CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 février 2013

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He is represented before the Court by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant is a former public official who was involved in the State privatisation of the largest regional electricity provider in Romania. 1.     Criminal proceedings opened against the applicant 4.     On 21 November 2006, relying on witness statements and material including documents obtained following a search of the homes of the applicant and his co-accused and transcripts of telephone conversations obtained by the Romanian Intelligence Service ( Serviciul Român de Informaţii ) on the basis of the National Security Act (Law no. 51/1991), the Bucharest prosecutor’s office opened criminal proceedings against the applicant and his two co-accused for offences including treason by leaking secrets and organisation of a criminal group in order to divulge economic secrets. 5.     By an order of 24 November 2006 the Bucharest prosecutor’s office, taking into consideration the available evidence, the nature of the alleged offence and the applicant’s personal circumstances, prohibited him from leaving town for thirty days pending the criminal investigation initiated in respect of him. 2.     The applicant’s pre-trial detention 6.     By an order of 28 November 2006 the Bucharest prosecutor’s office charged the applicant with treason by leaking secrets and with organising a criminal group in order to divulge economic secrets, and placed him in police custody for twenty-four hours. 7.     On 29 November 2006, relying on the available evidence, the Bucharest prosecutor’s office motioned the domestic courts to detain the applicant and his other co-accused pending trial. 8.     By an interlocutory judgment of 29 November 2006, delivered in private in the presence of the parties, the Bucharest Court of Appeal allowed the request by the Bucharest prosecutor’s office to detain the applicant and his co-accused pending trial. It held on the basis of the available evidence that there was a reasonable suspicion that the applicant had committed a serious offence and that his release would be a danger to public order with social and moral consequences, taking into account his modus operandi and the professional position he was occupying at the time. The applicant appealed on points of law ( recurs ) against the judgment. 9.     On 2 December 2006 the applicant’s chosen legal representatives asked the court to adjourn the hearing in order to allow them to prepare his defence on the ground that the case was complex and the defence team had not had access to the file. At the same time, they requested copies of the interlocutory judgment of 29 November 2006 and the report on the criminal investigation. In addition, they argued that the applicant’s detention pending trial was unlawful, having been ordered in the absence of any reasonable suspicion and without interviewing the applicant after he had been charged with an offence. Moreover, the first-instance court had failed to provide reasons for his pre-trial detention. 10.     By a final interlocutory judgment delivered the same day, the Court of Cassation allowed in part the applicant’s lawyers’ requests and adjourned the proceedings for more than two hours. At the same time it ordered that the defence team be provided with copies of the documents requested. In addition, it dismissed the applicant’s appeal on points of law against the interlocutory judgment of 29 November 2006 as ill-founded, holding inter alia that his detention pending trial was lawful and that, according to the available evidence, there was a reasonable suspicion that he had committed an offence. In addition, it noted that the applicant and his co-accused had been interviewed by the prosecutor’s office after they had been charged with a criminal offence and prior to their detention and therefore the requirements of criminal procedure had been fulfilled. 11.     By an interlocutory judgment of 14 December 2006 the Bucharest Court of Appeal extended the applicant’s pre-trial detention on the basis of new evidence that had come to light and the particular circumstances of his case. It held that, according to the available evidence, there was a reasonable suspicion that the applicant could have committed a serious offence. In addition, he was a danger to public order because he had used his position over several years to provide confidential information to competing investors seeking to buy State-owned companies and assets and because the operation had involved a large number of people. His release on an undertaking not to leave the country would fuel public mistrust in the State’s institutions given the important position he occupied and the nature of the offence, which could affect national security. Moreover, his release would impede the investigation of the case because the criminal investigation had just started and he might attempt to obstruct it. The applicant appealed on points of law against the interlocutory judgment. 12.     By a final interlocutory judgment of 18 December 2006 the Court of Cassation dismissed as ill-founded the applicant’s appeal on points of law against the interlocutory judgment of 14 December 2006. 13.     On 22 January 2007 the applicant’s legal representative requested the court to acknowledge, amongst other things, that his detention pending trial had ended at midnight on 17 January 2007 as the court of final instance had failed to examine his appeal on points of law against the interlocutory judgment of 17 January 2007 before the end of that day, as required by the applicable rules of criminal procedure. In addition, the legal representative argued that there was no reasonable suspicion that the applicant had committed the offence and added that the initial reasons justifying his detention were no longer valid. Moreover, he had been deprived of his right of defence because he did not have access to the full transcripts of his telephone conversations. 14.     By a final interlocutory judgment delivered the same day the Court of Cassation dismissed the applicant’s legal representative’s request for an acknowledgment that the applicant’s detention pending trial had ended at midnight on 17 January 2007, on the ground that he had incorrectly interpreted the applicable rules of criminal procedure. In addition, it held that the applicant had not been deprived of his right of defence as result of not having access to the full transcripts of his telephone conversations, because his pre-trial detention had also been ordered on the basis of other evidence available in the file. However, it ordered the applicant’s release under an obligation not to leave town. It held that he was no longer a danger to public order because the evidence required for the trial had already been submitted by the authorities and he was no longer holding public office. 3.     Other preventive measures taken against the applicant 15.     On 18 April 2007 the Bucharest prosecutor’s office indicted the applicant and sent his case for trial. The indictment relied, inter alia , on the reports certifying the authenticity of his monitored telephone conversations and the sixteen warrants which had been issued between 12 May 2005 and 25   October 2006 by the Court of Cassation authorising the surveillance of his phone conversations by the Romanian Intelligence Service. 16.     By an interlocutory judgment of 20 April 2007 the Bucharest Court of Appeal changed the preventive measure taken against the applicant and ordered him not to leave the country. Amongst other things it ordered him to notify the court every time he moved home. It held that this preventive measure was justified by the court’s need to maintain permanent contact with the applicant during the judicial investigation of his case and by the need to ensure the proper and expeditious administration of justice by preventing him from absconding. In addition, relying on the available legal instruments, the court held that the applicable rules of criminal procedure did not lay down a time-limit for the preventive measure in question and that it could therefore remain in place for an unlimited period. The applicant did not lodge an appeal on points of law against the interlocutory judgment. 17.     At the hearing of 19 March 2008 the applicant asked the court to revoke the preventive measure of prohibition on leaving the country on the grounds that the initial reasons justifying the measure were no longer justified and he had already given evidence to the court. 18.     By an interlocutory judgment delivered on the same day the Bucharest Court of Appeal allowed the applicant’s request and revoked the preventive measure of prohibition on leaving the country on the grounds that the initial reasons justifying the measure were no longer valid and that the extension of the measure would be excessive. 19.     The proceedings appear to be still pending before the domestic courts. 4.     Additional information provided by the applicant 20.     On an unspecified date the applicant informed the Court, submitting relevant supporting documents, that on every second or third day between 26 March and 18 April 2007 he had briefly visited Bucharest police station   no. 8 to confirm his presence in the city. In addition, he submitted photographs and a list of number plates not bearing any official insignia from cars which had allegedly followed him and monitored his movements on a daily basis after his release from prison. 21.     On 23 November 2007 the applicant stated in his correspondence with the Court that the Court of Cassation had lifted the restriction not to leave the country as of August 2007 for one of his co-accused who was an American citizen living in London. 22.     On 11 March 2008 the applicant also informed the Court that during his detention the atmosphere in his detention cell was uncomfortable and amounted to psychological pressure. In addition, he was not provided with any medical assistance after he had suffered a pre-heart attack and lost consciousness. Moreover, although he was a non-smoker, he had to share his detention cell with two other detainees who were constantly smoking. 23.     Between April and July 2008 the applicant submitted six press articles published between 27 November 2006 and 17 July 2008 in national newspapers, in particular Gardianul , Evenimentul Zilei , Newsinn , Wall Street Business Time and Ziarul Financiar , as well as transcripts of two television news programmes referring to and containing excerpts from conversations between the applicant, his co-accused and public officials which had been obtained through the telephone monitoring operation mounted by the authorities. According to the news programmes, excerpts from the conversations and evidence obtained through the telephone monitoring carried out by the authorities in respect of the case to which the applicant was a party had been leaked to the press by the authorities. B.     Relevant domestic law 24.     Article 91 1 § 4 of the Romanian Code of Criminal Procedure, as in force at the relevant time, provides, inter alia , that the total length of a period of authorised surveillance of the same person for the same reasons cannot exceed four months. COMPLAINTS 25.     Invoking, in substance, Article 3 of the Convention, the applicant complained that the atmosphere in his detention cell had been uncomfortable and had put him under psychological pressure. In addition, he had not been provided with any medical assistance after he had suffered heart failure and lost consciousness. Moreover, although he was a non ‑ smoker, he had had to share his pre-trial detention cell with two other detainees who were constantly smoking. 26.     Relying expressly or in substance on Article 5 of the Convention, the applicant complained that he had been unlawfully placed in police custody and detained pending trial as there was no reasonable suspicion for his detention, that his detention was excessively lengthy and that on 14   December 2006 the domestic court had failed to provide reasons as to why his release would have obstructed the criminal investigation. Furthermore, the authorities had failed to interview him after he had been charged with a criminal offence. In addition, none of the conditions laid down by the applicable rules of criminal procedure for his pre-trial detention had been met and the domestic court had failed to rely on any of those conditions in its judgment of 29 November 2006. Moreover, between 18 and 22 January 2007 the applicant’s pre-trial detention had been unlawful in so far as the second-instance court had delivered its judgment in respect of his pre-trial detention outside the legal time-limit required by the Romanian Code of Criminal Procedure. Furthermore, the authorities had detained him pending trial on the basis of unlawfully obtained evidence, in particular transcripts of the surveillance material gathered by the Romanian secret service over a long period of time, prior to the opening of the criminal investigation in respect of him and in the absence of any judicial supervision. Moreover, he had not been informed promptly of the reasons for his detention, his arrest had been the result of political pressure, the judicial authorities had failed to properly examine the lawfulness of his arrest as they had simply accepted the position of the Prosecutor’s Office, and he had not been allowed access to all the evidence supporting his arrest. 