In the case of Bălteanu v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section
Registrar,
Having deliberated in private on 25 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
142/04) 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 Viorel Bălteanu (“the applicant”),
on 22 October 2003.
The applicant was represented by Mr Vladimir Florea,
a lawyer practising in Bucharest. The Romanian Government (“the Government”)
were represented by their co-Agent, Ms Irina Cambrea, of the Ministry of
Foreign Affairs.
The applicant alleged, in particular, that his
right to respect for his private life had been infringed, that the criminal
proceedings against him had not been fair and that his pre-trial detention had
been too long.
On 15 September 2011 the above complaints were communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1973 and lives in Bucharest. At the time of the events in question, he was a traffic police officer.
On 17 January 2003 the applicant and his colleague
stopped M.D. in traffic and checked his papers. They observed that M.D. did not
have an appropriate driving licence for the type of vehicle he was driving,
which constituted a criminal offence. They confiscated the car registration papers
and M.D.’s driving licence.
On 20 January 2003 M.D. and R.J. (a passenger in the
car when the applicant stopped M.D.) informed the prosecutor that the applicant
had asked them to pay 10,000,000 Romanian lei (ROL) in order that he not pursue
a criminal investigation against M.D. On the same date, the prosecutor obtained
the authorisation of the Anti-Corruption Prosecutor’s Office under
Articles 911 and 914 of the Code of Criminal
Procedure to intercept the applicant’s conversations. He also marked the bills
that M.D. and R.J. brought to pay the bribe.
R.J. called the applicant to set up a meeting. Later
that day R.J. and M.D. met the applicant in his office (shared with five other
colleagues and with S.D., his superior). Only the applicant and S.D. were
present at that time. Both the telephone call and the conversation in the
applicant’s office were recorded.
After R.J. and M.D. left, the prosecutor arrived and searched the
applicant’s office. He found the money for the bribe which had been previously
marked. The applicant denied having taken money from R.J. and M.D. or having
committed any crime.
At the end of the search, the prosecutor arrested
the applicant on a charge of having taken a bribe in order to favourably
influence a criminal investigation. The prosecutor started criminal proceedings
against the applicant that day.
On 21 January 2003 the
applicant was placed in pre-trial detention for thirty days by order of the
prosecutor. The decision was confirmed by the Bucharest County Court by an
interlocutory judgment of 11 February 2003. The applicant’s pre-trial
detention was subsequently extended by the county court at regular intervals (on
20 March 2003, 10 April 2003, 8 May 2003, 9 September 2003 and 7
October 2003) until 21 November 2003, when he was released pursuant to the
decision on the merits rendered by the court of first-instance (see paragraph 18 below).
The applicant contested each court order concerning his pre-trial
detention and opposed any request by the prosecutor to have this detention extended,
but his appeals were dismissed by the court of appeal. The courts heard the
arguments presented by the parties and took account of the evidence gathered by
the prosecution. On these grounds, they considered that there were strong
indications that the applicant had committed the crime he had been accused of
and that given the nature of that crime, its gravity and its impact on public
order, as well as the fact that the applicant had been a police officer and had
been accused of having committed a crime in connection with his status, his
continued detention was justified. As the examination of the merits of the case
unfolded, the courts considered that the fact that newly adduced evidence might
have cast doubt on the manner in which the alleged crime had been committed did
not alter the gravity of the crime itself, or its impact on society (final
decision of 3 April 2003 by the Bucharest Court of Appeal, deciding on an
appeal against the interlocutory judgment of 20 March 2003).
On 29 January 2003 the applicant was acquainted
with the contents of the prosecution file (prezentarea materialului de
urmărire penală).
On 3 February 2003 the prosecutor committed the
applicant for trial.
Before the County Court, the applicant denied
having taken any money. The court heard testimony from him and from witnesses
called by both the prosecution and the defence (hearings of 11 March and 10
April). Despite efforts being made by the court, R.J. could not be found and
brought before the court to give testimony.
