Communicated on 16 September 2014
THIRD SECTION
Applications nos. 52788/10 and 52796/10
Viorel MOLDOVAN against Romania
Mirel Stelian CORMOȘ against Romania
lodged on 7 September 2010
STATEMENT OF FACTS
The applicants, Mr Viorel Moldovan (“the first applicant”) and Mr Mirel Stelian Cormoş (“the second applicant”), are Romanian nationals who were born in 1977 and 1974 and live in the villages of Porumbeşti and Tătăreşti, Romania, respectively. They were represented before the Court by Mr R. V. Doseanu, a lawyer practising in Oradea.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
By an interlocutory judgment of 24 March 2009 the Oradea Court of Appeal allowed the Oradea National Anti-Corruption Department’s action seeking to detain the applicants and other co-accused pending trial on charges of aggravated smuggling and accessory to smuggling, and ordered their pre-trial detention for twenty-eight days. The court held that the applicants were accused of organising the illegal transport of smuggled cigarettes from Ukraine to Romania between September 2008 and January 2009 and embezzling 1,552,453 euros (EUR) from the State. Relying on the documentary and testimonial evidence available in the file as well as the transcripts of their telephone conversations, the Court of Appeal found that there was strong proof to support the suspicion that the applicants and their co-accused had committed the above-mentioned offences. Moreover, it held that the said offences were punishable by more than four years’ imprisonment and that their release would be a danger to public order (Article 148 (f) of the Romanian Code of Criminal Procedure) taking into account the quantity of smuggled cigarettes, the large number of people involved in the smuggling operation, the public’s opinion and perception, and the considerable period of time for which the accused had been committing the offences. Lastly, the court dismissed the applicants’ request for alternative measures.
The applicants’ appeal against the interlocutory judgment of 24 March 2009 was dismissed as ill-founded by the Court of Cassation in April 2009.
Between 2 June 2009 and 25 August 2010 the Oradea Court of Appeal and the Court of Cassation repeatedly extended the applicants’ pre-trial detention by final interlocutory judgments on the ground that the initial reasons justifying their detention remained valid. It also dismissed the applicants’ repeated requests for alternative measures by relying on the same grounds used to justify the extension of the pre-trial detention.
By a final interlocutory judgment of 30 September 2010 the Court of Cassation allowed the second applicant’s action seeking the discontinuance of his pre-trial detention and ordered his release on the condition that he did not leave his home county.
Until December 2010 the first applicant’s pre-trial detention continued to be extended by the Oradea Court of Appeal and the Court of Cassation and his requests for alternative measures were dismissed on the ground that the initial reasons justifying his detention remained valid.
By a judgment of 26 January 2011 the Oradea Court of Appeal convicted the applicants of the offences they had been charged with and sentenced each of them to six and four years’ imprisonment, respectively.
The criminal proceedings brought against the applicants appear to be still pending before the domestic courts.
B. Relevant domestic law
Section 148 of the Romanian Code of Criminal Procedure (CCP) provides that a person may be detained when there is reasonable suspicion that he or she has committed a crime and provided that one of the situations listed is applicable. Some of these situations are those in which an accused has committed a serious offence punishable by more than four years’ imprisonment and is a danger to public order.
The relevant domestic practice concerning the notion of a “danger to public order” provided for by Article 148 of the CCP is set forth in the case of Calmanovicil v. Romania (no. 42250/02, §§ 40-42, 1 July 2008). Following the amendment of the CCP by Law no. 281/2002 published in the Official Gazette on 1 July 2003, Article 148 of the CCP requires the existence of evidence that the release of an accused would pose a real danger to public order.
COMPLAINT
Relying on Article 5 § 3 of the Convention the applicants complain of the repeated use of the same general reasons by the domestic courts to place and maintain them in pre-trial detention for an excessively long time.
QUESTION TO THE PARTIES
Was the applicants’ pre-trial detention in line with the requirements of Article 5 § 3? In particular, were the reasons for the applicants’ continued detention adduced by the domestic courts “relevant and sufficient” and were the proceedings conducted with “special diligence”?
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