In the case of Niculescu v. Romania,
The European Court of Human Rights (Third Section), sitting 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 deliberated in private on 4 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
25333/03) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Ms Lidia Niculescu (“the applicant”), on
20 June 2003.
The applicant was represented by Mr Romeo Coman,
a lawyer practising in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the
Ministry of Foreign Affairs.
On 15 September 2009 it was decided to
communicate to the Government the complaints concerning the conditions of the
applicant’s detention (Article 3 of the Convention), the alleged unfairness of
the criminal proceedings against her (Article 6 of the Convention) and the
impact of telephone tapping as an investigative measure and of the surveillance
measures in prison on the right to respect for her private life (Article 8 of
the Convention) and to declare inadmissible the remaining complaints. It was also
decided to rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of the Rules of
Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as an ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1956 and lives in Bucharest. At the relevant time, she was a lawyer specialised in criminal matters, in the
Bucharest Bar Association.
A. Criminal investigations against the applicant
On 4 April 2000 the Anti-Corruption Department of
the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor’s
office” or “the prosecutor”) authorised telephone tapping in respect of the
applicant and her husband for a period of six months, running until 4 October
2000. The authorisation was granted at the request of the Romanian Intelligence
Service (“the RIS”) under the National Security Act (Law no. 51/1991).
On 25 August 2000 the prosecutor’s office issued
a new similar authorisation, under the National Security Act, granting interception
of another of the applicant’s telephone lines, also until 4 October 2000.
On 11 September 2000 the
RIS informed the prosecutor that the applicant had given bribes to several
judges and prosecutors in order to obtain decisions favourable to her clients. It
based the accusation on information obtained through the telephone tapping. Several
conversations between the applicant and judge V.A. concerning cases of the
applicant’s clients had been recorded between 7 and 14 June 2000.
The RIS handed over the audio tapes and their transcripts to
the prosecutor’s office. The prosecutor then continued the surveillance of the
applicant’s activities, including through telephone tapping.
In its report, the RIS referred to G.D. as the
applicant’s “intimate friend”, whereas other participants in the various
conversations recorded are referred to simply as “friend”. Those syntagms were reproduced
several times in the decision adopted by the first-instance court.
B. Criminal proceedings against the applicant
On 30 April 2001 the prosecutor instituted criminal
proceedings against the applicant (începerea urmăririi penale).
In the evening of 3 May 2001, as the applicant
was returning home by car accompanied by T.C., a fellow lawyer, she was
apprehended by the police and taken to the prosecutor’s office for questioning
on charges of corruption.
The applicant was shown
the RIS report of 11 September 2000 (see paragraph 8 above) and then questioned
throughout the night. According to her, T.C. was not allowed to attend the
actual questioning; he was allowed to see the applicant only afterwards, when she
was writing a statement, which he then read and countersigned. In her statement
the applicant confessed to the crimes and gave a detailed description of the
facts. While the applicant was in the prosecutor’s office, T.C. completed a
power of attorney document so that he could represent her in the event that she
was taken into custody that night. The applicant did not sign that document.
The applicant lodged a criminal complaint
against the prosecutor in charge of the proceedings on the night of 3 May 2001,
but on 2 September 2002 the Prosecutor’s Office attached to the
Supreme Court of Justice decided not to prosecute. The applicant did not object
to that decision before the courts.
On 4 May 2001 the applicant was hospitalised for
panic attacks, impulsive personality disorders and stress induced by her
workload. She left the hospital the next day, on her own initiative.
On 7 May 2001 the prosecutor ordered the
applicant’s detention pending trial. However, she could not be arrested, as she
had left the country. On 14 July 2001 the applicant was apprehended in Bulgaria.
She was extradited at the prosecutor’s request.
On 6 June 2001 the prosecutor set in motion the
criminal trial against the applicant (punerea în mişcare a
acţiunii penale).
On 18, 22 and
26 September, and 1 October 2001 the applicant gave new statements to the
prosecutor in the presence of her appointed counsels. She retracted her initial
confession, claiming that it had not represented the truth but was a mere
reproduction of what the prosecutor had read to her from the RIS report (see
paragraph 8 above). She claimed that at the time she had made the initial statement
she had been in a state of shock, having been traumatised by the prosecutor and
forced to confess to deeds that she had not committed. The prosecutor had suggested
that if she confessed, only disciplinary action would be taken against the judges
and prosecutors suspected of corruption; she was therefore led to believe that
through her action she would help the magistrates who were under investigation.
She denied having committed any of the acts of corruption
imputed to her and claimed that she could not remember what she and the other
defendants had been referring to in the conversations recorded by the RIS and
played to her by the prosecutor during questioning.
Mention was made in the statements that the applicant had been informed
of the charges brought against her and of the rights of the defence.
On 12 December 2001 the prosecutor indicted the
applicant for trading in influence (trafic de influenţă),
giving bribes (dare de mită) and illegally crossing the border (trecerea
frauduloasă a frontierei). Several other persons were committed to
trial under the same measure, including judges V.A. and R.F. and a prosecutor.
In particular, the applicant was accused of having offered
money to judges, including V.A. and R.F., in an attempt to have some of her
clients released from pre-trial detention. She was also accused of having fled
the country in order to escape the criminal proceedings against her.
C. First-instance court proceedings
The case was heard by the Criminal Division of
the Supreme Court of Justice.
On 31 January 2002 the Supreme Court heard
testimony from each defendant and the relevant parts of the audio tapes were played
in their presence. None of them denied having had the recorded conversations.
The applicant denied having committed any crime
and claimed that she could not remember exactly what she had been referring to in
the conversations recorded by the RIS. She maintained that the discussions with
V.A. had concerned only matters of law.
Judge V.A. also denied having committed any
crime. He explained that his discussions with the applicant, which had been recorded
through secret surveillance, as well as those he had had with his fellow judges
about the cases referred to by the applicant, had concerned only questions of
law. He maintained that he had not accepted any money or promise of money from
the applicant. He reiterated that in his capacity as judge inspector, he was
entitled to discuss questions of law with his colleagues.
Judge R.F. also denied having committed any
crimes. 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 the applicant, had not accepted any
money to intervene in any case and that the measures under scrutiny had been legitimate.
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 the applicant’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 a 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 the
applicant was trying to corrupt 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.
On 21 February 2002 the statements made by the
defendants were read out in court. They were allowed to supplement their
testimony and put questions to their co-defendants.
At the same hearing the Supreme Court heard
testimony from the witnesses for the prosecution.
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 (“the CCP”).
At a hearing on 4 April 2002 the Supreme Court
dismissed a request by the co-defendants, A.V. and R.F., 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.
On 4 April, 25 April, 9 May, and 6 June 2002 the
Supreme Court heard eight witnesses for the defence.
Lawyer T.C. attested
that the applicant had been in a state of shock the night when she had been
taken to the prosecutor’s office to give a statement; that he had accompanied
her there but had not been allowed to attend the actual questioning; and that
only afterwards had he seen her writing the statement, which he had then read
and countersigned. He reiterated that while the applicant had been in the
prosecutor’s office, he had completed a power of attorney document so that he
could represent her (see paragraph 12 above).
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.
On 6 November 2002 the Supreme Court of Justice,
sitting as a three-judge bench, rendered its decision. It changed the legal classification
from a continuous crime of giving bribes, to three individual crimes of giving
bribes. It convicted the applicant for the three counts of giving bribes, for trading
in influence and for illegally crossing the border, and sentenced her to six years’
imprisonment. The co-defendants were likewise convicted and received prison
sentences for their deeds. The sums of money received in bribes were
confiscated.
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 the applicant’s clients had been released from prison because she had bribed
the judges. 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
applicant and the witnesses corroborated the transcripts of the telephone
conversations.
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); neither did the original hard-disk on which
the conversations had been recorded. 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.
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.
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.
The Supreme
Court further dismissed the applicant’s complaints concerning the manner in
which she had been questioned by the prosecutor in the night of 3 May 2001. In
particular, the court observed that the applicant’s statement was clear and
coherent. In the court’s opinion, it showed no signs of having been given in an
unbalanced mental state, as the applicant had tried to claim afterwards. The
court proceeded to examine in parallel the RIS report and the applicant’s
incriminatory statement, and noted that she had offered significant details that
did not figure in the RIS report. This proved that she had had the
conversations, as only a direct participant could have known aspects that had not
been revealed in the RIS report but had later been confirmed by supporting
evidence. It also noted that neither she nor her counsel had made any
complaints at that time about the questioning or the alleged disregard for the
rights of the defence.
D. Appeal proceedings
All parties
appealed against the judgment. In particular, the applicant complained that the
Supreme Court had changed the classification of the crimes; that she had been
forced to make the initial statement of 4 May 2001; that the
telephone tapping had been illegal and in breach of Article 8 of the Convention
– she asked the court to hear evidence from the experts – and lastly, that
there had not been sufficient elements to justify her conviction by the lower
court.
The applicant made no specific complaints concerning the
wording of the judgment, in particular about the manner in which the court had qualified
one of her interlocutors as an “intimate friend”.
The case was heard by
a nine-judge bench of the Supreme Court, who rendered the final decision on 8
October 2003.
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.
It therefore concluded
that the evidence in the file was sufficient and that the first-instance court
had correctly interpreted the facts based on the elements at its disposal.
The Supreme Court noted that the first-instance
court had changed the legal classification of the crimes committed by the
applicant 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 the applicant to give bribes to
several individual crimes of trading in influence and aiding and abetting the
applicant to give bribes. It accepted that the first-instance court had erred
in not allowing the parties to discuss the new legal classification of the
crimes. 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.
E. Conditions of detention
From the date of
her arrest on 7 December 2001 until her release on 1 March 2005, the applicant
was held mainly in Bucharest-Rahova and Târgşor Prisons. She was first
taken to the latter on 7 September 2002.
1. Conditions in Rahova Prison
Regarding the conditions of detention in Rahova
Prison, the applicant alleged that she had been held in overcrowded, badly
ventilated cells. She claimed that the occupancy rate had been between nine and
twenty prisoners to one six-bed cell. She had had to share the cell with individuals
suffering from consumption or HIV. She alleged that the detainee who had been suffering
from HIV had been violent and had threatened her fellow inmates that she would
contaminate them with the virus. The applicant further alleged that the prison
authorities had failed to intervene, despite her complaints.
It appears from the
official prison documents submitted by the Government that in Rahova Prison the
applicant was held in a 21 sq. m cell containing ten bunk beds. The cell had a
1.44 sq. m window, and the ventilation was ensured naturally through the door
and window. It contained a separate toilet measuring 1.78 sq. m with a window
and a shower room measuring 6.48 sq. m. The detainees had permanent access to
running drinkable water; hot water was available twice a week for two hours at
a time. The inmates were responsible for cleaning the facilities with products
provided by the prison administration.
The detainees were allowed daily walks of one to three hours in
the prison court yard.
2. Conditions in Târgşor Prison
According to the applicant, during her stay in
Târgşor Prison she had had to work for more than ten hours each day and
received less than the monthly average salary.
The official
prison records submitted by the Government attested that the applicant had
worked an average of 17.76 days a month for an average of eight hours a day,
which was below the twelve-hour working day permissible under the Execution of Sentences
Act (“Law no. 23/1969”; see paragraph 59 below). In accordance with the
relevant law, the applicant’s sentence was reduced in proportion to the work
performed. She also received remuneration for her work, of which, in accordance
with the law, 10% was paid to her and 90% to the prison.
3. Complaints against the Târgşor Prison
administration
During her stay in Târgşor Prison the
applicant lodged a complaint under Emergency Ordinance no. 56/2003 on the
rights of persons deprived of their liberty (“Ordinance no. 56/2003”; see
paragraph 59 below) alleging lack of privacy when making telephone calls
from prison. She complained that the telephones were too close to each other to
allow for private conversations and that the wardens remained close by when
prisoners were using the phones. She sought 5,000 euros (EUR) in damages for
mental suffering.
It appears
from the information submitted by the prison authorities that detainees were required
to write down in a special register the date and start time of telephone calls,
the number dialled, and to sign their name.
On 26 October 2004 the Ploieşti District
Court dismissed the complaint, considering that the situation in Târgşor
Prison respected the relevant regulations concerning the confidentiality of telephone
conversations and that therefore no infringement of the privacy rights
guaranteed under Article 8 could be found.
In an appeal lodged against the District Court’s
judgment, the applicant pointed out that all the phone numbers dialled from
prison were recorded in a special register, along with the date and time of the
respective calls.
In a final decision of 15 December 2004 the Prahova County Court dismissed the appeal and upheld the District Court’s decision. It
observed that the telephones were placed at regular two-metre intervals approximately
three to four metres from the warden’s booth. Under the regulations, the warden
had an obligation to check that the telephone number dialled was the same as
that entered by the prisoner in the special register, but she did not monitor
the telephone conversation itself. The court considered that the registration
of the dialled numbers did not constitute a breach of prisoners’ privacy
rights.
F. Applicant’s divorce
On 4 September 2003 the
applicant filed for divorce and custody of her minor child, on the grounds that
her relationship with her husband had started to become tense in 2000; he had
neglected their two children and had ultimately left home in May-June 2001.
The request was granted and in a decision of 13
November 2003 the Bucharest District Court declared the couple divorced. The
applicant reverted to her maiden name, Niculescu.
G. Exclusion from the Bar Association
On 10 May 2001 the applicant was suspended from
the Bar Association for the duration of the criminal proceedings against her.
On 27 October 2003 the Bucharest Bar Association decided, based
on a recommendation by the National Bar Association, to exclude the applicant
from its list of members. This decision was not communicated to the applicant.
As the final decision of 8 October 2003 (see
paragraphs 38 and following, above) did not prohibit the applicant from
exercising her profession, on 5 May 2005 she asked the Bucharest Bar
Association to reinstate her. On 20 April 2005 the Bucharest Bar refused her
request and informed her of the decision taken on 27 October 2003.
Having objected unsuccessfully to the National
Bar Association, the applicant lodged a complaint with the administrative
courts, invoking both procedural and substantive flaws in the contested
decision.
On 8 January 2008 the Bucharest Court of Appeal
dismissed the complaint, giving detailed responses to all the arguments raised
by the applicant. In particular, the court noted that the applicant’s name had
been struck from the Bar Association’s list of lawyers not to prohibit her from
exercising her profession, but because, in committing crimes in the exercise of
her profession, she had become unfit to practise as a lawyer, in accordance
with the Legal Profession Act (Law no. 51/1995).
An appeal lodged by the applicant was
subsequently dismissed by the High Court of Cassation and Justice, which gave the
final ruling in the case on 22 October 2008.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL
STANDARDS
A. On the conditions of detention
The relevant legal
provisions concerning the conditions of detention, including a succession of
laws on the execution of sentences – Law no. 23/1969, Ordinance no.
56/2003 (in force since 27 June 2003) and Law no. 275/2006 (in force since 23
July 2006) – and the effective remedies they introduced are summarised in Iacov
Stanciu v. Romania (no. 35972/05, §§ 113‑19,
24 July 2012).
In addition, the provisions
of the above laws concerning prison work are detailed in Floroiu v. Romania
(dec.), no. 15303/10, §§ 17-21, 12 March 2013).
The relevant findings and recommendations of the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) and the reports by the Council of Europe Commissioner
for Human Rights, made following numerous visits to Romanian prisons, are also
summarised in Iacov Stanciu, cited above, §§ 125-29).
There is no CPT report concerning Rahova Prison. However, a
Romanian NGO, APADOR-CH (Association for the Defence of Human Rights in Romania
- the Helsinki Committee) visited that establishment on 13 February 2009. The
report prepared following its visit indicated that, based on the information
submitted by the authorities, the average personal space for each prisoner was
2.77 sq. m. The overcrowding was obvious when visiting individual cells: one of
the cells visited, measuring 18 sq. m, had accommodated eleven prisoners, even
though only ten beds had been available. The report indicated that only one
detainee had complained about the quality of the prison food and that many
prisoners had preferred to eat the food they received from home or bought from
the shop (see Goh v. Romania, no. 9643/03, § 38, 21 June 2011).
B. On the telephone tapping
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).
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 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.”
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.
of the CCP did not allow for
evidence to be gathered during the preliminary investigations; any such
evidence would fall under the courts’ scrutiny.
C. On the telephone conversations in prison
The provisions of Ordinance no. 56/2003 and the
subsequent Execution of Sentences Act (Law no. 275/2006), concerning the use of
public telephones in prison, are described in Brânduşe v. Romania (no. 6586/03,
§ 26, 7 April 2009) and in Coscodar
v. Romania ((dec.), no. 36020/06, § 12, 9
March 2010). In addition, in accordance with Article 7 of Order no. 4622 issued
on 22 September 2003 by the Director General of the Prison Administration pursuant
to the above Ordinance, the prison staff had to keep a record of the numbers
dialled by the detainees and the start time of telephone calls.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained about the conditions of
detention in Rahova and Târgşor Prisons. In particular, she complained of
overcrowding in Rahova and of the prison work in Târgşor. On 31 May 2010
she raised an additional complaint of overcrowding and poor sanitary conditions
in Târgşor Prison. She relied on Article 3 of the Convention, which reads
as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
1. Conditions of detention in Târgşor Prison
The Government raised a
plea of non-exhaustion of domestic remedies, arguing that the applicant had
failed to lodge any complaint against the prison administrations concerning the
conditions of detention and the work conditions in prison, either under the
general provisions of the Criminal Code prohibiting ill-treatment and torture
or under the provisions of Ordinance no. 56/2003. They argued that the
applicant had not worked for more than eight hours a day and that it had been
in her interest to work as she had thereby obtained significant benefits, such
as remuneration and the reduction of her sentence.
The applicant contested the Government’s
argument. She maintained that she had had to work for more than eight hours a
day and more than forty hours a week, and also during weekends, which went
beyond what could reasonably be required of a detainee.
At the outset, the Court notes that, in lodging
her complaint of overcrowding in Târgşor Prison, the applicant failed to
observe the six‑month time-limit stipulated in Article 35 § 1 of the
Convention. She was released from prison on 1 March 2005 but did not lodge her
complaint until 31 May 2010.
It follows that this part of the complaint has been introduced
out of time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
The Court further notes that the applicant
complains of the working hours in Târgşor Prison and the remuneration
received.
Even assuming that the applicant did not have at
her disposal an effective remedy to complain about the work conditions, not
even after the coming into force of Ordinance no. 56/2003
(see Petrea, cited above, § 35), the Court considers that this
part of the complaint is manifestly ill‑founded for the reasons explained
below.
In reiterates that its
role is not 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).
In particular, according to the information from
the official prison records (see paragraph 46 above), it appears that the
applicant worked an average of eight hours a day for 17.76 days a month.
Furthermore, the work performed benefited the applicant, as she received a
reduction of her sentence and remuneration (see, mutatis mutandis, Stummer
v. Austria [GC], no. 37452/02, § 103, ECHR 2011 and Floroiu,
cited above, § 36). The applicant failed to prove that the prison working
schedule was such as to humiliate and debase her to a level that would raise an
issue under Article 3 of the Convention.
Furthermore, the Court notes that the applicant
complained about the level of remuneration received for the work performed
while in prison.
In a recent case, the Court found, albeit
under Article 4 of the Convention, that the reduction of the sentence as
a result of the prison work represents an acceptable form
of remuneration (see Floroiu, cited above, § 36;
and also, mutatis mutandis, Stummer, cited above, § 122 and Twenty-one
Detained Persons v. Germany, nos. 3134/67, 3172/67, 3188-3206/67,
Commission decision of 6 April 1968, Decisions and Reports (DR) 27, pp. 97-116).
Bearing in mind the reasoning it has given for
its ruling under Article 4, as well as the particular circumstances of the
present case, the Court considers that the work performed by the applicant,
despite her dissatisfaction with the level of remuneration, does not pass the
threshold set by Article 3 of the Convention.
It follows that this part of the complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
2. Conditions of detention in Rahova Prison
The Government extended
their non-exhaustion objection to the conditions of detention in Târgşor
Prison, for the same reasons as those cited above (see paragraph 65 above).
The Court
notes that the applicant’s complaint concerns the material conditions of her
detention, relating, inter alia, to overcrowding and poor sanitary
facilities. It has already found, in numerous similar cases regarding
complaints about conditions of detention relating to structural issues such as
overcrowding or dilapidated installations, that given the specific nature of
this type of complaint, the legal actions suggested by the Romanian Government
do not constitute effective remedies (see, among others, Petrea v. Romania, no. 4792/03, § 37, 29 April 2008; Eugen Gabriel Radu v. Romania,
no. 3036/04, § 23, 13 October 2009; Iamandi v. Romania, no. 25867/03,
§ 49, 1 June 2010; Cucolaş v. Romania, no. 17044/03, § 67, 26
October 2010; Ogică v. Romania, no. 24708/03, § 35, 27 May
2010; Dimakos v. Romania, no. 10675/03, § 38, 6 July 2010; and Goh,
cited above, §§ 43-45).
Therefore, the Court dismisses the Government’s
preliminary objection in so far as it concerns the
material conditions of detention in Rahova Prison.
The Court further notes that this part of the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It also notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ positions
The applicant reiterated that she had been
placed in overcrowded and badly ventilated cells.
The Government contended that the applicant’s
statements, unsubstantiated in any manner, were contradicted by the official
records of the prison administration. They argued that the applicant had been held
in satisfactory conditions.
2. The Court’s assessment
(a) General principles
The Court refers to the principles established
in its case-law regarding conditions of detention (see, for instance, Kudła
v. Poland [GC], no. 30210/96, §§ 90-94, ECHR 2000‑XI; Kalashnikov
v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Artimenco v.
Romania, no. 12535/04, §§ 31-33, 30 June 2009; and Ogică,
cited above, §§ 40-41). It reiterates, in particular, that ill-treatment must
attain a minimum level of severity if it is to fall within the scope of Article
3; the assessment of this minimum is, in the nature of things, relative; it
depends on all the circumstances of the case, such as the nature and context of
the treatment, the manner and method of its execution, its duration, its
physical or mental effects and, in some instances, the sex, age and state of
health of the victim (see Kudła, cited above, § 91).
The Court has considered extreme lack of space as a central
factor in its analysis of whether an applicant’s detention conditions complied with
Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 39, 7
April 2005). In a series of cases the Court considered that a clear case of
overcrowding was a sufficient element for concluding that Article 3 of the
Convention had been violated (see Colesnicov v.
Romania, no. 36479/03, §§ 78-82, 21 December 2010, and Budaca
v. Romania, no. 57260/10, §§ 40-45, 17 July 2012).
The Court has already found violations of
Article 3 of the Convention on account of the material conditions of detention
in Rahova Prison, especially with respect to overcrowding and lack of hygiene
(see, among others, Vartic v. Romania, no. 12152/05, § 53, 10 July
2012; Iacov Stanciu, § 179; and Goh, § 66, both cited above).
(b) Application of those principles to the case at
hand
The Court observes, based on all the material at
its disposal, that the personal space allocated to the applicant in Rahova
Prison was less than 4 sq. m (see paragraph 44 above). The Government
have not put forward any element capable of refuting the applicant’s
allegations of overcrowding in the cells where she was detained, which are
corroborated by the above‑mentioned information from many sources,
including the Government.
For those reasons the Court concludes that the detention
caused her suffering that exceeded the unavoidable level of suffering inherent
in detention and that attained the threshold of degrading treatment proscribed
by Article 3.
There has accordingly been a violation of Article 3 of the
Convention in so far as the conditions of the applicant’s detention are
concerned.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant further complained that the
interception of her communications had been illegal and had lacked proper
authorisation, in violation of her Article 8 rights. She also complained that
the courts had written in their decisions that G.D. was an “intimate friend” of
hers, which had contributed significantly to her divorce (see paragraph 9
above). Under the same Article, she complained that the Târgşor Prison
authorities had breached her right to confidentiality with regard to the
location of the telephones and the warden’s proximity during telephone conversations,
as well as the obligation to register the numbers dialled.
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.”
A. Admissibility
1. On the applicant’s divorce
The Government argued that there was no
connection between the RIS referring to one of the applicant’s acquaintances as
an “intimate friend” and her subsequent divorce. There had been no mention of that
factor in the divorce proceedings. Moreover, the applicant herself had
instituted the divorce proceedings on the grounds that the relations with her
former spouse had become cold and tense since 2000, that is, well before the
RIS report became public, in 2001.
The applicant made
no further comments on this point.
The Court reiterates
that the rule of exhaustion of domestic remedies referred to in Article 35 of
the Convention obliges those seeking to bring their case against the State
before an international judicial or arbitral organ to use first the remedies
provided by the national legal system, thus dispensing the States from
answering before an international body for their acts before they have had an
opportunity to put matters right through their own legal systems. In order to
comply with this rule, normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in respect of the
breaches alleged (see, among many other authorities, Aksoy v. Turkey,
judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI,
pp. 2275-76, §§ 51-52, and Selmouni v. France [GC], no. 25803/94,
§§ 74-75, ECHR 1999-IV).
In the case under examination the Court notes
that there is no indication in the file that the applicant complained to the
authorities of that reference. In particular, from the elements before the
Court it appears that the applicant did not raise the matter in her application
for divorce (see paragraph 52 above) and the divorce court made no
reference to that factor; nor did the applicant raise the matter in her appeal
on the merits of the criminal proceedings (see paragraph 37 in fine,
above). Furthermore, the Court cannot speculate on the role that that reference
might have played in the deterioration of the applicants’ relations with her
spouse.
For this reason, even assuming that the RIS’s
reference, regrettable as it may be, constituted an attack on the applicant’s
honour and reputation severe enough to pass the threshold of Article 8 (see A. v. Norway, no. 28070/06, §§ 63-65,
9 April 2009), the complaint must be declared inadmissible for
failure to exhaust the domestic remedies.
It follows that this complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention.
2. On the privacy of telephone conversations in
Târgşor Prison
The Government averred that the wardens had
ensured the privacy of telephone conversations, in accordance with the relevant
rules, and pointed out that the domestic courts had confirmed that situation.
They further argued that the mere inscription of the dialled numbers in a
register did not breach the applicant’s right to respect for her privacy and
was aimed mainly at ensuring that detainees did not exceed the number of phone
calls to which they were entitled under the regulations.
Lastly, the Government pointed out that no other detainee from
Târgşor Prison had complained of lack of privacy of their telephone
conversations.
The applicant contested those arguments.
The Court notes at the outset that the
interference with the applicant’s right to respect for her privacy was the
result of the internal regulations of the prison and could be seen as pursuing
the aim of enforcing the prison rule limiting the number of phone calls allowed
(see Coşcodar v. Romania (dec.), no. 36020/06, § 30, 9
March 2010).
The Court further reiterates that in Coşcodar
(cited above, § 33), it found that the presence of a warden during
telephone conversations and the registration of numbers dialled from prison,
albeit an interference with detainees’ right to respect for their private life,
was necessary in a democratic society for the purposes of Article 8 § 2 of the
Convention, in so far as monitoring was less intrusive
than interception of communications and as the monitoring was performed
with the detainees’ knowledge (see also concerning monitoring Malone v.
the United Kingdom, 2 August 1984, § 84, Series A no. 82,
and concerning the applicants’ knowledge of the monitoring Copland v. the
United Kingdom, no. 62617/00, § 44, ECHR 2007‑I).
In the present case, the Court notes that a
similar complaint was lodged with the domestic courts, which examined the facts
in the light of the applicable legislation. They found that the telephones had
been installed at intervals that allowed for the privacy of conversations and
that the wardens had not remained close to the detainees during their conversations
and thus had not listened in to the conversations (see also Coşcodar, cited
above, § 30). Furthermore, the applicant was aware of the monitoring taking
place, as she had written down the dialled numbers herself (see paragraph 48
above).
In the light of the above, the Court has no
reasons to depart from its finding in Coşcodar (cited above, § 35),
and concludes that the interference with the applicant’s right to respect for
her privacy caused by the surveillance measures in place in Târgşor Prison
was justified for the purposes of Article 8 § 2 of the Convention.
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.
3. On the telephone tapping
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant stated that the prosecutor’s
authorisation of the telephone interception had constituted a serious breach of
the right to respect for her privacy. She argued that essential information had
been missing from the authorisation, such as the name of the prosecutor who issued
it, which had made it impossible for her to complain against that measure.
The Government did not contest that the
telephone tapping had constituted interference with the applicant’s rights. However,
it had been carried out in accordance with the law, the National Security Act.
Relying on Klass and Others (cited above, § 49), they stated that the
Court had accepted that national security concerns could justify, in
exceptional circumstances, measures of secret surveillance. Furthermore, the
measure had been authorised by the prosecutor and the applicant had had the opportunity
– of which she had availed herself – to obtain an expert examination of the
evidence thus obtained.
2. The Court’s assessment
The Court observes at the
outset that telephone conversations are covered by the notions of “private
life” and “correspondence” within the meaning of Article 8 (see, among other
authorities, Craxi v. Italy (no. 2), no. 25337/94, § 57,
17 July 2003 and Drakšas v. Lithuania, no. 36662/04, § 52, 31 July 2012). It also notes
that in the present case the conversations between the applicant and V.A. were recorded
in June 2000 under a mandate given to the RIS by the prosecutor under the
National Security Act (see paragraph 8 above).
The Court further reiterates that it has already
examined whether the system in place in Romania for telephone tapping on
grounds of national security complied with the requirements of Article 8 of the
Convention (see Dumitru Popescu, cited above, as well as Calmanovici
v. Romania, no. 42250/02, §§ 120-26, 1 July 2008). It has ruled that the
system lacked proper safeguards and thus breached the requirements of Article 8,
in so far as the prosecutor authorising the surveillance was not independent
from the executive (see Dumitru Popescu, cited above, §
71); a prosecutor’s decision to intercept communications was not subject to
judicial review before being carried out (idem, § 72); a person under
surveillance could not challenge before a court the merits of the interception
(idem, § 74); and that there was no mention in the law of the
circumstances in which the transcripts could be destroyed (idem, § 79).
The Court notes that the facts of the present
case are similar to the ones examined in Dumitru Popescu and the same
laws are applicable to them. It also observes that in the case under
examination the applicants obtained an expert’s opinion on the authenticity and
originality of the tapes (see, a contrario, Dumitru Popescu, cited
above, § 21). However, the remaining flaws identified by the Court in the
system had an effect on the applicant’s rights.
For these reasons, in the light of its previous
case-law and having examined the observations submitted by the parties in the
present case, the Court sees no reason to depart from the conclusion it reached
in Dumitru Popescu, cited above, in particular given that the same laws
are at issue in the case before it.
Accordingly, the Court
considers that in the present case there has been a violation of Article 8 of
the Convention on account of a lack of safeguards in the procedure for
telephone interceptions on grounds of national security.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3
(a), (b) AND (d) OF THE CONVENTION ON ACCOUNT OF THE CRIMINAL PROCEEDINGS
The applicant complained that the criminal
proceeding against her had not been fair. She relied on Article 6 §§ 1 and 3
(a), (b) and (d) of the Convention, which read as follows:
“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:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him;
(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; ...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant complained that on the night of 3
May 2001, the prosecutor had not informed her of the charges made against her or
of her right to remain silent, thus breaching irremediably the rights of
defence. She argued that the fact that she had been a criminal lawyer at that
time should not come into play, as the law did not institute derogation from
the right of defence for those in legal professions. She pointed out that the law
prohibited the use of evidence obtained through compulsion or against the will
of the accused.
She also argued that she had not been effectively assisted by
counsel during that first interrogation.
Notwithstanding those flaws, the prosecutor and the courts had relied
on the first statements that she had made to the prosecutor.
The applicant further complained that
recordings of telephone conversations had been used as the main evidence for
her conviction, even though they had been illegally obtained, before the
opening of the criminal proceedings and without the proper procedure being
observed by the authorities. She also complained that the courts had not interviewed
the experts on the authenticity of that evidence and had decided contrary to the
conclusions of their expert reports.
The Government contested those arguments. They
averred that the applicant had been accompanied by a lawyer during the initial
questioning and had had the opportunity of conferring with him. They pointed
out that she herself had been a practising criminal lawyer at that time.
The Government noted that none of the accused
persons had contested the content of the recorded conversations or the fact that
the voices on the tape were theirs; therefore, the expert examination had not
concerned either of those elements. They further pointed out that the courts
had been satisfied that the evidence was sufficient for the examination of the
case.
2. The Court’s assessment
(a) General principles
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 1996‑II; and Artico
v. Italy, 13 May 1980, § 32, Series A no. 37).
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).
As regards the privilege against
self-incrimination or the right to remain silent, the Court reiterates that
these are generally recognised international standards which lie at the heart
of a fair procedure. Their aim is to provide an accused person with protection
against improper compulsion by the authorities and thus to avoid miscarriages
of justice and secure the aims of Article 6. The right not to incriminate
oneself is primarily concerned with respecting the will of an accused person to
remain silent and presupposes that the prosecution in a criminal case seeks to
prove the case against the accused without resorting to evidence obtained
through methods of coercion or oppression in defiance of the will of the
accused (see Saunders v. the United Kingdom, 17 December 1996, §§
68‑69, Reports 1996-VI). In examining whether a procedure has
extinguished the very essence of the privilege against self-incrimination, the
Court must examine the nature and degree of the compulsion, the existence of
any relevant safeguards in the procedures and the use to which any material so
obtained is put (see Bykov v. Russia [GC], no. 4378/02, § 92,
10 March 2009).
Early access to a lawyer is part of the
procedural safeguards to which the Court will have particular regard when
examining whether a procedure has breached the privilege against
self-incrimination. In particular, in order for the right to a fair trial to
remain sufficiently “practical and effective”, Article 6 § 1 requires that, as
a rule, access to a lawyer should be provided as from the initial questioning of
a suspect by the police, unless it is demonstrated, in the light of the
particular circumstances of each case, that there are compelling reasons to
restrict that right. The rights of the defence will in principle be
irretrievably prejudiced when incriminating statements made during police
interrogation without access to a lawyer are used for a conviction (see Salduz
v. Turkey [GC], no. 36391/02, §§ 54-55, ECHR 2008).
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, cited above, § 88).
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.
The Court has already found in particular
circumstances of a given case, that the fact that the domestic courts used as
sole evidence transcripts of unlawfully obtained telephone conversations, did
not conflict with the requirements of fairness enshrined in Article 6 of the
Convention (see, among other authorities, Khan v. the United
Kingdom, no. 35394/97, § 34, ECHR 2000‑V; P.G. and J.H. v.
the United Kingdom, no. 44787/98, § 76, ECHR 2001‑IX; and Dumitru
Popescu, cited above, § 106).
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
The Court notes that the applicant’s complaint
is twofold: on the one hand, she complained about the manner in which the initial
questioning had been conducted, and on the other, she complained about the
evidence admitted to the file by the domestic courts.
i. The first interrogations
The Court observes that it is disputed between
the parties whether T.C. had a real possibility to assist the applicant during
the initial questioning. However, it is established that he remained in the
vicinity during the questioning and read and countersigned the statement made
by the applicant. As he himself admitted, he filled in an application for power
of attorney, giving the clear impression that he was there to provide counselling
to the applicant (see paragraph 30 above).
Even assuming that T.C. was not present during the actual
questioning, the Court notes that he read the statement before countersigning it,
thus having enough knowledge about its content to allow him to advise the
applicant against submitting it. In addition, under the scrutiny of her
counsel, the applicant was free to change her mind about the statement given,
should she have chosen to do so. She did not claim that she had been coerced
into signing it.
Furthermore, the first-instance court, before
which the applicant raised the same complaint, explained in detail why it
considered that the applicant had declared freely and without coercion. The
court observed in particular that the applicant had given a coherent account
and details that could only have been known by her, as at that time certain details
had not figured in the RIS report that had served as a starting point in the
criminal investigations (see paragraph 36 above).
It is also to be noted that the applicant did
not complain to the domestic authorities that at the beginning of the initial
questioning, the prosecutor had failed to inform her of the charges brought
against her. In fact, the parties agreed that at that time the RIS report had
been presented to the applicant. Judging by the content of that report (see
paragraphs 8 and 12 above), the Court considers that, at least for the purposes
of the Convention, the applicant had enough elements at her disposal to understand
the charges brought against her (see Aleksandr
Zaichenko v. Russia, no. 39660/02, § 42, 18 February 2010, and Begu v. Romania,
no. 20448/02, § 138, 15 March 2011).
Lastly on this point, the
Court observes that, with the exception of the first handwritten statement, all
the declarations signed by the applicant mention that she had been informed of
the nature of the charges made against her (see paragraph 17 above).
As for the weight
which the domestic courts attached to the applicant’s first statement, the
Court notes that evidence does not have a pre-established value in domestic
law. The courts are free to interpret it in the context of the case and given
all the elements available to them (see Dumitru Popescu, cited
above, § 110). In the case at hand, the domestic courts based their decisions
on an extensive body of evidence, of which the incriminatory statement was only
one element. It was thus put into context and examined against the remaining
elements in the file (see paragraph 33 above).
For those reasons, the Court considers that the
way in which the initial questioning was conducted did not breach the applicant’s
defence rights, within the meaning of Article 6 of the Convention.
ii. Transcripts of the telephone conversations
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.
The domestic courts responded extensively to those
arguments when they were raised by the defendants (see paragraph 34 above).
The Court observes that the applicant freely
engaged in the incriminatory conversations (see Bykov, cited above, § 102). Moreover, 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 34 above and Dumitru Popescu, cited above, § 109).
Lastly, the Court reiterates that evidence does
not have a pre‑determined role in the respondent State’s criminal
procedure. 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 (see also paragraph 120
above).
The Court also reiterates that the domestic
courts are better placed to assess what evidence is needed in trial and whether
a particular request made by one of the parties – in this case, that the court interview
the experts – is relevant for the case. Moreover, in the case under examination
the court of last resort considered that the evidence in the file was sufficient
to justify the decision rendered by the lower court (see paragraph 40 above).
Having examined the safeguards surrounding the analysis
of the admissibility and reliability of the evidence concerned, the nature and
degree of the alleged compulsion, 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.
iii. Conclusion
The Court is satisfied that the two pieces of
evidence contested by the applicant, namely her initial statement before the
prosecutor and the transcripts of the telephone conversations, did not play an
important role, either separately or combined, in securing the defendants’
conviction.
In fact, 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.
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 there has been no violation of Article 6 §§ 1
and 3 (a), (b) and (d) of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about
her exclusion from the list of lawyers, by decision of the Bar Association.
The Court notes that the applicant’s grievances
were thoroughly examined by the domestic courts, which responded to all her
arguments by means of reasoned decisions. Furthermore, the applicant did not
prove that she had incurred a pecuniary loss imputable to the State.
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 part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant claimed the following amounts in
respect of pecuniary damage:
- 6,125 euros (EUR) representing the amount confiscated by the
courts in the criminal proceedings;
- 500 euros (EUR) representing the difference between the
remuneration received for the prison work and its actual worth.
The applicant also claimed EUR 200,000 in
respect of non‑pecuniary damage.
The Government reiterated that the applicant
had received remuneration for the work in prison. They considered that the non‑pecuniary
damages sought were excessive and stated that a finding of a violation should
in principle suffice to redress the alleged damage incurred.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 9,000 in
respect of non‑pecuniary damage.
B. Costs and expenses
The applicant claimed the following amounts in
respect of the costs and expenses incurred before the domestic courts:
- EUR 724.70, representing the cost of the expert examination
in the domestic proceedings;
- EUR 1,600, representing the lawyers’ fee in the domestic
proceedings; and
- EUR 400 in legal costs.
The applicant also claimed the following in
respect of the costs and expenses incurred before the Court:
- EUR 500 for the lawyer’s fee; and
- EUR 200 for postal costs.
She presented a certain number of invoices and certified payments.
The Government contested the justification presented
by the applicant for the payment of those sums.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,000 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the
conditions of detention in Rahova Prison, the complaint concerning the alleged
infringement of the right to respect for private life by telephone
interceptions and the complaints concerning the alleged unfairness of the
criminal proceedings admissible, and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of Article
8 of the Convention;
4. Holds that there has been no violation of
Article 6 §§ 1 and 3 (a), (b) and (d) of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 9,000 (nine thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 June 2013,
pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