The applicant contested the lawfulness of the recordings made
by the prosecutor and asked that the prosecutor’s office produce the
authorisation for interception and the original tapes (at the hearings of 10
April and 8 May 2003). He argued that, as R.J. had reported “the
police officers” to the prosecutor, it was important to hear evidence from her
in order to clarify whether she had meant the applicant in particular or
somebody else from his office. He also pointed out that the transcripts
disclosed that the money had not been found where R.J. had supposedly left it.
On 25 April 2003
the prosecutor’s office informed the court that the tapes and their transcripts
had been annexed to the indictment and therefore stored in a specially
designated place at the court’s registry. On 5 June 2003 the prosecutor further
explained that the authorisation issued in the case was a classified document
and therefore could not be produced before the court.
In a judgment of 18 June 2003 the Bucharest
County Court examined the evidence in the file, including the transcripts of the
recorded conversations, found the applicant guilty as charged and gave him a
four-year suspended prison sentence.
However, on 9 September 2003 the Bucharest Court of Appeal
declared the judgment null and void, as one of the judges had omitted to sign
it, and sent the case back to the Bucharest County Court. It maintained the
applicant’s detention.
The County Court did not consider it necessary
to hear the evidence adduced in the first set of proceedings again. The
applicant maintained his initial position and contested the lawfulness of the
interception authorised by the prosecutor on 20 January 2003. Through his
defence lawyers, he reiterated his request that the authorisation be produced and
the tapes be listened to in open court. He pointed out that the voices on the
recordings were indistinguishable from each other and that in the transcripts
of the recorded conversations both his words and those uttered by S.D. had been
marked with the letter “Y”, which rendered it impossible to determine whether
it had been him or S.D. requesting or accepting the bribe. He also contended
that there had been no explicit reference to any sum of money in the
transcripts and that neither M.D. nor R.J. had named him in their initial
statements to the police, but rather had talked about “the police officers”.
On 18 November 2003 R.J. gave testimony before
the court. She declared that it had not been the applicant but S.D. who had
asked for money from her and had instructed her where to put it, and that the
applicant had not been in the office when she had taken the money out of her
pocket and put it on the table.
At the same hearing, the court noted that the parties had made no
further requests to lead evidence.
On 20 November 2003 the
County Court convicted the applicant of taking a bribe and gave him a four-year
suspended prison sentence.
The court established the facts based on witness testimony given
in both sets of proceedings before it (notably from M.D., R.J., the third
occupant of the car at the time of the police check, the applicant’s partner at
that time and S.D.) and the transcripts of the conversations among the
applicant, M.D. and R.J. It found that the applicant had invited M.D. and R.J.
to his office, talked with them for a while, and had then asked M.D. to step
out of the office while he continued the discussion with R.J. R.J. had
told the applicant that she had the money and the applicant had answered
“approved”. She had then asked the applicant if they could talk in the office
and when the applicant had answered yes, she had taken out the money. The applicant
had told her to put the money on a table next to his desk. S.D. had
occasionally joined in the discussion but was apparently absent from the office
when R.J. left the money. When the prosecutor had entered the applicant’s
office, the money had been found under a tablecloth on the applicant’s desk.
The court gave no explanation of its assessment of the new
statements made by R.J. or the allegations that the transcripts were inaccurate.
Both parties
appealed. The applicant maintained his innocence. Through his lawyers, he
reiterated that, despite his repeated requests, the prosecutor had failed to
disclose to the court the authorisation for interception and he again contested
the lawfulness of the recordings, for the same reasons as argued before the
first-instance court. He also requested that a new witness be heard, but on 3
March 2004 the court dismissed his request, as it considered that the evidence
already adduced was sufficient.
By a decision of 11 March 2004 the Bucharest
Court of Appeal ordered the applicant to serve his sentence. It upheld the
remainder of the County Court’s decision. The court considered that the facts
as established by the first-instance court and the sentence handed down by that
court had been supported by the evidence in the file, notably: statements given
by R.J., M.D. and another person that had been in the car at the time of the
traffic offence; the report made by the prosecutor when arresting the
applicant; and the transcripts of the recorded conversations. The court
considered that the new statements made by R.J. were not corroborated by the
remaining evidence, notably the transcripts of the conversations and M.D.’s
statements. It also considered that, as S.D. had been absent from the office
when R.J. had handed over the money (which had been verified through the
transcripts), it was irrelevant to the establishment of the facts that both
police agents had been marked as “Y” in the transcripts. Lastly, the court
pointed out that the report drafted by the prosecutor concerning the
interceptions, together with the tapes of the recordings, had been added to the
file, as required by law.
