THIRD SECTION
CASE OF
FLORIN MACOVEI v. ROMANIA
(Application no.
38128/03)
JUDGMENT
STRASBOURG
2 April 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Florin Macovei v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Committee composed of:
Alvina Gyulumyan,
President,
Kristina Pardalos,
Johannes Silvis, judges
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 38128/03) 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, Mr Florin Alexandru Macovei (“the
applicant”), on 14 October 2003.
The Romanian Government (“the Government”) were
represented by their Agents, Mrs Irina Cambrea and Mr Răzvan-Horaţiu
Radu, from the Ministry of Foreign Affairs.
On 30 June 2010 the application was communicated to
the Government. In accordance with Protocol No. 14, the application was
assigned to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1969 and lives in Bucharest.
On 1 September 1999 the Romanian Copyright Office
(“ORDA”) suspended the applicant from work for gross misconduct, that is,
suspicion of fraud, malfeasance in public office and document destruction. A
criminal complaint was further filed by ORDA with the prosecution authorities
on 14 September 1999.
On an unspecified date in November 2000 the
applicant complained about the protraction of the investigation. His complaint
was admitted on 10 November 2000 by the Public Prosecutor’s Office as no
procedural act had been carried out until that date. The prosecuting
authorities were instructed to deal with the complaint within reasonable
delays.
On 21 February 2001 the Public Prosecutor’s
Office with the Bucharest District Court no. 1 (“the Prosecutor”) decided to
initiate the criminal prosecution against the applicant.
By a subsequent decision of 31 January 2002 the Prosecutor
rejected the initiation of prosecution in respect of the applicant as his
conduct did not meet the statutory essential elements of the prosecuted
offences. ORDA contested this decision before the Higher Ranking Prosecutor.
On 6 March 2002 the contestation was allowed and
the criminal prosecution was resumed.
Subsequent to the examination of evidence
(hearing of four witness testimonies and examination of few documents, without the
commission of any expert study), the Prosecutor decided on 8 May 2002 to
discontinue the investigation in respect of the applicant. The decision was
challenged by ORDA before the Public Prosecutor’s Office with the High Court of
Cassation and Justice.
On 6 March 2003 the contestation was allowed and
the impugned decision was quashed. The case was reopened for further
investigation before the prosecuting authorities.
On 23 July 2003 the Prosecutor decided to
discontinue the investigation against the applicant in respect of the charges
of fraud and malfeasance in public office. At the same time, an administrative
fine was imposed for charges of document destruction.
The decision was upheld before the Higher
Ranking Prosecutor and became final on 17 October 2003.
Subsequent to the decisions to discontinue the
criminal prosecution against him, the applicant requested to resume his work at
ORDA. Following the latter’s refusal, the applicant brought two sets of labour
litigations against his employer on 22 February 2002 and on an unspecified date
in 2003 respectively.
On 15 April 2003 the Bucharest County Court
dismissed the first action. It ruled that the applicant could not resume work
since the decision to discontinue the criminal investigation had not been final
at that time. Later on the applicant was reinstated to a different position at
ORDA. Shortly afterwards, the employment contract was voluntarily terminated.
The second action was allowed by way of a final
decision. On 6 July 2006 the Court of Appeal of Bucharest awarded the applicant
the retroactive payment of wages he had been entitled to.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that the length of the criminal
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...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Government submitted that the delays accrued
at the criminal investigation were mainly due to the particular complexity of
the case. It pointed out to the complex documentation adduced at court and to
the generally exceptional character of both factual and legal questions
involved. They added that there had been no signs of inactivity on the part of
the authorities which had thoroughly and attentively examined the case. The
Government went on to suggest that although the applicant had not exercised his
rights such as to hold back the proceedings, he had nevertheless contributed to
their length by not being present at all the hearings. In sum, the Government held
that the “reasonable time” requirement had been complied with in the present
case.
