he had not been provided with any food for the period he spent under the police officers ’ control and at the National Anticorruption Department for questioning in spite of his medical condition. In addition, after he was placed in police custody for twenty four hours he was not allowed access to adequate medical treatment for his condition in so far as he was not examined by a doctor and he was allowed delayed access to insulin treatment. Also, during his placement in police custody he was not provided with adequate food for his condition and he was not given cutlery and plates in order to be able to receive food in proper conditions.

2. Relying on Article 5 of the Convention the applicant complains that there had been no reasonable suspicion for his placement in police custody, that he had been unlawfully detained for the period he spent under the police officers ’ control and at the National Anticorruption Department ’ s Office for questioning prior to his placement in police custody as well as after his placement in police custody. Lastly, he argued that he had not been informed promptly of the reasons for his detention.

3. Invoking Article 6 of the Convention the applicant complains of a breach of his right to fair trial in so far as the Court of Cassation lacked impartiality and failed to provide reasons for its decisions delivered in the criminal proceedings opened by him against prosecutors G.B. and L.P. In addition, in respect of the proceedings which ended by the final judgments of 28 March and 12 April 2012 the courts failed to hear G.B. and L.P. and examined his complaints without being provided with a copy of the criminal investigation files by the Prosecutor ’ s Office. Moreover, the prosecutor arguing the cases presented his argument for the dismissal of the cases from the same podium that was occupied by the court ’ s bench. Furthermore, the domestic legislation prevented him from lodging appeals on points of law against the judgments of 28 March and 12 April 2011 and therefore his appeals on points of law and unconstitutionality objections raised after the said judgments became final were dismissed as inadmissible by final judgments delivered in private. Lastly, he did not have access to the list of judges that examined his appeals on points of law against the judgments of 28 March and 12 April 2011 and was unable to establish if they had been the same judges that examined his case as a first instance court and to lodge a challenge against them if that was the case.

Relying on the same Articles of the Convention the applicant complains of the unfairness of the criminal proceedings opened against him in so far as the first instance court lacked impartiality and dismissed all the evidence requested by the defence and sentenced him on 17 March 2011 exclusively on the basis of witness testimonies obtained from witnessed that had not been summoned before the court. In addition, he was not allowed to retain the services of a chosen legal representative after he was taken to the National Anticorruption Department ’ s Office.

4. Invoking Article 8 of the Convention the applicant complains that the National Anticorruption Department allegedly continued to secretly and unlawfully survey his and his family ’ s telephone conversations in the absence of an authorisation during the course of the judicial investigation carried out by the domestic courts in respect of the criminal proceedings opened against him. In addition, the authorities unlawfully surveyed his electronic mail correspondence before June 2010. Moreover, the applicant was allegedly not allowed to contact his family after he was taken to the National Anticorruption Department ’ s Office.

5. Relying expressly or in substance on Article 13 of the Convention the applicant complains, in respect of his allegations raised under Articles 3, 5 and 6 of he Convention, that the Romanian law does not provide an effective remedy to protect the individual against abuses and offences committed by prosecutors as the authorities did not open criminal proceedings against prosecutors G.B. and L.P.

6. Invoking in substance Article 1 of Protocol No. 1 to the Convention the applicant complains that after he was taken to the National Anticorruption Department ’ s Office, the police officers accompanying him confiscated his two mobile phones without producing a confiscation report.

QUESTIONS TO THE PARTIES

1. Considering his medical condition, did the applicant ’ s inability to have access to food for the period he spent under the police officers ’ control and at the National Anticorruption Department ’ s Office for questioning prior to his placement in police custody amount to inhuman and degrading treatment in breach of his rights guaranteed by Article 3 of the Convention?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention for the period he spent under the police officers ’ control and at the National Anticorruption Department ’ s Office for questioning prior to his placement in police custody?

3. Did the applicant have an effective remedy for his complaints concerning the alleged lack of food and unlawfulness of his deprivation of liberty for the period he spent under the police officers ’ control and at the National Anticorruption Department ’ s Office for questioning prior to his placement in police custody, as required under Article 13 of the Convention? In particular, did the criminal complaints lodged by the applicant against the prosecutors investigating his case amount to an effective remedy within the meaning of the Convention? If so, did the applicant lodge the above-mentioned complaints before the Court within the six-months time limit?