THIRD SECTION

CASE OF E.M.B. v. ROMANIA

(Application no. 4488/03)

JUDGMENT

STRASBOURG

13 November 2012

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of E.M.B. v. Romania,
The European Court of Human Rights (Chamber), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Egbert Myjer,
	Alvina Gyulumyan,
	Ján Šikuta,
	Luis López Guerra,
	Nona Tsotsoria,
	Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 4488/03) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mrs E.M.B. (“the applicant”), on 20 December 2002. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).
2.  The applicant was represented by Mr I. Panaitescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea.
3.  As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
4.  The applicant alleged that the criminal proceedings against her had exceeded a reasonable duration, given that no judgment on the merits had been delivered ten years after the commencement of the proceedings. She also claimed that the wording of the domestic courts’ decisions concerning the validity of the arrest warrant issued in her name had breached the presumption of innocence.
5.  On 28 September 2010 the Court declared the application partly inadmissible and decided to communicate the complaints raised under Article 6 §§ 1 and 2 of the Convention concerning the length of proceedings and the alleged breach of the presumption of innocence to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1946 and lives in Toronto (Canada).
A.  Background information
7.  The applicant retired from her position as director of a private refinery in March 2002. In April 2002 she left Romania for the United States. On 18 and 22 July 2002, while she was away from Romania, summons were sent to her home address, instructing her to present herself at the Police Inspectorate for questioning.
8.  As she did not comply with the summons, on 25 July 2002 the prosecutor attached to the Prahova Court of Appeal issued a pre‑trial arrest warrant, valid for thirty days, for abuse of office and incitement to forgery. The reasoning in the arrest warrant stated: “the accused is absconding, the sentence provided by law for the alleged crime is a prison sentence of longer than two years and her release would disturb public order.” On 2 August 2002 an international arrest warrant was issued against her.
B.  The complaints against the pre-trial arrest warrant
9.  The applicant remained outside Romania but contested the legality of the arrest warrant through her legal representative.
10.  On 26 August 2002 her first complaint was lodged. By an interlocutory judgment of 28 August 2002 the Prahova County Court dismissed the complaint, stating in part:
“As may be noted, the pre-trial detention of the accused was ordered because of the commission of crimes giving rise to significant public danger, given that the accused had concluded a contract for the sale of oil products at a price that was disadvantageous to the company managed by her and which caused that company a loss of over sixty-three billion lei, actions which created within the public community a sense of indignation and disapproval, as these crimes received extensive media coverage.”
11.  On 27 September 2002 the Ploieşti Court of Appeal upheld the above judgment, holding that it was clear from the criminal investigation file that there were strong indications that the accused had committed the crimes which had led to inception of the criminal proceedings and the issue of the arrest warrant.
12.  Several other similar complaints were dismissed in 2003.
13.  On 11 November 2003 the Braşov County Court concluded that the arrest warrant had been issued unlawfully. The following reasons were put forward: the accused had left Romania in April 2002, prior to the inception of the criminal proceedings against her in July 2002; at that time, therefore, she had been free to leave the country and the fact that she had exercised her right to freedom of movement could not be interpreted as an intention to abscond. On an appeal by the prosecutor, the Braşov Court of Appeal, by a final decision of 18 November 2003, quashed that judgment and confirmed the legality of the warrant, holding that the applicant had tried to abscond from the proceedings.
14.  Further complaints by the applicant were dismissed by an interlocutory judgment of 3 February 2004, as confirmed by a final decision of the Braşov Court of Appeal delivered on 13 February 2004, and by a final decision of 17 January 2005. In the interlocutory judgment of 3 February 2004, the Braşov County Court indicated that there were reasonable suspicions that the applicant had committed the alleged offences and the arrest warrant was valid, since, although she was aware of the proceedings against her, the applicant had chosen not to return to Romania. The final decision of 13 February 2004 states: “releasing the applicant would give rise to a real danger to public order, given the method and circumstances in which the acts were committed, the effective contribution of each person and the consequences and social resonance which such acts create among the public.”
15.  On 3 May 2005 the Braşov County Court ordered the quashing of all procedural decisions taken in the framework of these investigations, including the contested arrest warrant. Nevertheless, on an appeal by the prosecutor, by a final decision of the Braşov Court of Appeal of 6 March 2006 the validity of the arrest warrant was again confirmed. The appellate court held that, given that the applicant had been absconding throughout the proceedings, she could not be treated on an equal basis with the other accused persons in the same proceedings who had already been held in pre-trial detention.
