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THIRD SECTION

Application no. 34456/07
by Vasile CARAIAN
against Romania
lodged on 2 August 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Vasile Caraian, is a Romanian national who was born in 1940 and lives in Bucharest. He is represented before the Court by Mr Paul-Dan Nedelcea and Mr Alin Dragos Bengescu, lawyers practising in Bucharest.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The first set of proceedings

By an order of the Sibiu Police Department of 23 August 1996 the applicant was remanded in custody for twenty-four hours on suspicion of forgery.

By a decision of the Sibiu Prosecutor of 24 August 1996 the applicant was detained pending trial for five days for forgery, use of forged documents and bribery on account of the seriousness of the offences and the need to protect public order.

By a decision of 28 August 1996 the Sibiu Prosecutor’s Office extended the applicant’s pre-trial detention by twenty-five days on account of the seriousness of the offences, the need to protect public order and the need to prevent him from destroying evidence. The applicant appealed against the decision and requested to be released under judicial supervision.

By a final interlocutory judgment of 18 October 1996 the Alba Iulia Court of Appeal allowed the applicant’s appeal. The court held that the applicant’s arrest had been lawful; however there was no evidence in the file that would prevent the court from releasing the applicant under judicial supervision. The applicant was released the same day.

On 2 September 1997 the Sibiu Prosecutor’s Office indicted the applicant for bribery, complicity in bribery, forgery, use of forged documents and complicity in fraud and referred the case to the Sibiu County Court.

By a judgment of 15 June 2000 the Sibiu County Court acquitted the applicant on the basis of documentary and testimonial evidence and expert reports showing that no unlawful act had been committed. The Sibiu Prosecutor’s Office appealed against the judgment.

By a judgment of 5 December 2000 the Alba Iulia Court of Appeal allowed the Prosecutor’s Office’s appeal on the merits, quashed the judgment of 15 June 2000, convicted the applicant of bribery, complicity in bribery, forgery, use of forged documents and complicity in fraud and sentenced him to three years’ imprisonment. The applicant appealed against the judgment.

By a final judgment of 1 March 2002 the Court of Cassation allowed the applicant’s appeal, quashed the judgments of 15 June and 5 December 2000 and referred the case back to the Sibiu Prosecutor’s Office for further investigation. The court held, inter alia, that the investigation had been carried out by the police and not by the prosecutor as required by the applicable rules of criminal procedure; the Prosecutor’s Office had failed to submit all the relevant evidence in the case; and the applicant’s initial statement had been taken in the absence of a legal representative.

2.  The second set of proceedings

By a decision of 31 July 2003 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. The Prosecutor’s Office held on the basis of the evidence available in the file that although the applicant’s guilt was undeniable, the criminal action initiated against him was time-barred. The applicant appealed against the decision and on the basis of Article 13 of the Romanian Code of Criminal Procedure requested that the authorities continue the criminal investigation initiated against him in order for him to be able to prove his innocence.

By a final decision of 11 November 2003 the Sibiu Prosecutor’s Office allowed the applicant’s appeal and reopened the criminal investigation against the applicant for his criminal liability to be determined.

By a final decision of 14 November 2003 the Sibiu Prosecutor’s Office, discontinued the criminal investigation initiated against the applicant. The Prosecutor’s Office held on the basis of the evidence available in the file that although the applicant’s unlawful acts had been proven, the criminal action initiated against him was time-barred. The applicant appealed against the decision before the Sibiu County Court.

By a final judgment of 18 October 2004 the Sibiu County Court allowed the applicant’s appeal and ordered the reopening of the criminal investigation against the applicant. The court held that the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant’s indictment; the Prosecutor’s Office had failed to clearly determine the applicant’s involvement in committing the unlawful acts and it had not been determined whether the applicant had been indicted for the same unlawful acts of which he had been informed.

3.  The third set of proceedings

By a final decision of 21 March 2005 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. The Prosecutor’s Office held on the basis of the documentary and testimonial evidence available in the file that although the applicant was guilty of the offences for which he had been indicted, the criminal action initiated against him was time-barred. The applicant appealed against the decision before the Sibiu District Court on the basis of Article 2781 of the Romanian Code of Criminal Procedure. He argued that the domestic court should quash the prosecutor’s decision and retain the case for examination in order to determine his innocence.

By a judgment of 2 February 2006 the Sibiu District Court dismissed the applicant’s appeal and upheld the prosecutor’s decision by relying on the documentary and testimonial evidence available in the file. It did not hear the applicant and did not submit any additional evidence in respect of the offences for which he had been indicted. The applicant appealed against the judgment and reiterated his request for the court to retain the case for examination.

By a final judgment of 30 March 2007 the Bacau County Court dismissed the applicant’s appeal and upheld the prosecutor’s decision on the ground that according to the available evidence the applicant had committed the unlawful acts for which he had been indicted and the Prosecutor’s Office had examined in detail the merits of the applicant’s guilt.

In a letter of 28 February 2008 the applicant complained before the Court that the criminal proceedings initiated against him had destroyed his reputation and that a virulent press campaign had been initiated against him and his company at the time of his arrest. The applicant submitted three press articles published in local and national newspapers in March 1998 describing the events which lead to the charges brought against him and a chronological narration of the criminal proceedings initiated against him.

B.  Relevant domestic law

Article 10 of the Romanian Code of Criminal Procedure provides, inter alia, that the criminal proceedings must be discontinued if they are time-barred.

Article 13 of the Romanian Code of Criminal Procedure provides, inter alia, that an accused can ask for criminal proceedings initiated against him to be continued if they have become time-barred.

Article 2781 (8 (c)) of the Romanian Code of Criminal Procedure allows domestic courts to quash prosecutor’s decisions contested by the accused and to retain the case for trial if they consider that a criminal investigation has been completed and all the evidence has been adduced to the file by the investigative bodies. In this case the rules of criminal procedure concerning trial by a first-instance court are applicable.

COMPLAINTS

1.  Relying on Article 5 of the Convention the applicant complains of the unlawfulness of his pre-trial detention between 23 August and 18 October 1996.

2.  Invoking Article 6 § 1 of the Convention the applicant complains of the excessive length of the criminal proceedings initiated against him.

3.  Relying on Article 6 §§ 1 and 2 of the Convention the applicant complains expressly and in substance of a breach of his right to the presumption of innocence and his right to a fair trial in so far as the domestic courts dismissed his appeal against the prosecutor’s decision to declare him guilty of the offences for which he had been indicted after the criminal proceedings initiated against him had been discontinued as time-barred. Moreover, the domestic courts endorsed the prosecutor’s decision and confirmed his guilt by relying on the evidence available in the file, without retaining the case for examination and without administering additional evidence. Furthermore, he argues that a virulent press campaign was initiated against him at the time of his remand in custody.

4.  Invoking Article 8 of the Convention the applicant complains that the criminal proceedings initiated against him destroyed his reputation.

QUESTIONS TO THE PARTIES

1.  Was the length of the criminal proceedings brought against the applicant in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2.  Having regard to the final judgment of the Bacau County Court confirming the prosecutor’s decision as to the applicant’s guilt by relying on the evidence available in the file and without administering additional evidence and without hearing him, was the applicant’s right to the presumption of innocence and to a fair trial guaranteed by Article 6 §§ 1 and 2 of the Convention respected in the present case?

3.  The Government are invited to submit copies of all the interlocutory judgments adopted by the domestic courts over the course of the criminal proceedings initiated against the applicant which ended by the final judgment of 30 March 2007 of the Bacau County Court.