CASE OF BULEA v. ROMANIA

THIRD SECTION

CASE OF BULEA v. ROMANIA

(Application no. 27804/10)

JUDGMENT

STRASBOURG

3 December 2013

FINAL

03/03/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bulea v. Romania,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 12 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 27804/10) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Bogdan Ioan Bulea (“the applicant”), on 17 May 2010.

2. The applicant was represented by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

3. The applicant complained that he had been subjected to inhuman and degrading detention conditions in Bacău Prison. He also complained that the prohibition on leaving Romania imposed on him by the authorities had breached his rights under Article 2 of Protocol No. 4 to the Convention.

4. On 17 January 2012 the application was declared partly inadmissible and the complaints concerning Article 3 of the Convention and Article 2 of Protocol No. 4 to the Convention were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant, Mr Bogdan Ioan Bulea, is a Romanian national who was born in 1973.

A. The preventive measures taken against the applicant during his criminal investigation and trial

6. On 30 January 2003 the applicant was arrested and charged with several crimes. On 24 February 2003 the investigation concluded with the applicant’s indictment for fraud, use of forged documents and associating with several people with the goal of committing economic crimes.

7. On 28 August 2003 the applicant’s pre-trial detention was replaced by the Bacău County Court with the preventive measure of a prohibition on leaving town. Claiming that the prohibition on leaving his town of residence had prevented him from obtaining a job, the applicant sought to have the measure overturned. On 25 November 2003 the Bacău County Court allowed the applicant’s application and replaced it with a prohibition on leaving the country.

8. On 20 April 2004 the Bacău County Court convicted the applicant of aggravated fraud, use of forged documents and associating with several people with the goal of committing crimes and sentenced him to twelve years’ imprisonment.

9. The applicant filed an appeal, which was partially allowed on 22 March 2005 when the Galaţi Court of Appeal decided to send the case back to the Galaţi County Court for retrial on the merits.

10. During the retrial, the applicant sought the revocation of the preventive measure prohibiting him from leaving the country on several occasions, complaining that the unreasonably long travel ban had prevented him from conducting his business activities and earning a living for his family. He also argued that there were no reasons to suspect that he posed a flight risk. On 7 March 2006 the Galaţi County Court rejected the applicant’s application, holding that the severity of the crimes he was accused of, the significant losses to the State treasury which had been caused by those offences and the early phase of the trial justified the need to keep the preventive measure against him in place. The court further stated that the duration of the proceedings and the duration of the preventive measure imposed on him were also due to the complexity of the case, which involved numerous defendants and witnesses.

Similar applications for revocation of the preventive measure filed by the applicant were rejected with the same reasoning by the Galaţi County Court on 3 and 28 April 2006. On 19 September 2006 a new application by the applicant was again rejected by the same court, which found that the measure was still necessary given the significant losses caused to the State treasury, the complexity of the case and the fact that the measure had not been in force for an excessive period of time.

11. On 30 March 2007 a new judgment on the merits was issued by the Galaţi County Court, which found the applicant guilty of aggravated fraud, use of forged documents and associating with several people with the goal of committing crimes and sentenced him to eleven years’ imprisonment. The applicant was also obliged to repay to the State treasury the sum of 3,740,901,433 Romanian lei (ROL) which he had received illegally. The court analysed the necessity of the preventive measure prohibiting the applicant from leaving the country and decided to maintain it, considering that it was necessary in view of the severity of the crimes committed by the applicant.

12. The applicant filed an appeal against the judgment of 30 March 2007. During the appeal hearings before the Galaţi Court of Appeal, the applicant once again applied for the removal of the prohibition on leaving the country. At a hearing which took place on 8 October 2008 the court rejected the applicant’s application with the reasoning that, at this stage of the proceedings, given the fact that the applicant had been convicted by the first-instance court but also in view of his numerous attempts to delay the proceedings, keeping the measure in place was warranted. On 18 December 2008 the Galaţi Court of Appeal dismissed the applicant’s appeal. The preventive measure imposed on the applicant was maintained, the court holding that the reasons for imposing the measure were still valid.

13. Both the applicant and the prosecutor filed appeals on points of law (recurs) against the judgment of 18 December 2008.

14. By a final judgment of 18 March 2010 the High Court of Cassation and Justice allowed the prosecutor’s appeal and convicted the applicant of aggravated fraud and associating with several people with the goal of committing crimes and sentenced him to ten years’ imprisonment. The obligation to reimburse the sum illegally received from the State treasury was upheld.

B. The applicant’s detention in Bacău Prison1.  The applicant’s account

15. On 8 April 2010 the applicant started serving his sentence in Bacău Prison.

16. In his application form of 17 May 2010 the applicant complained that the atmosphere in the prison cell was terrifying and amounted to psychological pressure.

17. In his letter of 9 July 2010 the applicant complained before the Court that his prison cell was overcrowded, measuring 24 sq. m and having twenty-seven beds arranged in three-level bunks separated by a space of one metre. The applicant also complained that the cell only had one window of 1 sq. m and was therefore lacking in natural light and ventilation. In addition, he complained that he was being held in the same cell as very dangerous criminals.

18. According to an order of the prison administration submitted by the applicant, there was no electricity provided in the cells between 7:30 a.m. and 7 p.m., while between 10 p.m. and 7 a.m. electricity was only provided for the security light.2.  The Government’s account

19. The applicant was detained in Bacău Prison between 8 April 2010 and 15 July 2010.

20. Between 8 April and 3 May 2010 he was held in the intake area and was detained in cell no. 115, which measured 26.27 sq. m and had fifteen beds installed. The applicant shared the cell with a maximum of seven other detainees. The window measured 1.73 sq. m.

21. Between 3 May and 7 July 2010 the applicant was detained in cell no. 107, which measured 39.36 sq. m, had twenty-seven beds installed and which he shared with a maximum of seventeen other detainees. The window measured 2.78 sq. m.

22. Between 7 and 15 July 2010 the applicant was detained in cell no. 506, which measured 32.13 sq. m, had ten beds and which he shared with nine other detainees. The window measured 2.52 sq. m.

23. In respect of the hygiene conditions in the cells, the Government submitted that the cells each had a bathroom with individual toilets, showers and sinks and windows which provided natural light and allowed ventilation. The cells and the bathrooms were also equipped with an electric ventilation system.

24. On 15 July 2010 the applicant’s application for temporary release for three months was allowed by the Bacău Court of Appeal and he was released from prison on the same date.

25. Because the applicant did not return to continue serving his sentence after the expiry of the three-month term, on 19 October 2010 a nationwide search warrant for him was issued. On 4 November 2011 the warrant was extended to the international level by the Bacău County Police. The applicant remains at large.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic and international law and practice concerning the conditions of detention

26. A description of the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006, as well as the national practice concerning domestic remedies with respect to complaints of overcrowding in Romanian prisons are summarised in the cases of Cucu v. Romania (no. 22362/06, § 56, 13 November 2012) and Porumb v. Romania (no. 19832/04, §§ 41-43, 7 December 2010).

27. According to the order setting the required minimum conditions of detention issued by the Minister of Justice (Order no. 433/C of 5 February 2010, published in Official Journal no.105 on 15 February 2010), prison cells must provide a minimum space of 4 sq. m per detainee for detainees who are confined to their cells (including those in the “closed” detention regime).

28. Excerpts from the relevant parts of the general recommendations of the European Committee for the Prevention of Torture (CPT), as well as its reports concerning detention conditions in Romanian prisons, can be consulted in Bragadireanu v. Romania (no. 22088/04, §§ 73-75, 6 December 2007).

29. In addition, in its most recent report concerning its 2006 visit to Romania, the CPT described the conditions in Bacău Prison as follows:

“Overcrowding remains a central problem in this prison whose incarcerated population amounted to 1,036 persons at the time of the visit as opposed to an official capacity of 456 places. (...)

The living space in practically all cells fell at a minimum of under 0.6 sq m per detainee, the maximum being 1.5 sq m; the beds (superposed on three levels) and the mattresses were barely enough and the ones existent were in a severely bad condition.”

