THIRD SECTION
CASE OF
IULIAN POPESCU v. ROMANIA
(Application no.
24999/04)
JUDGMENT
STRASBOURG
4 June 2013
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 Iulian Popescu v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Valeriu Griţco, judges,
and Santiago Quesada, Section
Registrar,
Having deliberated in private on 14 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
24999/04) 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 Iulian Popescu (“the applicant”), on 13
April 2004.
The Romanian Government (“the Government”) were
represented by their Agents, Mrs Beatrice Rămăşcanu and then Mrs
Irina Cambrea, of the Ministry of Foreign Affairs.
The applicant alleged, in particular, the lack of
a fair trial in the criminal proceedings against him and an infringement of his
right to respect for his privacy and of the right of individual petition.
On 6 September 2005 the application was
communicated to the Government. On 13 January 2011 it was also decided to rule
on the admissibility and merits of the application at the same time (Article 29
§ 1).
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respect of Romania, had withdrawn from the case (Rule 28 of the Rules of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 an ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1953 and lives in Bucharest.
A. The events of the night of 9/10 February 2004
In the night of 9 February 2004 a police patrol
surprised an ongoing theft from a store in Râmnicu-Sărat. They drove in
the direction of the store and saw a man in front of it. When seeing the police
car approaching, the man ran inside, supposedly to warn his accomplices that
the police was coming and then ran away. Shortly after, two men came out from the
store and fled in different directions. Inside, the police found two big bags
with items from the store which proved to have been abandoned by the suspects
when they had run away.
The police agents went in pursuit. They saw one
of the suspects getting into a white Oltcit car, whose driver started
the car and roared off to the small adjacent streets. The police agents could
not see the plate numbers or the driver’s face.
A police agent managed to apprehend another one of the suspects.
After taking him to the police station, they returned to the premises to search
for the white car in the neighbourhood. They found the applicant sitting in his
car, a white Olcit, in a parking lot. They noticed that the car’s engine
was warm. They arrested the applicant on suspicion of having participated in
the theft.
B. The criminal investigation
The applicant was interrogated
at the police station the same night. He denied any involvement in the theft,
saying that he was on his way to Târgu Neamţ from his home in
Bucharest, on business.
The other suspect who had been apprehended in the night of the
events also denied the participation in the theft. Both he and the applicant denied
knowing each other.
The next morning, the police agents searched the
rear boot of the applicant’s car. They found different tools which were deemed
suitable to be used in breaking and entering. The applicant alleged that he was
using them for repairing the car.
The two men were placed in detention pending
trial where they remained throughout the proceedings.
On 4 March 2004, based on the evidence gathered
on the spot, the technical expert reports and the statements made by the police
agents who had participated in the events, the prosecutor committed the
applicant and the other suspect to trial for participation in theft.
C. The procedure before domestic courts
On 6 April 2004 the Râmnicu-Sărat District
Court convicted the applicant for aiding and abetting in committing aggravated
theft and sentenced him to four years’ imprisonment.
The court based
its decision on the evidence produced by the prosecutor as well as on the
witness testimony given in open court. It heard evidence from the police agents
present at the crime scene and from a member of the neighbourhood watch who in
the night of the crime, had seen the applicant’s car with three persons wearing
black clothes and hats in front of it. All witnesses were proposed by the
prosecution and had previously given statements before the prosecutor during
the investigation.
The applicant, who was defended by court-appointed counsel, did
not ask for further evidence to be adduced before the court. He denied the
commission of any crime and maintained the same position as during the criminal
investigations.
The defendants appealed against the District
Court’s judgment, claiming their innocence. Their appeal was dismissed by the
Buzău County Court 8 June 2004. Their subsequent appeal on points of law
was also dismissed in a final decision of 19 July 2004 by the Ploiești
Court of Appeal.
D. The communications with the Court
On 13 April 2004 while in detention pending
trial, the applicant lodged with the Court a complaint about the alleged lack
of fairness of the domestic proceedings. He joined to his application copies of
the indictment and of the court decisions rendered in his case.
On 2 August 2004, after
receiving the general instructions from the Court concerning his application,
he wrote a letter to the Râmnicu-Sărat District Court requesting simple
copies (not certified) of certain documents from his criminal file, notably
witness testimonies and reports concerning the material evidence gathered by
the prosecution and the technical expert reports. He mentioned that they were
needed for his application with the Court.
On 16 August 2004 the District Court’s
Registry asked him to send proof of payment of a legal tax (taxa
judiciară) of 7,000 Romanian lei (ROL) and a legal stamp (timbru judiciar)
of ROL 1,500 for each page to be copied. They invoked Law no. 146/1997 on
stamp duty (“Law no. 146/1997”).
