Communicated on 17 November 2014
THIRD SECTION
Application no. 45060/10
K.C.
against Romania
lodged on 19 July 2010
STATEMENT OF FACTS
1. The applicant, Mr K.C., is a United States national who was born in 1987 and lives in Belgium.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. At the time of the events the applicant was a student at the Medicine Faculty in Constanta and he was living in the same students’ dormitory with a colleague, O.D.A.
4. On 18 April 2008 around 13:30 O.D.A. was caught in the act of trying to send by bus a package containing 12 LSD stamps. The drugs were destined to an undercover agent who had previously contacted O.D.A. and asked to buy drugs from him. He was immediately taken to the police station where he gave a written statement in which he mentioned that he “had” the drugs from the applicant. He also mentioned in his statement that he had been informed that he had the right to a lawyer but he waived this right.
5. On the same date a search warrant for the room occupied by the applicant in the faculty’s dormitory was issued by a judge from the Tulcea County Court.
6. During the search which started at around 8:15 p.m. on 18 April 2008, 4,12 grams of cannabis and 51 LSD stamps were found in the applicant’s room. After the search, around 10 p.m., the applicant was taken to Tulcea County Police where a police officer asked him to give a statement. The applicant drafted by hand a statement in English in which he explained that two months before he paid a visit to his father in Belgium where he bought 200 grams of “Kashish” for his personal smoking needs. On the same occasion he received as a gift 60 LSD stamps. He further declared that, since he did not usually use LSD and he needed money he decided to sell nine stamps to O.D.A. Lastly, he declared that he was not a drug trafficker and he was sorry for his acts that he would never repeat.
7. The applicant was then taken to the headquarters of the Tulcea County Office of the Division for the Investigation of Organised Crime and Terrorism, where on 19 April 2008 at 2:15 p.m. he was informed of the charges against him, namely importing and trafficking of high-risk drugs without authorisation and detaining high risk drugs for his own consumption. The charges were read to him in the presence of an ex officio lawyer and an interpreter. On the same date the prosecutor’s proposal for the applicant and O.D.A. to be placed in pre-trial detention had been rejected by the Tulcea County Court since the two defendants did not have prior criminal record, they were students and they willingly cooperated with the investigative authorities. Subsequently, late in the evening of 19 April 2008 the applicant was allowed to leave the prosecutor’s office.
8. On 3 June 2008 the applicant together with O.D.A were indicted for importing and trafficking of high-risk drugs without authorisation and detaining high risk drugs for their own consumption.
9. On 24 October 2008 the Tulcea County Court convicted the applicant for importing and distributing medium risk drugs without authorisation and detaining medium-risk drugs for his own consumption and sentenced him to two years imprisonment conditionally suspended and a fine. The applicant, represented by a lawyer of his own choice, alleged before the court the unlawfulness of the search conducted in his dormitory room because it started after 8 p.m., in the absence of an interpreter and he had not been shown the search warrant. In addition, he requested the court to disregard his initial statement given before the police officers in the absence of a lawyer because he did not benefit from the services of an interpreter and he did not understand his rights. The Tulcea County Court briefly rejected all these arguments and based the applicant’s conviction on his initial statement admitting his guilt, the statement given by O.D.A., the minutes of the search and the result of the urine test showing that the applicant had previously consumed marijuana and/or other derivate such as hashish or cannabis.
10. The applicant appealed against this decision underlining that his statement was taken while he was detained inside the police station without an interpreter and in the absence of a lawyer. He further submitted that the most serious charges against him were based only on his statement and the statement of O.D.A. who also did not benefit from the services of a lawyer as well as the findings of the search that did not respect the procedural guarantees provided by law.
11. On 3 April 2009 the Constanta Court of Appeal rejected the applicant’s appeal as ill-founded.
12. The applicant filed an appeal on points of law (recurs) against the judgment of the court of appeal in which he reiterated his previous allegations. He also underlined that he had been held inside the police station and at the prosecutor’s office for an unreasonable length of time without legal justification.
13. On 21 January 2010 the High Court of Cassation and Justice rejected with final effect the applicant’s appeal on points of law. The court held, amongst other things, that the applicant had not been at any point detained and therefore legal assistance was not obligatory in his situation. With respect to the rest of the arguments raised by the applicant the court held that all procedural guarantees had been respected during the investigation and the trial as far as both defendants were concerned.
B. Relevant domestic law
14. The relevant provisions of the Romanian Criminal Procedure Code concerning police custody, pre-trial detention and the right to be assisted by a lawyer are described in the case of Creangă v. Romania [GC]
(no. 29226/03, § 58, 23 February 2012).
15. The relevant provisions of the Romanian Criminal Procedure Code concerning the right to an interpreter provide as follows:
Article 128
Procedure for the use of interpreters
(1) When one of the parties or another person who is about to be heard does not know or cannot express himself/herself in Romanian language, the investigative authority or the court shall ensure him/her the free assistance of an interpreter. ...
COMPLAINT
16. Relying on Article 6 § 3 (c) of the Convention the applicant complains that on 18 April 2008 he did not benefit from the assistance of an interpreter or a lawyer when his initial statement was taken inside the police station and that this statement was subsequently used by the courts as grounds for his conviction, hence breaching his right to a fair trial.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to a fair trial within the meaning of Article 6 §§ 1 and 3 (c) and (e) of the Convention due to the fact that he did not benefit from the assistance of a lawyer and an interpreter when his initial statement was taken at the police station on 18 April 2008?
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