CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 16 février 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 }   128 16.02.2010   Press release issued by the Registrar   Chamber judgment [1] V.D. v. Romania (application no. 7078/02)       A PRISONER CONVICTED OF RAPE DID NOT RECEIVE A FAIR TRIAL OR ADEQUATE TREATMENT IN PRISON   Violations of Article 3 (prohibition of inhuman or degrading treatment)   and Article 6 §§ 1 and 3 (d) (right to a fair trial) of the European Convention on Human Rights         Principal facts   The applicant, V.D., is a Romanian national who was born in 1969 and is currently being held in Giurgiu Prison (Romania). On 3 April 2001 he was charged with raping his senile 83 ‑ year-old grandmother, with whom he had been living, and with unlawfully entering a neighbour’s home and committing armed robbery, stealing a kilo of meat. He was alleged to have committed these offences on the night of 31 March 2001 after returning home drunk from the village bar.   On 24 May 2002 the Videle District Court sentenced V.D. to ten years’ imprisonment for rape, five years for incest and six months for armed robbery, applying the heaviest sentence (ten years’ imprisonment). The decision was based mainly on statements given to the village police on 1 April 2001 by the applicant’s grandmother (who died in October 2001) and her neighbour. It was further based on the statements of five indirect witnesses and on a forensic medical report drawn up on 2 April 2001 which did not include a DNA test, despite the applicant’s requests to that effect. The court gave judgment without hearing evidence from a defence witness whom the applicant sought to have examined, as the witness had failed to appear when summoned, and without any prints being taken at the scene of the alleged crime. An appeal by V.D. against his conviction was dismissed on 6   August 2002 by the Teleorman County Court. On 7 October 2002 an appeal on points of law was partly allowed by the Bucharest Court of Appeal. The court found that the offence of incest had not been made out, but upheld the applicant’s conviction for rape and armed robbery. On 16 April 2004 the Videle District Court refused his request for a retrial.   V.D. suffers from a number of chronic health problems, including digestive, liver and psychiatric disorders. He has serious dental problems: as he has virtually no teeth, he requires a dental prosthesis, a fact recorded by doctors on several occasions in 2002 while he was in prison. Due to his extreme poverty, known to the authorities from the outset, he is unable to pay his costs. In July 2003 the Directorate-General of Prisons informed the applicant that the State health insurance scheme to which he was affiliated did not cover the cost of dental prostheses. Throughout 2004, the regulations in force stipulated that the cost of prostheses was fully covered, but the applicant was not provided with one. In September 2005, after the rules had changed again, the National Prison Service informed the applicant that he would have to meet 60% of the cost of a removable prosthesis or the full cost of a fixed prosthesis.   In November 2003 V.D. requested a stay of execution of his prison sentence, arguing that he could only afford to pay for the dental prosthesis he urgently required by working, which he was prohibited from doing in prison. On 16 February 2004 his request was refused by the Giurgiu District Court on the ground that the prosthesis could be provided through the prison medical network. On appeal V.D. submitted, in particular, that he had contracted several disorders of the stomach, liver and heart as a result of his inability to eat properly. His appeal was dismissed on 19 April 2004 by the Giurgiu County Court, which held that, while the applicant certainly required a dental prosthesis and was ill, he was not incapable of serving his prison sentence and the authorities were under no obligation to pay for the prosthesis.   Under a Government decision which entered into force in January 2007, prisoners who have lost more than 50% of chewing function while in detention and do not have the means to pay their share of the cost of a dental prosthesis are entitled to have it paid for out of the prison budget.   The applicant has not been provided with a dental prosthesis to date.     Complaints, procedure and composition of the Court   Relying on Article 3, the applicant complained that he had been subjected to inhuman treatment and punishment because, having lost his last remaining teeth while in prison, he had been unable to obtain a prosthesis owing to his inability to pay for it. In addition, his inability to eat normally had resulted in disorders of the digestive system and liver in particular. He further alleged, under Article 6 §§ 1 and 3 (d), that the criminal proceedings against him had been unfair on account of shortcomings in the taking of evidence by the courts (in particular the failure to take fingerprints and produce the corresponding expert report in relation to the robbery, and the lack of a DNA expert report in relation to the rape) and on account of the courts’ refusal to hear evidence from a defence witness.   The application was lodged with the European Court of Human Rights on 14 January 2002.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Alvina Gyulumyan (Armenia), Egbert Myjer (Netherlands), Luis López Guerra (Spain), judges , and Santiago Quesada , Section Registrar .   Decision of the Court   Alleged violation of Article 3   An issue could arise under Article 3 if it was proved that the State had put a prisoner’s life at risk by denying him or her the health care which it had undertaken to make available to the population generally. The Court had to ascertain whether this had been the case here.   As far back as 2002 medical diagnoses had been available to the authorities stating the need for V.D. to be fitted with a dental prosthesis. The prosthesis had not been provided, on the ground that the applicant was unable to contribute to the cost. In addition, the health insurance scheme to which the applicant belonged did not cover the cost of dental prostheses. This led the Court to conclude that the applicant, as a prisoner, could have obtained the prosthesis only by paying the cost in full. However, owing to his lack of financial resources, which was known to and accepted by the authorities, he had been unable to pay for the prosthesis himself.   Furthermore, the Government had not given a convincing explanation as to why the applicant had not been provided with a prosthesis in 2004, when the regulations in force had provided for the cost to be met in full. Similarly, the Court noted that the applicant had still not obtained a prosthesis in spite of new legislation entitling persons in his situation to be provided with one free of charge.   In view of all these considerations, the Court held unanimously that there had been a violation of Article 3.   The Court saw no need to examine additionally the impact of the lack of dental treatment on V.D.’s overall state of health, as it did not have any expert evidence establishing the cause of his disorders and it had in any case already found a violation of Article 3.   Alleged violation of Article 6   The admissibility of evidence was first and foremost a domestic-law issue. The Court’s task was confined to ascertaining whether the proceedings as a whole, including the way in which evidence was taken, had been fair and whether the rights of the defence had been respected. In the present case, the main issues to be decided were whether V.D.’s defence rights had been breached by his inability to examine or have examined the victim at the hearing and by the refusal to order a DNA test.   In proceedings concerning sexual abuse, in particular of vulnerable persons (as in this case, given the victim’s age and the fact that she was senile), measures could be taken to protect the victim. However, these must not infringe the rights of the defence. In the instant case, that balance had not been maintained as V.D. had not been afforded an opportunity to defend his case.   His conviction had been based mainly on a statement by the victim, which had not been read out to him at any point during the proceedings. Nor had any other steps been taken to enable him to challenge the victim’s statements and her credibility.   A DNA test would at least have confirmed the victim’s version of events or provided V.D. with substantial information in order to undermine the credibility of her account. However, the courts had not authorised any such test.   There had also been other shortcomings in the investigation conducted on 1 April 2001, including the failure of the police to search for any traces of assault at the scene.   The Court held unanimously that there had been a violation of Article 6 §§ 1 and 3 (d).     Application of Article 41 (just satisfaction)   The Court awarded the applicant 10,000 euros (EUR) for non-pecuniary damage and EUR 3,150 for costs and expenses.     ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.