Beruflich Dokumente
Kultur Dokumente
JUDGMENT
STRASBOURG
3 February 2015
FINAL
06/07/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
APOSTU v. ROMANIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 22765/12) 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 Sorin Apostu (“the applicant”), on 13 April 2012.
2. The applicant was represented by Mr G. Mateuț, a lawyer practising
in Cluj Napoca. The Romanian Government (“the Government”) were
represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign
Affairs.
3. The applicant complained, in particular, about the conditions of his
detention in the Cluj police station detention facility, and in Gherla and
Rahova Prisons. He also complained of inadequate conditions of transport
from Gherla Prison to Rahova Prison on 12 January 2012. He further
complained that he had been unable to confer in private with his lawyer in
Gherla Prison, and that his private telephone conversations (not connected
to the case) had been intercepted by the authorities and subsequently
published in the press.
4. On 18 December 2012 the application was communicated to the
Government.
5. The respondent Government filed written observations on the case.
The applicant filed his observations and claims for just satisfaction outside
the time-limit set by the Court.
2 APOSTU v. ROMANIA JUDGMENT
THE FACTS
36. The cells had natural and artificial light, and the applicant was
allowed to use an extra lamp to improve the lighting. The cells were
ventilated through windows covered with wire netting.
37. The sanitary facilities and the showers were in the corridor. The
applicant had permanent access to the sanitary facilities and to the showers
during daylight hours, whenever he requested it.
38. The time spent outside the cells was one hour per day.
2. Gherla Prison
39. On 6 January 2012 the applicant was transferred to Gherla Prison.
He was detained there for the following periods:
- between 6 and 12 January 2012;
- between 17 and 30 January 2012;
- between 16 February and 22 March 2012.
44. The prisoners were entitled to two showers per week and the hygiene
conditions were adequate.
45. The applicant spent two hours per day outside the cell.
3. Rahova Prison
46. On 12 January 2012 the applicant was transported to Rahova Prison
in order to attend a hearing of the High Court of Cassation and Justice in the
appeal on points of law lodged by him against an interlocutory judgment.
He spent five days in that prison.
4. Other prisons
54. Between 30 January and 16 February 2012 the applicant was
admitted to the hospital wing of Dej Prison.
55. On 22 March 2012 the applicant was transferred to Târgu Mureș
Prison. He did not complain about the conditions of his detention in Târgu
Mureș Prison.
63. On 26 January 2012 the applicant lodged a request with the Gherla
Prison authorities, asking them to ensure that he had appropriate conditions
for preparing his defence in the presence of his lawyer. He alleged that
under the current conditions he had been unable to consult the file and have
direct contact with his lawyer. In a letter submitted to the prison authorities
the following day he asked for direct contact with his lawyer, since at that
time he had been separated from his lawyer by a glass partition and had had
to speak through a microphone. He lodged another similar request on
20 March 2012.
64. The prison authorities justified the applicant’s separation from his
lawyer by a glass partition by citing the existing legal provisions.
Article 7
(5) Where justifiable, functional areas of the detention facility may be set aside for
the protection of detainees who may be considered as vulnerable, such as sexual
minorities or any other category of persons protected under anti-discrimination
legislation. A detainee shall be transferred to such an area only at his or her own
request and shall remain there only for as long as considered necessary for his or her
protection.
Article 80
“Security measures, as well as measures ensuring ... adequate protection of the
vulnerable detainees ... shall be observed in the allocation of detainees to sections
and cells.”
Article 92
“(2) Files and records concerning a court’s activities are public and may be
consulted by any person who can justify a legitimate interest ... requests made by
journalists will be examined by the spokesperson ...
(6) Files concerning ... proceedings for the confirmation and authorisation of
telephone interceptions and recordings may only be consulted by counsel, the parties,
and experts and interpreters appointed in the relevant cases in accordance with the
applicable regulations ...”
Article 104
“(1) The clerk of the court will be present in the hearing room half an hour before
the beginning of the court hearing, to enable the files to be consulted ...”
THE LAW
fitted with central heating systems. However, they failed to provide any
information in respect of the number of hours per day the heating systems
were actually operational and about the average temperature the system
operated at and in the cells. Consequently, the Court concludes that during
his detention in these two prisons the applicant was not provided with
adequate heating (see Mihai Laurenţiu Marin v. Romania, no. 79857/12,
§ 32, 10 June 2014).
84. The Court concludes that the physical conditions of the applicant’s
detention caused him harm that exceeded the unavoidable level of suffering
inherent in detention and have thus reached the minimum level of severity
necessary to constitute degrading treatment within the meaning of Article 3.
There has accordingly been a violation of Article 3 of the Convention in
respect of the physical conditions of the applicant’s detention.
90. The applicant complained that while he had been detained in Gherla
Prison he had been denied the possibility of discussing with his lawyer
issues directly relevant to his defence and to challenging his remand in
APOSTU v. ROMANIA JUDGMENT 15
custody, without being separated by a glass partition, which had affected his
right to defence. He also alleged that the conversations with his lawyer,
conducted through the glass partition, had been overheard or possibly even
recorded. He relied on Article 5 § 4 of the Convention, which reads as
follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.”
91. The Government raised an objection of non-exhaustion of domestic
remedies. They argued that the applicant had not complained to the
investigating prosecutor that he had had difficulties in preparing his
defence. They also contended that the applicant had not lodged a complaint
with the delegated judge from Gherla Prison on the basis of Article 61 of
the Rules of Application of Law no. 275/2006 and Article 1 § 4 of
Order no. 2714/C/2008, as amended, taken in conjunction with Article 38 of
Law no. 275/2006.
92. As regards the merits of the complaint, the Government contended
that the visits received by the applicant from his defence lawyer had taken
place in compliance with the applicable law. They also argued that domestic
law ensured the right to confidential meetings with a lawyer without any
limitation on their number and duration, and that the meeting room had not
been equipped with any technical means of recording or listening. The
meetings with the defence lawyer had been confidential and performed
under supervision in organised spaces. The glass partitions were designed to
limit personal contact, but to allow the transmission of documents. The
supervision was only visual, as listening to conversations in such spaces
was not permitted.
93. As regards the Government’s objection of non-exhaustion of
domestic remedies, the Court notes that the applicant lodged two complaints
with the Gherla Prison authorities, claiming that because of the glass
partition he had been hindered from having confidential discussions and
exchanging documents with his lawyer (see paragraph 63 above). However,
it finds that it is not necessary to examine the said objection, as the
complaint is in any event inadmissible for the following reasons.
94. The Court notes that the applicant’s complaint concerns the
difficulties he had encountered in challenging his remand in custody. In this
connection the Court reiterates that by virtue of Article 5 § 4 an arrested or
detained person is entitled to bring proceedings for the review by a court of
the procedural and substantive conditions which are essential for the
“lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of
liberty (see Brogan and Others v. the United Kingdom, 29 November 1988,
§ 65, Series A no. 145-B). Although it is not always necessary that the
procedure under Article 5 § 4 be attended by the same guarantees as those
required under Article 6 § 1 of the Convention for criminal or civil
16 APOSTU v. ROMANIA JUDGMENT
103. Lastly, the applicant complained that excerpts from the prosecution
file – in particular, telephone conversations that had been intercepted by the
authorities – had been published in the media. He contended that some of
the conversations published in the press were of a strictly private nature and
that their publication had not corresponded to a pressing social need. He
relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
A. Admissibility
life before the domestic courts. In their view, he could have lodged a
criminal complaint for abuse of office or disclosure of professional secrets.
105. According to the Government, the applicant could also have lodged
a request with the Judiciary Inspection of the Superior Council of the
Magistracy to conduct a disciplinary inquiry into the circumstances in
which the transcripts of his intercepted telephone conversations had been
published.
106. The Government also argued that an action lodged under the
Audiovisual Law (no. 504/2002) against the broadcasting company would
have constituted an effective remedy, as well as an action lodged under the
general tort law, namely Articles 1357 of the new Civil Code in conjunction
with Articles 252 to 255 of the new Civil Code.
111. It follows that the Government failed to prove that the applicant
had had an effective remedy at his disposal for his complaint that his
Convention rights had been violated.
Therefore, the Court dismisses the Government’s preliminary objection.
112. This complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
case files. The Court cannot exclude that a judge dealing with such a request
may undertake a balancing exercise of the right to respect for private life
against the right to freedom of expression and information. Thus, the access
to information is legitimately subject to judicial control.
131. However, no such possibility exists if, as in the present case, the
information is leaked to the press. In this case, what is of the utmost
importance is, firstly, whether the State organised their services and trained
staff in order to avoid the circumvention of the official procedures
(see Stoll, cited above, § 61) and, secondly, whether the applicant had any
means of obtaining redress for the breach of his rights.
132. In the light of the above considerations, the Court holds that in the
instant case the respondent State failed in their obligation to provide safe
custody of the information in their possession in order to secure the
applicant’s right to respect for his private life, and likewise failed to offer
any means of redress once the breach of his rights had occurred. There has
consequently been a violation of Article 8 of the Convention.