THIRD SECTION
DECISION
Application no. 48915/10
Lidia NICULESCU
against Romania
The European Court of Human Rights (Third Section), sitting on 17 February 2015 as a Committee composed of:
Luis López Guerra, President,
Johannes Silvis,
Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 10 November 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Lidia Niculescu, is a Romanian national, who was born in 1956 and lives in Bucharest. She was represented before the Court by Mr R. Coman, a lawyer practising in Bucharest.
The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
By indictment of 12 December 2001 the Prosecutor’s Office attached to the Supreme Court of Justice ordered the dissociation of the already existing file concerning a number of offences (trading in influence, giving bribes and illegally crossing the border) for which she was arrested and indicted, in order to pursue further investigation against the applicant in relation to other criminal complaints made by private parties for tax evasion, aiding and abetting and offences of corruption.
On 21 November 2002 the Prosecutor’s Office attached to the Bucharest Tribunal declined jurisdiction in favour of the National Anti-Corruption Prosecutor’s Office. On 8 December 2004 the prosecutor decided not to institute criminal proceedings for the offences of corruption and declined jurisdiction for tax evasion and aiding and abetting in favour of the Prosecutor’s Office attached to the Bucharest Tribunal. In its turn, the latter declined jurisdiction on 19 April 2007 in favour of the Prosecutor’s Office attached to the Bucharest Court of Appeal. On 20 November 2007 the prosecutor decided not to institute criminal proceedings against the applicant for tax evasion and aiding and abetting. These proceedings and decisions were not communicated at those respective times to the applicant.
On 7 September 2010, the applicant inquired about the state of proceedings to the Prosecutor’s Office attached to the Supreme Court of Justice and she was informed that the file was transferred to the National Anti-Corruption Prosecutor’s Office. On 17 September 2010 the applicant addressed the latter authority and the decisions of 8 December 2004 and 20 November 2007 of the prosecutor not to institute criminal proceedings were communicated to her on 23 and 24 September 2010, respectively. They became final on 14 and 15 October 2010, respectively as the applicant did not appeal them.
B. Relevant domestic law
The relevant Romanian legal provisions are described in the judgment in the case of Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, §§ 62 - 63, 68, 70 - 72 and 75, 26 November 2013.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the length of the dissociated criminal proceedings regarding tax evasion, aiding and abetting and offences of corruption.
THE LAW
Complaining of the length of the criminal proceedings the applicant invoked Article 6 § 1 of the Convention which in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted that the applicant cannot be considered a victim in relation to the length of criminal proceedings that are the matter of this application. They maintained that the applicant was never subject of a “charge” within the meaning of the criminal head of Article 6 of the Convention. Furthermore, criminal proceedings were never instituted against her as the investigation ended with the prosecutor’s decision not to do so. Only after the start of such proceedings the notion of “criminal charge” can be considered applicable.
The Government also contended that the applicant was never affected by these proceedings as there were never any measures taken so as to lead to the conclusion that the applicant was formally notified of a charge against her, for example the applicant was never heard nor summoned to appear before the authorities. Moreover, the applicant was in a state of passiveness as she only inquired about the state of proceedings in 2010 at the time when the criminal investigation was already over, the prosecutors having ordered not to institute criminal proceedings against her by decisions of 8 December 2004 and 20 November 2007.
The applicant did not reply to these allegations.
The Court recalls that in criminal cases, the reasonable time guarantee referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Reinhardt and Slimane-Kaïd v. France, 31 March 1998, § 93, Reports of Judgments and Decisions 1998 II and Reiner and Others v. Romania, no. 1505/02, § 46, 27 September 2007). Whilst “charge”, for the purposes of Article 6 § 1, may in general be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect (see Kravtas v. Lithuania, no. 12717/06, § 35 in fine, 18 January 2011).
The Court notes that in the present case it has to assess whether the applicant was subject to a “charge” within the meaning of the Convention and according to its case-law and thus, whether Article 6 § 1 can be considered applicable.
The Court observes that notwithstanding that the prosecutor ordered on 12 December 2001 further investigation to be carried out with regard to the applicant in relation to tax evasion, aiding and abetting and offences of corruption, the applicant was never notified of an allegation that she has committed a criminal offence. No such measures were taken after that decision so as to lead to the conclusion that such an allegation was made or that the applicant’s situation was substantially affected by them in so far as the applicant was not heard or questioned in relation to the envisaged offences, she was not summoned and no statement was taken from her (see, per a contrario, Martins and Garcia Alves v. Portugal, no. 37528/97, §§ 19‑20, 16 November 2000; Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, § 18, 22 October 2009 and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 142, ECHR 2014 (extracts)). The Court also notes that even if the applicant was arrested, she was so in relation to a number of other offences for which she was indicted, she was never detained in relation to the offences that are the subject matter of this application (see, per a contrario, Kaçiu and Kotorri v. Albania, nos. 33192/07 and 33194/07, § 150, 25 June 2013 and Idalov v. Russia [GC], no. 5826/03, § 187, 22 May 2012).
Furthermore, no other steps were taken that could have substantially affected the applicant; the mere knowledge that the prosecutor had ordered further investigation and the very existence of the file did not have any repercussions on the applicant, she only became aware of the development of the proceedings after they had ended.
Moreover, the Court notes that the investigation ended with the prosecutors’ decisions of 8 December 2004 and 20 November 2007 not to institute criminal proceedings against the applicant and that she learnt of these decisions on 23 and 24 September 2010, respectively, when she inquired about the state of proceedings, aspect reinforcing that the applicant was not substantially affected by this investigation.
Having regard to all the circumstances of the case, the Court is thus satisfied that the applicant was not subject to a “charge” within the meaning of Article 6 § 1 of the Convention and declares the application inadmissible as incompatible ratione materiae pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 March 2015.
Marialena TsirliLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy