BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
33762/05
by Gheorghe ERIMESCU
against Romania
The
European Court of Human Rights (Third Section), sitting on 18 January
2011 as a Chamber composed of:
Elisabet
Fura,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
judges,
and Santiago Quesada,
Registrar,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Gheorghe Erimescu, is a Romanian national who was born
in 1949 and lives in Timisoara. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
- The
applicant is former trade director of a state-owned electricity
supply company, S. He was prosecuted, together with some twenty other
persons for a series of economic offences related to unlawful public
acquisitions.
The applicant’s pre-trial detention
- In
a decision of 4 April 2005, the prosecutor initiated a criminal
investigation against the applicant and five other persons, following
preliminary investigations which led the authorities to believe that
the general director of the company S. had instructed the applicant
and a few other managers to forge the purchase documents of goods
acquired from private companies in violation of the national
legislation on public acquisitions. The applicant was questioned on
the same date and he admitted that during 2003 the company S.
purchased significant quantities of supplies from four private
companies, without any public tender procedure. He acknowledged that
during 2003 he was instructed by one of the co-defendants to order
the payment of the invoices for the supplies and to complete the
administrative papers. He further indicated that he had lacked the
courage to inform the general director that the price of the products
was very high and that he had to forge the purchase documents by
antedating them.
- The
applicant was detained by the prosecutor on 7 April 2005 at 1 p.m.
for 24 hours.
- On
8 April 2005, the prosecutor issued an arrest warrant for
twenty-nine days against four accused, including the applicant.
The prosecutor indicated that the applicant had tried to tamper with
evidence after the starting of the criminal investigation against the
general director of company S.
- On
the same day, at an unspecified time, the Timiş County Court
began hearing the prosecutor’s request to order the pre-trial
detention for the four accused.
- The
defendants, among them the applicant, were informed of the reasons
for being brought before the court, and statements were taken from
each of them and recorded in writing.
The
legal counsel for each of the four accused took the floor, presenting
the defence’s arguments. The applicant’s representative
called for the dismissal of the prosecutor’s request, claiming
that there was no proof of any pecuniary damage and that one of the
co-accused had obliged the other employees to forge the documents
relating to the public purchases. Later on, each of the accused made
a statement, the applicant requesting to be released.
- After
reviewing all the evidence and analysing the parties’
arguments, the county court delivered an interlocutory judgment the
same day, approving the prosecutor’s request. The reasons for
ordering the pre-trial detention of the four defendants were the
following: the fact that the sentence prescribed by law for the
alleged offences was greater than four years’
imprisonment, the fact that the defendants misused the public
functions entrusted to them, the high value of the pecuniary damage
and the fact that the defendants had tried to forge pieces of
evidence. In this connection, the county court noted that after the
criminal investigation had started, the defendants had intended to
produce forged minutes of the meetings of the commission in charge of
evaluating public tender bids.
- An
appeal against the above-mentioned judgment was dismissed by a final
decision of the Timişoara Court of Appeal of 13 April 2005, with
the same reasoning.
- The
applicant’s pre-trial detention was extended regularly by
interlocutory judgments of the County Court on 3 May, 2 June, 23
June, 20 July 2005 (appeals dismissed by the Timisoara Court of
Appeal on 6 May, 8 June, 27 June and 22 July 2005 respectively).
- The
reasons given by the domestic courts throughout the whole period were
similar to the ones stated above; reference was further made to the
necessity to complete the investigation, by identifying all the
persons involved in these criminal activities, taking statements of
witnesses,
re-hearing the accused, completing the financial and
accounting reports etc. By the end of the period, as the
investigation extended to other persons, the interlocutory judgments
mentioned above concerned ten persons.
- On
8 August 2005, the prosecutor issued an indictment, committing
twenty-four persons, including the applicant, to trial. The
indictment, 190 pages long and based on evidence organised in 29
files, containing each around 400 pages, concluded an
investigation concerning
forty-four persons, employees of
the public company concerned and of the four private companies,
suppliers of the goods purchased allegedly in contravention of public
acquisitions law.
- The
case was then referred to the Timis County Court. A first hearing,
held on 15 August 2005, had been postponed, following a request from
some of the defendants. In a hearing held on 17 August 2005, the
county court verified on its own motion the lawfulness of the
pre-trial detention ordered in respect of ten defendants. After
hearing the parties’ submissions, the county court concluded
that the reasons justifying their pre-trial detention subsisted and
decided to extend it for a period of sixty days. A next hearing
date was set for 17 October 2005.
- On
23 August 2005, the Timisoara Court of Appeal upheld the decision,
emphasising that the defendants’ release would disturb public
order, given the organised nature of the alleged facts and the fact
that some of them, including the applicant, had attempted to tamper
with evidence while the investigation was ongoing.
- On
27 September 2005, the prosecutor lodged a request to advance the
date of the hearing to 6 October, in order to review the legality of
the pre-trial detention.
- In
an interlocutory judgment of 6 October 2005, the county court
maintained the pre-trial detention. Upon appeal of the defendants, in
a final decision of 18 October 2005, the appellate court declared
void the appealed judgment on account of a procedural failure and
ordered the immediate release of all defendants. The applicant was
released on that day.
- From
the case-file it appears that the criminal proceedings on the merits
are still pending.
B. Relevant domestic law
- The
relevant provisions of the Romanian Code of Criminal Procedure (CPP),
as in force at the time of events, read as follows:
Article 148
(1) Pre-trial detention may be imposed, among other
reasons (...) only in one of the following situations:
(...)
d) when there are sufficient indications that
the accused had tried to obstruct the establishment of the truth, by
influencing one witness or expert, by destroying or tampering
evidence or by other similar acts;
(...)
h) when the accused committed an offence in
respect of which the law provides for a life custodial sentence or
alternatively for a custodial sentence exceeding four years and there
are serious grounds to believe that there is a concrete danger for
public order; (...)”
COMPLAINTS
- The
applicant complained under Article 5 § 3 of the Convention that
his pre-trial detention was too long, in the
light of the standard and non-individualised reasoning provided by
the domestic courts for extending his detention. He further alleges
that the domestic courts failed to address the arguments he raised
against his detention.
- He
complained under Article 5 § 1 of the Convention that on 8 April
2005 he was illegally deprived of his liberty between 1 p.m. and 4.30
p.m., being held handcuffed in the detention room of the Timiş
County Court while awaiting the delivery of the interlocutory
judgment which was to determine whether the prosecutor’s
request for ordering his pre-trial detention would be approved by the
county court.
THE LAW
- The
applicant alleged a breach of Article 5 § 3 of the Convention in
that his pre-trial detention had exceeded a reasonable time. The
relevant part of this provision 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
Government submitted that the duration of the pre-trial detention
could not be considered excessive, given the complexity of the case
and the due diligence shown by the authorities in handling the case.
The domestic courts, the Government added, had provided “relevant
and sufficient reasons” for maintaining the custody measure.
- The
applicant did not submit observations within the time-limit set by
the Court.
- Under
the Court’s case-law, the issue of whether a period of
detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention must
be assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among other authorities, W.
v. Switzerland, 26 January 1993, § 30, Series A
no. 254-A).
- The
Convention case-law has developed four basic acceptable reasons for
justifying the pre-trial detention of an accused suspected of having
committed an offence: the risk that the accused will fail to appear
for trial (see Stögmüller
v. Austria, 10 November 1969, § 15,
Series A no. 9,); and the risks that the accused, if released, would
take action to prejudice the administration of justice (see Wemhoff
v. Germany, 27 June 1968, § 14, Series A no. 7),
commit further offences (see Matznetter
v. Austria, 10 November 1969, §
9, Series A no. 10,) or cause public disorder (see Letellier
v. France, 26 June 1991, § 51,
Series A no. 207).
- The
Court further reiterates that it falls in the first place to the
national judicial authorities to ensure that, in a given case, the
pre-trial detention of an accused person does not exceed a reasonable
time. To this end they must examine all the facts arguing for or
against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption of
innocence, a departure from the rule of respect for individual
liberty and set them out in their decisions dismissing the
applications for release. It is essentially on the basis of the
reasons given in these decisions and of the established facts
mentioned by the applicant in his appeals that the Court is called
upon to decide whether or not there has been a violation of Article 5
§ 3 of the Convention (see McKay v. the United Kingdom,
[GC], no. 543/03, § 43, 6 October 2006).
- The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but 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 continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy, no. 26772/95, § 153, ECHR 2000-IV).
- In
the present case, the applicant’s pre-trial detention lasted
from 7 April until 18 October 2005, thus amounting to a total of
six months and eleven days. Taking into account the complex nature of
the case, this duration does not appear per se to be excessive
(see, per a contrario, Tiron v. Romania, no. 17689/03,
§ 35, 7 April 2009). Nevertheless, the Court needs to verify
whether the national courts adduced “relevant and sufficient
reasons” to justify the applicant’s pre-trial detention
for the entire detention period.
- In
this respect, the Court notes that the
applicant’s pre-trial detention was supervised by the competent
judicial authorities at the statutory prescribed intervals. The
decisions to order and prolong his pre-trial detention were based on
several reasons. Firstly, the domestic authorities relied on a
reasonable suspicion that the applicant committed the offences with
which he was subsequently charged. The domestic authorities further
relied on the fact that the applicant had tried to tamper with
evidence after the start of the criminal investigation. In the light
of the applicant’s own statements to the investigation
authorities, the Court accepts that the domestic courts had
sufficient reasons to believe that there was a real or concrete risk
that, if released, the applicant might attempt again to tamper with
evidence or might bring pressure to bear on witnesses.
The
Court further takes note of the other reasons invoked by the domestic
authorities (see paragraphs 8, 11 and 14 above), which taken together
appear to be valid grounds for justifying the applicant’s
pre-trial detention.
- Even
though some of the decisions maintaining the pre-trial detention
repeated the reasoning in the previous decisions, the Court takes
into account also the fact that all these decisions had been taken
within a rather short period of time of six months. It cannot be
considered that the initial reasoning became devoid of relevance
within this timeframe.
- Further,
the Court is also satisfied that the domestic courts, in their
decisions reviewing the necessity of keeping the applicant further in
custody, did not rely on stereotyped reasons (see, a contrario,
Calmanovici v. Romania, no. 42250/02, § 97, 1 July 2008).
The decisions in issue detail the suspicions pending against each of
the accused concerning the alleged offences, including the attempts
to tamper with evidence, and they refer to the evidence on which
these suspicions were based.
- The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant’s pre-trial detention
were “relevant” and “sufficient” to justify
holding him in custody for the relevant period.
- It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings.
In
this regard, the Court observes that the investigation was of
considerable complexity, regard being had to the nature of the
offences, the number of accused persons, the extensive evidentiary
proceedings and the implementation of special measures required in
cases concerning organised crimes. Moreover, it appears that the
investigation became more complex as it unfolded revealing the
involvement in the criminal activities in issue of many other
persons, requiring thus additional questioning of the new accused
persons, confrontations between defendants, gathering of additional
financial information from all the private companies which supplied
the goods in issue.
Under
these circumstances, the Court finds that the authorities acted with
the required diligence in handling the case. Thus, the indictment was
prepared within four months from the date of the applicant’s
arrest and after the case was referred to the county court, hearings
were held at reasonable intervals. It concludes therefore that the
national authorities displayed diligence in the conduct of the
proceedings.
- It
follows that, in the circumstances of the present case, the
authorities did not fail to give sufficient and relevant
justification for the applicant’s continued detention and to
handle the case with diligence.
- The
Court accordingly concludes that this part of the application is
inadmissible as being manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and must be rejected,
pursuant to Article 35 § 4.
- The
applicant further submitted that on the date of 8 April 2005, he had
been unlawfully deprived of liberty between 1 p.m. and 4.30 p.m.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matter complained of is within its competence, it does not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Elisabet Fura
Registrar President
