Information Note on the Court’s case-law No. 54
June 2003
Pantea v. Romania - 33343/96
Judgment 3.6.2003 [Section II]
Article 5
Article 5-3
Judge or other officer exercising judicial power
Ordering of detention by prosecutor: violation
Article 3
Inhuman treatment
Ill-treatment in detention and effectiveness of the investigation: violation
Facts: Alexandru Pantea is a Romanian national who was born in 1947 and lives in Timişoara. A former public prosecutor, he now works as a lawyer. In April 1994 Mr Pantea was involved in an altercation with a person who sustained serious injuries. He was prosecuted and remanded in custody. He was released in April 1995 after his detention had been ruled unlawful and committed for trial on a charge of assault causing grievous bodily harm. The case is still pending in the Craiova Court of First Instance. The applicant asserted that at the instigation of the staff of Oradea Prison he had been savagely beaten by his fellow-prisoners and then made to lie underneath his bed, immobilised with handcuffs, for nearly 48 hours. He alleged that, suffering from multiple fractures, he had been transferred to Jilava Prison Hospital in a railway wagon, and that during the journey, which had lasted several days, he had not received any medical treatment, food or water, and had not been able to sit down because of the large number of prisoners being transported. He further alleged that while in Jilava Prison Hospital he had been obliged to share a bed with an Aids patient and had suffered psychological torture. The applicant lodged a complaint, accusing the prison warders and his fellow-prisoners of ill-treatment, but the complaint was dismissed by the Oradea military prosecution service, which ruled that the accusations against the prison warders were unsubstantiated and that the complaint against the applicant’s fellow-prisoners was out of time. An action in which the applicant sought damages for his unlawful detention was also dismissed by the Timiş Court of First Instance on the ground that it was time-barred.
Relying on Article 3 of the Convention, the applicant complained of the treatment he had been subjected to while in prison. He further contended that the circumstances of his arrest and detention had been contrary to Article 5. He complained that he had not been brought promptly before a judge after his arrest, in breach of Article 5 § 3, that the Romanian courts had not speedily ruled on his application for release, in breach of Article 5 § 4, and that he had not obtained compensation for his unlawful detention, in breach of Article 5 § 5. Relying on Article 6, he complained of the length of the criminal proceedings against him and submitted that he had not been able to consult his lawyer during the investigation stage. Lastly, he complained of a violation of Article 8 of the Convention on account of the undue prolongation of his detention.
Law: Article 3 – The allegation of ill-treatment: On the question whether the ill-treatment had taken place, and if so how serious it was, the Court noted that no one had denied that the applicant had been assaulted when in pre-trial detention, while he was in the charge of the prison warders and management (although his other allegations had not been substantiated, for lack of evidence). Medical reports attested to the number and severity of the blows the applicant had received. The Court held that these facts had been clearly established and were sufficiently serious to constitute inhuman and degrading treatment. In addition, the Court considered that the treatment in question had been aggravated by a number of circumstances. Firstly, it was not in dispute that the applicant had been handcuffed on the orders of the prison’s deputy governor while he continued to share a cell with his assailants. Secondly, there was no evidence that the treatment prescribed for the applicant had ever actually been administered. Moreover, when the applicant was taken to another prison a few days after the above incident, in which he had suffered a number of fractures, he had had to travel for several days in a prison service railway wagon in conditions which the Government had not denied. Lastly, it appeared from the documents produced that when the applicant was taken into hospital he had not been seen and treated by the surgery department. In those circumstances, the Court considered that the treatment suffered by the applicant had been contrary to Article 3 of the Convention. As to whether this treatment was imputable to the Romanian authorities, the Court considered, in view of the circumstances of the case, that the authorities could reasonably have been expected to foresee that the applicant’s psychological condition made him vulnerable and that his detention was capable of exacerbating his feelings of distress and his irascibility towards his fellow-prisoners, making it necessary to keep him under closer surveillance. The Court accepted the applicant’s argument that it was illegal to place a person detained pending trial in the same cell as repeat-offenders or persons convicted in a decision which had become final. In addition, the cell in question was generally known in the prison as "a cell for dangerous prisoners". Moreover, the Court noted that several witnesses had given evidence that the prison warder had not come promptly to the applicant’s aid and furthermore that he had been required to continue to occupy the same cell. In those circumstances, the Court held that there had been a violation of Article 3, as the authorities had failed to discharge their positive obligation to protect the applicant’s physical integrity.
Conclusion: violation (unanimously).
As to whether the inquiry conducted by the authorities was adequate: With regard to the inquiry concerning the applicant’s fellow-prisoners, the Court noted that the applicant’s complaint had been dismissed because it had not been lodged within the time allowed by law, which varied from one category of offence to another. The applicant had complained of "attempted homicide" or "assault causing grievous bodily harm", but the public prosecutor’s office had classified the offence as "common assault", with the result that the time allowed was reduced and the complaint dismissed. Moreover, it appeared from the facts of the case that the public prosecutor’s office had not made sufficient effort to establish what consequences the incident had had on the applicant’s health. That information was essential for the classification of the offence. With regard to the inquiry concerning the prison warders, the Court notes that in dismissing the applicant’s complaint the public prosecutor’s office had merely asserted that it was unsubstantiated. But in the absence of convincing explanations of the numerous discrepancies between the various items of evidence in the case, such a conclusion could not be accepted. It also appeared from the file that the applicant had appealed against the decision of the public prosecutor’s office, but the Court had not received any information from the Government on that point. In the light of the above considerations, the Court considered that the authorities had not conducted a detailed and effective inquiry into the applicant’s arguable allegation that he had been subjected to ill-treatment while in prison, and accordingly ruled that there had been a violation of Article 3 of the Convention in that respect.
Conclusion: violation (unanimously).
Article 5 § 1 – As regards the applicant’s arrest when it could not reasonably be considered necessary to prevent him from fleeing after committing an offence, the Court considered that the failure to comply with the "procedure prescribed by law" at the time of the applicant’s arrest, which had been recognised by the Romanian courts and admitted by the Government, had been clearly established and entailed a violation of Article 5 § 1 (c) of the Convention.
Conclusion: violation (unanimously).
Article 5 § 1 – As regards the fact that the applicant’s detention continued after the validity of the warrant committing him to prison had expired on 19 August 1994, the Court observed, referring to its case-law, that the Oradea Court of Appeal had ruled that the applicant’s continued detention after that date had been unlawful because no extension of his detention had been ordered by a judge, and that the Government had not denied that that was the case. The Court accordingly considered that the applicant’s detention after 19 August 1994 had not been lawful for the purposes of Article 5 § 1 (c) of the Convention and that there had been a violation of that provision.
Conclusion: violation (unanimously).
Article 5 § 3 – As to whether the public prosecutor who ordered the applicant’s detention was a judge for the purposes of Article 5 § 3, the Court referred to its case-law and observed that since in Romania public prosecutors acted as officers of the State legal service, subordinate to the Attorney General in the first instance and then to the Minister of Justice, they did not satisfy the requirement of independence from the executive. It followed that the legal officer who had ordered the applicant’s detention was not a judge within the meaning of Article 5 § 3. As to compliance with the requirement in Article 5 § 3 that everyone arrested must be brought promptly before a judge, the Court could not accept that it had been necessary to detain the applicant for more than four months before he was brought before a judge or other officer satisfying the requirements of the third paragraph of Article 5. There had therefore been a violation of Article 5 § 3 of the Convention.
Conclusion: violation (unanimously).
Article 5 § 4 – Three months and 28 days had elapsed before any court ruled on the applicant’s request for release. Having regard to the circumstances of the case, the Court considered that the requirement of speedy determination laid down by Article 5(4) had not been satisfied and that there had therefore been a violation of the Convention in that respect.
Conclusion: violation (unanimously).
Article 5 § 5 – The Court considered that the effective enjoyment of the right to compensation for unlawful detention, guaranteed by Article 5 § 5 of the Convention, had not been secured by Romanian law in this case with a sufficient degree of certainty. There had therefore been a violation of the Convention in that respect.
Conclusion: violation (unanimously).
Article 6 § 1 – The Court noted that the proceedings had begun to affect the applicant’s situation as soon as the prosecution began. However, it took as the starting-point for the assessment of their length the date on which the Convention came into force in Romania, namely 24 June 1994. The criminal proceedings, which were currently pending in a court at the first level of jurisdiction, had lasted eight years and eight months. Considering that the Romanian authorities could be held responsible for the overall delay in dealing with the case, the Court held that the proceedings failed to satisfy the “reasonable time” requirement in Article 6 § 1 of the Convention, and that that provision had been breached.
Conclusion: violation (unanimously).
Article 6 § 3 (c) – The Court took the view that the applicant’s complaint that he had been unable to consult a lawyer was premature, since the proceedings against the applicant were still pending before the Romanian courts. It accordingly held that at the current stage there had been no violation of Article 6 § 3 (c).
Conclusion: no violation (unanimously).
Article 8 – As regards the applicant’s allegation that his wife had been prevented from visiting him, the Court noted that this assertion was contradicted by the statement Mrs Pantea had made to the public prosecutor. As regards the applicant’s other allegations relating to Article 8 of the Convention, the Court noted that these were not corroborated by any evidence in the file. It accordingly held that there had been no violation of Article 8 of the Convention.
Conclusion: no violation (unanimously).
Article 41 – Court awarded the applicant 40,000 euros for pecuniary and non-pecuniary damage and 6,000 euros for costs and expenses.
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