THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30842/05
by Dumitru CONSTANTIN
against Romania
The European Court of Human Rights (Third Section), sitting on 27 September 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 28 July 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dumitru Constantin, is a Romanian national who was born in 1952 and lives in Pleaşa, Bucov commune.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
On 29 March 2004 the applicant, a police investigator, was arrested and charged with bribery. On 16 June 2004 the case was referred to the Ploieşti Court of Appeal after his indictment on three different counts of bribery.
On 27 July 2004, following a prosecutor’s request, the case was assigned to the Alba Iulia Court of Appeal, taking into account that the applicant was a colleague of the prosecutors attached to the Ploieşti Court of Appeal.
On 15 December 2004 the Alba Iulia Court of Appeal found him guilty on two accounts of bribery and sentenced him to three years imprisonment. The applicant and the prosecutor lodged an appeal on points of law. The applicant argued that the evidence adduced was not sufficient to establish any wrongdoing on his side and that he should have been judged by a military court. The prosecutor asked that the applicant also be found guilty of the third bribery charge.
In a hearing held by the High Court of Cassation and Justice on 30 March 2005, the applicant reiterated these arguments and forwarded the court three volumes of documents. The High Court delivered its decision on 18 April 2005. The court considered that the applicant was working for the judicial police at the time of events and therefore the civil courts had jurisdiction to review the case. The applicant was found guilty on all three charges of bribery and his prison sentence was increased to four years. He was also banned from voting during his sentence and for a further three years afterwards. In finding him guilty, the courts took account into his statements, statements by numerous witnesses, bank account statements, and copies of bills certifying that a third person was paying the applicant’s telephone bills.
2. The applicant’s detention
The applicant was arrested on 29 March 2004 and released from prison on 16 January 2007. During this time he was detained in different centres, as follows: 29-31 March 2004 in a police lock-up, from 31 March to 7 May 2004 in Jilava Prison, from 7 May to 18 June 2004 in Rahova Prison, from 18 June to 27 July in Ploieşti Prison, from 27 July to 15 December 2004 in Aiud Prison, from 15 December 2004 to 19 January 2005 in Jilava Prison, and from 19 January to the end of his detention in Rahova prison. From 12 July 2005 he served his sentence under an open regime, on a farm attached to Rahova Prison.
3. Monitoring of the applicant’s phone conversations
From the case file, it appears that the prosecutor in charge of the case ordered the applicant’s conversations with N.D., a person suspected of paying bribery to various officials, to be monitored for the period 12 December 2002 to 8 February 2003.
4. Criminal complaints against third parties
The applicant lodged various criminal complaints against judges, prosecutors and some of his former colleagues for alleged abuses of authority, with no joined civil claim.
B. Relevant domestic law
Article 65 of the Romanian Criminal Code (CC), as in force at the time of the events, authorised the imposition of additional sanctions on a convicted person, besides the main sanction. One of these additional sanctions, as provided for by Article 64 of CC, was a bar on voting or being elected to public office. Article 66 provided additional sentences to be served after the prison sentence had been served.
Article 71 of the CC, as in force at the time of events, provided that a person sentenced to imprisonment was automatically deprived of all the rights listed in Article 64 (right to vote, right to hold public office, parental rights and so on) for the period from the moment when the conviction became final up to the moment when the sentence had been fully served.
The legislative amendments brought to these provisions are quoted in the judgment of Calmanovici v. Romania, (no. 42250/02, § 49, 1 July 2008).
COMPLAINTS
1. Relying on Article 3 of the Convention, the applicant complains that until his transfer to Ploieşti prison on 18 June 2004 and during his thirty-five days’ detention in Jilava Prison which started on 15 December 2004, he was held in overcrowded cells together with convicted prisoners; that during his first detention in Jilava Prison, from 31 March to 7 May 2004, he was kept in solitary confinement and that his request to be hospitalised was refused.
2. The applicant complains under Article 5 § 4 of the Convention that he could not lodge an appeal on points of law against two interlocutory judgments from 2004 extending his pre-trial detention.
3. Relying on Article 6 § 3 c) of the Convention he complains that from 29 March to 17 June 2004 he did not have any contact with his defence lawyer.
4. Relying on Article 8 of the Convention, the applicant complains that for fifty days following his arrest he was forbidden to contact his family; that he was transferred to Aiud prison, which was some 600 km away from his family, and that his telephone conversations were unlawfully tapped during the period 1999-2002.
5. The applicant complains in substance under Article 6 of the Convention that the proceedings against him were unfair, that the factual situation has been wrongfully determined and that he was judged by a court which had no jurisdiction to review his case.
6. The applicant complains in substance under Article 6 of the Convention that the criminal complaints lodged by him against third parties were not examined speedily and fairly.
7. In a letter of 1 February 2008, he complains that he was not heard by the appellate court before being convicted on one charge of which he had previously been acquitted.
8. In a letter of 22 March 2010 he complains that he could not vote in national and European parliament elections and that his request to be conditionally released was not speedily reviewed.
THE LAW
A. Complaint under Article 3 of Protocol No. 1 to the Convention
The applicant complained that the voting ban imposed on him by the final decision of 18 April 2005 violated Article 3 of Protocol No. 1 to the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint regarding the voting ban imposed on the applicant by virtue of the final decision of 18 March 2005, and that it is therefore necessary in accordance with Rule 54 § 2 (b) of the Rules of the Court to give notice of this part of the application to the respondent Government.
B. Remaining complaints
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that all the other complaints raised by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint under Article 3 of Protocol No. 1 to the Convention concerning the voting ban imposed on him by the final decision of 18 April 2005;
Declares the remainder of the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy