THIRD
SECTION
CASE OF LEONTIN POP v. ROMANIA
(Application
no. 1956/06)
JUDGMENT
STRASBOURG
1 October 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 Leontin Pop 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,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section
Registrar,
Having deliberated in private on 10 September
2013,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
. The case
originated in an application (no. 1956/06) 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 Leontin Pop
(“the applicant”), on 29 December 2005.
. The
applicant was represented by Ms O. R. Pintea, a lawyer practising in Cluj
Napoca. The Romanian Government (“the Government”) were initially represented by their Agents, Mr R.-H. Radu, and
subsequently by Ms I. Cambrea.
. The applicant
complained under Article 5 of the Convention that he had been held in pre-trial
detention for an unreasonably long period of time, and that the domestic courts
had provided only summary reasoning for keeping him in pre-trial detention.
Relying on Article 6 of the Convention, he also complained of lack of
impartiality of domestic judges and about the evidence used for his conviction.
. On 21 October 2010 the application was
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 1954 and lives in Cluj-Napoca.
A. Background to the case
The applicant and several other
persons were charged in criminal proceedings concerning five international
drug-trafficking networks. The proceedings were widely reported in the media,
as they concerned one of the biggest drug-trafficking cases investigated by the
Romanian authorities at the time.
B. The events leading to the
applicant’s arrest
7. On the night of 9
to 10 April 2003, a lorry entering Romania from Turkey had its papers checked by
customs officers at the Negru Vodă checkpoint. As the customs officers had
identified certain irregularities in connection with the transportation
documents, they decided to carry out a search of the lorry in the presence of a
prosecutor.
8. The prosecutor
unsealed the lorry and inspected its contents in the presence of the customs
authorities. A large quantity of heroin (174 kilograms) was found hidden in
its load. A report was immediately drawn up. Photographs of the packets of
heroin were taken and attached to the report.
9. The lorry driver,
S.I.V, was questioned by the prosecutor. He signed the search report without
raising any objections to its findings. He stated that the lorry belonged to
the applicant’s company and that the applicant had been in Turkey when the
loading of the lorry took place. This led to the commencement of the criminal
investigation against the applicant.
10. The packets of heroin,
the load, and the lorry itself were retained in the interest of the
investigation. A new search of the lorry was carried out on the same day in
Constanța. Two assistant witnesses signed the report drafted on that occasion.
11. On 10 April 2003,
on the basis of the outcome of the inspection of the lorry, the prosecutor
ordered a search at the applicant’s company. In the presence of two assistant
witnesses, the investigators found relevant documents, which were confiscated
for the purpose of investigation. On the same date a search was carried out at
a former office of the applicant’s company, where documents were found and
confiscated. Search reports were drawn up in both occasions.
C. The applicant’s arrest and
pre-trial detention
. The
applicant was arrested on 10 April 2003 in Bucharest, immediately after he
arrived from Turkey. On the night of 10 to 11 April he was taken to
Constanța, to the Local Centre for the Fight against Organised Crime and
Drug Trafficking.
. On 15
July, 4 and 28 September 2003 the Bucharest County Court extended the applicant’s
pre-trial detention by interlocutory judgments concerning all the accused
persons who had been arrested in the criminal investigation. The reasons
adduced to justify this measure were: the existence of reasonable suspicion
that the accused had committed the offences alleged; the gravity and the nature
of the offences alleged; and the necessity for further procedural acts (including
extension of the investigations to involve other individuals, checking of the
criminal record of the accused, obtaining lists of telephone calls between those
accused, and site investigations.)
. On 23
October 2003, at the first hearing on the merits, the Bucharest County Court reviewed
the lawfulness of the accused’s pre-trial detention. It held that their
detention was justified, as there was a reasonable suspicion that they had
committed the offences alleged, and that their release could obstruct the
course of justice. It also held that the nature of the offences, the large
number of accused, and the fact that they were organised in networks were all
evidence of a danger to public order.
15. The accused’s
detention was repeatedly extended. The first-instance court decided each time
that the initial reasons that justified their detention persisted. The
applicant lodged appeals against the interlocutory judgments issued; all the
appeals were dismissed by final decisions of the Bucharest Court of Appeal,
without additional reasons being given.
. Between
12 February 2004 and 4 October 2005, when a judgment on the merits was
delivered, all interlocutory judgments extending the applicant’s pre-trial
detention were delivered by the same judge, Judge M.
. On 15
June 2005, taking into account the progress of the judicial investigation and
the already lengthy duration of the pre-trial detention, Judge M. decided to
replace pre-trial detention with an obligation not to leave the country, in
respect of all the accused. She held that despite the existence of strong
indications that the accused had committed the offences, keeping the accused in
detention was no longer necessary for the good administration of justice. She
also held that public order would not be affected if the accused were released
from pre-trial detention. The prosecutor lodged an appeal. Over the following
days, according to the applicant, the prosecutors directed a nationwide media
campaign through newspapers and television programms, and the day before the
delivery of the appeal decision the prosecutor attached to the High Court of
Cassation and Justice issued a press release in which it stated that the
release decision had been taken following a bribe of one million dollars paid
by an organised crime network from Turkey.
. On 17
June 2005 the Bucharest Court of Appeal allowed the prosecutor’s appeal, judging
that the first-instance court had erred in finding that the reasons which had
so far justified the pre-trial detention had changed. It considered that the
requirement of a reasonable length of proceedings needed to be considered in
the light of the complexity of the case, which involved many accused, and that
it was for the first-instance court to speed up the proceedings.
D. The proceedings on the merits of
the case
. On 25
September 2003 the prosecutor issued an indictment in respect of twenty-six
accused persons, including the applicant, and the file was registered with the
Bucharest County Court the next day. The indictment also indicated that ten of
the accused had absconded from investigations.
. The
judicial investigation before the first-instance court lasted from
26 September 2003 until 4 October 2005, when the first-instance judgment
was delivered.
. On 6
September 2004 the County Court decided to disjoin the case in respect of the
co-accused who had absconded, given that the proceedings concerning them were
more complex and this was likely to affect the length of the trial.
. The
applicant was assisted by a lawyer of his choice throughout the proceedings.
. The
County Court took statements from the accused and witnesses from 14 October
2004 onwards.
24. In his statements before the prosecutor and the
first-instance court, I.P., one of the co-accused, gave a chronological account of events, starting
with the moment of meeting the supplier of the drugs from Turkey, the
connection with the applicant, the organisation of the criminal activity, the
method used to bring the drugs into the country, an indication of who was involved,
and the amounts of money obtained by each participant from the operation. I.P. expressly
mentioned that the applicant played a prominent part in the operation of the
criminal network, as he provided the means of transportation and the documents
necessary to disguise the criminal activity in a legal trade.
25. According to
I.P., the applicant went to Turkey to give him the keys of the lorry and to see
for himself that there were no problems with the loading of the heroin, as the
lorry drivers were not aware of the presence of the drugs hidden in the load.
26. I.P.’s statements
revealed aspects of fact confirmed by four witnesses who had driven the
applicant’s lorry, thus the merchandise had been transported from Turkey to
Romania on four occasions. All four drivers confirmed that the applicant had accompanied
them to Turkey, being present on each occasion when the merchandise was loaded
into the lorry. Once the merchandise had been loaded the applicant went back to
Romania by bus, not before asking them to call him each
time they crossed a border, to inform him whether there were any problems.
. On 29 September
2005 the judicial investigation was closed and the lawyers of the accused or
the accused themselves submitted their arguments on the merits of the case.
