THIRD SECTION
DECISION
Application no. 25497/04
Rodica FESIUC
against Romania
The European Court of Human Rights (Third Section), sitting on 4 June 2013 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 29 March 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the decision taken by the President of the Chamber to appoint Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Rodica Fesiuc, is a Romanian national, who was born in 1940 and lives in Bucharest. She was represented before the Court by Mr Ion Gheorghișan, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms Irina Cambrea, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the relevant time, the applicant was a judge at the Bucharest Court of Appeal.
5. On 11 September 2000 the Romanian Intelligence Service (“the RIS”) informed the Anti-Corruption Department of the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor”) that the lawyer L.P. (the applicant in case no. 25333/03) had given bribes to several judges, including the applicant, in order to obtain decisions favourable to her clients. It based the accusation on information obtained through intercepting L.P.’s telephone, measure taken because one of her clients was suspected of crimes against national security. The surveillance activity was carried out under Law no. 51/1991 on national security. The RIS handed over the audio tapes and their transcription to the prosecutor’s office. The prosecutor then continued the surveillance of L.P.’s activities, including through telephone tapping. Several conversations between L.P. and other individuals (but not the applicant) had been recorded; the applicant’s alleged involvement in the suspected criminal acts had been mentioned by the participants in those conversations.
6. On 4 May 2001 the prosecutor obtained the Ministry of Justice’s approval to start criminal investigations in respect of the judges involved that is the applicant and V.A. On the same day he started criminal proceedings against the applicant (începerea urmăririi penale).
7. On 7 May 2001 the prosecutor invited the applicant to his office, informed her of the accusations against her and ordered her not to leave town for thirty days.
8. On 8 May 2001 the applicant retired from office. Her request was accepted by the Superior Council of magistrates on 18 September 2001.
9. Throughout the proceedings, the applicant denied having committed the crimes.
10. On 12 December 2001 the prosecutor indicted the applicant and committed her and several other persons to trial. In particular, he accused her of having received through V.A.’s intermediary, 500 US dollars (USD) in bribes from L.P., in order to release one of her clients pending trial.
11. The case was heard by the Criminal Division of the Supreme Court of Justice.
12. On 31 January 2002 the Supreme Court heard testimony from each defendant separately and the relevant parts of the audio tapes were played in their presence. None of them denied having had the recorded conversations.
The defendants complained that the time between hearings was too short and that they could not properly prepare their defence. The Supreme Court allowed their complaint and decided to extend the period from two to three weeks while nevertheless reiterating that where defendants were in detention pending trial (as in the case of L.P.) the case had to be examined promptly.
13. The applicant again denied having committed any crime. She claimed that the only relevant discussions she had had with V.A. were in connection with the cases in which they had been sitting on the same bench. She declared that she did not know L.P., had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate.
14. L.P. and V.A. also denied committing any crime.
15. At the same hearing on 31 January 2002, the co-defendants alleged that there were procedural defects. They argued that as the prosecutor had failed to request the necessary authorisation for intercepting magistrates’ conversations, the audio recordings were illegal.
The court gave detailed answers to their complaints. Concerning the telephone tapping, it noted that one of L.P.’s clients had been indicted for weapons and ammunition smuggling, which, under the National Security Act, constituted a threat to national security and thus allowed the RIS, under procedure regulated by the Code of Criminal Procedure, to seek authorisation from the prosecutor to intercept the suspect’s conversations. The fact that during the surveillance activity the authorities came across telephone discussions among the co‑defendants which led them to believe that L.P. was trying to corrupt the defendant judges constituted preliminary investigation (acte premergătoare).
The Supreme Court reiterated that so long as the recordings had been obtained during the preliminary investigation phase, they did not constitute evidence. Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file.
16. On 21 February 2002 the declarations given by the defendants were read out in court. They were allowed to supplement their testimony and put questions to their co‑defendants.
17. The applicant’s counsel opposed hearing testimony from an informer, arguing that “the prosecutor is using [him] even though he is an offender” (“infractor”), to which the prosecutor, I.K., replied “an offender who is giving statements about other offenders”. The applicant and V.A. asked for the prosecutor to withdraw from the case for having breached the presumption of innocence.
18. At the same hearing of 21 February 2002 the Supreme Court heard testimony from witnesses for the prosecution.
19. On 27 February and 25 March 2002 the Supreme Court dismissed the objections raised concerning the prosecutor’s withdrawal. I.K. continued to represent the prosecutor’s office throughout the first-instance and appeal proceedings.
20. On 14 March 2002, at the defendants’ request, the Supreme Court ordered an expert examination of the audio tapes, in accordance with Article 915 of the Code of Criminal Procedure (“CCP”).
21. At a hearing on 4 April 2002 the Supreme Court dismissed a request by the applicant and V.A. for the RIS to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the RIS and the prosecutor’s office. The Supreme Court considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations.
22. On 4 April, 25 April, 9 May and 6 June 2002 the Supreme Court heard eight witnesses for the defence.
23. On 3 June 2002 the two experts rendered their report, as requested by the Supreme Court. They concluded that the audio tapes were neither authentic nor original and advised against admitting them as evidence in the criminal trial.
24. On 6 November 2002 the Supreme Court of Justice, sitting as a three-judge bench, rendered its decision. It unanimously convicted the applicant for receiving bribe and sentenced her to three years’ imprisonment and two additional years of suspension of certain rights. V.A. was also convicted by a majority of two votes.
25. The Supreme Court considered that the statements made by the defendants and the witnesses both before the prosecutor and in open court corroborated the theory that some of L.P.’s clients had been released from prison because she had bribed the judges, including to the co-defendants. The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted, either before the prosecutor or in court that they had been pressured by the defendants into changing their declarations. The court also considered that the testimonies given by the witnesses corroborated the transcripts of the telephone conversations.
26. The Supreme Court also made a lengthy analysis of the transcripts thus responding to the defendants’ allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage. The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court. It noted that the experts had not questioned that aspect either.
As for the authenticity and originality of the tapes, which the experts contested, the court pointed out that, in the sense of Article 224 of the Code of Criminal Procedure, the report concerning the transcripts, drafted by the prosecutor after the opening of the criminal proceedings, represented the evidence and not the tapes themselves (which were attached to the prosecutor’s report, as the law required); nor did the original hard‑disk onto which the recording had been done. In his report, the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected. The court confirmed those aspects. The defendants had had ample opportunity to challenge it, as provided for by the CCP.
Moreover, the court observed that the original recording had been digital, done straight onto the hard-disk of the equipment used by the RIS for telephone tapping; the tapes attached to the prosecutor’s report were consequently copies of the original recordings. Because of its nature and purpose, the hard-disk could not be attached to the prosecutor’s report; furthermore, it did not need to be attached as it did not constitute evidence. The court concluded that the absence of the hard-disk did not automatically disqualify the transcripts from being used as evidence.
Furthermore, the court noted that, for obvious reasons related to respect for the private life of those involved, it had not listened to all the conversations recorded by the RIS, but only to those relevant to the charges brought before it. However, the parts presented to it and to the defendants by the prosecutor represented full conversations. The dialogues were coherent; the sentences were not truncated and no words were missing or had been inserted into the dialogues. It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified.
27. The court was therefore satisfied that the prosecutor’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file.
28. All parties appealed against the judgment. In particular, the applicant argued that the indictment was illegal, in so far as the prosecutor lacked the credentials for working on the case (years of experience) and because the indictment had not been signed by the Prosecutor General; that the criminal proceedings were illegal in so far as she had not been informed of the accusation. She also alleged a breach of the right to defence during the investigations.
Furthermore, she argued that the judgment had not been signed by the dissenting judge and that the operative part of the decision did not correspond to the one delivered in public. She complained about the court’s interpretation of the evidence in the file, in particular that the audio tapes had been taken into account despite the expert opinion and the defendants’ opposition to their admission to the file.
She lastly complained about the fact that the prosecutor did not withdraw from the case after having breached her presumption of innocence with his statements.
29. The case was heard by a nine-judge bench of the Supreme Court who rendered a final decision on 8 October 2003. The Supreme Court dismissed the applicant’s appeal and maintained the sentence. The Supreme Court gave a detailed answer to all arguments raised by the defence concerning both the procedural and the substantive aspects of the case before the prosecutor and the first-instance court.
30. The Supreme Court also considered that the prosecutor was right not to withdraw from the case after having called the defendants “offenders”, as those remarks had been uttered in the course of debates, where prosecutor and defendants were in positions of equality and had been provoked by the offensive statements of the applicant’s counsel concerning the witness.
31. The Supreme Court noted that the telephone tapping had not observed the stricter requirements relating to magistrates. It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping; on this point it reiterated that the information concerning the magistrates’ alleged involvement had been obtained incidentally by the prosecutor. It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations. The court also reiterated that as the tapes had disclosed information on the commission of crimes, they could not have been ignored by the authorities. Furthermore, the tapes had been made with the prosecutor’s prior approval, as the law had required at the time, and had not contravened public order. The Supreme Court attached great importance to the fact that the defendants had not denied having had the recorded conversations. It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file. It therefore concluded that the tapes could be used as evidence.
