Human dignity in the criminal process

Author:Ramona Mihaela Coman
Human dignity in the criminal process 55
Ramona Mihaela COMAN1
In order to provide effective protection of human rights, it is necessary to have clear, human legal
provisions regulating every aspect of the criminal process and to be respected by state bodies.
Sometimes, having to defend a public interest, state bodies have to „sacrifice” or „limit” certain
individual rights. One of the fundamental issues that need to be considered in this context is to
determine the permissible limit of violation of individual rights in order to guarantee a public interest,
but at the same time, not to prejudice human dignity. The paper proposes a theoretical and practical
analysis of some issues that may arise in situations such as pre-trial detention, bench warrants, or even
the enforcements and the search for solutions in the pra ctice of the Strasbourg Court.
Keywords: protection of human rights, criminal process, human dignity.
The rule of law, in order to truly exist, must set its rules on the supreme
respect of the individual. The mere proclamation, even in the fundamental act – in
the Constitution – is not enough, but it has to force the state body, through its
agents, to respect and apply regulations based on the recognition and guaranteeing
of the citizen's fundamental rights and freedoms. The affirmation of the rule of law
can never propose the destruction or humiliation of the person, even if he has
committed illicit acts, that is to say, inconsistent with the rules assumed by the
whole society for the general interest, but must create a technical-juridical, socio-
educational formula allowing them social reintegration.
In order to provide effective protection for the observance of its rights, it is
necessary to have clear, serious legal human provisions regulating every aspect of
the criminal process in order to guarantee, above all, the observance by the law-
enforcement bodies of the fundamental rights of each individual.
But the state's bodies, having to defend a public interest, sometimes have to
„sacrifice” or „limit” certain individual rights (for example, ordering remand in
custody that violates individual freedom, performing audio-video interceptions that
harm private life, etc.). One of the fundamental issues that need to be considered in
this context is to determine the permissible limit of violation of individual rights in
1 PhD, Teaching Assistant, „Petru Maior” University of Targu Mures, Romania, lawyer in Mures Bar,
Law Review vol. III, Special issue 2017, pp. 55-61
order to guarantee a public interest. Although limitation or violation of some rights
is permitted under certain circumstances, this can not go beyond a certain amount
of human dignity.
The ECHR case law provides us with a wide range of rights enshrined in the
European Convention on Human Rights and the analysis of a large number of
cases enables us to identify „rules” for the quantification of permitted limits,
without harming the existence of the right or freedom. By its case-law, the Court
creates a genuine international customary law.
Without attempting a far-reaching analysis of the situations in which human
dignity would be undermined in a criminal case, we will now focus on a number of
situations, analyzing them from the perspective of the Strasbourg Court case-law.
Handcuffing the suspects
Being a form of humiliation, it is important to determine whether the detention
by handcuffs of those detained or remanded in custody is necessary, is lawful, or
vice versa, is excessive, representing abuse. And under what conditions it violates
the provisions of the European Convention on Human Rights.
At the European level, there is consensus on the inhuman and degrading nature
of these means of physical constraint. According to Recommendation no. R (87) 3
of 12 February 1987 of the Committee of Ministers of the Council of Europe, it is
forbidden to use chains and handcuffs, shirts or other coercive objects can not be
used for punishment. However, these may only be used during a transfer to avoid
escape, or for medical reasons, but only under the guidance and supervision of the
Even in the case of a transfer, the use of handcuffs will only be done if
necessary and, as soon as the person detained reaches a judicial or administrative
authority, they must be removed.
The European Court of Human Rights in Rupa v. Romania (n.1)2 has shown that
these measures, applied for a long period of time, accompanied by humiliating
situations such as the impossibility of washing and meeting their physiological needs
without the help of others and causing acute pain, must be qualified as inhuman
treatment. The consequences of this treatment were amplified in the case, by the lack
of adequate medical check, given the applicant's vulnerable psychological state, as
well as public exposure to the court with legs in chains.
The Court reminded, when solving other cases, that if it is a legal arrest, if the
force is not used and the handcuffed person is not presented in public, the measure
does not automatically contravene the provisions of Art. 3 of the Convention. It
will be considered in this situation if the person resists arrest or attempts to evade,
2 ECHR, application no.. 58.478/00, Ruling of 16 December, 2008.
Human dignity in the criminal process 57
if he attempts to cause damage or destroy evidence3. What can be considered an
aggravating and relevant element is the public character of the applied treatment4.
Thus, in the case of Pop Blaga v. Romania5, the ECHR established that during
criminal investigations, judge Elena Pop Blaga had been subjected to ill-treatment
while she was detained after she was walked by prosecutors with handcuffs in front
of the press, being exposed to humiliation. In the Costiniu v. Romania6, case, although
the application was dismissed as inadmissible on the ground that the internal
proceedings had not been followed, the Court notes that „national law requires that
the use of handcuffs be limited to exceptional circumstances and should not go
beyond what is absolutely necessary, thus placing the principle of proportionality at
the heart of that problem” and it further states that it is necessary to „verify the
lawfulness of implementing rules and regulations adopted by the executive and the
police, which indeed seem to have transformed the use of handcuffs during the
transport of persons deprived of their liberty in a pre-established practice”.
What we can infer from the ECHR jurisprudence analysis is that the measure of
handcuffing must be an exceptional measure and only used when it is mandatory to
prevent incidents, to restore order and to avoid injuries that could be produced and
only for so long as is absolutely necessary. Public display of handcuffed persons
should also be avoided.
Length of hearings
Another aspect of respecting human dignity in a criminal trial is related to the
hearing of the persons, and the length of time these hearings take. Article 110 of the
Criminal Procedural Code stipulates that the statement shall mention each time the
start and end time of the hearing, thus avoiding holding the hearing for too long.
However, in practice there have been (and still are) situations where hearings take
place over a lengthy period, which has led the Court to conclude that this may also
be a violation of Article 3 of the Convention.
However, in order to fall within the scope of Article 3 of the Convention, the
Court has, in its case-law, enshrined some principles establishing that the degrading
treatment must reach a minimum degree of severity7. The Court also analyzes the
purpose of the treatment (whether it was the humiliation or denigration of the
person) and the effects that this treatment have on the personality of the person.
However, the absence of such a purpose will not automatically exclude the finding
of an infringement of Article 3 of the Convention8.
3 See case Raninen v. Finland, Application no. 20972/92, 16 December 1997, par. 55, and case Saban
Hadziu v. Czech Republic, Application no. 52110/99, Ruling of 4November, 2003.
4 See case Gorodnitchev v. Russia, Application no. 52058/99, 24 May, 2007.
5 ECHR, Application no. 37379/02, Ruling of 10 April 2012.
6 ECHR, Application no. 22016/10, Ruling of 19 February 2013.
7 Case Jalloh v. Germany [MC], application no. 54810/00, Ruling of 11 July 2006, par. 67.
8 See case Peers v. Greece, application no. 28524/95, Ruling of 19 April 2001, par. 74.
The Court has established in its case-law that the cumulative use of certain
interrogation techniques in a longer time may cause physical and psychological
suffering to the interrogated person, a fact that is covered by Article 3 of the
For example, the wait for 10 hours to be heard as witnesses without food,
water and rest was considered by the Strasbourg judges to be a treatment contrary
to Article 3 in the case of Soare et al. V. Romania 10.
In this case the Court found the violation of Article 3 of the Convention, since the
applicants were victims of degrading treatment, given the particular circumstances of
the case – the duration of the interrogation until its end with the applicants at the
disposal of the police, the feelings of tension and inferiority that the applicants
experienced because of the treatment they were subjected to.
Bench warrant
Bringing persons with a bench warrant is a restriction of the right to liberty but
at the same time a state of psychological discomfort, harming human dignity even
if it may be at a lower level. As this procedure is stipulated not only for persons
suspected of committing criminal offenses but also for example for witnesses, it is
even more necessary to consider whether the conditions in which the bringing is
done is contrary or not to the provisions of the Convention.
In the case of Ghiurau v. Romania11, such a violation of the Convention was
found in view of the fact that the bench warrant was not carried out in accordance
with the legal provisions. Thus, the applicant was taken by the police on the basis
of a bench warrant and transported 200 km, being released only at night. The
plaintiff was continuously guarded by the police and he was not able to leave on
his way, he was also guarded in the ambulance. Although there was a legal basis
on which it was based, the applicant had not previously been summoned by the
Prosecutor's Office and no reasons were given which would have allowed the issue
of the warrant without a prior summons. It has thus been found that the provisions
of Article 5 para. 1 of the Convention were infringed.
The new Code of Criminal Procedure provides rules for guaranteeing the
freedom of the person in the event of the execution of a bench warrant. Thus, it is
only then possible to resort to this method if, as previously summoned, the person
has not shown without having serious reasons and his hearing or presence is
necessary, or if proper communication of the summons was not possible and the
circumstances unequivocally indicate that the person is evades from receiving the
summons. The suspect or defendant may be brought with a bench warrant, before
being summoned by summons, only if that measure is in the interest of the cause.
9 See case Irland v. Great Britain [MC], Application no. 5310/71, Ruling of 18 January 1978, par. 167.
10 ECHR, Application no. 24329/02, Ruling of 22 February 2011.
11 ECHR no. 55421/10, Ruling of 20 November 2012.
Human dignity in the criminal process 59
The judicial body shall immediately hear the person brought by bench warrant or,
as the case may be, immediately carry out the act that has required his presence.
The persons brought on the basis of a bench warrant shall remain at the disposal of
the judicial body only for the period strictly necessary for the hearing or the
fulfilment of the procedural act, but not more than 8 hours.
Conditions in prisons
Overcrowding in prisons is one of the prisoners' most common problems
raised in front of the Court in Strasbourg. The Court ruled that where more
detainees in a room have less than 3 square meters per person, overcrowding is so
severe that such a situation constitutes, by itself, a violation of the provisions of
Art. 3 of the Convention12.
In the case of Gagiu v. Romania13, the applicant claimed violation of Article 3 of
the Convention, given the conditions of detention in the penitentiary, the applicant
having an insufficient space of 1,25 sqm. In resolving the application, the Court
reiterated that Article 3 of the Convention requires the State to ensure that any
person in detention benefits from conditions that should not harm human dignity,
that the person concerned is not subjected to suffering of an intensity exceeding the
level inevitably inherent to detention, and that the detainee's health and comfort
are adequately ensured. In the present case, the Court found from the information
obtained from the National Penitentiary Administration, that for three years, the
period covering the detention time until the time the applicant filed the application
with the Court, he shared a cell of 7.60 square meters with five other detainees,
thus the space allotted to him was only 1.25 square meters, insufficient in relation
to the criteria set by the case law of the Court.
Romania has been convicted in numerous other causes for lack of space in
cells14. We recall the cases of Mariana Marinescu against Romania15 (in which the
applicant showed that she had stayed in Târgşor Penitentiary in cells of 50 square
meters, occupied by 36 people, then in a 14-square-meter cell with 18 persons, and
a cell of 20 square meters with 12 persons), Rcreanu against Romania16 (he was
held in rooms with 10 beds together with 13 detainees), Ali against Romania17 (cell
of 30 sq.m. with 10 detainees), Porumb against Romania18 (about 2 sq. m.), Mciuc
12 Kantyrev v.Russia, no. 37213/02, pct. 50-51, 21 June 2007, Andreï Frolov v.Russia, no. 205/02, points 47-
49, 29 March 2007, Kadikis v. Latvia, no. 62393/00, pct. 55, 4 May2006.
13 ECHR, Application no.63258/00, Ruling of 24 February 2009, final on 24 May 2009.
14 Radu Chiri, Lucian Criste, Mirel Toader, Alina Ivan, Anca Stoian, Arestarea Оi detenia în
jurisprudena CEDO, Hamangiu, Printing Press Bucharest 2012, pg. 156-185.
15 ECHR, Application no. 36110/03, Ruling of 2February 2010.
16 ECHR, Application no. 14262/03, Ruling of 1 June 2010.
17 ECHR, Application no. 20307/02, Ruling of 9 November 2010.
18 ECHR, Application no. 19832/04, Ruling of 7 December 2010.
against Romania19 (the applicant was detained in the Jilava Penitentiary in a 47-square-
meter cell with 42 beds, along with 50-58 detainees, hence having an own space of
0.80-0.92 square meters), Todireasa v. Romania20 the applicant was held in five different
cells, ranging in size from 32 to 51 square meters, with 18 to 64 detainees).
In all these cases, the Court has shown that the detaining of a person inevitably
causes psychological suffering, but the state authorities have an obligation to
ensure conditions that respect human dignity and which do not exceed a certain
level of suffering, the focus of the analysis of the detention conditions being the
personal space.
Apart from the problem of the insufficient space of the imprisoned, regarding
the observance of human dignity, it is necessary to analyze the proper conditions
in which detainees are held. This is because in all cases concerning Romania, which
alleged violation of Article 3 due to inhuman conditions, besides the problem of
overcrowding, other problems were indicated as: dirty space, insanitary, lack of
hygiene, cleanliness, lack of hot water, lack of windows ventilation and natural
light, poor quality food, inadequate thermal conditions (too hot or cold), lack of
body hygiene supplies, lack of medical treatments.
Unlike the O.N.U. covenant on Civil and Political Rights21 and the Inter-
American Convention on Human Rights22, which expressly provide for the detention
of a prisoner in a humane manner and with due regard for the dignity of the human
person, the European Convention on Human Rights does not provide for such a
provision. However, the European Court of Human Rights has received numerous
applications denouncing the conditions of detention, which are examined under
Article 3 of the Convention. What was thus analyzed was whether the imposition of
humiliating or suffering degrading detention conditions constitutes inhuman or
degrading treatment23.
The analysis of ECHR case law in this matter concludes that states have a dual
obligation: on the one hand, not to impose on detainees detention conditions that
generate ill-treatment and, on the other hand, to ensure detention conditions in
accordance with human dignity24.
The Court underlined, in the resolution of the cases before it, that custodial
measures usually imply some inconvenience to the detainee, but that does not
mean that the prisoner has lost the rights guaranteed by the Convention. Moreover,
there are situations where the detainee, due to the vulnerability of his situation and
because he is in the care of the state, may need more protection from the
19 ECHR, Application no. 25763/03, Ruling of 26 May 2009.
20 ECHR, Application no. 35372/04, Ruling of 3 May 2011.
21 Article 10 par. 2.
22 Article 5 par. 2.
23 Corneliu Bîrsan, Convenia european a drepturilor, 2nd edition, Ed. C.H. Beck, Bucharest, 2010, pg. 157.
24 Jean Francois Rennuci, Tratat de drept european al drepturilor omului, translated in Romanian,
Hamangiu Printing Press, Bucharest 2009, pg. 131.
Human dignity in the criminal process 61
authorities. Thus, under art. Article 3 of the Convention the authorities have the
positive obligation to ensure that any detainee is held in conditions consistent with
respect for human dignity and also that the means of enforcing the punishment do
not subject him to suffering or to a situation at an intensity exceeding the inevitable
level of suffering inherent in detention25.
In the present context of heated political discussions and in the media on the
amendment of legal regulations in the field of criminal proceeding and execution
of sentences, human dignity should be the starting point for establishing the
necessity or the futility of these changes. The question we should raise is whether
the current regulations guarantee respect for human dignity and clearly prevent it
from being violated by state bodies. Or, by protecting to a large extent the society
and the public interest, don’t we actually forget to protect the man who is the
supreme value of society?
25 See cases Florea v. Romania, ECHR, Application no. 37186/03, Ruling of 14 September 2010 ,
Pavalache v.Romania, ECHR, Application no. 38746/03, Ruling of 18 October 2011., Marian Stoicescu
v. Romania, ECHR, Application no. 12934/02, Ruling of 16 July 2009,Brânduşe v. Romania, ECHR,
Application no. 6.586/03, Ruling of 7 April 2009, final on 7 July 2009.