Communicated on 16 September 2014
THIRD SECTION
Applications nos. 63196/09 and 63204/09
Cezara Cecilia BEBIȘ against Romania
Ștefan BOBOC against Romania
lodged on 26 November 2009
STATEMENT OF FACTS
The applicants, Ms Cezara Cecilia Bebiş (the first applicant) and Mr Ştefan Boboc (the second applicant) are Romanian nationals, who were born in 1947 and 1950, respectively, and live in Bucharest. They were represented before the Court by Mr L. F. Cojocaru, a lawyer practising in Bucharest.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
From October 1994 to May 2000 the second applicant was the president of the National Commission of Movable Values (NCMV) (Comisia Națională a Valorilor Mobiliare), a State body charged with supervising and regulating amongst other things the financial markets and the investment organisations operating on the financial markets. The first applicant was also a member of the same organisation.
In May 2000 the National Investment Fund (NIF), a large investment organisation numbering 300,000 investors nationwide, collapsed. A large public corruption scandal ensued intensely scrutinised by the mass-media.
On 26 May 2000 the President of the Romanian Senate informed the Prosecutor’s Office attached to the Court of Cassation that he considered that it was necessary for the Prosecutor’s Office to initiate a criminal investigation on its own motion into the NIF affair.
On 30 May 2000 the Prosecutor’s Office attached to the Court of Cassation notified the Bucharest Police Department about the Romanian Senate’s request and ordered the opening of a criminal investigation.
On 31 May 2000 the newspaper Stock Exchange published an article citing as a source the Press Relations Department of the Romanian President. It stated that the Romanian President wrote to the Presidents of the Senate and Chamber of Deputies and urged the Parliament to suspend the leaders of the NCMV pending the outcome of the NIF investigation. In addition he requested a parliamentary investigation commission which would determine NCMV’s responsibility in the case.
On the same date the Romanian President’s Press Department issued a press release stating that the Romanian President had ordered an emergency meeting of the National Security Council (the Council). Subsequently, the Council had decided for an investigation commission to be organised within the Prosecutor’s Office attached to the Court of Cassation formed from prosecutors, police officers and financial experts appointed by the Prime Minister. The statement concluded that the investigation commission had to examine the acts of fraud committed by the administrators and members of the NIF and the NCMV by breaching the domestic legislation. Lastly, the Council had taken note of the criminal investigation opened against some administrators and members of the NCMV.
On the morning of 1 June 2000 the newspaper Financial Observer published an article citing as a source the Public Relations Department attached to the Romanian Ministry of Interior. It stated that the criminal investigation concerning the NIF’s collapse would also be extended to the individuals controlling the activity of the NCMV who had failed to properly supervise the NIF’s activities and therefore had helped the NIF to repeatedly breach the rules regulating financial transactions.
On the same date the Romanian Government adopted the Emergency Ordinance no. 64 temporarily allowing the Romanian Government to suspend or revoke the members of NCMV instead of the Parliament. Subsequently, the aforementioned emergency ordinance was repealed by the Parliament on 25 September 2001.
On the same date the Romanian Government decided to revoke all the members of the NCMV.
By an order delivered on the same date the Prosecutor’s Office attached to the Court of Cassation opened a criminal investigation with civil claims against the second applicant for abuse of office against personal interests. It held that according to a preliminary criminal investigation there was evidence that the applicant had committed the offence. In particular, although as president of the NCMV he had been aware of the irregularities in the NIF’s activities he had failed to take the appropriate measures required by his work duties causing damages of 1057 billion Romanian lei (ROL) (approximately 24 million euros (EUR)).
On the same date the applicant was detained pending trial.
By an order delivered on 15 June 2000 the Prosecutor’s Office attached to the Court of Cassation opened a criminal investigation with civil claims against the first applicant for abuse of office against personal interests. It held that according to a preliminary criminal investigation there was evidence that the applicant had committed the offence. In particular, although as a member of the NCMV and a coordinator of a department she had been aware of the irregularities in the NIF’s activities she had failed to take appropriate measures causing damages of 1057 billion Romanian lei (ROL) (approximately 24 million euros (EUR)).
On an unspecified date in June 2000 the Romanian Parliament organised a parliamentary commission charged to investigate NCMV’s activities and responsibility into the collapse of the NFI.
On 5 June 2000 the prosecutor who had ordered the second applicant’s pre-trial detention stated for the newspaper Ziua that he had not been informed that the applicant had been removed from detention and had been taken before the Senate although he had been the one who had heard the applicant and had issued the arrest warrant by providing strong reasons. He further stated that he had been surprised by the decision because he had been convinced that he was the one carrying out the investigation and not a parliamentary commission. He also argued that since he had issued the applicant’s arrest warrant there had been irrefutable evidence which supported his decision. He further contended that because he was responsible for the applicant he should have also been informed about the transfer. He finally stated that he had not been faced with a similar situation before.
In August 2000 the Romanian Parliament published the parliamentary commission’s report following its investigation of NCMV’s activities. It concluded that all members of the NCMV shared equal responsibility for the NFI affair. They were all guilty of negligence in office and lack of decisiveness in enforcing the law. Both the staff and the leadership of the organisation had breached several domestic legal provisions.
On 26 September 2000 the Romanian Ministry of Justice informed the Romanian Parliament that the Prosecutor’s Office attached to the Court of Cassation had provided the parliamentary commission with all the evidence produced during the criminal investigation. It had refused only on one occasion to provide some contradictory evidence, but upon the repeated request of the commission the aforementioned evidence was also submitted before it. In addition the commission’s meetings had been attended repeatedly by the deputy head of the Anticorruption Department attached to the Public Prosecutor’s Office and he had provided it with documents. Also the prosecutors failed to attend the commission’s meetings only on one occasion.
On an unspecified date in 2000 the first applicant was released from pre‑trial detention.
On 4 December 2000 the Prosecutor’s Office attached to the Court of Cassation indicted the applicants and thirteen other co-accused and sent their cases to trial.
On 22 February 2001 the second applicant was released from pre-trial detention.
On 13 June 2002 the Bucharest District Court referred the case back to the Prosecutor’s Office attached to the Court of Cassation on the ground that the criminal investigation had been incomplete.
On 7 December 2004, after it further investigated the case as instructed by the domestic court, the Prosecutor’s Office attached to the Court of Cassation indicted the applicants and sent their cases to trial.
On 13 October 2005 the Bucharest County Court convicted the applicants on merits and sentenced them to three years imprisonment, suspended. In addition, it considered them jointly liable together with other co-accused and the NCMV for the civil damage claimed by the victims of the NIF’s collapse. The applicants appealed against the judgment.
On 12 June 2006 the Bucharest Court of Appeal allowed the applicants’ appeal, quashed the judgment of 13 October 2005 and ordered a re-trial on procedural grounds.
On 20 March 2007 the Bucharest County Court convicted the applicants and sentenced them to three years imprisonment, suspended. In addition, it considered them jointly liable together with other co-accused and the NCMV for the civil damage claimed by the victims of the NIF’s collapse. The applicants appealed against the judgment.
By a judgment of 18 June 2008 the Bucharest Court of Appeal allowed the applicants’ appeals and noted that the applicants’ sentences had been pardoned. The applicants and inter alia the civil parties appealed on points of law (recurs) against the judgment and asked to be acquitted.
By a final judgment of 4 June 2009 the Court of Cassation dismissed the applicants’ appeal on points of law as ill-founded. It allowed the appeal on points of law lodged by some of the civil parties quashed in part the judgment of 18 June 2008 in so far as the civil limb of the proceedings was concerned and ordered a re-trial.
The proceedings appear to be still pending before the domestic courts.
COMPLAINTS
Relying on Article 6 of the Convention the applicants complained that the conditions in which the criminal proceedings opened against them had unfolded had breached the fairness of the said proceedings. In particular, they argued a breach of their right to be presumed innocent and that to have their cases examined by an impartial tribunal as a result of the public investigation carried out by a parliamentary commission at the same time with the criminal investigation opened against them in respect of the same facts and relying on the same evidence as the criminal investigation opened against them. In addition, the unfairness of the proceedings had also been aggravated by the conclusions of the parliamentary commission’s report, the amendments to the legislation, the press releases and statements of the various state and judicial bodies which had been made public and had established their guilt prior to the conclusion of the criminal investigation opened against them. Also, the length of the criminal proceedings opened against them had been excessive.
QUESTIONS TO THE PARTIES
1. Was the length of the criminal proceedings with civil claims brought against the applicants in the present cases in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
2. Having regard to the circumstances in which the criminal proceedings opened against the applicants were carried out, in particular the intense political involvement, the parallel parliamentary investigation initiated into the circumstances of their cases and the statements of public officials including the prosecutor investigating their cases acknowledging their guilt, was the applicants’ right to the presumption of innocence and to a fair trial, namely their right to have their case examined by an impartial tribunal, guaranteed by Article 6 §§ 1 and 2 of the Convention respected in the present cases?
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