THIRD SECTION
DECISION
Application no. 15960/05
by Vasile Eugen NEGREA
against Romania
The European Court of Human Rights (Third Section), sitting on 4 October 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 15 April 2005,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vasile Eugen Negrea, is a Romanian national who was born in 1954 and lives in Târgu-Mureş.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 26 July 2004 the Târgu-Mureş Anti-Corruption Prosecutor’s Office (“the prosecutor”) started criminal proceedings against the applicant, whom he accused of acts of corruption. At that time the applicant was a civil servant working in the Financial Control Department of the Mureş General Directorate of Public Finances (“the DGFP”). He was released from his functions on 30 July 2004.
When interviewed on 26 July by the prosecutor, the applicant denied having committed the crime he had been charged with.
Other persons, colleagues of the applicant, were also put on trial.
4. On 29 July 2004 the prosecutor arrested the applicant for twenty-four hours and placed him in the Mureş Police detention facility. On an unspecified date he was transferred to a prison where he had to share a cell measuring 20 sq. m with sixteen convicted offenders.
According to his submissions to the Court, he did not complain to the domestic courts under Ordinance no. 56/2003 on the execution of sentences about the conditions of his detention, or, in particular, about the fact that he was held with convicted criminals.
5. On 29 July 2004 the applicant complained against his arrest but to no avail, as the prosecutor allegedly refused to examine his complaint.
6. On the same day, the prosecutor requested the Mureş County Court’s approval to place the applicant in detention pending trial for twenty‑nine days.
7. On 30 July 2004 the County Court, sitting as a single judge, ordered the applicant’s pre-trial detention as requested by the prosecutor. The court issued two decisions in the matter, a judgment (sentinţă) and an interlocutory judgment (încheiere), both bearing the same number and reaching the same conclusion, with extended and almost identical reasoning. In both decisions the court considered that there were strong indications that the applicant had committed the crimes and that if left at liberty he represented a danger to public order (“ordre public”). The court nevertheless rejected as ill-founded the prosecutor’s claim that the applicant had tried to influence witnesses or alter the material evidence and noted that the prosecutor had not yet even started to gather evidence in the case.
On 2 August 2004 the Târgu-Mureş Court of Appeal dismissed an appeal lodged by the applicant against the above-mentioned interlocutory judgment.
8. The County Court extended the applicant’s pre-trial detention by interlocutory judgments on 23 August 2004 (appeal dismissed on 27 August 2004), 23 September 2004 (appeal dismissed on 29 September 2004) and 11 November 2004 (appeal dismissed on 14 November 2004). The applicant contested his pre-trial detention and opposed any request by the prosecutor to have it extended. Both the County Court and the Court of Appeal considered that the applicant’s detention was justified given the existence of strong indications that the applicant had committed crimes and of the danger he represented to public order.
9. On 20 September 2004 the prosecutor indicted the applicant.
10. On 27 September 2004 the County Court suspended the examination of the merits of the case, as the applicant had made a constitutional complaint that had been forwarded to the Constitutional Court. Periodic examination of the lawfulness of the detention continued under Article 303 § 6 of the Code of Criminal Procedure (the “CCP”).
11. On 20 December 2004 the County Court decided not to extend the applicant’s detention any longer. It considered that the impact of his deeds on public order had diminished with the passage of time and noted that if the examination of the merits of the case continued to be suspended the applicant could not be tried within a reasonable time, as required by Article 5 of the Convention. Consequently, it ordered that the applicant be released from prison on an undertaking not to leave town.
On 28 December 2004 the Court of Appeal allowed an appeal by the prosecutor, quashed the previous judgment and extended the applicant’s detention by thirty days. It reiterated that there were strong indications in the file that the applicant had committed the crimes concerned and noted that the grounds for taking the measure in the first place still existed and thus justified the extension of that measure.
12. On 26 January 2005 the County Court ordered once again that the applicant be released, for the same reasons as before. On 28 January 2005 the Court of Appeal reversed that decision.
13. On 24 February 2005 the prosecutor requested the High Court of Cassation and Justice to transfer the case to a different court (strămutarea cauzei). He argued that some of the witnesses had been threatened by persons close to the defendants; that the applicant’s wife was still working for DGFP, along with some of those witnesses; that one of the defendants had claimed during the criminal investigation that he had relatives in the local courts who could help him; and that the media had closely covered the developments of the case and depicted the defendants as victims of the allegedly corrupt local judicial system. On 24 March 2005 the request was eventually dismissed by the High Court.
14. In the meantime, on 28 February 2005 the County Court stated that the examination of the case had been suspended by order of the High Court of Cassation and Justice until a ruling was given on the prosecutor’s request to have the case transferred elsewhere. It considered, however, that the examination of the applicant’s detention was not covered by the suspension ordered. It therefore examined it and once again replaced the measure with an obligation not to leave town. On 2 March 2005 the Court of Appeal quashed that decision on the ground that the County Court had wrongly extended the application of Article 303 § 6 of the CCP to the case, as that provision did not apply in the case of a suspension ordered by the High Court.
15. On 25 March, 26 April and 19 May 2005 the County Court again replaced the applicant’s detention with an obligation not to leave town, on the same grounds as before, but on 28 March, 29 April and 23 May 2005 respectively those rulings were reversed by the Court of Appeal.
16. On 17 June 2005 the County Court once again ordered the applicant’s release and on 20 June 2005 the Court of Appeal upheld the decision by dismissing the prosecutor’s appeal.
17. The applicant was released from detention on 20 June 2005.
18. On 17 April 2008 the Mureş County Court convicted the applicant for acts of corruption and sentenced him to three years and nine months’ imprisonment. On 13 February 2009 the Târgu-Mureş Court of Appeal reduced the sentence to three years’ imprisonment, but that decision was quashed by the High Court on 13 September 2010.
The case is currently pending before the Târgu-Mureş Court of Appeal.
COMPLAINTS
19. The applicant complained about the conditions of his detention both in the police detention facility and in the prison. He claimed that he had to share a cell with sixteen convicted offenders, although he should have been held in a separate facility. Furthermore, his cell measured less than 20 sq. m and held a total of seventeen detainees.
20. Under Article 5 § 1 c) of the Convention, he argued that he had been arrested without any evidence that he had tried to flee or that he presented a threat to public order, and that the courts had not examined the reasons for his arrest.
21. He complained that he had not been tried within a reasonable time, as required under Articles 5 § 3 and 6 § 1 of the Convention. He referred, in particular, to the way the courts had examined and extended his pre-trial detention. Furthermore, relying on Article 6 § 3 of the Convention, he complained that the courts had failed to properly examine the reasons invoked by the prosecutor to justify his detention both when approving the measure and when extending it. He reiterated that he did not constitute a threat to public order and that any potential danger that he could present had ended the moment he had been suspended from office.
22. The applicant complained under Article 6 § 2 of the Convention that the authorities had breached his right to the presumption of innocence, in so far as his arrest had been covered by the media and the Prosecutor’s Office had made public statements in press conferences declaring him guilty. He also argued that the prosecutor had always taken part in the secret deliberations of the benches deciding on his pre-trial detention.
23. He also complained of a violation of the rights of the defence, guaranteed by Article 6 § 3 (b), (c) and (d), as he considered that he had not had the liberty to propose evidence during the prosecution phase and had not been consistently assisted by counsel. He also complained that the prosecution had given preferential treatment to the person who had allegedly bribed him.
24. The applicant complained under Article 8 of the Convention that his right to private and family life had been breached by his detention, that his family had been affected by the trial, and that because of his detention he had failed to sit his university exams.
He also complained that images of him wearing handcuffs had been widely published in the media, which had affected his reputation.
THE LAW
A. Complaint under Article 3 of the Convention
25. The applicant complained about the conditions of his detention. He invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
26. The Court considers that it cannot determine the admissibility of this complaint on the basis of the documents at its disposal, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. Complaint under Article 5 § 3 of the Convention
27. The applicant complained about the length of his pre-trial detention and about the way the courts had examined the reasons invoked by the prosecutor to justify it. He relied on Articles 5 § 3 and 6 §§ 1 and 3 of the Convention.
28. The Court is master of the characterisation to be given in law to the facts and can decide to examine complaints submitted to it under another Article than that quoted by an applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). It will therefore examine the complaint under Article 5 § 3 of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
29. The Court considers that it cannot determine the admissibility of this complaint on the basis of the documents at its disposal, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
C. Other complaints
1. Complaint under Article 5 § 1 (c) of the Convention
30. The applicant complained that he had been arrested without any evidence that he had tried to flee or that he presented a threat to public order, and that the courts had not examined the reasons for his arrest. Article 5 § 1 reads as follows, in so far as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...”
31. The Court notes that the applicant was arrested on 29 July 2004. Therefore, in lodging his application with the Court on 15 April 2005, the applicant failed to observe the six-month rule in respect of this complaint (see Mujea v. Romania (dec.), no. 44696/98, 10 September 2002).
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. Complaints under Articles 6 §§ 2 and 3 of the Convention
32. The applicant raised several complaints concerning the fairness of the criminal proceedings initiated by the prosecutor against him. In particular, he complaind about breaches of the presumption of innocence in his favour and of the rights of the defence. He relied on Articles 6 §§ 2 and 3 (b), (c) and (d) of the Convention. The relevant provisions read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(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;
...”
33. The Court notes that the criminal case against the applicant is still pending before a court that has the power to examine the above-mentioned complaints by the applicant.
It follows that these complaints are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. Complaint under Article 8 of the Convention
34. The applicant complained under Article 8 of the Convention that his right to private and family life had been breached by his detention, that his family had been affected by the trial, and that he had been unable to take his university exams because of it. He also complained that images of him in handcuffs had been widely published in the media, which had affected his reputation. 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.”
35. The Court makes reference to the principles it has established in its recent case-law concerning the protection afforded by Article 8 to a person’s reputation (see Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007‑XII; Petrina v. Romania, no. 78060/01, §§ 27-29 and 34-36, 14 October 2008; A. v. Norway, no. 28070/06, §§ 63-65, 9 April 2009; and Timciuc v. Romania (dec.), no. 28999/03, §§ 143-146, 12 October 2010), and to Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member States on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers’ Deputies).
36. Turning to the facts of this case, the Court notes that the applicant failed to adduce as evidence before the Court any material published in the press at the relevant time that could have been detrimental to his reputation or have infringed his private or family life in any way. The press articles adduced and those mentioned incidentally in the domestic proceedings (see paragraph 13 above) do not seem to go beyond the right of the media to report on criminal trials that contribute to debates on matters of public interest.
37. In so far as the applicant complained that he and his family had been affected by his detention and the trial, and because of that he had failed to sit his university exams, the Court notes that the applicant did not adduce any evidence that he personally or his family had been affected beyond what is reasonably to be expected in such situations and to a point that would raise an issue under Article 8 of the Convention.
The Court also notes that for the matters concerned, the applicant could have lodged complaints with the domestic authorities under Ordinance no. 56/2003 (see Petrea v. Romania, no. 4792/03, §§ 35-36, 29 April 2008), but failed to do so.
38. Therefore, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning Articles 3 and 5 § 3 of the Convention;
Declares the remainder of the application inadmissible.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy