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THIRD
SECTION
CASE OF TOPLICEANU AND OTHERS v. ROMANIA
(Applications
nos. 4756/06, 11941/07 and 27690/07)
JUDGMENT
STRASBOURG
31 May
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Topliceanu and Others v. Romania,
The
European Court of Human Rights (Third Section), sitting as a
Committee composed of:
Ján
Šikuta,
President,
Ineta
Ziemele,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications
(nos. 4756/06, 11941/07 and 27690/07) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Romanian nationals, Mr. Iulian
Topliceanu, Mr. Gavril Pal and Mr. Liviu Coman (“the
applicants”). Details as to the applicants’ dates
of birth, introduction of the applications as well as their
representatives are indicated in the appended table. The Romanian
Government (“the Government”) were represented by their
Agent, Mr. Răzvan-Horaţiu Radu
from the Ministry of Foreign Affairs.
- On
21 September 2009 and 9 November
2009, the President of the Third Section decided to
give notice of the applications to the Government. It also decided to
examine the merits of the applications at the same time as their
admissibility (former Article 29 § 3). In accordance with
Protocol No. 14, the applications were assigned to a
Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASES
- The
applicants are Romanian nationals who were charged with and
subsequently prosecuted for various criminal offences. The details of
the charges, reference dates for the start and end of the criminal
proceedings and the length of the proceedings are set out in the
table appended hereto.
THE LAW
I. JOINDER OF THE APPLICATIONS
- Having
regard to the similar subject matter of the applications, the Court
finds it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal...”
- The
Government contested that argument.
- The
Court recalls that in criminal matters, the period to be taken
into account for the purpose of assessing the reasonableness of
the length of proceedings begins to run as soon as a person
is “charged” (see Eckle v. Germany,
15 July 1982, § 73, Series A no. 51).
- Where
the proceedings started before Romania’s ratification of the
Convention the period to be taken into consideration began only on
20 June 1994, when the recognition by Romania of the right of
individual petition took effect. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time.
A. Admissibility
1. As regards application no. 4756/06
- The
Government contended that the applicant’s complaint about the
length of the proceedings was out of time within the meaning of
Article 35 § 1 of the Convention as it was raised
for the first time after the communication of the application to the
respondent Government.
- The
applicant did not submit comments on this point.
- The Court notes that in his letters submitted in 2006
the applicant described in detail the criminal proceedings
emphasizing the different approaches of the domestic authorities
throughout the proceedings, which in his opinion were dictated by the
successive
governments. Also, in a letter of 4 May
2010, submitted after communication of the application to the
respondent Government, the applicant mentioned inter alia that
he maintained his complaint about the unreasonable length of
the criminal proceedings. The Court is therefore satisfied that
the applicant raised this complaint in substance prior to the
communication to the respondent Government (see Camenzind v.
Switzerland, 16 December 1997, § 50, Reports of
Judgments and Decisions 1997 VIII).
- It
further considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
2. As regards application no. 27690/07
- The
Government submitted that the applicant’s complaint was raised
outside the six month term set forth under Article 35 § 1
of the Convention. In particular, they argued that the six month
period was to be calculated from 2 December 2006 when the
judgment of the Military Court of Appeal of 22 November 2006
became final.
- The
applicant did not submit comments on this point.
- In
the instant case, it notes that on 22 January 2007, the
Bucharest Military Court submitted to the applicant a copy of the
judgement rendered on 22 November 2006. The Court is
therefore satisfied that the complaint has been raised within the six
months time limit set forth under the Convention.
- It
further considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
3. As regards application no. 11941/07
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Commencement of the period to be taken into account
in respect of application no. 11941/07
- The
Government argued that the period to be taken into account had
started on 19 February 2001, when the applicant was
informed of the charges against him, during the third statement
before the prosecution authorities.
- The
Court notes that the investigation against the applicant was formally
opened on 16 September 1999. The applicant was first heard
in this connection on 16 December 1999. The Court recalls
that in the fulfilment of its obligations under Article 6 of the
Convention, a State cannot seek refuge behind the possible failure of
its own domestic law or administration of justice (see Šubinski
v. Slovenia, no. 19611/04, § 67, 18 January 2007).
The Court also notes that in the instant case, at the time of the
applicant’s first statement, criminal investigations against
him had already been opened and therefore it cannot be argued that he
was heard in a different capacity than that of a suspect. The Court
shall therefore take into consideration as the date for commencement
of the criminal proceedings, the date of the applicant’s first
declaration before the prosecution authorities.
2. The reasonableness of the length of the proceedings
- The
Court notes that in the present cases the proceedings have lasted for
eleven years and nine months for two levels of jurisdiction in
respect of application no. 4756/06; six years and ten months for
three levels of jurisdiction in respect of application no. 11941/07;
and seven years and six months for three levels of jurisdiction
in respect of application no. 27690/07.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and of the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
cases (see Pélissier and Sassi, cited above, Abramiuc
v. Romania, no. 37411/02, § 130, 24 February
2009).
- In
the present cases, having regard to the length of the proceedings as
mentioned in the appended table, and having examined all the material
submitted to it, the Court considers that the Government have not put
forward any fact or argument capable of persuading it to reach a
different conclusion. In the light of its case-law on the subject,
the Court considers that in these cases the length of the proceedings
was excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant in application no. 4756/06 also complained under
Articles 2 § 2 (a) and 15 of the Convention about
an infringement of the right to life, under Article 6 §§ 1,
3 (b), (c) and (d) of the Convention about the fairness of
proceedings, assessment of evidence, misinterpretation of the law and
the lack of impartiality of the courts and under Article 7 about
the crime not being prescribed by law at the relevant time.
- The applicant in application no. 11941/07
complained under Article 6 § 1 of the Convention about
the outcome of the proceedings.
- The
applicant in application no. 27690/07 complained under Article 3
of the Convention about alleged insults of the public prosecutor and
under Article 6 §§ 1, 3 (b), (c) and (d), about
assessment of evidence, misinterpretation of the law, assistance of a
lawyer, impartiality of the courts.
A. Admissibility
- Having
considered the applicants’ submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that these complaints must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant in application no. 4756/06 did not submit any
just satisfaction claims. Accordingly, the Court makes no award
in this respect.
A. Damage
- The
applicants in the other two cases under examination have submitted
the following claims in respect of pecuniary and non-pecuniary
damage:
|
No.
|
Application no.
|
Pecuniary damage
|
Non-pecuniary damage
|
|
1.
|
11941/07
|
RON 17,656
|
-
|
|
2.
|
27690/07
|
RON 30,000
|
EUR 200,000
|
-
The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects these claims.
Further, concerning application no. 11941/07, the Court notes
that the applicant did not make any claim in respect of non-pecuniary
damage; it therefore makes no award under this head.
- Lastly,
in the light of its case-law and ruling on an equitable basis, the
Court awards EUR 1,600 to the applicant in application no. 27690/07.
B. Costs and expenses
- The
applicant in application no. 11941/07 claimed RON 146 for
transportation costs incurred during the domestic proceedings. The
applicant in application no. 27690/07 claimed RON 13,100.30
representing costs and expenses incurred before domestic courts and
the Court.
- The
Government disputed the claims. In particular, they argued that the
applicants did not provide justifying documents for the costs and
expenses incurred.
- Taking
into consideration that the applicants did not in fact submit any
justifying document for the costs and expenses incurred the Court
dismisses these claims.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaints concerning the excessive
length of the proceedings in respect of all applicants admissible and
the remainder of the applications inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of all three applications;
4. Holds
(a) that
the respondent State is to pay the applicant in application
no. 27690/07, within three months, EUR 1,600 (one thousand
six hundred euros) in respect of nonpecuniary damage, plus
any tax that may be chargeable, to be converted into Romanian lei at
the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Ján Šikuta
Deputy
Registrar President
Case of Topliceanu and Others v. Romania
Appendix
|
No
|
Case no. and date of lodging
|
Applicant’s Details
|
Length of the proceedings
|
Subject Matter
|
|
1.
|
4756/06
9 January 2006
|
TOPLICEANU
Iulian
Romanian citizen,
born on 28 July 1929, residing in Bucharest
Represented by Dan Ioan, attorney at law
|
Beginning:
Unspecified date in 1990 (beginning of the investigation). On 20
June 1994 ratification of the Convention by Romania
End:
20 March 2006 (High Court of Cassation and Justice)
Length after ratification: 11 years
and 9 months
|
Criminal
proceedings brought against the applicant for incitement to
homicide in the course of the events of December 1989 which led to
the overthrow of the communist regime in Romania (Articles 174 §
1, 175 (e), 176 (b) of the Romanian Criminal Code).
On 20 March 2006, the High Court
of Cassation and Justice convicted the applicant for incitement to
homicide and sentenced him to ten years of imprisonment.
|
|
2.
|
11941/07
24 February 2007
|
PAL
Gavril
Romanian
citizen, born on 19 September 1941, residing in
Păuleni Ciuc, Harghiţa
county
|
Beginning:
16 December 1999 (the applicant’s first statement before the
prosecution authorities)
End:
6 November 2006 (Galaţi Court of
Appeal)
Length: 6 years and
10 months
|
Criminal
proceedings brought against the applicant for fraud and forgery
(Article 215 and 290 of the Romanian Criminal Code).
On 6
November 2006 the Galaţi Court of
Appeal convicted the applicant for fraud and sentenced him to
three years of suspended sentence.
|
|
3.
|
27690/07
18 June 2007
|
COMAN
Liviu
Romanian
citizen, born on 12 February 1962, residing in Ploieşti,
Prahova county
|
Beginning:
7 May 1999 (the applicant was informed of the charges)
End:
22 November 2006 (Military Court of Appeal)
Length: 7 years and 6
months
|
Criminal
proceedings brought against the applicant for forgery, use of
forged documents and aiding a criminal (Articles 289, 291 and 264
of the Romanian Criminal Code)
On 22 November 2006 the Military
Court of Appeal acquitted the applicant ruling that he did not
commit any criminal offence. Neither the applicant nor the
prosecution appealed the aforementioned judgement which became
final on 2 December 2007.
|