The Supreme Court also decided that the evidence had to be interpreted in its entirety and in context, and reiterated that the law did not give precedence to any type of evidence to the detriment of others.
32. The Supreme Court noted that the first-instance court had changed the legal classification of the crimes committed by L.P. from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by V.A. from a continuous crime of trading in influence and aiding and abetting L.P. to give bribes to several individual crimes of trading in influence and aiding and abetting L.P. to give bribes. It accepted that the first-instance court had erred in not allowing the parties to discuss the new legal classification given by it to the crimes committed by V.A. However, it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification as the consequences in law for both situations were identical.
33. On 13 October 2003 the applicant started serving her sentence. She was released from prison on 25 October 2004.
B. Relevant domestic law
34. The legislation in force at the relevant time concerning telephone tapping, including the National Security Act, is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).
35. The relevant provisions of the Code of Criminal Procedure concerning the preliminary investigation read as follows:
Article 224 §§ 1 and 3
The preliminary investigation
“1. The criminal investigation authorities may conduct any preliminary investigation measures.
...
3. The report of execution of any preliminary investigation measure shall constitute evidence.”
Article 228 § 1
Opening of the criminal proceedings (urmărirea penală)
“The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article 221 shall order, by decision (rezoluţie), the opening of criminal proceedings where the content of that application or the preliminary investigation does not disclose any grounds for not prosecuting, as provided for in Article 10, with the exception of the ground set out in subparagraph (b)1.”
36. Concerning the telephone tapping at the preliminary investigation stage, the High Court of Cassation and Justice considered, in a decision rendered in an appeal on points of law (decision no. 10 of 7 January 2008) that the lawfulness of the interception was not dependent on whether criminal proceedings had been opened; it further noted that the law did not impose an obligation on the authorities to inform the person concerned of that measure, an omission which the High Court found reasonable, given the purpose of the telephone tapping and its secrecy. However, the person concerned had subsequently had an opportunity to listen to the recordings and contest their content. The High Court also reiterated that there was no prior value attached to the report drafted by the prosecutor, as the courts were free to assess the evidence in the context of the files under examination.
By its decision no. 962 of 25 June 2009, the Constitutional Court confirmed that Article 911 of the CCP did not allow for evidence to be gathered during the preliminary investigations; any such evidence would fall under the courts’ scrutiny.
COMPLAINTS
37. Under Article 6 §§ 1 and 3 (a) and (c) of the Convention, the applicant complained that the indictment had not been done in accordance with the law; that the prosecutor had not had the necessary credentials and had started the investigation before the Ministry of Justice had approved it; that the witnesses had been coerced into making statements for the prosecution; that for a long time the hearings had been scheduled one week apart and the file had not been accessible to defence counsel; that requests for evidence for the defence had been dismissed; that the minutes of the hearings had not been accurate; that one of the judges had not signed the judgment; that the change in legal classification of the crimes committed by her co-defendants had not been discussed with the parties; that the Supreme Court had refused to refer the case to the Constitutional Court; and that the operative part of the judgment had been falsified.
38. The applicant considered that the prosecutor I.K. had infringed her presumption of innocence when, during the hearing that had taken place on 27 February 2002, she had called the defendants “offenders”. She pointed out that I.K. had continued to represent the prosecutor’s office throughout the proceedings. She relied on Article 6 § 2 of the Convention.
39. Under the same Article, as well as under Article 8 raised in substance, she complained that the audio tapes had been admitted as evidence and heard by the court despite them being illegally obtained and lacking authenticity and originality.
40. She complained that the prosecutor that investigated her had not met the requirements set forth in Article 5 § 3 of the Convention and that his presence in the trial had breached the principle of equality of arms.
THE LAW
A. On the complaints raised under Article 6 §§ 1 and 3 of the Convention
41. The applicant complained that the criminal proceedings against her had not been fair. She relied on Article 6 §§ 1 and 3 of the Convention which reads as follows, in so far as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
1. The parties’ arguments
42. The Government contended that the proceedings against the applicant, seen as a whole, had been fair. They put forward that the applicant had had the possibility to present his arguments, to adduce evidence and to challenge the evidence brought by the prosecution. They argued that the telephone interceptions had been authorised by the prosecutor according to the law; that the defendants had not contested having had the conversations or their content; and that in any case the recordings had not constituted the only evidence against the defendants. They also pointed out that the applicant had suffered no consequence from the change of the legal classification of the crimes operated by the court. Furthermore, the domestic courts had given answers to all the claims brought by the applicant before the Court.
43. The applicant argued, mainly, that the prosecutor had not followed the procedure for indicting her, claiming both the non-observance of the formal requirements for the indictment act and the absence of the necessary approvals from the Ministry of Justice; that she had not had enough time between hearings to prepare her defence; that the evidence obtained through telephone tapping had been illegal, in so far as it had been gathered before the commencement of the criminal proceedings and without the proper procedures being observed; that the witnesses and L.P. had been coerced by the prosecutor into testifying against her; that the courts dismissed the request for evidence made by the defence; and that the operative part of the first-instance judgment had been falsified. She also complained that the first‑instance court had changed the legal classification of the crimes allegedly committed by her co-defendants without allowing the parties to discuss the new situation.
2. The Court’s assessment
(a) General principles
44. At the outset, the Court points out that the guarantees enshrined in paragraph 3 of Article 6 represent specific applications of the general principle stated in paragraph 1 of that Article and for this reason it will examine them together (see, among many others, Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35; Doorson v. the Netherlands, 26 March 1996, § 66, Reports of Judgments and Decisions 1996‑II; and Artico v. Italy, 13 May 1980, § 32, Series A no. 37).
45. According to the Court’s case-law, for the purposes of Article 6, the “charge” could be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence or where “the situation of the [suspect] has been substantially affected” (see Deweer, cited above, § 46).
46. The Court further reiterates that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009). Moreover, it is not its role to examine the legislation in abstracto, but to consider the manner in which it affected the applicant (see, mutatis mutandis, Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28).
47. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports 1997‑VIII and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where a violation of another Convention right is concerned, the nature of the violation found.
48. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Bykov, cited above, § 90).
(b) Application of those principles to the case at hand
49. The Court notes that the complaint raised by the applicant is manifold. It will examine the main arguments in the following chapters.
(i). the transcripts of the telephone conversations
50. The Court observes that pursuant to the relevant provisions of the Code of Criminal Procedure, the domestic courts accepted as evidence in the case file the prosecutor’s report concerning the telephone conversations between the defendants recorded during the preliminary investigation. The defendants argued that the tapes had been unlawfully obtained and that they had been proven not to be authentic and original.
51. The domestic courts responded extensively to the arguments concerning the impact of the contested evidence raised by the defendants (see paragraph 26).
52. The Court observes that both the applicant and the defence counsels availed themselves of numerous opportunities to question the validity of that evidence, and the courts gave thorough answers to their objections. It is to be noted that the applicant did not question the reality of the conversations recorded or the authenticity of their content. The domestic courts also insisted on that point when they examined the experts’ opinion disputing the “authenticity and originality” of the tapes (see paragraph 26 above and Dumitru Popescu, cited above, § 109).
53. The Court also reiterates that the evidence does not have a pre‑determined role in the respondent State’s criminal procedure. The courts are free to interpret it in the context of the case and in the light of all the elements before them (see Dumitru Popescu, cited above, § 110). In the case at hand, the recording was not treated by the courts as a plain confession or an admission of knowledge capable of lying at the core of a finding of guilt (see Bykov, cited above, § 103); it played a limited role in a complex body of evidence assessed by the court.
54. Having examined the safeguards surrounding the analysis of the admissibility and reliability of the evidence concerned and the use to which the material obtained through telephone tapping at the preliminary investigation stage was put by the courts in the current case, the Court considers that the use of transcripts in the trial did not breach the rights of the defence.
(ii). the legal classification of the alleged crimes
55. The Court notes at the outset that the applicant was not affected in any way by the change in legal classification of the crimes. However, even assuming that in not allowing the parties to discuss this change the domestic courts somehow affected the applicant’s rights of defence, it is to be noted that L.P. lodged the same complaint with the Court which declared it inadmissible in a decision of 15 September 2009. The Court observed that the court of last resort had addressed the issue of reclassification and had concluded that it had concerned only the sentence and not the legal classification of the facts themselves and that the defendants had had the opportunity to contest the facts attributed to them (see Peter v. Romania (dec.), no. 25333/03, § 80, 15 September 2009 and paragraph 5 above). The Court further notes that the parties’ arguments regarding the new classification were fully taken into account in the appeal proceedings.
56. The Court reiterates that the circumstances of the present case differ essentially from those examined in Constantinescu v. Romania (no. 28871/95, ECHR 2000‑VIII), where the Court concluded that there had been a violation of Article 6 in so far as the applicant was convicted for the first time by the court of last resort, without being heard by that court about the new classification given to the crimes.
57. For these reasons, the Court sees no reason to depart in the present case from its findings in the decision Peter, cited above. Therefore it concludes that on this point no breach occurred under Article 6 of the Convention.
(iii). the remaining arguments
58. The applicant further raised under Article 6 of the Convention most of the arguments she had advanced in the domestic appeals.
59. The Court observes that the Supreme Court answered those pleas in great detail in a well-reasoned decision (see paragraph 25 and following, above). The domestic courts paid particular attention to the manner in which the stricter procedural requirements for the investigation of magistrates had been observed by the prosecutor and gave sufficient reasons why they considered the proceeding to have been adequate (see paragraph 31 above and, mutatis mutandis, Kudeshkina v. Russia, no. 29492/05, § 97, 26 February 2009, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 136, 9 January 2013).
60. The Court sees no reason to contradict the domestic court’s findings in the matter and does not detect any grave procedural omissions in the proceedings carried out against the magistrates, including thus the applicant (see also paragraph 51 above).
(iv). conclusion
61. The Court is satisfied that the domestic courts based their decisions on an important body of evidence: they heard testimony from several witnesses for the prosecution and for the defence, and took the opportunity to study the conflicting positions and to explain them in the context of the case.
62. For these reasons, the Court finds that the proceedings in the applicant’s case, considered as a whole, were not contrary to the requirements of a fair trial.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. On the complaint raised under Article 6 § 2 of the Convention
63. The applicant further complained of the fact that the prosecutor I.K. had infringed the presumption of her innocence when, during the hearing that took place on 27 February 2002, she had called the defendants “offenders”. She pointed out that I.K. had continued to represent the prosecutor’s office throughout the proceedings. She relied on Article 6 § 2 of the Convention.
64. The Court notes that L.P. lodged the same complaint with the Court which declared it inadmissible in a decision of 15 September 2009 whereby the Court observed that the statements by the prosecutor had been made during the debates, while a witness was being interrogated, and not independently from the court proceedings and therefore could not constitute a breach of the presumption of the applicant’s innocence (see Peter (dec.), §72, cited above and paragraph 5 above).
65. In addition, the Court notes that the applicant complained about the prosecutor’s statements and the court examined her arguments (see paragraph 19 above). The mere fact that his objection was dismissed by the Court does not render the applicant’s claims admissible under Article 6 of the Convention.
66. For these reasons, the Court sees no reason to depart in the present case from its findings in the decision Peter, cited above. 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.
C. On the complaint raised under Article 8 of the Convention
67. Relying in substance on Article 8 of the Convention, the applicant complained that the telephone interceptions had been illegal. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
68. The Government averred that the applicant could not pretend to be the victim of a violation of the Article 8 rights, in so far as the authorities had not intercepted her telephone, but that of L.P. and as her own conversations with the co-defendants had not been recorded and adduced in the file.
69. Furthermore, they argued that as the main aim of Article 8 was to protect individuals against arbitrary interference, this Article is not applicable to the facts of the current case because the interference had not been arbitrary, in so far as the measure had been approved by the court.
70. The applicant contended that the telephone interceptions, albeit done on a third party’s phone, concerned her and thus interfered with the respect of her private life. Moreover, the material had been used as evidence in trial against her, thus further breaching her Article 8 rights.
2. The Court’s assessment
71. The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see Velikova v. Bulgaria (dec.), no. 41488/98, 18 May 1999).
72. In the case at hand, the applicant complained of an alleged infringement of her right to respect for her private life by the recordings of telephone conversations between third parties in which her alleged involvement in criminal acts had been mentioned. However, there was no recording of the applicant’s conversations (see paragraph 5 above).
73. Therefore, the Court considers that the applicant’s rights under Article 8 were not concretely affected by any measure taken by a national authority (see Viorel Burzo v. Romania, nos. 75109/01 and 12639/02, § 117, 30 June 2009). The Court further considers that the fact that the information obtained through telephone tapping was used in trial has already been examined under Article 6 of the Convention (see paragraphs 52 and 62 above).
74. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
D. On the complaint raised under Article 5 of the Convention
75. Lastly, the applicant raised a complaint under Article 5 § 3 of the Convention.
76. However, as she had not been placed in detention pending trial, Article 5 is not applicable to her situation.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy