Personal space in a cell from 1.72 to 2.76m consists of inhumane treatment. The act of a judge who reduced the defendant’s sentence did not consists lack of impartiality

JUDGMENT

George-Laviniu  Ghiurău v. Romani 16.06.2020 (no.  15549/16)

see here 

SUMMARY

Prison conditions. Fair trial, impartiality of judges and examination of witnesses.

The applicant was sentenced to 2 years in prison for severe bodily harm. He appealed to Strasbourg, complaining of inadequate detention conditions, a lack of impartiality of judges in the second instance and a failure of the authorities to find a key witness.

According to the Strasbourg jurisprudence, when the personal space in the cell is limited and ranges between 1.72 m2 and 2.76 m2, inhumane treatment is evidenced and a violation of Article 3 for the applicant for the time spent in such a cell has been considered. On the contrary, when he was transferred to a larger cell, he had time for work and courtship and thus no violation of Article 3 of the ECHR was found.

The applicant complained about the judge’s lack of impartiality because a judge in the appellate court that tried him knew the victim’s son and  he proposed to abstain but was not accepted. The ECtHR ruled that the applicant’s doubts were not objectively justified after the court reduced his sentence. There has been no violation of Article 6§1 as far as the impartiality of a judge is concerned.

Finally, regarding the complaint for failure of the authorities to locate a key witness, the ECtHR found that the Court of Appeal had read the pre-trial testimony of the witness who had not been identified, and that the applicant had provided a wealth of evidence to defend himself. No violation of Article 6§3d with regard to the witness.

PROVISIONS

Article 3

Article 6§1

Article 6§ 1 και 3 (d)

PRINCIPAL FACTS

The applicant, George-Laviniu Ghiurău, is a Romanian national who was born in 1987 and lives in
Oradea. The case concerned his complaint regarding the length and the alleged unfairness of the
criminal proceedings against him on account of a lack of impartiality of the judicial formation which had heard his appeal and a failure to take evidence from a witness against him. The applicant also complained about his conditions of detention in Oradea Prison.
On 12 August 2010 a criminal complaint was lodged against Mr Ghiurău by an individual whom he
had struck and injured. On 18 November 2010 the public prosecutor’s office decided to institute
criminal proceedings and carried out a number of investigative steps.

In an indictment of 16 July 2013 the applicant was committed to stand trial on a charge of inflicting
grievous bodily harm.

On 26 March 2015 the court found that the applicant had struck the victim, causing injuries that had
necessitated 70 days’ medical treatment and had resulted in a permanent physical disability.

 

The court sentenced Mr Ghiurău to two years and eight months’ imprisonment for grievous bodily
harm and ordered him to pay damages to the victim. Mr Ghiurău appealed. On 27 May 2015 Judge
S.L. requested leave to withdraw from the case, stating that she knew the son of the civil party and
that the latter’s lawyer had represented her in civil proceedings. The request to withdraw was
examined by a formation of the Court of Appeal, which rejected it on the grounds that Judge S.L.’s
situation did not correspond to any of the situations of incompatibility provided for by the Code of
Criminal Procedure and that it had not been demonstrated that she had an interest in the case at
hand.

Mr Ghiurău requested that evidence be taken from a witness whom it had not been possible to
question at first instance. A warrant to appear was issued on 24 June 2015 but the witness could not
be traced.

On 15 September 2015 the Court of Appeal allowed the applicant’s appeal in part and reduced his
sentence to two years’ imprisonment. It upheld the trial court’s establishment of the facts and the
applicant’s conviction. Mr Ghiurău was detained in Oradea Prison from 16 September 2015 to
29 November 2016.

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the Convention, the
applicant complained that the living space allocated to him in Oradea Prison had been inadequate
and that his conditions of detention there were poor. Under Article 6 §§ 1 and 3 (d) (right to a fair
trial/right to have witnesses against him examined), he alleged in particular that the bench of the
Court of Appeal had lacked impartiality, and criticised the courts hearing the case for not taking
evidence from one witness and not taking the necessary steps to secure the attendance of that
witness for the purpose of giving evidence.

THE DECISION OF THE COURT…

Article 3

The applicant claimed that he had been detained under conditions contrary to Article 3 of the Convention throughout his detention.

The Court noted that the Government acknowledged that from 16 September to 6 November 2015 and from 1 March to 1 September 2016 the applicant had been detained in cells where personal space ranged between 1.72 m2 and 2.76 m2. This lack of personal space creates a strong presumption of violation for degrading treatment (Article 3 of the Convention).

The ECtHR therefore found a violation of Article 3 of the Convention regarding the conditions of detention of the applicant during the periods from 16 September to 6 November 2015 and from 1 March to 1 September 2016.

The Court further noted that the Government stated that, during two other periods, from 6 November 2015 to 1 March 2016 and from 1 September to 29 November 2016, the applicant had a living space of 4.33 m2. The plaintiff disputed this information, but did not support his statements with evidence. The Court therefore had to ascertain whether the other aspects of the applicant’s detention were problematic with respect to the violation of Article 3 of the Convention.

According to the Court, the aspect of the applicant’s detention was not accidental or short-lived. It then noted that, as noted above, the applicant was able to leave his cell during his work schedule and during walks in the prison courtyard. Thus, the applicant was able to carry out adequate activities outside his cell and was given certain privileges due to his work schedule. The Court was fully aware of the existence of a general problem in the Romanian prison system, but considers that the other aspects raised by the applicant, in particular related to poor hygiene, were not decisive in themselves and could not be ruled out on their own. to substantiate a violation of Article 3 of the Convention in this case in the absence of imprisonment. That is why it was taken into account that the applicant was able to enjoy adequate freedom of movement and adequate activities inside and outside the prison for periods which, together, represented almost half of his detention.

Therefore, there was no violation of Article 3 of the Convention regarding the conditions of detention of the applicant during the two periods mentioned above, from 6 November 2015 to 1 March 2016 and from 1 September to 29 November 2016.

Article 6

The Court reiterated that impartiality is usually defined by the absence of prejudice and can be assessed in a number of ways. In the vast majority of cases involving impartiality, the Court used an objective approach.

Regarding the facts of the case, the Court noted that, in its complaint, the applicant complained of a lack of impartiality in the formation of the Court of Appeal and considered the statement of abstention made by the SL judge and ruled on the merits of the case .  The Court noted that the applicant challenged the impartiality of Judge S.L. and that by challenging the procedure by which this question was confirmed, he also challenged the impartiality of Judge C.A.

Strasbourg did not find that the two judges were not subjectively impartial. Indeed, there was nothing to indicate that they showed hostility or malice for personal reasons against the applicant. In this case, the Court noted that the two judges partially accepted the applicant’s appeal and reduced the sentence.

Finally, with regard to the impartiality of Judge C.A., who was a member of the Court which examined Judge S.L. and who then ruled on the merits of the case, the Court could not accept the applicant’s argument that the request for abstention had been considered in breach of the legal provisions.

Given these facts, the Court concluded that the applicant’s doubts about the court’s impartiality against the appeal could not be substantiated.

Consequently, there has been no violation of Article 6 § 1 of the Convention.

Regarding the non-hearing of the witness K.I.

Regarding the question of whether the absence of witness K.I. The court noted that both the court of first instance and the appellate court had summoned this witness to appear, but that he had not appeared before the national courts, despite the arrest warrants issued against him. Evidence before the Court shows that this witness could not be found at the addresses given by the parties or identified during the proceedings. However, the Court disputed that the domestic courts had taken sufficient measures to locate him. In fact, if the court had asked the competent administrative authority for information about the residence of the witness in question and if the police were responsible for carrying out the arrest warrants, they should have been located after the witness had testified at least five times during the criminal proceedings. research. Under these circumstances, the Court had doubts as to whether the Romanian courts had made all the efforts that could reasonably be expected of them to ensure the appearance of K.I.

The Court also noted that, although the domestic courts had not heard this witness, the court proceeded with a public hearing of the statements made during the investigation. This was an element that had to be taken into account.

The Court also noted that the applicant had not claimed that he had failed to provide further evidence in his defense.

The Court therefore noted that the applicant could benefit from a significant number of compensatory data. The Court held that the applicants’ compensation had been sufficient and sufficient to compensate for the difficulties encountered in their defense.

Consequently, no violation of Article 6 §§ 1 and 3 (d) of the Convention has been found.

Just satisfaction: EUR 1,000 (non-pecuniary damage) and EUR 650 (costs and expenses)

 


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