THIRD SECTION
CASE OF
EMILIAN-GEORGE IGNA
v. ROMANIA
(Application no. 21249/05)
JUDGMENT
STRASBOURG
26 November 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 Emilian-George Igna 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 5 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 21249/05)
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 Emilian-George Igna (“the applicant”), on 6 June 2005.
The applicant was represented by Ms I. A. Igna, a
lawyer practising in Deva. The Romanian Government (“the Government”) were
represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign
Affairs.
The applicant alleged that, at a hearing on
3 December 2004, his lawyer’s request to be allowed to consult all of
the materials submitted by the prosecutor in support of the prosecutor’s proposal
for the applicant’s detention to be extended had been dismissed by the Alba-Iulia
Court of Appeal on the grounds that the evidence in question only
concerned the merits of the case.
On 14 October 2011 the President of the Third
Section decided to give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1962 and lives in Deva.
In November 2004, the prosecutor’s office
attached to the Alba-Iulia Court of Appeal opened criminal investigations
in respect of a large number of people, including the chief commander of the
Deva police and other police officers, on suspicion of their involvement in an
organised criminal group engaged in practising the illegal gambling game “alba-neagra”.
As part of this complex set of proceedings
concerning a large number of people in Deva allegedly involved in organised
crime, on 2 December 2004 investigations were initiated against the
applicant and three other people suspected of being members of an organised
criminal group, an offence created by the Prevention and Combat of Organised
Crime Act (Law No. 39/2003). The applicant and another defendant were
police officers, and in this capacity were also suspected of favouring
offenders and blackmail. The other two defendants were suspected of organising the
gambling games.
In the evening of 2 December 2004, the applicant
and his three co-defendants were arrested and detained for
twenty-four hours.
The prosecutor attached to the Alba-Iulia Court
of Appeal submitted a proposal for the extension of the detention for another
twenty-nine days. According to the prosecution’s version of events, the
two police officers became members of the criminal group in 2003. They
collected protection money from the network of people who were organising the
gambling games in Deva and the surrounding area. In exchange, they provided
information to them concerning police raids organised by their colleagues and
the best places to hold the gambling games. As expressly stated in the proposal
for the extension of the detention, this version of events was supported by
statements of the victims, witnesses and defendants, and a summary of recorded
telephone conversations.
At a hearing held on 3 December 2004 before the
Alba-Iulia Court of Appeal, the defence requested that the
prosecution and the court deciding on the application to extend the applicant’s
detention put at their disposal all of the materials on the basis of which the
applicant’s continued detention had been proposed.
According to the applicant’s lawyer, the only
evidence in the file were the statements given by the applicant and the other
three defendants arrested on the previous day, which did not reveal any
incriminatory facts.
One of the main pieces of incriminating evidence
submitted by the prosecution was a summary of various telephone conversations
which had been recorded. The recordings had been made by the police as part of
a secret surveillance operation concerning the entire criminal group. The
prosecution submitted the summary to the court during the hearing with the
recommendation that it should not be consulted by the defence. The defence’s request
to examine the recordings was refused by the court on the grounds that the
recordings concerned the merits of the case and that this was irrelevant to the
extension of detention.
In spite of the defence lawyer’s express request
to have access to the rest of the evidence mentioned in the proposal for
prolongation of the detention, such as the statements of the victims, witnesses
and other defendants, the Alba-Iulia Court of Appeal neither replied nor provided
any explanation for their absence from the file.
In her final oral submissions, the applicant’s
lawyer stressed that she had not had access to the summary of the recorded
telephone conversations or the incriminatory statements against the applicant. She
therefore concluded that according to the evidence in the file, there was not the
slightest indication that the applicant had committed the offences retained in
his charge.
After hearing the oral submissions of the
defendant’s lawyer and of the public prosecutor, the court ordered the
prolongation of the pre-trial detention for another twenty-nine days. It
found that there was a strong suspicion that the applicant had committed the
offences detailed in the prosecutor’s proposal for detention and that he had
been involved in organised crime relating to illegal gambling games.
On 9 December 2004 the High Court of Cassation
and Justice dismissed the applicant’s appeal against the decision of 3 December 2004
as groundless. It upheld the decision on the same grounds as the first-instance court.
On 27 April 2010 the Argeș
County Court convicted the applicant as charged and sentenced him to five year’s
imprisonment.
The applicant appealed. According to the latest
information provided by the parties, the proceedings against the applicant are
still pending.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Prevention and
Combat of Organised Crime Act (Law No. 39/2003) read as follows:
Section 2
“In the present law, the terms and expressions below have the
following meaning:
(a) ’organised criminal group’ - a structured group,
formed of three or more people, that exists for a period of time and acts in a
coordinated manner with the purpose of committing one or more grave offences,
in order to obtain directly or indirectly a financial benefit or another
material benefit. An ‘organised criminal group’ is not a group formed
occasionally with the purpose of immediately committing one or more offences
and which has no continuity or definite structure or pre-established roles for
its members inside the group.
(b) ’grave offence’ - an offence which belongs to
one of the following categories:
...
10. offences regarding games of chance ...
Section 7
(1) The initiation or constitution of an organised
criminal group, or joining or supporting in any way such a group, shall be
punishable by a prison sentence of 5 to 20 years and the restriction
of certain rights.
(2) The punishment for the acts stipulated in
paragraph (1) may not be greater than the sanction provided for by the law creating
the gravest offence within the purpose of the organised criminal group.
(3) If the acts stipulated in paragraph (1) have
been followed by a grave offence, the rules concerning the concurrence of
several offences shall be applied.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
Relying on Article 6 § 1 of the Convention, the applicant
complained that the proceedings for the extension of his pre-trial detention had
not been truly adversarial. In this respect, he claimed that without full
access to the file and knowledge of the tape recordings included in the file,
his lawyer had been unable to defend him against the charges of being a member
of an organised criminal group, blackmail and favouring offenders.
As the Court is master of the characterisation
to be given in law to the facts and can decide to examine the complaints
submitted to it under a different Article from that cited by the applicant (see
Guerra and Others v. Italy, 19 February 1998, § 44, Reports
of Judgments and Decisions 1998-I), it will examine the complaint
under Article 5 § 4 of the Convention, which reads as follows:
“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.”
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 claimed that on 3 December 2004 he had
not had an opportunity to present his case in circumstances which did not put
him at a disadvantage vis-à-vis the other party. He submitted that the
proposal for the prolongation of his detention had referred to several
statements and a summary of recorded telephone conversations which could not be
found in the case file.
The Government submitted that the applicant’s
lawyer had been offered the opportunity to examine all the relevant evidence in
the file. As regards the recordings of the telephone conversations, they
contended that it had not been necessary to examine them at that stage of the
proceedings as they mainly concerned the merits of the case.
2. The Court’s assessment
(a) Relevant principles
The Court reiterates that in view of the dramatic impact of deprivation of liberty on
the fundamental rights of the person concerned, proceedings conducted under
Article 5 § 4 of the Convention should in principle also meet, to the largest
extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial as
guaranteed by Article 6 of the Convention (see, inter alia, Schöps
v. Germany, no. 25116/94, § 44, ECHR 2001-I; Garcia Alva v. Germany,
no. 23541/94, § 39, 13 February 2001; and Svipsta v. Latvia,
no. 66820/01, § 129, ECHR 2006-III (extracts)).
Equality of arms is not ensured if counsel is
denied access to those documents in the investigation file which are essential
in order effectively to challenge the lawfulness of his client’s detention (see
Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151,
and Nikolova v. Bulgaria [GC], no. 31195/96, § 58,
ECHR 1999-II).
The Court acknowledges the need for criminal
investigations to be conducted efficiently, which may imply that part of the
information collected during them is to be kept secret in order to prevent
suspects from tampering with evidence and undermining the course of justice.
However, this legitimate goal cannot be pursued at the expense of substantial
restrictions on the rights of the defence. Therefore, information which is
essential for the assessment of the lawfulness of a detention should be made
available in an appropriate manner to the suspect’s lawyer (see Mooren v. Germany
[GC], no. 11364/03, § 124, 9 July 2009).
(b) Application of these principles to the present case
In the instant case the Court needs to determine
whether information which was essential for the assessment of the lawfulness of
the applicant’s detention was made available in an appropriate manner to the
applicant’s lawyer.
First, the Court observes that the Alba-Iulia
Court of Appeal reached its conclusion that there was a strong suspicion that the
applicant had committed the offences retained in his charge by reference to the
prosecutor’s proposal for the extension of detention. This proposal was only an
account of the facts as construed by the prosecutor’s office on the basis of
all the evidence collected by it. It made reference to a summary of telephone
recordings, but also to statements made by the victims, witnesses and other
defendants.
According to the applicant, the file at his
disposal on 3 December 2004 contained only the statements of the
three co-defendants arrested at the same time as him, and they did not reveal
any incriminatory facts against him.
The Court notes that the prosecution submitted the
summary of the recorded telephone conversations during the hearing of 3 December 2004
with the recommendation that it should not be consulted by the defence. The
applicant’s request to examine the summary was dismissed by the court on the
grounds that it concerned only the merits of the case. In the absence of other
evidence in the file, apart from the statements given by the three co-defendants,
it appears that the summary of the recorded telephone conversations played a
key role in the Alba-Iulia Court of Appeal’s decision to prolong the applicant’s
detention. However, while the public prosecutor and the court were familiar
with the recordings, the applicant and his counsel did not have cognisance of their
precise content at that stage.
Furthermore, the Court notes that the defence
lawyer’s express request to have access to the rest of the evidence mentioned
in the proposal for the prolongation of the detention was ignored by the Alba-Iulia
Court of Appeal without providing any explanation for its absence from
the file.
The Court does not lose sight of the fact that
the refusal to grant the applicant’s counsel access to all the documents in the
case file was based on the risk that the success of the ongoing investigations
might be compromised. However, that legitimate goal may not be pursued at the
expense of substantial restrictions on the rights of the defence. Counsel must
therefore be given access to those parts of the case files on which the
suspicion against the applicant was essentially based. It follows that the
applicant, assisted by counsel, did not, at that stage of the proceedings, have
an opportunity adequately to challenge the findings referred to by the
Public Prosecutor or the courts as required by the principle of “equality
of arms”.
The foregoing considerations are sufficient to
enable the Court to conclude that the procedure by which the applicant sought
to challenge the lawfulness of his pre-trial detention violated the fairness
requirements of Article 5 § 4 of the Convention.
There has accordingly been a violation of
Article 5 § 4 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under
Article 5 § 1 of the Convention that the criminal investigation
had been performed by a prosecutor who had no material jurisdiction for the
types of offence of which he had been accused.
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 this 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.”
A. Damage
The applicant claimed 700 Romanian lei (ROL) per
month starting from 18 October 2007 until the delivery of the Court’s
decision in respect of pecuniary damage. Such amount represents the difference
between the monthly salary which he could have earned as a policeman and the
monthly pension he received after he had been released from prison. The
applicant also claimed ROL 1,000,000 in respect of non-pecuniary damage.
The Government averred that there was no causal
link between the requested amounts and the alleged violation of
Article 5 § 4 of the Convention.
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
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 14,240 for the
costs and expenses incurred before the domestic courts and EUR 8,000 for those incurred
before the Court.
The Government noted that the applicant’s lawyer
was his wife and that the requested amounts were unreasonably high.
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, regard being had to the documents
in its possession and the above criteria, the Court rejects the claim for costs
and expenses in the domestic proceedings and considers it reasonable to award
the sum of EUR 1,000 for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest 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 concerning the
equality of arms before the domestic courts admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of
Article 5 § 4 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, the following
amounts, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses
before the Court;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts 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 26 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
