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THIRD
SECTION
PARTIAL
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
22015/10
by Cătălin VOICU
against Romania
The
European Court of Human Rights (Third Section), sitting on 7 June
2011 as a Chamber composed of:
Josep
Casadevall, President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 12 April 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Cătălin Voicu, is a Romanian national who was
born in 1965 and lives in Bucharest.
- At
the relevant time, the applicant was a senator and had a private
practice as a lawyer.
The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- On
10 December 2009 the Anti-Corruption Department of the Prosecutor’s
Office attached to the High Court of Cassation and Justice (“the
prosecutor” and “the DNA”) started criminal
proceedings against the applicant (urmărirea penală)
on suspicion of trading in influence (traffic de influenţă).
In particular, the prosecutor alleged that: (i) the applicant had
accepted 200,000 euros from a businessman, C.C., in return for using
his connection to a judge, F.C., of the High Court of Cassation and
Justice in order to influence the outcome of a case pending before
that court which concerned a dispute between C.C.’s company and
a state agency; and (ii) that he had accepted money from M.L., under
the pretext of providing legal services through his law firm, in
order to facilitate M.L.’s access to the head of the police
with the aim of discussing criminal investigations that were being
conducted against M.L.
- On
11 December 2009 the applicant was returning home during the day in a
car belonging to the Senate. Close to his home, his route was blocked
by another car. Several armed individuals jumped out, dragged the
applicant from his car and, in front of his neighbours and a crowd of
passers-by, handcuffed him and put him in their car. He was then
taken to the DNA’s headquarters, where he was informed of the
criminal proceedings against him. The applicant gave a statement to
the prosecutor.
- On
the same date, the prosecutor issued an order prohibiting the
applicant from leaving town for thirty days.
- At
the DNA’s headquarters, the applicant found out that he had
been under investigation for a crime against national security.
However, the prosecutor had decided on 27 November 2009 not to
prosecute that offence. The evidence gathered in that investigation,
in particular through intercepting the applicant’s telephone,
had led the investigators to suspect the commission by the applicant
of the crimes of corruption for which he was currently under
investigation by the DNA.
- Upon
the applicant’s request, on 12 January 2010 the prosecutor sent
him a copy of the resolution of 27 November 2009.
- On
9 March 2010 the prosecutor sought, through the Minister of Justice,
the Parliament’s approval for the arrest of the applicant. On
the same date, the DNA issued a press release informing the public
that it had sought authorisation to arrest the applicant. From this
point on, the media took great interest in the case. Excerpts from
the prosecution file and pieces of evidence, in particular,
transcripts of telephone conversations that the applicant had had
with various people including his co-defendants, were published.
- On
12 April 2010 the President of the Republic declared in a TV show
that he knew that the applicant’s telephone had been tapped
since 2008.
- On
24 March 2010 the Senate met to discuss the prosecutor’s
request. The applicant could not participate in the session, as he
was in the hospital at the time. The Senate allowed the prosecutor’s
request.
- Upon
obtaining the Senate’s approval, the prosecutor sent a
detention order to the High Court of Cassation and Justice, which
addressed it in private on 30 March 2010 and upheld it. The applicant
was arrested on the same day.
- Before
the High Court, the applicant’s defence counsel argued that the
Senate’s decision was null and void, as the Minister of Justice
was not authorised to address a request to Parliament’s Chamber
and as the Senate had taken its decision without hearing the
applicant.
- The
High Court dismissed the defence’s arguments, and found that
the proceedings before the Senate had respected the Constitution and
that the decision of 24 March was final and enforceable, no other
State authority having been granted the power to review it.
- The
High Court then took a statement from the applicant and proceeded to
examine the prosecutor’s request for the applicant’s
pre-trial detention. It heard from the parties, reviewed the evidence
presented by the prosecutor and, in a fully reasoned decision,
concluded that there were serious indications and evidence in the
file that the applicant had committed the crimes of which he was
accused and that he had abused his important official position, which
damaged the reputation of the legislature and the judiciary, as well
as the public’s trust in the judicial system. It therefore
considered that the specific danger that the applicant posed to
public order was serious enough to justify his detention.
