Dumitru Popescu v. Romania (dec.)

Information Note on the Court’s case-law No. 78

September 2005

Dumitru Popescu v. Romania (dec.) - 71525/01

Decision 22.9.2005 [Section III]

Article 8

Article 8-1

Respect for private life

Interception of telephone communications by the special services: admissible

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Use of transcripts obtained by telephone tapping as evidence in criminal proceedings: admissible

The applicant was arrested on suspicion of helping to organise several cigarette-smuggling operations centred on a military airfield, and was placed in detention pending trial. The public prosecutor’s office committed the applicant and eighteen other defendants for trial before the Bucharest Military Court on charges of criminal conspiracy and smuggling. The prosecutor attached to his application, as evidence for the prosecution, a list of telephone calls made between the defendants at the time of the operations in question, compiled by the intelligence services. During the proceedings the transcripts of the telephone calls intercepted by the intelligence agents were produced at the request of the defendants’ lawyers. The applicant’s lawyer objected that the provisions governing telephone tapping and the use of intercepted calls as evidence in criminal proceedings were unconstitutional. The objection was dismissed. With regard to the merits, the Military Court sentenced the applicant to twelve years’ imprisonment for criminal conspiracy and smuggling. It based its decision in particular on the list of telephone calls between the defendants and the transcripts of the calls intercepted by the intelligence services, finding that their use as evidence had been lawful. The public prosecutor’s office and the defendants lodged appeals with the Military Court of Appeal, which dismissed the appeal from the public prosecutor’s office, but allowed the applicant’s appeal in part, reducing his prison sentence to eight years. In the meantime, the applicant’s lawyer had again raised the same objection of unconstitutionality, which the Military Court of Appeal referred to the Constitutional Court. The latter dismissed the objection, finding that the provision in issue contained sufficient guarantees against arbitrary acts by the authorities. The Military Court of Appeal subsequently upheld the decision at first instance regarding the lawfulness of the telephone tapping and the use of the transcripts as evidence. The applicant and the public prosecutor’s office each appealed to the Supreme Court of Justice. In a final judgment, the Supreme Court allowed the public prosecutor’s appeal and dismissed the applicant’s appeal, increasing his prison sentence to fourteen years. It considered that the applicant’s role in the offences of smuggling and conspiracy had been “decisive”, and that his guilt had been amply proven by, among other things, the telephone calls intercepted by the intelligence services. It further found that the proceedings before the lower courts had been in no way flawed.

Admissible under Article 6 § 1 and Article 8 as to the complaints concerning the interception of the applicant’s telephone calls and the use of the transcripts as evidence in the criminal proceedings.

Inadmissible as to the remainder of the application: The allegations of violation of the principle of equality of arms and the presumption of innocence, lack of independence and impartiality of the domestic courts and lack of access to legal assistance were ill‑founded. The complaint concerning the military character of the courts which had heard the applicant’s case and convicted him was out of time.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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