The applicant appealed on points of law. He
reiterated that the recording of the conversations had been unlawful and that
the tapes had not been authentic and should not have been admitted as evidence.
He also averred that in none of the statements given by M.D. and R.J had he
been designated as the officer who had received the bribe; they had referred
only to “the police officers”.
By a final decision of 15 June 2004 the High
Court of Cassation and Justice (the former Supreme Court of Justice) again
suspended the applicant’s sentence. The High Court did not answer the applicant’s
arguments as to the alleged unlawfulness of the recordings.
II. RELEVANT DOMESTIC LAW
The legislation in force at the relevant time
concerning telephone tapping and changes to the law brought into force on
1 January 2004 are described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the recording of
his communications with third parties had been unlawful and had lacked proper
authorisation, thus breaching the requirements of Article 8 of the Convention,
which 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.”
A. Admissibility
1. The scope of the application
The Government contended that the applicant had
not expressly complained of a violation of his right to respect for his private
life guaranteed by Article 8 of the Convention. His complaint had only
concerned the alleged unlawfulness of the recordings, the lack of proper
authorisation and the procedure followed for the transcription of the
conversations recorded. In their view, those arguments pertained to the sphere
of Article 6 of the Convention.
The applicant reiterated that he had also complained
about the manner in which the prosecutor had issued the authorisation for
interception.
The Court reiterates that in Dumitru Popescu,
cited above, it examined the domestic law governing telephone tapping under
Article 8 of the Convention, including the manner in which authorisations for
interception were given. Furthermore, the Court notes that in his initial
letter to the Court in the present case, the applicant expressly cited Article
8 and described his complaint as being about unlawful telephone interceptions.
Therefore, without prejudging the merits of the case,
the Court is satisfied that the manner in which the applicant formulated his
complaint, albeit succinct, allows the Court to examine whether the applicant’s
Article 8 rights were effectively guaranteed by domestic law and respected
by the authorities.
Consequently, the Government’s objection will be dismissed.
2. The Government’s objection of non-compliance with
the six-month rule
The Government averred that the applicant should
have lodged his complaint within six months of the date on which he had first
learned of the interception. They contended that the applicant had become aware
of the interception on 29 January 2003 at the latest, as that was the date on
which he had become acquainted with the prosecution file. Therefore, in lodging
his complaint on 22 October 2003, he had failed to observe the six-month
time-limit.
The applicant did not comment on this point.
The Court reiterates that, as a rule, the six-month period runs from the date of the final
decision in the process of exhaustion of domestic remedies. However, where it
is clear from the outset that no effective remedy is available to the
applicant, the period runs from the date of the acts or measures complained of,
or from the date of knowledge of that act or its effect on or prejudice to the
applicant. Nor can Article 35 § 1 be interpreted in a manner which would
require an applicant to seize the Court of his complaint before his position in
connection with the matter has been finally settled at the domestic level (see Varnava
and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90,
16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009).
32. The Court notes that
according to the domestic law of the respondent State, interceptions can be
subject to expert examination within the trial of the person concerned. Therefore,
the Court sees no reason to exclude that the domestic courts could declare an interception
unlawful. The interested party could then seek compensation under the
provisions of the general tort law, namely Articles 998-999 of the former Civil
Code. Furthermore, after 1 January 2004 the Code of Criminal Procedure
regulated the storage of data obtained through telephone tapping and gave the
courts the power to order the destruction of intercepted data which was not
used as evidence in the file. It also imposed on the persons involved with
tapping and recording an obligation to refrain from disclosing details of the
operation.
. Moreover,
it is possible for the domestic courts of the respondent State to apply the
Convention provisions directly and to find in a particular situation that a
certain national legal provision contradicts Article 8 of the Convention (see Dumitru
Popescu, cited above, §§ 101-103).