. By a
first-instance judgment of 4 October 2005 a single-judge panel of the Bucharest
County Court, namely Judge M., found the applicant guilty and sentenced him to
sixteen years’ imprisonment. He was found guilty of taking part in
international drug trafficking by facilitating the transport of drugs from
Turkey to Romania, in a lorry belonging to his company. His conviction was
based on statements by I.P., who was considered to have been the link between
the distributors in Turkey and the buyers in Romania, as corroborated by the
statements of some of the other accused and several witnesses. The County Court
found the arguments raised by the applicant in his defence inconsistent and illogical.
It also concluded that the requests to adduce technical evidence concerning the
state of the lorry and its itinerary in Turkey were not pertinent to the case,
since the evidence already adduced established the relationship between the
applicant and I.P. and the illicit nature of their cooperation.
E. The appeal proceedings
. The
applicant lodged an appeal against the judgment of the first-instance
court, complaining, inter alia, of lack of impartiality on the part of Judge
M., excessive length of pre-trial detention, and wrong assessment of evidence.
. During
the appeal proceedings on 2 December 2005 the accused, including the applicant,
lodged a challenge against the Bucharest Court of Appeal. Their request was
reviewed by the High Court of Cassation and Justice. The accused contested the
impartiality of all the judges of the court of appeal, as they had regularly reviewed
the decisions of the first-instance court to extend their pre-trial detention, which
ultimately lasted two years and four months. At the hearing the High Court of
Cassation and Justice decided to extend the pre-trial detention of the accused,
and postponed a ruling on the challenge to 5 December 2005. The challenge
was dismissed as unfounded on this later date.
. The
applicant’s appeal against the first-instance judgment was dismissed by a
decision of the Bucharest Court of Appeal on 7 June 2006.
. The
applicant lodged an appeal on points of law, claiming, inter alia, that
the lower courts had unlawfully relied in their decisions on the statements of
I.P., which were not corroborated by the statements of five of the other
accused, and which I.P. had given with a view to securing a milder sentence for
himself; that the search of the lorry had been unlawful; and that he had been
denied the opportunity to adduce evidence that could have proved his innocence
(including technical information on the itinerary of the lorry in Turkey). The
applicant also complained that the domestic courts had been influenced by the
media when delivering their judgments on the merits, and that they had not been
impartial, given that they had prejudged his case, in delivering their
decisions confirming the lawfulness of his pre-trial detention.
33. By a final
decision of the High Court of Cassation and Justice of 14 June 2007, the
applicant’s appeal on points of law was allowed in part in respect of the
gravity of the sentence, and his sentence was reduced to eight years’
imprisonment. The High Court of Cassation examined the
first-instance court’s findings and noted that that court had carried out a
thorough and extensive examination of the evidence put before it and that the
reasoning given was in all respects convincing.
II. RELEVANT DOMESTIC LAW
. The
relevant domestic provisions of the Romanian Code of Criminal Procedure (CCP)
concerning the pre-trial detention as in force at the material time are set
forth in the case of Riccardi v. Romania (no. 3048/04,
§§ 42-43, 3 April 2012).
The provisions of Law no. 143/2000 on the
fight against drug trafficking and illegal drug use (“Law no. 143/2000”) are
described in Constantin
and Stoian v. Romania (nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5
§ 3 OF THE CONVENTION
36. The applicant
complained that he had been held in pre-trial detention
for an unreasonably long period of time and that the domestic courts had provided
only summary reasoning for their decision to keep him in pre-trial detention in
breach of Article 5 §§ 3 and 4 of the Convention,
which reads as follows:
“3. 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.”
4. Everyone
who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.”
. The
Court considers that the above complaints fall to be examined solely under
Article 5 § 3 of the Convention, and that it is not necessary to also examine them
under Article 5 § 4 of the Convention provisions relied on by the applicant (see Riccardi, cited above, § 79).
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
1. The parties’ submissions
. The
applicant argued that the domestic courts had extended his pre-trial
detention for an excessively long time without relying on any relevant evidence
to justify their view that releasing him would have posed a danger to public
order.
. The
Government submitted that the applicant’s pre-trial detention could not
be considered excessive, because of the complexity of the case, which concerned
drug trafficking committed by an organised criminal group acting internationally.
They also emphasised the large number of accused and hence the difficulty the investigating
authorities faced in establishing the facts and the degree of responsibility of
each member of the group. The Government concluded by noting that the
authorities had taken effective action in dealing with the case, and that there
had not been any delays for which they could be held liable. The Government
further argued that the domestic courts had repeatedly assessed and extended
the applicant’s detention, taking his arguments into consideration and
providing relevant and sufficient reasons.
2. The Court’s assessment
(a) General principles
. The
Court will examine the applicant’s complaint in the light of the general
principles emerging from its case-law concerning the reasonableness of
detention within the meaning of Article 5 § 3 of the Convention (see Calmanovici v. Romania, no. 42250/02, §§ 90-94,
1 July 2008, and Tiron v. Romania, no. 17689/03, § 36, 7 July
2009).
The Court reiterates that 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 basis of 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, among other
authorities, Kudła v. Poland [GC], no. 30210/96, §§
110 et seq., ECHR 2000-XI).
The existence and persistence of a reasonable suspicion
that the person arrested has committed an offence is a sine qua non condition
for the lawfulness of the continued detention. However, after a certain lapse
of time it no longer suffices. In such cases, the Court must establish whether
the other grounds given by the judicial authorities continue to justify the
deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the
Court must also ascertain whether the competent national authorities have displayed
“special diligence” in the conduct of the proceedings (see Labita v.
Italy [GC], no. 26772/95, §§ 152 and 153,
ECHR 2000-IV). Justification
for any period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).
. Lastly,
the Court accepts that in cases involving numerous accused, the risk that if
released a detainee might put pressure on witnesses or otherwise obstruct the
proceedings is often particularly high. All these factors can justify a
relatively long period of detention. However, they do not give the authorities
unlimited power to extend this preventive measure (see Osuch v. Poland,
no. 31246/02, § 26, 14 November 2006). The fact that a person is charged with
acting in a criminal conspiracy is not in itself sufficient to justify long
periods of detention; his personal circumstances and behaviour must always be
taken into account (see Velichko v. Russia, no. 19664/07, § 87, 15
January 2013).
(b) Application of these principles
to the present case
. The Court notes from the outset that
the applicant was held in pre-trial
detention from the date of his arrest on 10 April 2003 until he was sentenced
following the first-instance judgment on 4 October 2005 that is for a
total duration of two years, five months and twenty-four days.
. The
Court notes in the present case that the domestic courts regularly and
repeatedly extended the applicant’s pre-trial detention. It also notes
the abstract and brief reasoning in the domestic courts’ judgments, which were
limited to mentioning certain grounds provided for by the CCP, but failed to
explain how this criteria came into play in the applicant’s case (see Calmanovici,
cited above, §§ 97-98). Moreover, the court orders maintaining detention almost
always used identical and even stereotyped wording, and relied repeatedly on
the same criteria, a practice which cannot be considered to comply with the
requirements of Article 5 § 3 of the Convention (see Mansur v. Turkey, 8
June 1995, § 55, Series A no. 319-B, and Tiron, cited above, §
39). The court considered all the accused together, without any individual
analysis of their personal circumstances (see paragraph 13).
. The
Court accepts that the applicant’s detention may initially have been warranted
by a reasonable suspicion that he had committed serious offences. However, with
the passage of time those grounds inevitably became less sufficient.
Accordingly, the domestic authorities were under an obligation to examine the
applicant’s personal situation in greater detail and to give specific reasons
for holding him in custody (see I.A. v. France, 23 September
1998, §§ 104-05, Reports of Judgments and
Decisions 1998-VII, Tiron, cited
above, § 40 and Luković v.
Serbia, no. 43808/07, § 50, 26 March 2013)
. Lastly,
the Court emphasises that when deciding whether a person should be released or
detained the authorities have an obligation under Article 5 § 3 to consider
alternative measures of ensuring his or her appearance at trial (see Jabłoński
v. Poland, no. 33492/96, § 83, 21 December 2000). In the present case,
the authorities did not consider the possibility of ensuring his attendance by
the use of other “preventive measures” which are expressly provided for by
Romanian law to ensure the proper conduct of criminal proceedings.
. Having
regard to the above, the Court considers that by failing to address the
specific facts of the case or consider alternative “preventive measures”, the
authorities extended the applicant’s detention on grounds which, although
“relevant”, cannot be regarded as “sufficient” to justify the applicant’s remaining
in custody for two years and four months. It holds that the applicant’s
pre-trial detention was unreasonably long.
There has accordingly been a violation of Article
5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE
6 § 1 OF THE CONVENTION
. The
applicant complained that he had not had a fair trial. He alleged in
particular:
(i) that the judges ruling in the
first-instance and appeal proceedings lacked impartiality, as they were
the same judges who had kept him in pre-trial detention for the duration
of the trial;
(ii) that the domestic courts had based
their decisions on evidence obtained during searches carried out unlawfully, and
that his sentence was based to a large extent on the statements of one of his co-accused.
The applicant relied on Article 6 § 1 of the
Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Alleged lack of impartiality of
judges
1. The parties’ submissions
. The Government submitted that the
applicant had raised this complaint before the
domestic courts only on 19 May 2008, two years after he had lodged his
application with the Court on 5 March 2006.
. The applicant submitted that Judge M., who had presided over the
single-judge panel of the Bucharest County Court which had convicted him and
sentenced him to sixteen years’ imprisonment, had also extended his pre-trial
detention. The applicant contended that as the judge who had extended
his pre-trial detention Judge M. had already formed an opinion about the
charges against him. As regards all judges of the Bucharest Court of Appeal,
the applicant contended that they lacked impartiality because they regularly
reviewed the decisions of the first-instance court to extend his pre-trial
detention.
2. The Court’s assessment
. The
Court reiterates that Article 6 of the Convention requires courts to be
independent and impartial. The existence of impartiality for the purposes of
Article 6 § 1 must be determined according to a subjective test, that is on the
basis of the personal conviction of a particular judge in a given case, and
also according to an objective test, that is ascertaining whether the tribunal
offered guarantees sufficient to exclude any legitimate doubt in this respect
(see Hauschildt v. Denmark, 24 May 1989, § 46,
Series A no. 154 and Micallef v. Malta [GC], no. 17056/06, § 63, ECHR 2009). In the present case
the objective test is at issue, as the applicant did not complain of personal
bias against him on the part of the judges.
The Court also reiterates that
the mere fact that a trial judge or an appeal judge has also made pre-trial
decisions in the case, including those concerning pre-trial detention, cannot
be held as in itself justifying fears as to the judge’s impartiality; there would
need to be special circumstances for a different conclusion to be warranted (see
Hauschildt, cited above, § 50).
(a) As regards Judge M.’s
impartiality
. In the present case, the Court notes that Judge M. was the judge who repeatedly extended
the applicant’s pre-trial detention between 12 February 2004 and 4 October 2005.
. The
Court also notes that the applicant never argued that the decisions by which
his pre-trial detention had been extended had not been served on him or that he
had been unaware of the composition of the panel which had decided on his
detention.
. The
trial in the applicant’s case ended on 4 October 2005, and Judge M. found the
applicant guilty of drug trafficking and sentenced him to sixteen years’
imprisonment. It is undisputed between the parties that during the period of
more than one year in which the applicant’s trial was being conducted before the
single-judge panel presided over by Judge M., he never lodged any complaints
alleging a lack of impartiality on the part of that judge, even though he was
aware of Judge M.’s previous involvement in his case. The applicant raised the
complaint concerning that judge’s alleged lack of impartiality for the first
time in his appeal lodged with the Bucharest Court of Appeal against the
first-instance judgment, which had been unfavourable to him.
. In view
of the relevant domestic law, the Court sees no reason why the applicant could
not have submitted a request for Judge M. to withdraw before she delivered the
first decision on the merits. Moreover, the applicant never argued that he had
been prevented from making such a request or from otherwise complaining about
the composition of the trial panel during the period of more than one year
while the proceedings were pending before the trial panel presided over by
Judge M.
. In this
connection the Court has held that the existence of national procedures for
ensuring impartiality, namely rules regulating the withdrawal
of judges, are a relevant factor. The existence of such rules displays the
national legislature’s concern to remove all reasonable doubts as to the
impartiality of the judge or court concerned, and also constitutes an attempt
to ensure impartiality by eliminating the causes of such concerns (see Mežnarić v. Croatia,
no. 71615/01, § 27, 15 July 2005). Therefore, the Court considers that
when the domestic law offers the possibility of eliminating the causes of
concerns regarding the impartiality of the court or a judge, it would be
expected (and in terms of the national law required) of an applicant who truly believed
that there were arguable concerns on that account to raise them at the first
opportunity. This would above all allow the domestic authorities to examine the
applicant’s complaints at the relevant time and to ensure that his rights are
respected.
. In the
present case, however, the applicant, who was assisted by a lawyer, failed to
use the opportunity to submit his complaints about the composition of the trial
court or Judge M.’s alleged lack of impartiality at the trial stage of the
proceedings.
. Furthermore,
the Court notes that on 15 June 2005 Judge M. ordered the replacement of the
applicant’s pre-trial detention with an obligation not to leave the city. She
held that there were no longer strong indications that the applicant’s release
from detention would pose a danger to public order or the good administration
of the pending trial. However, it was the Bucharest Court of Appeal which
allowed the prosecutor’s appeal and quashed the interlocutory judgment of 15
June 2005, considering that the initial reasons for keeping the accused in
detention persisted.
. The
Court further observes that the findings of the first-instance judge on the
merits of the case were upheld by a three-judge panel of the Bucharest Court of
Appeal, which dismissed the applicant’s appeal. The reasoning of the
first-instance judge was also upheld by the High Court of Cassation and Justice,
which allowed the applicant’s appeal on points of law only in respect of the
individualisation of the imprisonment sentence.
Having regard to the above considerations and
the absence of any prior personal involvement or interest in the subject matter
of the case, the Court does not find that any doubts on the part of the
applicant as to Judge M.’s impartiality would be legitimate.
(b) As regards the impartiality of all the judges of
the Bucharest Court of Appeal
. As regards the alleged lack of
impartiality of all the judges of the Bucharest Court of Appeal on the ground that they regularly reviewed the decisions of the first-instance
court to extend the applicant’s pre-trial detention, the Court considers that
the applicant did not sufficiently substantiate this complaint. He did not
indicate which judges had confirmed the extension of his pre-trial detention
and had also delivered a decision on appeal. Furthermore, the appeal decision
delivered by a three-judge panel was examined by a three-judge panel of the
High Court of Cassation and Justice.
(c) Conclusion
. In the
light of the above it follows that these complaints are manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
B. The evidence used as the basis for
the applicant’s conviction
1. The parties’ submissions
. The
applicant submitted that the evidence collected during the searches of his
lorry and his company’s office had been obtained unlawfully, and that his sentence was based to a large extent on the statements of
I.P., a co-accused, who had an interest in making incriminatory statements
against other persons to secure a milder sentence for himself. He further
contended that the two searches of his lorry were unlawful, as they had been conducted
before a criminal investigation against him had begun, and the report drawn up
after the second search had not been signed by two assisting witnesses as required
by law.
. The
Government contested the applicant’s allegations. They contended that the
prosecutor had lawfully carried out the searches of the lorry and the applicant’s
company office. They also pointed out that I.P.’s statements had been
neither the sole nor the decisive evidence against the applicant, but rather a
piece of evidence supported by a number of other pieces of evidence.
2. The Court’s assessment
(a) General principles
The Court reiterates that, in accordance with
Article 19 of the Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties to the Convention. In particular, it is
not competent to deal with an application alleging that errors of law or fact
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. 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 Schenk v.
Switzerland, 12 July
1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV; and Jalloh v. Germany [GC], no.
54810/00, §§ 94-96, ECHR 2006-IX).
It is therefore not the role of 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 (see Bykov v. Russia [GC],
no. 4378/02, § 89, 10 March 2009).
(b) Application of these principles to the present
case
. In
connection with the applicant’s complaint concerning evidence obtained during searches
allegedly carried out unlawfully, the Court notes that the searches of the
lorry containing drugs were performed in accordance with the applicable
domestic law. As the customs authorities were confronted with a flagrant
offence special procedural rules were applicable. During an investigation of a
flagrant offence the judicial authorities were entitled to carry out whatever
investigative activity is required for the facts to be established and the
perpetrators identified. Besides, the customs authorities’ main duties refer to
the checking of all vehicles passing through the customs point.
. As
regards the applicant’s complaint about the domestic court’s reliance on I.P.’s
testimony, the Court notes that they found his statements coherent and
supported by corroborating evidence. The statements of several
witnesses, as well as part of the applicant’s statements, had supported I.P.’s
statements.
The Court points out that 174 kilograms of
heroin were found in a lorry belonging to the applicant’s company. Furthermore,
the applicant has confirmed that he was in Turkey when the lorry was loaded.
The explanations provided by him to justify his presence in Turkey when the
lorry was loaded, as well as the justifications given by him for coming back to
Romania by bus were not considered credible by the domestic courts.
. Under
these circumstances, the Court is of the opinion that I.P.’s testimony was one
of the several elements which, examined for their individual probative value as
well as in relation to the other available pieces of parallel evidence, led the
Romanian courts to convict the applicant of drug trafficking.
The Court further observes that the applicant
had the benefit of adversarial proceedings, and had a reasonable opportunity to
present his arguments before the courts and contest the evidence submitted. The
first-instance court examined all the evidence before it and, in a detailed and
lengthy judgment, analysed its evaluation and conclusions in this respect. The High
Court of Cassation examined the first-instance court’s findings in this respect,
and noted that that court had carried out a thorough and extensive examination
of the evidence put before it and that the reasoning given was in all respects
convincing.
The Court considers that nothing has been shown
to support the conclusion that the applicant’s defence rights were not properly
complied with in respect of the evidence adduced, or that its evaluation by the
domestic courts was arbitrary.
. 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
The applicant submitted various other complaints
under Articles 3, 5, 6 §§ 1, 2 and 3 (c), and 13 of the Convention. However, 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 the rights and freedoms set out in
the Convention or its Protocols. It follows that this part of the application
is manifestly ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
78. 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 388,184 euros (EUR) in compensation for pecuniary damage and EUR 1,894,000
for non-pecuniary damage.
. The Government
submitted that there is no causal link between the alleged violation of the
Convention and the pecuniary damage claimed by the applicant. As regards the
non-pecuniary damage, they maintained that the amount requested was exorbitant,
and that the finding of a violation would constitute in itself sufficient just
satisfaction.
. 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 3,000 in compensation for non-pecuniary
damage.
B. Costs and expenses
. The applicant
also claimed EUR 6,404 for costs and expenses incurred before the domestic
courts and the Court.
. The
Government submitted that the applicant did not submit any relevant supporting
documents to substantiate his claim.
. 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,
the Court rejects the claim for costs and expenses on the ground that the
applicant did not submit any documents proving that the costs and expenses have
been actually incurred.
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 under
Article 5 § 3 of the Convention concerning the applicant’s pre-trial detention
admissible and the remainder of the application inadmissible;
2. Holds that there has been
a violation of Article 5 § 3 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, EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;
4. Dismisses the remainder
of the applicant’s claim for just satisfaction.
Done in English, and notified in writing
on 1 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