B. Relevant domestic law concerning freedom of movement and the prohibition on leaving the country

30. Article 25 of the 2003 Constitution provides that:

“The right to freedom of movement is guaranteed within the country and abroad. The enforcement of this right is regulated by law.”

31. Article 136 of the Criminal Procedure Code provides the following:

“(1) In cases concerning offences punishable with imprisonment, in order to ensure the good conduct of the criminal trial or to prevent the suspect or the defendant from fleeing during the criminal investigation, trial or during the execution of the sentence, one of the following preventive measures may be imposed on the person: (...)

(b) prohibition on leaving town;

(c) prohibition on leaving the country; (...)

(8) The measure to be taken shall be chosen taking account of its purpose, the severity of the crime, the health, age, [and any] previous convictions or other circumstances [of] the person against whom the measure is to be imposed.”

32. Article 139 of the Criminal Procedure Code provides that:

“(2) When there are no reasons to justify the maintenance of a preventive measure, it must be revoked automatically or upon request.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

33. Relying upon Article 8 of the Convention, the applicant complained about the material conditions of his detention in Bacău Prison, in particular overcrowding and a lack of hygiene. In this respect, it must be noted that the Court is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by an applicant (see Guerra and Others v. Italy, 14967/89, § 44, 19 February 1998). Therefore, the aforementioned complaint will be further analysed under Article 3, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility1.  The Government’s objection of abuse of the right of petition

34. The Government argued that the applicant had provided the Court with incomplete and misleading information, as he had failed to disclose the fact that he had been released from prison three years ago on 15 July 2010 and had been a fugitive from justice ever since. Consequently, the Government argued that the applicant’s behaviour constituted an abuse of his right to lodge an application and his complaint under Article 3 of the Convention should be rejected as abusive under Article 35 § 3 (a) of the Convention.

35. The applicant submitted that the conditions of detention that he had been subjected to had been humiliating and that the duration of his detention in such conditions was not relevant to his current situation.

36. The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova (no. 1) no. 74153/01, § 48, 18 January 2005; Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004; and Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006).

Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007; Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008; and Kowal v. Poland (dec.), no. 2912/11, 18 September 2012).

37. In the circumstances of the present case, the applicant’s failure to inform the Court that he is no longer in prison does not affect the core of his complaint under Article 3 of the Convention, which concerns the material conditions of his detention in Bacău Prison.

38. Therefore, the Court finds that the Government’s objection must be rejected, there being no indication that the complaint concerning the conditions of the applicant’s detention was based, knowingly or otherwise, on false information.2.  The Government’s objection of non-exhaustion of domestic remedies

39. The Government also raised a preliminary objection of non‑exhaustion of domestic remedies, as the applicant had not complained before the domestic authorities under Law no. 275/2006 about the conditions of his detention. They argued that the remedy under that Law was effective, having regard to the jurisprudence already submitted by them in previous cases decided by the Court.

40. The applicant contested that argument.

41. The Court notes that the applicant’s complaint concerns the material conditions of his detention, in particular, overcrowding and poor hygiene. In this regard, it notes that in recent applications lodged against Romania concerning similar complaints it has already found that, given the specific nature of this type of complaint, the legal action suggested by the Government does not constitute an effective remedy (see Cucolaş v. Romania, no. 17044/03, § 67, 26 October 2010, and Cucu, cited above, §§ 73 and 74).

42. The Court therefore concludes that the domestic case-law referred to by the Government does not indicate how the legal action highlighted by them could have afforded the applicant immediate and effective redress for his complaint (see, mutatis mutandis, Marian Stoicescu v. Romania, no. 12934/02, § 19, 16 July 2009).

43. It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the material conditions of detention in Bacău Prison.

44. Finally, the Court notes that the applicant’s complaint concerning the material conditions of his detention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

45. The applicant complained that he had been detained in overcrowded cells which had lacked ventilation together with extremely dangerous criminals.

46. The Government, referring to their description of the conditions of the applicant’s detention submitted before the Court (see paragraphs 20-23 above), contended that the domestic authorities had taken all necessary measures to ensure adequate conditions of detention for the applicant and that his complaint was groundless. In addition, the Government submitted that the short period of the applicant’s detention should be taken into account when deciding on the applicant’s complaint under Article 3 of the Convention.

47. The Court notes that in previous cases where applicants have had less than 4 square metres of personal space at their disposal it has found that the overcrowding was so severe as to justify in itself a finding of a violation of Article 3 of the Convention (see, among many other authorities, Budaca v. Romania, no. 57260/10, §§ 40-45, 17 July 2012; Niculescu v. Romania, no. 25333/03, §§ 81 and 82, 25 June 2013; and Cucu, cited above, §§ 38‑44).

48. In the present case the Court notes that the applicant was detained for two months and three days in a cell which afforded living space of 2.18 sq. m per person, for twenty-six days in a cell which afforded living space of 3.28 sq. m per person, and for a period of eight days in a cell which afforded 3.21 sq. m of living space per person.

49. Moreover, the applicant’s submissions concerning the overcrowded conditions of his detention correspond to the general findings of the CPT in respect of Bacău Prison (see paragraph 29 above).

50. The Court further notes that the other circumstances of the applicant’s detention, such as the alleged lack of ventilation in the cells, are in dispute between the parties. However, there is no need for the Court to establish the truthfulness of each and every allegation, since it considers that the overcrowding of the applicant’s cell gives it sufficient grounds to draw substantive conclusions as to whether the conditions of his detention amounted to treatment contrary to Article 3 of the Convention (see Samartsev v. Russia, no. 44283/06, §§ 110-113, 2 May 2013).

51. Even though in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, in the light of the above, the Court considers that the conditions of the applicant’s detention caused him suffering which exceeded the unavoidable level of suffering inherent in detention and which attained the threshold of degrading treatment proscribed by Article 3.

There has accordingly been a violation of Article 3 of the Convention in this respect.

II. ALLEGED VIOLATION OF ARTICLE 2 § 2 OF PROTOCOL No. 4 TO THE CONVENTION

52. The applicant complained that the ban on leaving the country imposed on him had been excessively long and disproportionate, given that his entire family was in Germany and that the nature of his work involved a lot of travel abroad. He relied on Article 2 of Protocol No. 4 to the Convention, which reads as follows it its relevant parts:

“(...) 2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Admissibility

53. The Government argued that the applicant had provided the Court with misleading information, as he had sought to exaggerate his suffering under Article 2 of Protocol No. 4 to the Convention by falsely claiming that the travel ban had prevented him from seeing his family residing in Germany, whereas his wife, children and his mother in fact resided in Romania. Consequently, the Government argued that the applicant’s behaviour constituted an abuse of his right to lodge an application and this complaint should also be rejected as abusive under Article 35 § 3 (a) of the Convention. The Government also drew the Court’s attention to the fact that the applicant had failed to return after his temporary release from prison, which reinforced the conclusion that the prohibition on him leaving the country had been justified in the circumstances of the case.

54. The applicant submitted that he had never provided the Court with false information. Although his wife and children lived in Romania, he had two uncles in Germany.

55. The Court finds that it is not necessary to examine the Government’s submissions on the admissibility of this complaint since, in any event, it will be declared inadmissible for the following reasons.

56. The Court observes that Article 2 § 2 of Protocol No. 4 guarantees to any person the right to leave any country for any other country of the person’s choice to which he or she may be admitted. Any measure restricting that right must meet the requirements of paragraph 3 of that Article (see Gochev v. Bulgaria, no. 34383/03, § 44, 26 November 2009, with further references).

57. The decision to ban the applicant from leaving the country clearly amounted to such a measure (see Baumann v. France, no. 33592/96, §§ 62 and 63, ECHR 2001‑V, and Napijalo v. Croatia, no. 66485/01, § 69, 13 November 2003). It must therefore be examined whether it was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and whether it was “necessary in a democratic society” to achieve such an aim.

58. The Court notes that the measure was based on the express terms of Article 136 of the Romanian Criminal Procedure Code.

59. The Court is prepared to accept that the measure, which sought to restrict a person charged with an offence and subsequently convicted from travelling abroad, pursued the legitimate aims of the proper administration of justice and securing the applicant’s presence throughout the trial (see, Pop Blaga v. Romania (dec.), no. 37379/02, § 159, 10 April 2012).

60. The chief point in issue seems to be whether the ban was “necessary in a democratic society” in terms of achieving those aims. On that point, the Court observes that under Article 2 §§ 2 and 3 of Protocol No. 4 the authorities are under an obligation to ensure that any restriction of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate. That assessment should normally be subject to review by the courts, as they offer the best guarantee that the proceedings will be independent, impartial and lawful. The scope of their review should enable them to take account of all the factors involved (see Gochev, cited above, § 50, with further references).

61. The Court has previously found in a series of cases where this obligation was imposed for periods varying between four years and three months and four years and ten months, also having regard to the other specific circumstances of each case, that the restriction of the applicants’ freedom of movement was not disproportionate (see Fedorov and Fedorova v. Russia, no. 31008/02, §§ 42-47, 13 October 2005, and Antonenkov and Others v. Ukraine, no. 14183/02, §§ 62-67, 22 November 2005).

62. Taking into account the above considerations, the Court finds that in the circumstances of the present case the mere duration of the application of the preventive measure is insufficient for the Court to conclude that it was disproportionate. In order to decide whether a fair balance was struck between the general interest in the proper conduct of the criminal proceedings and the applicant’s personal interest in enjoying freedom of movement, the Court must ascertain whether the applicant had a genuine interest in leaving his country of residence or actually sought to leave and, if so, whether permission to do so was refused (see Fedorov and Fedorova, cited above, § 44).

63. In this respect, the Court notes that the preventive measure against the applicant was imposed by a court in proceedings which provided all appropriate procedural safeguards. In addition, the applicant had the opportunity to challenge the prolonged application of the preventive measure before the courts, pleading first that the measure had prevented him from obtaining a job and subsequently that it had prevented him from carrying out his job, which involved travel abroad. However, no actual proof for these claims or for any possible loss of income caused by the preventive measure was provided by the applicant. In addition, the applicant admitted in his submissions before the Court that his wife, children and his mother reside in his home town in Romania. At the same time, according to the documents submitted by the parties, the domestic courts thoroughly analysed the applicant’s submissions and found that the continued restriction of the applicant’s freedom of movement was justified in the specific circumstances of his case. On this point, the Court also notes that the applicant is currently at large after failing to return to serve the remainder of his prison sentence. In view of the above, the Court sees no reason to depart from the findings of the domestic courts in the present case. As a result, the case does not disclose any appearance of an infringement of the guarantees of Article 2 of Protocol No. 4 to the Convention.

64. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

65. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

66. The applicant claimed the sum of 48,000 euros (EUR) in respect of non-pecuniary damage which he averred had been caused by the suffering he had endured due to the inhuman conditions of his detention and the prohibition on him leaving the country.

67. The Government considered the sum claimed by the applicant to be excessive.

68. The Court observes that in the present case it has found a violation only with respect to Article 3. In addition, in the specific circumstances of the present case, the Court considers that the finding of a violation constitutes sufficient just satisfaction and therefore rejects this claim.

B. Costs and expenses

69. The applicant claimed EUR 11,014.30 for legal costs for representation before the Court, out of which EUR 4,553.90 was to be paid directly to the bank account of his representative. A detailed document was submitted indicating the precise dates and the number of hours worked in preparing the case, which amounted to 91 hours and 10 minutes at an hourly fee of EUR 57 plus VAT and 28 hours and 15 minutes at an hourly fee of EUR 130 plus VAT.

70. The Government considered the sum claimed to be excessive.

71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court, making an equitable assessment, considers it reasonable to award the sum of EUR 850 for costs and expenses for the proceedings before the Court, to be paid to the bank account indicated by the applicant’s representative.

C. Default interest

72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;

4. Holds

(a) that the respondent State is to pay directly to the applicant’s representative Ms Diana-Elena Dragomir in respect of costs and expenses within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 850 (eight hundred and fifty euros), to be converted into the respondent State’s national currency at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliJosep Casadevall
Deputy RegistrarPresident

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