- Upon
the applicant’s appeal, by a final decision of 2 April 2010 the
High Court, sitting as a nine judge bench, upheld the previous
decision. At the applicant’s request, this hearing was held in
secret and journalists and the public were removed from the
courtroom. The High Court found that the evidence lawfully included
in the file justified a reasonable suspicion that the applicant had
committed the crimes under investigation. It also dismissed the
applicant’s argument as to procedural flaws, in so far as it
found that the prosecutor had heard the applicant on 11 December 2009
and considered that his right to mount a defence had not been
disregarded because of the mere fact that a certain lapse of time had
passed between the date of his statement and that of the arrest
order.
- The
applicant sought his conditional release. On 12 April 2010 the High
Court dismissed his request, on the grounds that the evidence in the
file indicated that the applicant had tried to influence one of the
witnesses and to create false evidence in his defence. It also
considered that the reasons underlying the court decision to place
him in pre-trial detention were still valid, in particular, as such a
short time had passed since that decision.
This
decision became final on 16 April, when the High Court dismissed the
applicant’s appeal.
- On
23 April 2010 the High Court extended the applicant’s pre-trial
detention by thirty days upon the prosecutor’s request. It
noted that the telephone tapping had observed the legal procedure in
place, but reiterated that the admissibility and the assessment of
evidence were to be decided by the court dealing with the merits of
the case. It considered that the evidence in the file offered a
reasonable indication that the applicant had committed the crimes he
was accused of and that his continuous detention was needed given the
difficulty involved in investigating such crimes. It concluded that
the applicant’s detention was justified in the circumstances of
the case and was compatible with the requirements of Article 5 of the
Convention.
The
decision became final on 26 April 2010 when the High Court, sitting
as a nine-judge bench, upheld it.
- On
20 May 2010 the prosecutor indicted the applicant and committed him
to trial (rechizitoriul).
- On
10 June 2010 the applicant again requested that he be released under
judicial supervision. His request was dismissed by the High Court on
16 June 2010. The High Court noted that on 19 April 2010 one of
the witnesses had informed the prosecutor that the applicant had
tried to influence his statements. In addition, the High Court
considered that the nature and severity of the crimes under
investigation justified the applicant’s detention. The decision
became final on 21 June 2010 when the High Court, sitting as a
nine-judge bench, upheld it.
- On
14 July 2010 the High Court, sitting as a trial court, dismissed a
request by the applicant to have the preventive measure changed into
an obligation not to leave town. He argued that the reasons
justifying his initial detention no longer subsisted. The court took
account of the evidence in the file, referred to the European Court’s
case-law and the relevant Council of Europe texts and considered that
the grounds for the applicant’s detention were still valid,
including that he might try to influence witnesses. It also
reiterated that the threat that the crimes under investigation
represented to public order could not be dissociated from the
impression their commission made on society. It also noted the nature
and gravity of the charges, the applicant’s personality and
position during the alleged commission of the offences and the fact
that the trial on the merits had just started. Lastly, it considered
that the time the applicant had spent in pre-trial detention, namely
three months and fourteen days, was reasonable under the standards
set by Article 5 § 3 of the Convention.
- According
to the information available to the Court, the applicant is currently
still in pre-trial detention.
COMPLAINTS
- Under
Article 5 § 1 of the Convention the applicant complained that
the arrest order had been illegal, in so far as he had not been heard
by the prosecutor before his arrest or by the Senate before the
prosecutor’s request had been examined.
- Under
Article 5 § 3 of the Convention the applicant complained that
the courts had refused to take into consideration other preventive
measures that were less restrictive than pre-trial detention.
- Under
Article 6 § 2 of the Convention the applicant complained that
the prosecution file had been made public, which had lead to
widespread coverage of his case, with even the President voicing a
position on the matter, which, in the applicant’s view, had
been incompatible with the proper administration of justice. In
addition, he complained that he had been taken to all the court
hearings concerning the matter in handcuffs and had been kept
handcuffed at those hearings, which had provided journalists with the
opportunity to publish images of him in humiliating circumstances. He
underlined that, despite his repeated requests to the contrary,
journalists had been allowed to attend the court hearings. Under the
same Article, he complained that when extending his pre-trial
detention, the judge had infringed his right to be presumed innocent,
in so far as he had stated that there was solid evidence that the
applicant had committed the crimes in question.
- He
considered that Article 6 § 3 (a) had been violated, as he had
not been informed of the criminal investigation against him for
crimes against national security.
- The
applicant complained under Article 8 § 2 of the Convention that
the telephone tapping had not complied with domestic law, in that it
had lasted more than the 120 days allowed.
THE LAW
A. Complaints under Articles 3 and 8 of the Convention
- Under
Article 6 § 2 of the Convention the applicant complained that
the prosecution file had been made public, which had lead to
widespread coverage of his case – even the President had voiced
a position on the matter – which, in the applicant’s
view, had been incompatible with the proper administration of
justice. In addition, he complained that he had been taken to all the
court hearings concerning the matter in handcuffs and had been kept
in handcuffs throughout those hearings, which had provided
journalists with the opportunity to publish images of him in
humiliating circumstances. He underlined that, despite his repeated
requests to the contrary, the press had been allowed to attend the
court hearings.
- The
Court is master of the characterisation to be given in law to the
facts, and can decide to examine complaints submitted to it under
another Article than that quoted by an applicant (see Guerra and
Others v. Italy, 19 February 1998, § 44, Reports
of Judgments and Decisions 1998 I).
It
therefore considers that the applicant’s allegations of having
been made to wear handcuffs should be examined under Article 3 of the
Convention, and the allegations concerning the widespread coverage of
his case by the media should be examined under Article 8 of the
Convention. These Articles read as follows:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8 (right to respect for private and family
life)
“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.”
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
B. Complaint under Article 5 § 3 of the Convention
- The
applicant, who was arrested on 30 March 2010 and is currently still
in detention, complained that the courts had refused to take into
consideration other preventive measures that were less restrictive
than pre trial detention. He relied on 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.”
- The
Court considers that it cannot, on the basis of the documents at its
disposal, determine the admissibility of this complaint and that it
is therefore necessary, in accordance with Rule 54 § 2 (b) of
the Rules of Court, to give notice of this part of the application to
the respondent Government.
C. Other complaints
1. Complaint under Article 5 § 1 (c) of the
Convention
- The
applicant complained that he had not been heard by the Senate or the
prosecutor before his arrest. He relied on Article 5 § 1 (c) of
the Convention, which in so far as relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...”
- The
Court refers to the general principles established in its case law
concerning the requirements of lawfulness and lack of arbitrariness
of any deprivation of liberty (see, among many other cases, Mooren
v. Germany [GC], no. 11364/03, §§ 72-81, ECHR
2009 ...).
- Applying
those principles to the case under examination, the Court finds that
the domestic law and procedure is in conformity with the Convention
standards and does not raise an issue under Article 5 (see, a
contrario, Tase v. Romania, no. 29761/02, §§
29-30, 10 June 2008) and that the applicant was heard by the
prosecutor on 11 December 2009. Furthermore, the domestic courts have
already addressed these complaints and dismissed them in fully
reasoned decisions given on 30 March and 2 April 2010.
- Therefore,
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 5
§ 1 of the Convention.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. Complaints under Articles 6 §§ 2 and 3,
and 8 of the Convention
- Under
Article 6 § 2 of the Convention, the applicant complained that,
when extending his pre-trial detention, the judge had infringed his
right to be presumed innocent, in so far as he had considered that
there was solid evidence that the applicant had committed the crimes
in question. He also considered that Article 6 § 3 (a) had been
violated, as he had not been informed of the criminal investigation
against him for crimes against national security. Lastly, the
applicant complained under Article 8 § 2 of the Convention that
the telephone tapping had not complied with domestic law, in that it
had lasted more than the 120 days allowed.
- The
relevant provisions of Article 6 of the Convention read as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
...”
- The
Court notes that the criminal case against the applicant is still
pending before a court that has the power to examine such complaints
from the applicant.
It
follows that these complaints are premature and must be rejected
under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s
complaints concerning Articles 3 (being made to wear handcuffs), 5 §
3 c) and 8 (media coverage of the domestic proceedings) of the
Convention;
Declares the remainder of the application inadmissible.
Marialena Tsirli Josep Casadevall
Deputy
Registrar President
