THIRD SECTION
CASE OF E.M.B. v. ROMANIA
(Application no.
4488/03)
JUDGMENT
STRASBOURG
13 November 2012
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 E.M.B. v. Romania,
The European Court of Human Rights (Chamber), sitting as a Chamber
composed of:
Josep Casadevall, President,
Egbert Myjer,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 4488/03)
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, Mrs E.M.B. (“the applicant”), on 20 December 2002.
The President of the Section acceded to the applicant’s request not to have her
name disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Mr I. Panaitescu,
a lawyer practising in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mrs I. Cambrea.
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28
of the Rules of Court), the President of the Chamber appointed Mrs Kristina
Pardalos to sit as ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1
of the Rules of Court).
The applicant alleged that the criminal
proceedings against her had exceeded a reasonable duration, given that no
judgment on the merits had been delivered ten years after the commencement of
the proceedings. She also claimed that the wording of
the domestic courts’ decisions concerning the validity of the arrest warrant
issued in her name had breached the presumption of innocence.
On 28 September 2010 the Court declared the
application partly inadmissible and decided to communicate the complaints raised
under Article 6 §§ 1 and 2 of the Convention concerning the length
of proceedings and the alleged breach of the presumption of innocence to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1946 and lives in Toronto (Canada).
A. Background information
The applicant retired from her position as
director of a private refinery in March 2002. In April 2002 she left
Romania for the United States. On 18 and 22 July 2002, while
she was away from Romania, summons were sent to her home address, instructing
her to present herself at the Police Inspectorate for questioning.
As she did not comply with the summons, on
25 July 2002 the prosecutor attached to the Prahova Court of Appeal
issued a pre-trial arrest warrant, valid for thirty days, for abuse of
office and incitement to forgery. The reasoning in the arrest warrant stated:
“the accused is absconding, the sentence provided by law for the alleged crime
is a prison sentence of longer than two years and her release would disturb
public order.” On 2 August 2002 an international arrest warrant was
issued against her.
B. The complaints against the pre-trial arrest warrant
The applicant remained outside Romania but contested the legality of the arrest warrant through her legal representative.
On 26 August 2002 her first complaint was
lodged. By an interlocutory judgment of 28 August 2002 the Prahova County Court
dismissed the complaint, stating in part:
“As may be noted, the pre-trial detention of the accused was ordered
because of the commission of crimes giving rise to significant public danger, given
that the accused had concluded a contract for the sale of oil products at a
price that was disadvantageous to the company managed by her and which caused
that company a loss of over sixty-three billion lei, actions which created
within the public community a sense of indignation and disapproval, as these crimes
received extensive media coverage.”
On 27 September 2002 the Ploieşti Court of
Appeal upheld the above judgment, holding that it was clear from the criminal
investigation file that there were strong indications that the accused had committed
the crimes which had led to inception of the criminal proceedings and the issue
of the arrest warrant.
Several other similar complaints were dismissed in
2003.
On 11 November 2003 the Braşov County Court
concluded that the arrest warrant had been issued unlawfully. The following
reasons were put forward: the accused had left Romania in April 2002, prior to
the inception of the criminal proceedings against her in July 2002; at that
time, therefore, she had been free to leave the country and the fact that she had
exercised her right to freedom of movement could not be interpreted as an
intention to abscond. On an appeal by the prosecutor, the Braşov Court of
Appeal, by a final decision of 18 November 2003, quashed that judgment and
confirmed the legality of the warrant, holding that the applicant had tried to
abscond from the proceedings.
Further complaints by the applicant were
dismissed by an interlocutory judgment of 3 February 2004, as confirmed by a
final decision of the Braşov Court of Appeal delivered on
13 February 2004, and by a final decision of 17 January 2005. In the
interlocutory judgment of 3 February 2004, the Braşov County
Court indicated that there were reasonable suspicions that the applicant had committed
the alleged offences and the arrest warrant was valid, since, although she was aware
of the proceedings against her, the applicant had chosen not to return to
Romania. The final decision of 13 February 2004 states: “releasing the
applicant would give rise to a real danger to public order, given the method
and circumstances in which the acts were committed, the effective contribution
of each person and the consequences and social resonance which such acts create
among the public.”
On 3 May 2005 the Braşov County Court
ordered the quashing of all procedural decisions taken in the framework of
these investigations, including the contested arrest warrant. Nevertheless, on
an appeal by the prosecutor, by a final decision of the Braşov Court of
Appeal of 6 March 2006 the validity of the arrest warrant was again confirmed.
The appellate court held that, given that the applicant had been absconding
throughout the proceedings, she could not be treated on an equal basis with the
other accused persons in the same proceedings who had already been held in
pre-trial detention.
On 22 August 2007 the Bucharest County Court
allowed the applicant’s request to have the arrest warrant revoked. It
considered that the measure was no longer justified, given that it had been
ordered five years previously, three months after the applicant had left the
country. The county court considered that the state of the proceedings, still
under investigation by the prosecutor, and the lack of any evidence regarding
any danger the applicant might pose to the public justified revoking the arrest
warrant. On an appeal by the prosecutor, the Bucharest Court of Appeal (with
one dissident opinion), by a final decision of 3 September 2007, reversed that decision
and once again confirmed the legality of the warrant. It noted that the warrant
had never been executed, given the applicant’s absence, and decided that the
reasons which had justified its issue in 2002 were still valid.
C. The criminal proceedings on the merits
Following the start of the criminal
investigation against the applicant and other co-accused on different dates
during 2002, on 20 March 2003 the prosecutor attached to the Supreme
Court of Justice issued an indictment against twelve persons, including the
applicant, for various offences of fraud related to trade in oil products. The
file was first registered with the Prahova County Court.
Later the file was assigned to the Bacău County Court
and subsequently to the Braşov County Court, by virtue of final decisions
of the Supreme Court of Justice of 9 May and 11 September 2003
respectively, in response to requests by the accused for removal of
jurisdiction from the competent courts for alleged bias.
Following the transfer of the file to Braşov County Court, in various hearings held up to April 2004 statements were taken
from all the accused, except the applicant, who was still absent but was
represented by a lawyer chosen by her.
By a decision of 3 May 2005 the county court
referred the case back to the prosecutor. It considered that the criminal
investigation had been marred by procedural irregularities and that it should
be carried out again and completed in compliance with all procedural requirements.
The decision was partly upheld by the Braşov Court of Appeal on 6 March 2006,
thus dismissing the prosecutor’s appeal against the remittal order.
The case was referred to the Directorate for the
Investigation of Organised Crime and Terrorism. By a decision of 18 April 2006,
it relinquished its jurisdiction in favour of the National Anti-Corruption
Directorate.
On 4 April 2008 a new bill of indictment was drafted.
The applicant was charged with tax evasion, forgery of private documents and
the association for the commission of offences.
The file was registered with the Ploieşti District Court.
On 3 March 2009 the court relinquished its jurisdiction in favour of
the Braşov District Court. On 19 November 2009 the latter court held that
it had no jurisdiction to examine the case. By a judgment of
8 February 2010, the High Court of Cassation and Justice
examined the conflict of jurisdiction and concluded that the competent court
was the Braşov District Court.
The proceedings are still pending before the
first-instance court.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Romanian
Constitution in force at the relevant time are worded:
Article 23
“...
(8) A person is considered innocent pending a final court
conviction.”
The relevant provisions of the Romanian Code of
Criminal Procedure in force at the relevant time are worded:
Article 66
“(1) The person accused of or charged with a
criminal offence does not have to prove his innocence.
(2) Where evidence is adduced proving a person’s
guilt, the accused or the person charged with a criminal offence has the right
to rebut the evidence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained of the excessive length
of the criminal proceedings instituted against her. She relied on Article 6 § 1
of the Convention, which provides:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 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 complained that the length of the
criminal proceedings had been excessive. She contended that the proceedings had
lasted more than ten years without a judicial decision on the merits being
taken.
The Government submitted that there had been no
periods of inactivity attributable to the authorities and that the case was somewhat
complex. They also claimed that the applicant had substantially contributed to
the protraction of the case, either because she had not appeared before the
authorities or because her lawyers had asked for the change of venue of the
trial.
2. The Court’s assessment
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67,
ECHR 1999-II, and Foley v. the United Kingdom, no. 39197/98,
§ 36, 22 October 2002).
Turning to the instant case, the Court notes
that the proceedings began on 25 July 2002 and according to the latest
applicant’s letter of 15 April 2011, they are still pending.
Moreover, in all this time not a single judicial decision has been taken
on the merits of the case. The only judicial decisions delivered in these
proceedings, on 3 May 2005 and 6 March 2006, established
that the criminal investigation by the prosecutor had been marred by breaches
of essential procedural rights and the case was therefore referred back to the
prosecutor.
The Court notes that this is a complex case
involving many accused. Nevertheless, it observes that all of the procedural
steps taken from the start of the proceedings until the referral to the judicial
courts had had to be carried out again in view of the procedural irregularities
established by the district court. Further, it notes that it took more than two
years to establish that the investigation was marred, for reasons that could
have been established as early as the first hearings in the case.
The Court further observes that no significant
developments have taken place, although the proceedings are still pending. The
proceedings have so far lasted for ten years and four months.
The Court has already found that, although it is
not in a position to analyse the juridical quality of the case-law of the
domestic courts, the remittal of cases for re-examination discloses a serious
deficiency in the judicial system, since it is usually ordered as a result of
errors committed by prosecutors or lower courts. This deficiency is imputable
to the authorities and not to the applicants (see Georgescu v. Romania,
no. 25230/03, § 95, 13 May 2008).
The Court notes that the applicant did not take
an effective part in the proceedings because she was permanently away from Romania during this period. Although the applicant did not play a direct role in the
proceedings, it does not appear from the information available in the case file
that any of the hearings were postponed because of this fact. She had a
designated lawyer who represented her actively at all of the hearings,
submitting written conclusions and acting with diligence.
Having examined all the material submitted to
it, the Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement.
There has accordingly been a violation of
Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
. The
applicant complains that the wording of the domestic courts’ decisions
concerning the validity of the arrest warrant issued in her name breached the
presumption of innocence. She relied on Article 6 § 2 of
the Convention, which provides:
“2. Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”
A. Admissibility
1. The parties’ submissions
The Government contended that the applicant’s
complaint was premature, relying on the fact that a person could not, in
principle, claim to be a victim of a violation of this provision when the
criminal proceedings against him or her were still pending.
They pointed out that the impugned decisions of
28 August 2002 and 13 February 2004 had been taken before
the case had been referred back to the prosecutor. They further submitted that
the criminal proceedings against the applicant were still pending.
The applicant disagreed.
2. The Court’s assessment
The Court observes that the applicant’s
complaint concerns the initial stages of the criminal proceedings. However, it reiterates
that Article 6 § 2 governs criminal proceedings in their
entirety, “irrespective of the outcome of the prosecution, and not solely the
examination of the merits of the charge” (see Minelli v. Switzerland, (25 March 1983,
§ 30, Series A no. 62)). Therefore, it dismisses the Government’s
objection concerning the prematurity of the applicant’s complaint.
The Court reiterates that the presumption of
innocence will be violated if a judicial decision or a statement by a public
official concerning a person charged with a criminal offence reflects an
opinion that he is guilty before he has been proved guilty according to law. It
suffices, even in the absence of any formal finding, that there is some
reasoning suggesting that the court or the official regards the accused as
guilty (see, among many other authorities, Minelli, cited above,
§§ 27, 30 and 37; Allenet de Ribemont
v. France, 10 February 1995, §§ 35-36, Series A no. 308;
and Matijašević v. Serbia, no. 23037/04, § 45, ECHR 2006-X).
The Court also emphasises that there is a
fundamental distinction to be made between a statement that someone is merely suspected of
having committed a crime and a clear judicial declaration, in the absence of a
final conviction, that the individual has committed the crime
in question (see Wojciechowski v. Poland, no.
5422/04, § 54, 9 December 2008).
Turning to the present case the Court notes that
in the grounds for their decisions of 28 August 2002 (see paragraph 10) and
13 February 2004 (see paragraph 14), the Prahova County Court
and the Braşov Court of Appeal stated that the applicant had
committed the offences with which she had been charged. The Court stresses that
the statements were made by judges, who should have exercised particular
caution in the choice of words concerning the suspicion against the applicant.
However, the Court notes that on 3 May 2005
the Braşov County Court ordered the quashing of all the decisions
taken in the framework of the criminal investigation, including the decisions
of 28 August 2002 and 13 February 2004. The Court appreciates that
the quashing of decisions by a court with full jurisdiction could be considered
as a remedy capable of putting right deficiencies in criminal proceedings.
Moreover, the proceedings are still in the investigative stage
as no judgment on the merits has been delivered yet. A considerable period of
time has already elapsed since events referred to by the applicant in support
of her complaint under Article 6 § 2 of the Convention. After the Braşov
County Court had referred the case back to the investigating body, the
prosecuting authorities have lodged in 2008 a new bill of indictment which gave
a new legal classification to the facts of the case.
Therefore, in the light of the foregoing
considerations, the Court finds that the applicant’s complaint does not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols.
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. 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.”
The applicant did not submit a claim for just
satisfaction. She submitted that a judgment of the Court in her favour would in
itself constitute sufficient just satisfaction for the violation of Article 6 § 1
of the Convention.
. In the light of the above, the Court
considers that the finding of a violation constitutes in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article
6 § 1 concerning the length of the criminal proceedings admissible and
the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant.
Done in English, and notified in writing on 13 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