. The
Court also observes that a person affected by interception could seek by means
of a separate action against the authorities, at least after 1 January
2004, to have the courts declare the interception unlawful and award
compensation (see Patriciu v. Romania (dec.), no. 43750/05, § 86,
17 January 2012, and also, mutatis mutandis, Tokarczyk v. Poland (dec.), no. 51792/99,
31 January 2002).
. The
Court considers that, in the absence of any specific arguments from the
Government, all the above means of action should be considered equally available
to a person who contests the lawfulness of interception. In such circumstances,
the choice of methods used belongs entirely to an applicant who, if he has
exhausted a remedy that is apparently effective and sufficient, cannot be
required to have also tried to make use of others that were available but
probably no more likely to be successful (see Aquilina v. Malta
[GC], no. 25642/94, § 39, ECHR 1999-III).
. In
the present case, the Court notes that the applicant contested the lawfulness of
the recordings and the accuracy of the transcripts throughout the domestic
proceedings. Furthermore, when legislative changes were brought into force on 1
January 2004, increasing the courts’ powers concerning interception, the
applicant’s case was pending before the appeal court, which had full
jurisdiction to examine the merits of his complaint (see paragraphs 19 and subsequent, above).
In this respect, the present case differs
essentially from Begu v. Romania (no. 20448/02, 15
March 2011), where the Court concluded that the applicant, who had been
convicted by a final decision of 22 December 2003, thus before the new
provisions of the Code of Criminal Procedure became enforceable, had no
effective remedy to complain about the interception affecting him (see Begu,
cited above, § 147).
. It
follows that the choice made by the applicant in the present case to contest
the lawfulness of the interception and covert recording during the trial
against him constituted an effective remedy, in the particular circumstances of
the case. It was therefore sensible for him to await the outcome of the
domestic proceedings before lodging his complaint under Article 8 with the
Court.
The Government’s preliminary objection of
non-observance of the six-month rule will therefore be dismissed.
3. The overall admissibility of the complaint
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
1. The parties’ arguments
The applicant argued that the prosecutor
ordering the interception and recording of his conversations had not been an
independent legal officer for the purposes of the Convention. He reiterated
that he had lacked the opportunity to listen to the tapes in open court.
Relying on Dumitru Popescu (cited above) and Calmanovici v. Romania
(no. 42250/02, 1 July 2008), he pointed out that the Court had already found
that the system authorising the interception of communications in place at the time
of the facts of the present case had not offered adequate safeguards against
arbitrary interference.
The Government put forward that any interference
which may have arisen in the case had satisfied the requirements of Article 8 §
2 of the Convention. In particular, it had been provided by law, namely
Articles 911- 915 of the Code of Criminal Procedure,
had pursued the legitimate aim of preventing crime and had been proportionate
to its legitimate aim, as the interception had been ordered for a very short
period of time and had only concerned two conversations. They also argued that
the national authorities enjoyed a certain discretion concerning the manner in
which the system of police surveillance was operated.
2. The Court’s assessment
The Court observes at the
outset that the interception and recording of the applicant’s conversations
with R.J. and M.D. are covered by the notions of “private life” and
“correspondence” within the meaning of Article 8 (see, among other authorities,
Craxi v. Italy (no. 2), no. 25337/94, § 57, 17 July
2003; Bykov v. Russia [GC], no. 4378/02, § 72, 10 March 2009;
and Drakšas v. Lithuania, no. 36662/04, § 52, 31 July 2012). It also notes that in the
present case those conversations were recorded on 20 January 2003 based on
an authorisation given by the prosecutor.
The Court has already found that the system authorising
the interception of communications in place at the time of the facts of the
present case lacked proper safeguards and thus breached the requirements of
Article 8, in so far as the prosecutor authorising any surveillance was not
independent from the executive (see Dumitru Popescu, cited above,
§ 71); a prosecutor’s decision to intercept communications was not subject
to a judge’s approval before being carried out (idem, § 72); a person
under surveillance could not challenge before a court the merits of the
interception (idem, § 74); and that there was no mention in the law of
the circumstances in which transcripts should be destroyed (idem, § 79).
Although the interceptions in Dumitru Popescu and Calmanovici, both
cited above, were ordered on the grounds of national security, which was not relied
upon in the present case, the manner in which they were carried out was the
same in both situations. The Court therefore considers that when it was
initiated in the present case the procedure by which the telephone tapping was
authorised also lacked the proper safeguards required by Article 8.
The Court reiterates that the amendments to the
Code of Criminal Procedure came into force during the appeal proceedings in the
present case and thus allowed for increased supervision by the courts of
telephone interceptions (see paragraph 32 above
and Dumitru Popescu, cited above, §§ 82-83). The system in place
established a more rigorous procedure with supplementary safeguards for the
persons concerned. The Court will therefore only assess how those guarantees were
applied by the national authorities to the applicant’s particular situation (see
Klass and Others v. Germany, 6 September 1978, § 33, Series A no.
28).
In this connection, it notes that the domestic
courts did not offer a comprehensive answer to the applicant’s repeated objections
concerning the lawfulness of the authorisation and the accuracy of the
transcripts. They merely noted that the report made by the prosecutor concerning
the recordings, together with the tapes, had been attached to the court file. They
accepted without questioning the prosecutor’s refusal to present the
authorisation (see paragraph 14 above).
In acting in this manner, the domestic court
deprived the safeguards provided by the new legislation of the respondent State
of all meaning. Moreover, because the courts did not examine the lawfulness of
the recordings or the accuracy of the transcripts, the applicant could not
avail himself of the possibility to seek their destruction under the provisions
of the Code of Criminal Procedure in force after 1 January 2004, or to seek
compensation for unlawful interception under the general tort law.
For these reasons, the
Court considers that in the present case there has been a violation of Article 8
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
Under Article 6 §§ 1 and 3 (d) of the Convention,
the applicant alleged that the courts had not interpreted the evidence
correctly and had not given reasons for their decisions. He further complained that
the actions of the prosecutor culminating in his arrest had been unlawful, that
R.J. and M.D. had been instructed by the prosecutor how to behave and what to say
during the investigation, that the sum allegedly received as a bribe had been planted
in his office, and that the conversations recorded by the prosecutor had not clearly
shown whether the money had been meant for him or for S.D. He also complained
that the prosecutor had not disclosed the authorisation for interception to the
courts. He relied on Article 6 §§ 1 and 3 (d) of the Convention.
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal
...”
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(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; ...”
1. The parties’ arguments
The Government raised a preliminary plea of
non-exhaustion of domestic remedies, contending that the applicant had not
complained before the domestic courts of a denial of his right to adduce
witness evidence. They further argued that he had made no request for
additional evidence to be brought before the appeal courts. They also pointed
out that the applicant had availed himself of the opportunities offered during
the proceedings to challenge the authenticity of the transcripts and to oppose
their use; however, he had not asked for an expert examination of the tapes. In
any event, they noted that the transcripts were not the only evidence on which
the courts had based their decisions.
In his observations in reply to those presented
by the Government, the applicant averred that he had never been heard by the
courts deciding on the merits of his case after the quashing of the first
decision. The courts had failed to review the lawfulness of the recordings and
the accuracy of the transcripts. They had based their decisions on evidence
gathered by the prosecutor or admitted by the first-instance court (whose judgment
had been quashed) and had failed to examine the evidence directly.
2. The Court’s assessment
(a) General principles
. At
the outset, the Court points out that the guarantees enshrined in
paragraph 3 of Article 6 represent specific applications of the general
principle stated in paragraph 1 of that Article and for this reason it will
examine them together (see, among many others, Deweer v. Belgium, 27 February
1980, § 56, Series A no. 35; Doorson v. the Netherlands, 26 March
1996, § 66, Reports of Judgments and Decisions 1996-II; and Artico
v. Italy, 13 May 1980, § 32, Series A no. 37).
The Court further
reiterates that it is not competent to deal with an application alleging that
errors of fact or law have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of any of
the rights and freedoms set out in the Convention (see Bykov, cited
above, § 88). Moreover, it is not its role to examine legislation in the
abstract, but to consider the manner in which it affected the applicant (see, mutatis
mutandis, Klass and Others v. Germany, 6 September 1978, § 33, Series
A no. 28).
While Article 6 guarantees the right to a fair
hearing, it does not lay down any rules on the admissibility of evidence as
such, which is primarily a matter for regulation under national law (see Brualla
Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports 1997-VIII,
and García Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999-I). It is therefore not for the Court to determine, as a
matter of principle, whether particular types of evidence - for example, evidence
obtained unlawfully in terms of domestic law - may be admissible or, indeed,
whether the applicant was guilty or not. The question which must be answered is
whether the proceedings as a whole, including the way in which the evidence was
obtained, were fair. This involves an examination of the “unlawfulness” in
question and, where a violation of another Convention right is concerned, the
nature of the violation found.
In determining whether the proceedings as a
whole were fair, regard must also be had to whether the rights of the defence
were respected. It must be examined in particular whether the applicant was
given the opportunity of challenging the authenticity of the evidence and of
opposing its use. In addition, the quality of the evidence must be taken into
consideration, including whether the circumstances in which it was obtained
cast doubt on its reliability or accuracy (see Bykov, cited above, §
90).
(b) Application of those principles to the case at
hand
The Court observes that pursuant to the relevant
provisions of the Code of Criminal Procedure, the domestic courts accepted as
evidence in the case file the transcripts of the conversations intercepted by
the prosecutor.
. The
Court highlights that evidence does not have a pre-determined role in the
respondent State’s rules of criminal procedure. The courts are free to
interpret a piece of evidence in the context of the case and in the light of
all the other evidence before them (see Dumitru Popescu, cited above,
§ 110). In the case at hand, the recordings were not treated by the courts
as a plain confession or an admission of knowledge capable of lying at the core
of a finding of guilt (see Bykov, cited above, § 103).
The Court is satisfied that the domestic courts
based their decisions on a substantial body of evidence: they heard testimony
from several witnesses for the prosecution and for the defence, and took the
opportunity to study the conflicting positions and to explain their views on them
in the course of their examination of the case. They also gave reasons for
dismissing further claims by the defence.
Lastly, the Court notes that the applicant
complained in his observations that he had not been heard in person by the
courts in the second set of proceedings. The Court notes at the outset that the
applicant failed to raise this argument in the domestic proceedings or in his
initial application with the Court.
It follows that this
complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained that he had been kept
in pre-trial detention for a period of over ten months without relevant or
sufficient reasons. In addition, he considered that the domestic courts had not
taken into account his personal situation and the absence of any danger posed
by him to the public order.
The complaint was communicated 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.”
A. The parties’ arguments
Relying on Wemhoff v. Germany (27 June
1968, Series A no. 7), B. v. Austria (28 March 1990, Series A no.
175) and Labita v. Italy [GC] (no. 26772/95, ECHR 2000-IV), the
Government contended that, for the purposes of Article 5 § 3 of the Convention,
the applicant had been detained from 21 January 2003 to 18 June 2003 and from 9
September 2003 to 1 November 2003, that is for a total of seven months and
nine days.
They averred that the applicant’s continued detention had been
justified in the light of the weighty evidence against him, had been reviewed at
regular intervals by a judge and had not been unreasonably lengthy. They cited Erimescu
v. Romania ((dec.), no. 33762/05, 18 January 2011).
The applicant contended that the domestic courts
had given only summary reasons using standard wording for their decisions
extending his detention which, in his view, had not satisfied the requirements
of Article 5 § 3 of the Convention.
B. The Court’s assessment
1. General principles
The Court reiterates that
a person charged with an offence must always be released pending trial unless
the State can show that there are “relevant and sufficient” reasons to justify
continued detention. Justification for any period of detention, no matter how
short, must be convincingly demonstrated by the authorities. Quasi-automatic
prolongation of detention contravenes the guarantees set forth in Article 5 § 3
(see Tase v. Romania, no. 29761/02, § 40, 10 June 2008).
It also reiterates that,
generally speaking, when determining the length of detention pending trial
under Article 5 § 3 of the Convention, the period to be taken into
consideration begins on the day the accused is taken into custody and ends on
the day when the charge is determined, even if only by a court of first
instance, or, possibly, when the applicant is released from custody pending
criminal proceedings against him (see, for more recent authority, Idalov
v. Russia [GC], no. 5826/03, § 112, 22 May 2012).
. The
Court has developed in its case-law four fundamental justifications for
detention pending-trial: the danger of absconding, of tampering with evidence, of
repetition of the offence(s) or of disturbance to the public order (see Calmanovici,
cited above, § 93; Georgiou v. Greece (dec.), no. 8710/08, 22 March
2011; and the cases cited therein). Furthermore, the
question whether a period of time spent in pre-trial detention is reasonable
cannot be assessed in the abstract. Whether it is reasonable for an accused to
remain in detention must be assessed on the facts of each case and according to
its specific features. Continued detention can be justified in a given case
only if there are actual indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the Convention (see Idalov,
cited above, § 139; McKay v. the United Kingdom [GC], no.
543/03, §§ 42 and 45, ECHR 2006-X; and Bujac
v. Romania, no. 37217/03, § 68,
2 November 2010).
2. Application of those principles to the present case
The Court notes at the outset that the applicant
was first placed in pre-trial detention on 21 January 2003. He was convicted by
a first-instance court on 18 June 2003, but that conviction was declared null
and void in a decision of 9 September 2003. The applicant’s detention was
subsequently extended at steady intervals until a judgment was adopted by the
first-instance court on 20 November 2003.
Therefore, assuming that the detention was continuous from
21 January 2003 to 21 November 2003 and fell entirely within the
ambit of Article 5 § 3, the applicant spent at most a total
amount of ten months in pre-trial detention for the purposes of this provision (see
Wemhoff, cited above, § 9).
The Court will look into the manner in which the
domestic courts extended this detention and whether they gave relevant and
sufficient reasons for their decisions.
At the outset, the Court notes that, in
application of the rules established at the domestic level, the courts extended
the applicant’s detention every thirty days. The applicant systematically
contested those extension orders and sought to be released pending trial.
The Court notes that the domestic courts based
their decision to keep the applicant in detention mainly on the impact of the
alleged crimes on the public order. In doing so, they undertook an examination
of the particular circumstances of the case and gave specific reasons based on
the applicant’s personal situation and that the evidence gathered suggested he
had committed the offence (see paragraph 10 above).
It is to be noted that the reasons given by the
domestic courts remained the same throughout the proceedings (gravity of the
crimes and impact on the public order). However, the Court considers that such an
occurrence was legitimate, notably given the relatively short period of time
between the two examinations by those courts of the reasons for extending the
applicant’s detention (see Medinţu v. Romania (dec.), no. 5623/04,
§ 47, 13 November 2012, and Georgiou (dec.), cited above). Moreover,
their reasoning was neither succinct nor formulaic, and took into account
developments in the trial proceedings (see, a contrario, Begu,
cited above, § 86, and paragraph 10 above).
In the light of the particular circumstances of
the case, the Court considers that the domestic authorities offered relevant and
sufficient reasons for extending the applicant’s pre-trial detention, which,
overall, was not excessively long.
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.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that the
prosecutor had not been qualified, under Article 5 § 3 of the Convention, to
arrest him on 20 January 2003. However, the Court observes that the
applicant was brought before a judge who examined the lawfulness of his
detention on 11 February 2003. Therefore, in lodging his application with
the Court on 22 October 2003 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.
V. 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 1,000,000 euros (EUR) in respect of pecuniary damage, representing the
salary he had not been paid because of the criminal proceedings, the cost of
supporting his family, the costs incurred during his detention and the damage
caused by his inability to find a job because of his conviction. He also sought
EUR 200,000 in respect of non-pecuniary damage.
The Government contended that the applicant had
failed to substantiate his claims. They also argued that there was no causal
link between the alleged violations and his pecuniary claims. They considered
that the non-pecuniary claims were exaggerated and that the finding of a
violation could in itself represent sufficient reparation.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 4,500 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 9,000 for costs
and expenses incurred before the Court, comprising the cost of translations,
postage and lawyers’ fees.
The Government pointed out that the applicant
had not substantiated his claims.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the above
criteria and to the lack of any documents justifying the costs and expenses
claimed, the Court rejects the claim.
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 Article 8
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, in
respect of non-pecuniary damage, EUR 4,500 (four thousand five hundred euros)
plus any tax that may be chargeable, to be converted into the respondent State’s national currency 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 July 2013,
pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall Registrar President