16.  On 22 August 2007 the Bucharest County Court allowed the applicant’s request to have the arrest warrant revoked. It considered that the measure was no longer justified, given that it had been ordered five years previously, three months after the applicant had left the country. The county court considered that the state of the proceedings, still under investigation by the prosecutor, and the lack of any evidence regarding any danger the applicant might pose to the public justified revoking the arrest warrant. On an appeal by the prosecutor, the Bucharest Court of Appeal (with one dissident opinion), by a final decision of 3 September 2007, reversed that decision and once again confirmed the legality of the warrant. It noted that the warrant had never been executed, given the applicant’s absence, and decided that the reasons which had justified its issue in 2002 were still valid.
C.  The criminal proceedings on the merits
17.  Following the start of the criminal investigation against the applicant and other co-accused on different dates during 2002, on 20 March 2003 the prosecutor attached to the Supreme Court of Justice issued an indictment against twelve persons, including the applicant, for various offences of fraud related to trade in oil products. The file was first registered with the Prahova County Court.
18.  Later the file was assigned to the Bacău County Court and subsequently to the Braşov County Court, by virtue of final decisions of the Supreme Court of Justice of 9 May and 11 September 2003 respectively, in response to requests by the accused for removal of jurisdiction from the competent courts for alleged bias.
19.  Following the transfer of the file to Braşov County Court, in various hearings held up to April 2004 statements were taken from all the accused, except the applicant, who was still absent but was represented by a lawyer chosen by her.
20.  By a decision of 3 May 2005 the county court referred the case back to the prosecutor. It considered that the criminal investigation had been marred by procedural irregularities and that it should be carried out again and completed in compliance with all procedural requirements. The decision was partly upheld by the Braşov Court of Appeal on 6 March 2006, thus dismissing the prosecutor’s appeal against the remittal order.
21.  The case was referred to the Directorate for the Investigation of Organised Crime and Terrorism. By a decision of 18 April 2006, it relinquished its jurisdiction in favour of the National Anti‑Corruption Directorate.
22.  On 4 April 2008 a new bill of indictment was drafted. The applicant was charged with tax evasion, forgery of private documents and the association for the commission of offences.
23.  The file was registered with the Ploieşti District Court. On 3 March 2009 the court relinquished its jurisdiction in favour of the Braşov District Court. On 19 November 2009 the latter court held that it had no jurisdiction to examine the case. By a judgment of 8 February 2010, the High Court of Cassation and Justice examined the conflict of jurisdiction and concluded that the competent court was the Braşov District Court.
24.  The proceedings are still pending before the first‑instance court.
II.  RELEVANT DOMESTIC LAW
25.  The relevant provisions of the Romanian Constitution in force at the relevant time are worded:
Article 23
“...
(8) A person is considered innocent pending a final court conviction.”
26.  The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time are worded:
Article 66
“(1)  The person accused of or charged with a criminal offence does not have to prove his innocence.
(2)  Where evidence is adduced proving a person’s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27.  The applicant complained of the excessive length of the criminal proceedings instituted against her. She relied on Article 6 § 1 of the Convention, which provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A.  Admissibility
28.  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.  The parties’ submissions
29.  The applicant complained that the length of the criminal proceedings had been excessive. She contended that the proceedings had lasted more than ten years without a judicial decision on the merits being taken.
30.  The Government submitted that there had been no periods of inactivity attributable to the authorities and that the case was somewhat complex. They also claimed that the applicant had substantially contributed to the protraction of the case, either because she had not appeared before the authorities or because her lawyers had asked for the change of venue of the trial.
2.  The Court’s assessment
31.  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 applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Foley v. the United Kingdom, no. 39197/98, § 36, 22 October 2002).
32.  Turning to the instant case, the Court notes that the proceedings began on 25 July 2002 and according to the latest applicant’s letter of 15 April 2011, they are still pending. Moreover, in all this time not a single judicial decision has been taken on the merits of the case. The only judicial decisions delivered in these proceedings, on 3 May 2005 and 6 March 2006, established that the criminal investigation by the prosecutor had been marred by breaches of essential procedural rights and the case was therefore referred back to the prosecutor.
33.  The Court notes that this is a complex case involving many accused. Nevertheless, it observes that all of the procedural steps taken from the start of the proceedings until the referral to the judicial courts had had to be carried out again in view of the procedural irregularities established by the district court. Further, it notes that it took more than two years to establish that the investigation was marred, for reasons that could have been established as early as the first hearings in the case.
34.  The Court further observes that no significant developments have taken place, although the proceedings are still pending. The proceedings have so far lasted for ten years and four months.
35.  The Court has already found that, although it is not in a position to analyse the juridical quality of the case-law of the domestic courts, the remittal of cases for re-examination discloses a serious deficiency in the judicial system, since it is usually ordered as a result of errors committed by prosecutors or lower courts. This deficiency is imputable to the authorities and not to the applicants (see Georgescu v. Romania, no. 25230/03, § 95, 13 May 2008).
36.  The Court notes that the applicant did not take an effective part in the proceedings because she was permanently away from Romania during this period. Although the applicant did not play a direct role in the proceedings, it does not appear from the information available in the case file that any of the hearings were postponed because of this fact. She had a designated lawyer who represented her actively at all of the hearings, submitting written conclusions and acting with diligence.
37.  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 present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a violation of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
38.  The applicant complains that the wording of the domestic courts’ decisions concerning the validity of the arrest warrant issued in her name breached the presumption of innocence. She relied on Article 6 § 2 of the Convention, which provides:
“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
A.  Admissibility
1.  The parties’ submissions
39.  The Government contended that the applicant’s complaint was premature, relying on the fact that a person could not, in principle, claim to be a victim of a violation of this provision when the criminal proceedings against him or her were still pending.
They pointed out that the impugned decisions of 28 August 2002 and 13 February 2004 had been taken before the case had been referred back to the prosecutor. They further submitted that the criminal proceedings against the applicant were still pending.
40.  The applicant disagreed.
2.  The Court’s assessment
41.  The Court observes that the applicant’s complaint concerns the initial stages of the criminal proceedings. However, it reiterates that Article 6 § 2 governs criminal proceedings in their entirety, “irrespective of the outcome of the prosecution, and not solely the examination of the merits of the charge” (see Minelli v. Switzerland, (25 March 1983, § 30, Series A no. 62)). Therefore, it dismisses the Government’s objection concerning the prematurity of the applicant’s complaint.
42.  The Court reiterates that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty (see, among many other authorities, Minelli, cited above, §§ 27, 30 and 37; Allenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308; and Matijašević v. Serbia, no. 23037/04, § 45, ECHR 2006‑X).
43.  The Court also emphasises that there is a fundamental distinction to be made between a statement that someone is merely suspected of having committed a crime and a clear judicial declaration, in the absence of a final conviction, that the individual has committed the crime in question (see Wojciechowski v. Poland, no. 5422/04, § 54, 9 December 2008).
44.  Turning to the present case the Court notes that in the grounds for their decisions of 28 August 2002 (see paragraph 10) and 13 February 2004 (see paragraph 14), the Prahova County Court and the Braşov Court of Appeal stated that the applicant had committed the offences with which she had been charged. The Court stresses that the statements were made by judges, who should have exercised particular caution in the choice of words concerning the suspicion against the applicant.
45.  However, the Court notes that on 3 May 2005 the Braşov County Court ordered the quashing of all the decisions taken in the framework of the criminal investigation, including the decisions of 28 August 2002 and 13 February 2004. The Court appreciates that the quashing of decisions by a court with full jurisdiction could be considered as a remedy capable of putting right deficiencies in criminal proceedings.
Moreover, the proceedings are still in the investigative stage as no judgment on the merits has been delivered yet. A considerable period of time has already elapsed since events referred to by the applicant in support of her complaint under Article 6 § 2 of the Convention. After the Braşov County Court had referred the case back to the investigating body, the prosecuting authorities have lodged in 2008 a new bill of indictment which gave a new legal classification to the facts of the case.
46.  Therefore, in the light of the foregoing considerations, the Court finds that the applicant’s complaint does 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 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  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.”
48.  The applicant did not submit a claim for just satisfaction. She submitted that a judgment of the Court in her favour would in itself constitute sufficient just satisfaction for the violation of Article 6 § 1 of the Convention.
49.  In the light of the above, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non‑pecuniary damage sustained by the applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint under Article 6 § 1 concerning the length of the criminal proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago Quesada	Josep Casadevall
	Registrar	President