On 21 September 2004 the applicant sent to the
District Court 100 legal stamps of ROL 1,500 each and informed the
registrar that he was unable to provide a legal tax.
On 27 September 2004 the
registrar returned to the applicant all the legal stamps he had sent and asked
him to complete the stamp duties. He also advised the applicant to send a
member of his family to the District Court’s Registry in order to obtain copies
of the documents requested, because the cost of the photocopying would also be due.
The applicant renewed his request for copies
from the criminal file, but on 6 October 2004 the District Court’s Registry reiterated
its previous answers.
On 17 November 2004 the applicant informed the Court
that he could not obtain copies of the documents. He also explained that he
could not send a member of his family to the District Court’s Registry.
Those documents were made available to the Court
by the Government in the annex to their observations sent on 8 December 2005.
The applicant was
released from prison on 11 September 2006.
II. RELEVANT DOMESTIC LAW
The relevant provisions of Law no. 146/1997 and
the subsequent legislation on stamp duties are explained in Weissman and
Others v. Romania, no. 63945/00, §§ 21-22, ECHR 2006-VII
(extracts) and Postolache v. Romania (no. 2), no. 48269/08, §§ 23-26, 6 July 2010.
26. In
addition, Article 3 ţ) of Law no. 146/1997 states that the requests for
certified copies of documents from a court file are subject to a stamp duty of
ROL 2,000 for each page. According to Article 13 of that Law all other
requests and actions which may not be evaluated on
a pecuniary basis are subject to a stamp duty of ROL 20,000.
. The
relevant provisions of the Constitution and their applicability in the domestic
law are described in Varga v. Romania (no. 73957/01, §§ 27 and
29, 1 April 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE
CONVENTION
The applicant complained that he could not
obtain documents from his criminal file which were relevant for his application
with the Court. He relied, in substance on Articles 8 and 34 of the Convention.
The Court notes, at the outset, that the
complaint falls within the sphere of the second sentence of Article 34 of the
Convention (see also Gagiu v. Romania, no. 63258/00, §§ 83 and 85, 24 February 2009). It will
therefore examine the complaint exclusively under Article 34. Furthermore,
the Court reiterates that a complaint under Article 34 of
the Convention is of a procedural nature and therefore does not give rise to
any issue of admissibility under the Convention (see Vladimir Sokolov
v. Russia, no. 31242/05, § 75, 29 March 2011).
Article 34 reads as follows:
“The Court may receive applications from any person,
non-governmental organisation or group of individuals claiming to be the victim
of a violation by one of the High Contracting Parties of the rights set forth
in the Convention or the Protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.”
A. The parties’ submissions
The applicant argued that the domestic court had
refused to release copies of documents that he needed in order to substantiate
his complaints with the Court.
The Government contended that the applicant
suffered no interference with his right of petition, as no authority had
refused to release the requested documents. Even assuming that such
interference had occurred, they considered that it had been provided by law, namely
Law no. 146/1997, had been aimed at recovering partially the costs of the
public legal service, thus protecting the public order, and had been necessary
in a democratic society. They also pointed out that the costs of this operation
had been minimal for the applicant. They lastly considered that the applicant
had already been in the possession of the most relevant documents of the
criminal trial which he had submitted to the Court along with his initial
application.
B. The Court’s assessment
1. General principles
Although the object of Article 34 is essentially
that of protecting an individual against any arbitrary interference by the
authorities, it does not merely compel States to abstain from such
interference. In addition to this primarily negative undertaking, there are
positive obligations inherent in Article 34 requiring authorities to furnish
all necessary facilities to make possible a proper and effective examination of
applications. For instance, under certain circumstances authorities may be
under obligation to provide applicants with copies of documents necessary for
examination of their applications. Such an obligation will arise in the
situations of particular vulnerability and dependence of applicants who are
unable to obtain documents needed for their files (see Iambor v. Romania (no. 1), no. 64536/01, § 216, 24 June 2008; and Naydyon v. Ukraine, no. 16474/03, § 63, 14 October 2010).
In particular, persons held in detention, with limited contact with their
family or the outside world, may find themselves in a vulnerable
position when they are dependent, in their communication with the Court, on the
authorities (see, mutatis mutandis, Trosin v. Ukraine, no. 39758/05, § 54, 23 February 2012
and Vladimir Sokolov, cited above, § 77).
Furthermore, the fact that the Government submitted copies of the relevant documents thus enabling
the Court to examine the applicant’s complaints does not preclude the Court
from ruling on the issue arising under Article 34 (see Naydyon, cited
above, § 68).
2. Application of the principles to the present case
The Court notes that the applicant brought a
claim under Article 6 § 1 of the Convention based on the alleged
unfairness of the criminal proceedings against him. He mainly argued that his
conviction had not been founded on solid evidence. In this context, the documents
that he sought from the criminal file were necessary to support his claims. The
applicant duly informed the domestic court that he needed the documents in
order to substantiate his application lodged with the Court (see paragraph 17 above).
Under Article 20 of the Romanian Constitution,
the authorities are bound to respect the international obligations assumed by
the State in the field of human rights, which take precedence when they are
more favourable than the internal regulations. Therefore, the District Court should
have been aware of the State’s positive obligation to support the applicant in
the exercise of his right to petition.
The Court will therefore examine the domestic
authorities’ response to the applicant’s request. At the outset, it is to be
noted that the applicant was never fully informed of the total cost of the
operation, as the District Court’s Registry did not communicate the exact
number of pages that needed to be copied or the fee for photocopying a page. Therefore,
even assuming that the amount involved had some relevance to the case, it is pure
speculation whether the cost of the operation had been minimal for the
applicant, as implied by the Government.
The Court considers that the domestic authority did
not take into consideration the applicant’s vulnerable position, being held in
prison, away from his family (see paragraph 34 above and the case-law cited
there). While it is true that it did not refuse as such the applicant’s request,
the domestic court responded rigidly, making a general reference to the law on
stamp duties but with no concrete explanations on how to pay them or to ask for
an exemption, a reduction or payment by instalments (see
also paragraph 26 above). The
domestic court failed to offer such information even when informed by the
applicant of the impossibility to pay the legal tax.
Assuming that the domestic court considered
itself under no obligation to offer the applicant such information, the Court
notes that it nevertheless advised the applicant on how to proceed by asking
him to seek help from the family. However, such an advice did no more than put
him on a false route, as there is no legal obligation for the family to provide
a prisoner with the money to pay stamp duties (see Iordache v. Romania,
no. 6817/02, § 39, 14 October 2008).
Furthermore, it is to be noted that, although aware
of the applicant’s position, the domestic authority did not offer him the
information in a stride. Indeed, in a first letter it asked him to pay the
stamp duties and only in a second letter mentioned the obligation to pay the
costs of the photocopying without even mentioning the price of that service. It
thus failed to allow him to anticipate from the beginning the total costs of
his request. Moreover, this approach, of adding costs and conditions by each
new letter, could have had a dissuasive effect on the applicant, even if not
meant so by the local court.
It is to be noted that because of the manner in
which the authorities dealt with the applicant’s request, the Court itself had
to ask the Government to provide the relevant documents (see Naydyon,
cited above, § 65).
The foregoing considerations are sufficient to
enable the Court to conclude that the respondent State has
failed to comply with its obligations under Article 34 of the Convention with
respect of the refusal to provide the applicant with copies of documents needed
to substantiate his application to the Court.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
Invoking in substance Article 6 of the Convention,
the applicant complained that the criminal proceedings before the national
courts had lacked the necessary requirement of fairness, and in particular that
he had been convicted in the absence of any solid proof of guilt.
The Government contested the applicant’s
allegations and averred that the criminal proceedings had been fair and the
applicant’s rights of defence had been fully respected by the domestic courts.
The Court notes that the applicant’s allegations
are not substantiated by the evidence in the file. In particular, it observes
that the domestic courts based their decisions on a significant body of
evidence which was heard in open court and which the applicant had a fair
chance to challenge. While it is true that the evidence produced before the
courts was adduced exclusively by the prosecution, it is to be observed that
the applicant’s counsel did not request that further evidence be presented on
behalf of his client (see paragraph 14 above). Furthermore, the applicant did
not contest before the domestic authorities the quality of the representation
offered to him by the court-appointed lawyer. The Court also notes that the
applicant maintained his initial declarations throughout the proceedings,
denying systematically any implication in the theft.
As for the manner in which the domestic courts
interpreted the evidence, the Court reiterates that, in the absence of any
indication of arbitrary, this matter falls exclusively within the jurisdiction
of the domestic authorities which are better suited to examine the facts in the
light of the evidence produced before them (see García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999-I).
For these reasons, 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 Article 6 of the Convention.
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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In a letter which arrived at the Court on 21
February 2011, the applicant complained about the conditions of his detention.
The Court notes, nevertheless, that he was
released from prison on 11 September 2006, thus more than six months before the
date when he lodged his complaint (see paragraph 24 above).
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.
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 made no claims for the alleged
violations of Articles 8 and 34 of the Convention. Accordingly, the Court
considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Romania has failed to comply
with its obligations under Article 34 of the Convention;
2. Declares the remainder of the application
inadmissible.
Done in English, and notified in writing on 4 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