27.     Invoking Article 6 of the Convention, the applicant complained that the proceedings had been unfair and that there had been a breach of his right to be presumed innocent. In support of his complaint he submitted that on 14 December 2006 the Bucharest Court of Appeal had declared him guilty and that, prior to interviewing him, the authorities had failed to inform him of the charges brought against him, thereby prevented him from defending himself. In addition, he had not been presented with all the evidence against him prior to his first court hearing, some of the transcripts of his telephone conversations had not been drawn up in full or had been used out of context and he had not had access to the evidence collected by means of surveillance on the ground that it was classified. Moreover, given the large number of documents in the file, he had not been allowed sufficient time for the preparation of his defence and the judicial authorities had also failed to examine all the available evidence prior to examining his case. Furthermore, the investigating authorities had indicted him on the basis of unlawfully obtained evidence, in particular transcripts of the surveillance material gathered by the Romanian secret service over a long period of time prior to the opening of the criminal investigation in respect of him and in the absence of any judicial supervision. In addition, the domestic courts had lacked impartiality and had allegedly denied him contact with individuals who could have helped him with his defence, and he had had access to his lawyer for only a few minutes per day. 28.     Relying expressly on Article 6 and in substance on Article 8 of the Convention, the applicant complained of a breach of his right to private life and his right to be presumed innocent in that evidence from the prosecution file had been leaked to the press by the prosecution authorities and had led to media coverage of his case. 29.     Invoking Article 8 of the Convention, the applicant complained that the surveillance of his telephone conversations was unlawful and breached his right to respect for his private and family life and correspondence as it had lasted 520 days and had been organised on the basis of the National Security Act (Law no. 51/1991), which had not been foreseeable in its application. In addition, his right to private life had been breached because between 22 January and 15 November 2007, after being released, he had been ordered by the police to visit the police station twice a week and whenever he left Bucharest, even though the interlocutory judgment ordering his release had not imposed such obligations on him. Moreover, he and his family had been constantly kept under visual surveillance and followed by police officers. 30.     Relying in substance on Article 14 of the Convention, the applicant complained that he had been subjected to different treatment from one of his co-accused in so far as the latter was an American citizen living in London and the Court of Cassation had lifted the prohibition on his leaving the country with effect from August 2007. 31.     Invoking Article 2 of Protocol No. 4 to the Convention, the applicant complained of a breach of his right to freedom of movement in so far as on 20 April 2007 the obligation not to leave the country following his release had been imposed on him for an unlimited period of time in breach of the applicable rules of criminal procedure. 32.     Relying on Article 17 of the Convention, the applicant reiterated part of his complaints raised under Articles 5, 6, 8 and 14 of the Convention and Article 2 of Protocol No. 4. THE LAW A.     Complaints under Article 8 of the Convention 33.     Relying expressly or in substance on Articles 6 and 8 of the Convention, the applicant complained of a breach of his right to private life and his right to be presumed innocent in that evidence from the prosecution file had been leaked to the press by the prosecution authorities and had led to media coverage of his case. In addition, relying expressly on Article 8 of the Convention, he alleged that the surveillance of his telephone conversations was unlawful and breached his right to respect for his private and family life and correspondence as it had lasted 520 days and had been organised on the basis of the National Security Act (Law no. 51/1991), which had not been foreseeable in its application. 34.     The Court considers that the applicant’s allegations should be examined under Article 8 of the Convention alone. This Article reads as follows: Article 8 “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 considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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.     Remainder of the applicant’s complaints 36.     The Court has examined the remaining complaints submitted by the applicant (see paragraphs 25-27 and 29-32, above). However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints 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 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of part of the applicant’s complaints under Article 8, in particular his allegations that evidence from the file was leaked to the press and led to media coverage of his case, and that his telephone conversations were unlawfully monitored for 520 days under the National Security Act (Law no. 51/1991), which was not foreseeable in its application; Declares the remainder of the application inadmissible.   Marialena Tsirli   Josep Casadevall   Deputy Registrar   President