The applicant contested these arguments. He drew
attention to the fact that although his complaint for delays had been
admitted in November 2000 and the prosecuting authorities had been urged to
carry out the investigation within a reasonable delay, it took some additional
three years for the proceedings to be finalised. He further disagreed with
the Government’s view on the complexity of the case. He pointed out that no
more than four witnesses had been heard in the case and the documentation
adduced before the court had been rather insignificant.
The proceedings began on 14 September 1999 when ORDA
filed the criminal complaint against the applicant, and ended on 17 October
2003 when the criminal investigation was finalised. The total length of the
proceedings was thus of four years, one month and three days at one level of
jurisdiction.
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 and what was at stake for the applicant in the dispute
(see, among many other authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000-VII).
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see Pélissier and Sassi and Frydlender, cited
above, Abramiuc v. Romania, no. 37411/02, § 103-109, 24 February 2009).
Turning to the facts of the present case, the
Court notes that the criminal investigation of charges related to the applicant’s
professional conduct did not raise issues able of triggering a lengthy trial. It
involved the hearing of some four witness testimonies and the examination of
rather few documents, without any expert studies conducted in the case. Thus, it
was neither procedurally nor factually of exceptional
complexity.
The Court draws its attention to the decision of
10 November 2000 whereby the Public Prosecutor’s Office had urged the relevant
authorities to deal with the case speedily, as no procedural act had been
carried out in the previous year (see paragraph 6 above). Despite this
recommendation, the entire investigation had been underway for more than three
years, space of time within which the case had moved back and forth between the
prosecuting authorities (see paragraphs 8-12 above) until it was finally
settled (see Vachev v. Bulgaria, no. 42987/98, § 96, ECHR 2004-VIII
(extracts)).
. The
Court can find no sufficient justification for such a lapse of time, the
responsibility for which lies entirely with the authorities.
. As
for the applicant’s conduct, there is no evidence that at any stage of
the proceedings he showed dilatory conduct or otherwise upset the proper conduct
of the investigation. His requests did not exceed
what was normally acceptable in the exercise of his defence rights and he
cannot be said to have contributed in any other manner to the total length of
the proceedings.
In conclusion, the Court considers that in the
instant case the length of the criminal proceedings was excessive and failed to
meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6
§ 1 as regards the length of criminal proceedings.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
30. Relying
on Article 6 § 1 the applicant further
complained about the outcome of the civil
proceedings which ended by the final judgments of 15 April 2003 and 6 July
2006 respectively, alleging that the domestic
courts had failed to conduct a proper
examination of the evidence submitted to them.
31. Having
considered the applicant’s submissions in 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.
32. It
follows that this part of the application must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. 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.”
A. Damage
The applicant claimed 20,000 euros (EUR) in
respect of
non-pecuniary damage, sum which was to cover the consequences the four years of
criminal investigation had had on his social and family life, as well as on his
professional situation. He also sought reimbursement of the pecuniary damage
consisting of the wages he had been deprived of pending investigation, as he
had been suspended from work. He did not advance any amount and failed to
submit any documentation in this respect.
The Government contested these claims. They
submitted that the amount requested had been speculative, excessive and
unsupported by documents. They also added that the mere finding of a violation
would in itself constitute sufficient just satisfaction.
The Court does not discern any causal link
between the violation found in respect of the length of criminal proceedings and
the pecuniary damage alleged. All the more, the domestic courts awarded the
applicant the payment of retroactive wages. It therefore rejects this claim.
The Court considers that the applicant must have
certainly sustained non-pecuniary damage which is not sufficiently compensated
by the finding of a violation of the Convention. Ruling on an equitable basis,
it awards him EUR 1,200.
B. Costs and expenses
The applicant did not claim any amount under
this head.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the
complaint concerning the excessive 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 as regards the length of criminal proceedings;
3. Holds
(a) that the respondent State is to pay the
applicant, within three months, EUR 1,200 (one thousand two hundred euros),
to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement, plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 April 2013, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena
Tsirli Alvina
Gyulumyan
Deputy Registrar President
