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THIRD
SECTION
DECISION
Application no.
15960/05
by Vasile Eugen NEGREA
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 4 October 2011 as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 15 April 2005,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Vasile Eugen Negrea, is a Romanian
national who was born in 1954 and lives in Târgu-Mureş.
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
- On
26 July 2004 the Târgu-Mureş Anti-Corruption Prosecutor’s
Office (“the prosecutor”) started criminal proceedings
against the applicant, whom he accused of acts of corruption. At that
time the applicant was a civil servant working in the Financial
Control Department of the Mureş General Directorate of Public
Finances (“the DGFP”). He was released from his functions
on 30 July 2004.
When
interviewed on 26 July by the prosecutor, the applicant denied having
committed the crime he had been charged with.
Other
persons, colleagues of the applicant, were also put on trial.
- On
29 July 2004 the prosecutor arrested the applicant for twenty-four
hours and placed him in the Mureş Police detention facility. On
an unspecified date he was transferred to a prison where he had to
share a cell measuring 20 sq. m with sixteen convicted
offenders.
According
to his submissions to the Court, he did not complain to the domestic
courts under Ordinance no. 56/2003 on the execution of sentences
about the conditions of his detention, or, in particular, about the
fact that he was held with convicted criminals.
- On
29 July 2004 the applicant complained against his arrest but to no
avail, as the prosecutor allegedly refused to examine his complaint.
- On
the same day, the prosecutor requested the Mureş County Court’s
approval to place the applicant in detention pending trial for
twenty nine days.
- On
30 July 2004 the County Court, sitting as a single judge, ordered the
applicant’s pre-trial detention as requested by the prosecutor.
The court issued two decisions in the matter, a judgment (sentinţă)
and an interlocutory judgment (încheiere), both bearing
the same number and reaching the same conclusion, with extended and
almost identical reasoning. In both decisions the court considered
that there were strong indications that the applicant had committed
the crimes and that if left at liberty he represented a danger to
public order (“ordre public”). The court
nevertheless rejected as ill-founded the prosecutor’s claim
that the applicant had tried to influence witnesses or alter the
material evidence and noted that the prosecutor had not yet even
started to gather evidence in the case.
On 2
August 2004 the Târgu-Mureş Court of Appeal dismissed an
appeal lodged by the applicant against the above-mentioned
interlocutory judgment.
- The
County Court extended the applicant’s pre-trial detention by
interlocutory judgments on 23 August 2004 (appeal dismissed on 27
August 2004), 23 September 2004 (appeal dismissed on 29 September
2004) and 11 November 2004 (appeal dismissed on 14 November
2004). The applicant contested his pre-trial detention and opposed
any request by the prosecutor to have it extended. Both the County
Court and the Court of Appeal considered that the applicant’s
detention was justified given the existence of strong indications
that the applicant had committed crimes and of the danger he
represented to public order.
- On
20 September 2004 the prosecutor indicted the applicant.
- On
27 September 2004 the County Court suspended the examination of the
merits of the case, as the applicant had made a constitutional
complaint that had been forwarded to the Constitutional Court.
Periodic examination of the lawfulness of the detention continued
under Article 303 § 6 of the Code of Criminal Procedure (the
“CCP”).
- On
20 December 2004 the County Court decided not to extend the
applicant’s detention any longer. It considered that the impact
of his deeds on public order had diminished with the passage of time
and noted that if the examination of the merits of the case continued
to be suspended the applicant could not be tried within a reasonable
time, as required by Article 5 of the Convention. Consequently,
it ordered that the applicant be released from prison on an
undertaking not to leave town.
On 28
December 2004 the Court of Appeal allowed an appeal by the
prosecutor, quashed the previous judgment and extended the
applicant’s detention by thirty days. It reiterated that there
were strong indications in the file that the applicant had committed
the crimes concerned and noted that the grounds for taking the
measure in the first place still existed and thus justified the
extension of that measure.
- On
26 January 2005 the County Court ordered once again that the
applicant be released, for the same reasons as before. On 28 January
2005 the Court of Appeal reversed that decision.
- On
24 February 2005 the prosecutor requested the High Court of Cassation
and Justice to transfer the case to a different court (strămutarea
cauzei). He argued that some of the witnesses had been threatened
by persons close to the defendants; that the applicant’s wife
was still working for DGFP, along with some of those witnesses; that
one of the defendants had claimed during the criminal investigation
that he had relatives in the local courts who could help him; and
that the media had closely covered the developments of the case and
depicted the defendants as victims of the allegedly corrupt local
judicial system. On 24 March 2005 the request was eventually
dismissed by the High Court.
- In
the meantime, on 28 February 2005 the County Court stated that the
examination of the case had been suspended by order of the High Court
of Cassation and Justice until a ruling was given on the prosecutor’s
request to have the case transferred elsewhere. It considered,
however, that the examination of the applicant’s detention was
not covered by the suspension ordered. It therefore examined it and
once again replaced the measure with an obligation not to leave town.
On 2 March 2005 the Court of Appeal quashed that decision on the
ground that the County Court had wrongly extended the application of
Article 303 § 6 of the CCP to the case, as that provision did
not apply in the case of a suspension ordered by the High Court.
- On
25 March, 26 April and 19 May 2005 the County Court again replaced
the applicant’s detention with an obligation not to leave town,
on the same grounds as before, but on 28 March, 29 April and 23 May
2005 respectively those rulings were reversed by the Court of Appeal.
- On
17 June 2005 the County Court once again ordered the applicant’s
release and on 20 June 2005 the Court of Appeal upheld the
decision by dismissing the prosecutor’s appeal.
- The
applicant was released from detention on 20 June 2005.
- On
17 April 2008 the Mureş County Court convicted the applicant for
acts of corruption and sentenced him to three years and nine months’
imprisonment. On 13 February 2009 the Târgu-Mureş Court of
Appeal reduced the sentence to three years’ imprisonment, but
that decision was quashed by the High Court on 13 September 2010.
The
case is currently pending before the Târgu-Mureş Court of
Appeal.
COMPLAINTS
- The
applicant complained about the conditions of his detention both in
the police detention facility and in the prison. He claimed that he
had to share a cell with sixteen convicted offenders, although he
should have been held in a separate facility. Furthermore, his cell
measured less than 20 sq. m and held a total of seventeen detainees.
- Under
Article 5 § 1 c) of the Convention, he argued that he had been
arrested without any evidence that he had tried to flee or that he
presented a threat to public order, and that the courts had not
examined the reasons for his arrest.
- He
complained that he had not been tried within a reasonable time, as
required under Articles 5 § 3 and 6 § 1 of the Convention.
He referred, in particular, to the way the courts had examined and
extended his pre-trial detention. Furthermore, relying on Article 6 §
3 of the Convention, he complained that the courts had failed to
properly examine the reasons invoked by the prosecutor to justify his
detention both when approving the measure and when extending it. He
reiterated that he did not constitute a threat to public order and
that any potential danger that he could present had ended the moment
he had been suspended from office.
- The
applicant complained under Article 6 § 2 of
the Convention that the authorities had breached his right to the
presumption of innocence, in so far as his arrest had been covered by
the media and the Prosecutor’s Office had made public
statements in press conferences declaring him guilty. He also argued
that the prosecutor had always taken part in the secret deliberations
of the benches deciding on his pre-trial detention.
- He
also complained of a violation of the rights of the defence,
guaranteed by Article 6 § 3 (b), (c) and (d), as he considered
that he had not had the liberty to propose evidence during the
prosecution phase and had not been consistently assisted by counsel.
He also complained that the prosecution had given preferential
treatment to the person who had allegedly bribed him.
- The
applicant complained under Article 8 of the Convention that his right
to private and family life had been breached by his detention, that
his family had been affected by the trial, and that because of his
detention he had failed to sit his university exams.
He
also complained that images of him wearing handcuffs had been widely
published in the media, which had affected his reputation.
THE LAW
A. Complaint under Article 3 of the Convention
- The
applicant complained about the conditions of his detention. He
invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Court considers that it cannot determine the admissibility of this
complaint on the basis of the documents at its disposal, and that it
is therefore necessary, in accordance with Rule 54 § 2 (b) of
the Rules of Court, to give notice of this part of the application to
the respondent Government.
B. Complaint under Article 5 § 3 of the Convention
- The
applicant complained about the length of his pre-trial detention and
about the way the courts had examined the reasons invoked by the
prosecutor to justify it. He relied on Articles 5 § 3 and 6 §§
1 and 3 of the Convention.
- The
Court is master of the characterisation to be given in law to the
facts and can decide to examine complaints submitted to it under
another Article than that quoted by an applicant (see Guerra and
Others v. Italy, 19 February 1998, § 44, Reports
of Judgments and Decisions 1998 I). It will therefore
examine the complaint under Article 5 § 3 of the Convention,
which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Court considers that it cannot determine the admissibility of this
complaint on the basis of the documents at its disposal, and that it
is therefore necessary, in accordance with Rule 54 § 2 (b) of
the Rules of Court, to give notice of this part of the application to
the respondent Government.
C. Other complaints
1. Complaint under Article 5 § 1 (c) of the
Convention
- The
applicant complained that he had been arrested without any evidence
that he had tried to flee or that he presented a threat to public
order, and that the courts had not examined the reasons for his
arrest. Article 5 § 1 reads as follows, in so far as
relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...”
- The
Court notes that the applicant was arrested on 29 July 2004.
Therefore, in lodging his application with the Court on 15 April
2005, the applicant failed to observe the six-month rule in respect
of this complaint (see Mujea v. Romania (dec.), no. 44696/98,
10 September 2002).
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
2. Complaints under Articles 6 §§ 2 and 3 of
the Convention
- The
applicant raised several complaints concerning the
fairness of the criminal proceedings initiated by the prosecutor
against him. In particular, he complaind about breaches of the
presumption of innocence in his favour and of the rights of the
defence. He relied on Articles 6 §§ 2 and 3 (b),
(c) and (d) of the Convention. The relevant provisions read as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
- The
Court notes that the criminal case against the applicant is still
pending before a court that has the power to examine the
above-mentioned complaints by the applicant.
It
follows that these complaints are premature and must be rejected
under Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
3. Complaint under Article 8 of the Convention
- The
applicant complained under Article 8 of the Convention that his right
to private and family life had been breached by his detention, that
his family had been affected by the trial, and that he had been
unable to take his university exams because of it. He also complained
that images of him in handcuffs had been widely published in the
media, which had affected his reputation. Article 8 of the Convention
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.”
- The Court makes reference to the principles it has
established in its recent case-law concerning the protection afforded
by Article 8 to a person’s reputation (see Pfeifer v.
Austria, no. 12556/03, § 35, ECHR 2007 XII; Petrina
v. Romania, no. 78060/01, §§ 27-29 and 34-36,
14 October 2008; A. v. Norway, no. 28070/06, §§
63-65, 9 April 2009; and Timciuc v. Romania (dec.), no.
28999/03, §§ 143-146, 12 October 2010), and to
Recommendation Rec(2003)13 of the Committee of Ministers of the
Council of Europe to member States on the provision of information
through the media in relation to criminal proceedings (adopted by the
Committee of Ministers on 10 July 2003 at the 848th meeting of the
Ministers’ Deputies).
- Turning
to the facts of this case, the Court notes that the applicant failed
to adduce as evidence before the Court any material published in the
press at the relevant time that could have been detrimental to his
reputation or have infringed his private or family life in any way.
The press articles adduced and those mentioned incidentally in the
domestic proceedings (see paragraph 13 above) do not seem to go
beyond the right of the media to report on criminal trials that
contribute to debates on matters of public interest.
- In
so far as the applicant complained that he and his family had been
affected by his detention and the trial, and because of that he had
failed to sit his university exams, the Court notes that the
applicant did not adduce any evidence that he personally or his
family had been affected beyond what is reasonably to be expected in
such situations and to a point that would raise an issue under
Article 8 of the Convention.
The
Court also notes that for the matters concerned, the applicant could
have lodged complaints with the domestic authorities under Ordinance
no. 56/2003 (see Petrea v. Romania, no. 4792/03, §§
35-36, 29 April 2008), but failed to do so.
- Therefore,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaints concerning Articles 3 and 5 § 3 of the Convention;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall
Deputy
Registrar President
