THIRD SECTION
Application no. 52942/09
Gabriel Aurel POPOVICIU against Romania
lodged on 16 September 2009
STATEMENT OF FACTS
The applicant, Mr Gabriel Aurel Popoviciu, is a Romanian national who was born in 1959 and lives in Bucharest. His application was lodged on 16 September 2009. He is represented before the Court by Mr D. Apostol, a lawyer practising in Bucharest.
A. The background of the case
In 2005 a businessman, G.B., lodged a criminal complaint against the applicant and the rector of the University of Agronomy concerning the sale of a 224 ha plot of land located in Băneasa, near Bucharest. He claimed that the applicant had purchased the plot of land for significantly less money than its actual worth. He also alleged that the plot of land was not the property of the University but of the Romanian State.
On 14 February 2008, the General Prosecutor’s Office decided not to start an investigation for lack of evidence. However, on 31 July 2008 the Chief Public Prosecutor quashed this decision and relinquished its jurisdiction in favour of the National Anti‑Corruption Prosecution Service (“the NAP”).
In March 2009 the NAP’s prosecutor in charge of the inquiry denounced that he had been pressured to stop the investigation. According to his statements, two senior directors from the Ministry of the Interior, namely the head of the Ministry’s Internal Protection and Intelligence Department and the head of the Anti‑Corruption Department’s Operation Division within the same Ministry asked him to resolve the case sooner and to give a favourable solution. He was told by them that the businessman under investigation benefited from the support of important Romanian political personalities, adding that he was so important, that even the President of Romania and the Prime Minister were queuing at his door.
The NAP’s prosecutor was both investigator and whistleblower. On the basis of his testimony, the initial investigation concerning the applicant and the rector was extended to include the two senior directors from the Ministry of the Interior.
B. The applicant’s placement in pre-trial detention
On 19 March 2009 the NAP started a criminal investigation in respect of the applicant on the ground that he was an accomplice to the offence of abuse of position committed by the rector of the Bucharest University.
On 24 March 2009 the applicant was taken by police to the NAP’s headquarters on the basis of an order to appear before the investigation body.
The lawyer of his own choosing was called at about 3 p.m. and invited to the NAP’s headquarters in order to assist him.
According to the applicant, the fact that he was taken to the NAP by police on an order to appear was not justified. He alleges that such a measure is normally taken against persons who refuse to cooperate with the investigation bodies, while he went to the NAP each time he had been invited. He adds that on 12 March 2009 he gave a written statement at the NAP.
The applicant was kept at the NAP headquarters until 11.30 p.m., when he was informed of the decision taken by the NAP on the same day concerning the charges against him and the other defendants.
The NAP charged the rector of the University with abuse of position with aggravated consequences, the applicant with complicity in abuse of position, and the two senior directors of the Ministry of the Interior with favouring the offender. By the same decision all the defendants were remanded in custody for twenty-four hours, the period of detention starting to run at 11.30 p.m.
C. The applicant’s release
The next day, on 25 March 2009, at about 6.40 p.m., the NAP asked the Bucharest Court of Appeal to remand the applicant and the other two defendants in custody (the rector was released) for twenty‑nine days, from 25 March 2009 until 22 April 2009.
By an interlocutory judgment delivered on the same date, the Bucharest Court of Appeal, ruling as a single judge, dismissed the prosecution’s request.
It ruled that keeping the applicant in pre-trial detention was not necessary. In this connection it stressed that the applicant had not evaded criminal proceedings but had complied with every summons from the prosecution service. It also stated that bringing the accused on the basis of an order to appear before the investigation body was not justified by his prior refusal to come to the NAP, an aspect also mentioned by the prosecutor in his oral submission before the court. It concluded that there was no evidence that the release of the accused posed any specific threat to public order or would impede the criminal proceedings.
However, without referring separately to each accused the court imposed on all of them a prohibition on leaving the country for thirty days on the ground that there was reasonable suspicion that they had committed the offences with which they had been charged.
The wording of the court’s decision was the following:
“However, as there is reasonable suspicion that they committed the offences with which they have been charged (see page 67, 2nd volume, the minutes drafted on 10 February 2009 of the discussion between P.P. and M.I[1]: “Tell me if we can help the person?” M.I. – “Yes”), the court will impose on each defendant a restriction on leaving the country for a period of twenty-nine days (...)”
By a decision delivered on 22 April 2009, the NAP extended the prohibition on the applicant’s leaving the country for another thirty days from 23 April 2009 until 22 May 2009. The reasons provided by the prosecutor for taking such a measure were that there was reasonable suspicion that the applicant had committed the offence and the necessity to ensure the proper administration of justice.
The applicant contested the measure arguing that the prosecutor’s decision did not provide sufficient reasons for the extension of the restrictive measure, adding that he had willingly attended each time he had been summoned by the investigators. He stressed that the restriction on leaving the country had been imposed in 2009 but in connection with an offence that he had allegedly committed in 2002. He relied on the fact that he was an important businessman for whom freedom of movement outside the country was vital for conducting his business.
In his oral submissions before the court the prosecutor added that the restriction on the freedom of movement was justified by the necessity to ensure the speediness of the proceedings. The applicant replied that since 24 March 2009 he had not been invited to the NAP to give a statement. He added that the speediness of the proceedings was in his own interest as being a well‑known businessman his reputation and integrity were being harmed as long as there were proceedings pending against him.
The measure was upheld by an interlocutory judgment rendered by the Bucharest Court of Appeal on 27 April 2009 which found that the reasons provided by the prosecutor were sufficient. It held that since there were no new circumstances which could change the applicant’s situation there was no reason to revoke the preventive measure against him.
The appeal on points of law lodged by the applicant was dismissed by the High Court of Cassation and Justice as inadmissible (without an analysis of its merits) on 8 May 2009. It held that the applicable law did not provide for an appeal on points of law against an interlocutory judgment by which a request for revocation of a preventive measure was dismissed.
On 19 May 2009 the NAP again ordered the extension of the prohibition on the applicant’s leaving the country for another thirty days. The reasoning of the decision was exactly the same as in the previous decision of 22 April 2009. The applicant challenged the measure before the Bucharest Court of Appeal. He mentioned that he needed to leave the country as he had been invited for a business meeting abroad.
By an interlocutory judgment of 1 June 2009, the Bucharest Court of Appeal ordered the revocation of the measure. It held that the applicant had not tried in any way to hinder the investigation or to leave the country and that he was observing all the obligations imposed on him by the judicial authorities. It also stated that there was still reasonable suspicion that the applicant had committed the offence but the revocation of the restriction would not impede the normal administration of justice. It concluded that although the imposition of a preventive measure should be justified by the necessity to ensure the proper administration of justice and to protect society by preventing the commission of new offences, in the instant case, the NAP had not managed to explain why allowing the applicant to leave the country could have negative repercussions on the administration of justice. At the same time it stressed that maintaining the restriction would not prevent the applicant from contacting all the parties in the file and influencing them.
The appeal on points of law lodged by the NAP was allowed by the High Court of Cassation and Justice on 9 June 2009. It dismissed the applicant’s complaint and upheld the NAP’s decision to extend the restriction. It held that the restriction should be maintained because of the negative social impact caused by the offence committed by the applicant and the complexity of the case.
On 18 June 2009 the NAP extended the restriction on the applicant’s right to leave the country for another thirty days. The applicant’s complaint against the measure was allowed by an interlocutory judgment of the Bucharest Court of Appeal. The appeal on points of law lodged by the NAP was dismissed by the High Court of Cassation and Justice on 3 July 2009.
According to the most recent information provided by the applicant, the case is still pending before the NAP. He also adds that since his detention on 24 March 2009 he has not participated in any procedural steps taken by the investigation bodies.
D. Relevant domestic law
The order to appear before the courts (mandatul de aducere) is provided for by Articles 183 and 184 of the Code of Criminal Procedure, which read as follows:
Article 183
“(1) A person may be brought before [a] criminal-investigation body or [a] court on the basis of an order to appear, drawn up in accordance with the provisions of Article 176, if, having been previously summoned, he or she has not appeared, and his or her hearing or presence is necessary.
(2) An offender or a defendant may be brought [before the authorities] on the basis of an order to appear even before being summoned, if the criminal‑investigation body or the court considers that, and provides reasons why, this measure is necessary for the determination of the case.”
Article 184
“(1) [An] order to appear is enforced by the police.
(2) If the person specified in the order cannot be brought [before the authorities] because of an illness or for any other reason, the police officer appointed to enforce the order shall mention this situation in an official report, which shall immediately be handed to the criminal-investigation body or the court.
(3) If the police officer appointed to enforce the order to appear does not find the person specified in the order at the specified address, he shall investigate and, if unsuccessful [in locating the individual], shall draw up an official report including mention of the investigative activities undertaken.
(31) If the offender or the defendant refuses to accompany a police officer or tries to escape, he or she may be forced to obey the order.”
Other relevant provisions of the Romanian Code of Criminal Procedure concerning remand in custody and the restriction on leaving the country during a criminal investigation read as follows:
Article 144
“A custodial measure (Reţinerea) may be imposed for a maximum period of twenty‑four hours. The period for which the person was deprived of his liberty as a result of the administrative measure of being taken to the police station shall be deducted from the duration of the custodial measure (...)”.
Article 1451
“The prohibition on leaving the country consists in the prohibition imposed on the accused person or defendant by the prosecutor, during criminal investigation, or by the court, during trial, not to leave the locality where he lives without the approval of the body that enforced this measure (...)”.
COMPLAINTS
1. Relying on Article 5 § 1 of the Convention, the applicant complains that there was no legal basis for his detention from 3 p.m. to 11.30 p.m. on 24 March 2009. Under the same provision, he complains that no tangible reasoning was given in the order for his detention for twentyfour hours issued on the same day.
2. Under Article 5 § 4 of the Convention he complains of the infringement of his right to lodge an appeal before a court with respect to his deprivation of liberty between 3 p.m. and 11.30 p.m. on 24 March 2009. Under the same Article he complains that he did not have time to prepare his defence regarding the restrictive measures against him.
3. The applicant alleges a violation of his right to leave the country, guaranteed by Article 2 of Protocol No. 4 to the Convention, on account of the arbitrary decisions of the Romanian authorities to restrict the said right for a period of three months.
QUESTIONS AUX PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty for approximately eight and a half hours between 3 p.m. and 11.30 p.m. on 24 March 2009 fall within sub‑paragraph (b) or (c) of this provision?
2. Was the restriction placed on the applicant’s freedom to leave the territory of the respondent State necessary and justified by the public interest, within the meaning of Article 2 §§ 3 and 4 of Protocol No. 4?
[1] P.P. is one of the accused, senior director at the Ministry of the Interior and M.I. is the prosecutor of the NAP in charge of their case asked to act in favour of the applicant.
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