THIRD SECTION
Application no. 35049/08
Ali SERCE
against Romania
lodged on 15 July 2008
STATEMENT OF FACTS
1. The applicant, Mr Ali Serce, is a Turkish national, who was born in 1966 and is currently detained in Giurgiu Prison.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is married and has four children. His wife resides in Turkey together with their children.
4. On 28 June 2005 the applicant was convicted by the Bucharest County Court to eighteen years imprisonment for aggravated murder. The time spent by the applicant on detention on remand starting on 3 February 2004 was deducted from the final sentence. The Bucharest County Court also decided the applicant’s expulsion to Turkey at the end of his prison term.
5. On 28 March 2007 the Ankara County Court formally acknowledged the judgment of the Romanian court and decided that the rest of the applicant’s sentence should be executed in Turkey.
1. The conditions of the applicant’s detention
6. For an unspecified period of time at the beginning of his prison sentence, the applicant was detained in Rahova Prison. Subsequently, he continued his term in Giurgiu Prison.
7. On 20 March 2008 the applicant was seen by a doctor at the Colibaşi Prison Hospital and was diagnosed with newly discovered diabetes, very sensitive diabetic polyneuropathy, dyslipidemia, tracheo-bronchitis and sleep disorder. For his diabetes he was recommended drug treatment, a special diet with five meals per day as well as periodical blood sugar checks and a new doctor evaluation in three months’ time.
8. In his letters to the Court the applicant constantly complains that the detention conditions are inhuman and they are not suitable for his health condition. He alleges that the quality of food is very poor, that he rarely receives meat and that he does not receive meals adapted to his diabetes or the treatment as prescribed by the doctor. He also complains that he cannot sleep at night and there are bugs in his bed.
9. The applicant submits that because he does not speak or understand Romanian he is not included in any educational program and is not allowed to perform any work, thus not being able to integrate, be re-educated or to obtain any deduction of time from his prison sentence.
2. The applicant’s requests for transfer to Turkey
10. During the execution of his sentence, the applicant has been trying to obtain his transfer to a prison in Turkey in order to be closer to his family. According to him, his family lives in a Turkish village in humble conditions and they do not have means to travel to Romania.
11. Before the competent Romanian courts the applicant claimed that such a transfer would be in accordance with the convention signed between Romania and Turkey and would allow him to see his children and to receive the visits of his family who would provide him with adequate food and treatment for his diabetes.
12. In a judgment of 4 April 2008 the Bucharest Court of Appeal rejected the applicant’s transfer request with the reasoning that Turkey has less severe legal provisions on conditional release which may lead to the applicant’s release in a shorter period of time, thus failing to attain the punitive and educational purpose of the sentence.
13. On 15 December 2011 the Bucharest Court of Appeal again rejected a similar request filed by the applicant. The Court held that although the applicant suffers from diabetes and the relevant domestic law provisions refer to the refusal of transfer as an option and not an obligation, such a refusal is necessary under the circumstances of the applicant’s case.
B. Relevant domestic law
14. The Convention between Romania and Turkey concerning the transfer of convicted persons was ratified by the Romanian Parliament by Law no. 99/1992. The two states engage to the mutual transfer of convicted persons. The law provides for the following situations when the transfer can be refused:
Article 6
“The transfer of the convicted person is rejected:
a) if one of the two states considers that the transfer may breach its sovereignty, security, public order, fundamental principles of the rule of law or other fundamental interests;
b) if the competent authorities from the execution state have issued a final judgment against the same convicted person, for the same acts;
c) if the judgment against the convicted person cannot be enforced in the execution state due to prescription or any other cause which, according to the legislation of the said state, prevents the enforcement of the conviction;
d) if the conviction was issued for a crime of strictly military nature.”
15. The relevant provisions from the Law no. 302/2004 on international judicial cooperation on criminal matters in force at the relevant time are as follows:
Article 140 – Optional refusal of transfer
“The request for the transfer of a convicted person may be refused, mainly, for the following reasons:
(...)
c) there are sufficient reasons to believe that, once transferred, the convicted person may be set free immediately or in a much too short term compared to the rest of the sentence to be served in accordance with the Romanian law; (...)”
C. Relevant international law
1. The UN Standard Minimum Rules for the Treatment of Prisoners
16. The UN Standard Minimum Rules for the Treatment of Prisoners 1955 provide in Article 37:
“Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.”
2. Council of Europe documents
a. The Council of Europe Convention on the Transfer of Sentenced Persons 1983
17. The Transfer of Sentenced Persons Convention, which is directly applicable in Romania, provides a formal mechanism by which prisoners can be transferred from Romania to other contracting States.
18. The Explanatory Report to the Convention states at paragraph 8 that the purpose of the Convention is:
“to facilitate the transfer of foreign prisoners to their home countries.”
Paragraph 9 of the Explanatory Report states:
“In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. In Europe, improved means of transport and communication have led to a greater mobility of persons and, in consequence, to increased internationalisation of crime. As penal policy has come to lay greater emphasis upon the social rehabilitation of offenders, it may be of paramount importance that the sanction imposed on the offender is enforced in his home country rather than in the State where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian considerations: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned.”
19. The preamble to the Convention itself states, inter alia, that:
“Considering that such co‑operation should further the ends of justice and the social rehabilitation of sentenced persons;
Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and
Considering that this aim can best be achieved by having them transferred to their own countries ...”
Article 2 of the Convention provides:
“1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.
2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.”
Article 3 sets out various conditions which must be met in order for a person to be transferred. It stipulates that a sentenced person may be transferred only if he is a national of the receiving State. It also provides that the sentencing State and the receiving State must both consent to the transfer. Under Article 4 any sentenced person to whom this Convention may apply shall be informed by the sentencing State of the substance of this Convention and if the sentenced person has expressed an interest to the sentencing State in being transferred under this Convention, that State shall so inform the proposed receiving State as soon as practicable after the judgment becomes final.
b. The European Prison Rules
20. The European Prison Rules (Rec (2006) 2) adopted by the Committee of Ministers on 11 January 2006, state:
“17.1 Prisoners shall be allocated, as far as possible, to prisons close to their homes or places of social rehabilitation. ...
24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.”
c. The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“CPT”)
21. In its 2nd General Report (CPT/Inf (92)3), the CPT stated:
“51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations.”
22. The CPT emphasised the particular significance of the maintenance of family visits for prisoners who are detained far from their families and stated:
“The CPT wishes to emphasise in this context the need for some flexibility as regards the application of rules on visits and telephone contacts vis-à-vis prisoners whose families live far away (thereby rendering regular visits impracticable). For example, such prisoners could be allowed to accumulate visiting time and/or be offered improved possibilities for telephone contacts with their families.
... Naturally, the CPT is also attentive to the particular problems that might be encountered by certain specific categories of prisoners, for example: women, juveniles and foreigners.”
d. Council of Europe Recommendation (Rec (2003) 23) of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long term prisoners
23. The Council of Europe Recommendation on the management by prison administrations of life sentences and other long term prisoners states in paragraph 22:
“Special efforts should be made to prevent the breakdown of family ties. To this end:
prisoners should be allocated, to the greatest extent possible, to prisons situated in proximity to their families or close relatives;
letters, telephone calls and visits should be allowed with the maximum possible frequency and privacy. If such provision endangers safety or security, or if justified by risk assessment, these contacts may be accompanied by reasonable security measures, such as monitoring of correspondence and searches before and after visits.”
COMPLAINTS
24. The applicant complains in substance of the inhuman conditions of his detention and lack of appropriate meals for his medical condition in prison. He also alleges that because he does not speak or understand Romanian he is not allowed to participate in educational activities or to work.
25. The applicant also complains in substance of a violation of his right to private and family life because he cannot maintain contacts with his family and four children due to the Romanian authorities’ refusal to allow his transfer to serve the rest of his sentence in a Turkish prison. He alleges that his family is too poor to travel to Romania and since his incarceration in 2004 he could not see or speak to his children. He complains that his sufferance in this respect is aggravated by the inhuman conditions of detention he endures, his state of health as well as his isolation due to his failure to speak or understand Romanian language.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, on account of the conditions of his detention in Rahova and Giurgiu Prisons?
The Government are invited to submit information concerning the conditions of the applicant’s detention in Rahova and Giurgiu Prisons, with particular reference to the alleged presence of bugs in the beds, the alleged lack of adequate food for the applicant’s diabetes as well as the possibility to participate in educative activities and work for a person who does not speak Romanian language such as the applicant.
2. Is the refusal by the Romanian authorities to authorise the transfer of the applicant to Turkey in order to serve his sentence in a Turkish prison a violation of the applicant’s rights under Article 8 of the Convention?
In particular, is the refusal necessary in terms of Article 8 § 2?
The Government are further invited to submit information with respect to how much contact with his family (a) the applicant is permitted; and (b) he has in practice, by way of personal visits, telephone communication and other correspondence?
Full & Egal Universal Law Academy