CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 mars 2015

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sC09AF19 { width:186.93pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   THIRD SECTION DECISION Application no. 43943/07 Vasile MĂLĂESCU against Romania The European Court of Human Rights (Third Section), sitting on 10   March 2015 as a Chamber composed of:   Josep Casadevall, President,   Luis López Guerra,   Ján Šikuta,   Dragoljub Popović,   Kristina Pardalos,   Valeriu Griţco,   Iulia Antoanella Motoc, judges, and Stephen Phillips, Section Registrar, Having regard to the above application lodged on 4 October 2007, Having regard to the decision of 9 July 2013, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Vasile Mălăescu, is a Romanian national who was born in 1947 and lives in Ploieşti. He was represented before the Court by Ms   G. Bârlă, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The genesis of the case 3.     At the time of the events giving rise to the present application, the applicant was a judge at Vălenii de Munte District Court, in Prahova County. 4.     On 17 January 2006 P.C. informed the Ploieşti Anti ‑ Corruption Department of the Prosecutor’ Office that on 16 January the applicant had requested money from him as a reward for having drafted a judgment that he had delivered in a civil lawsuit won by P.C. According to P.C.’s statements, the applicant asked for 1,000,000 Romanian lei (ROL) in order to fill up the fuel tank of his car. P.C. was expected to pay the money the next day. 5.     On the same day, the prosecutor supplied the money to P.C. in the form of ten banknotes of ROL 100,000 each. They were marked with the inscription “undue benefits” ( foloase necuvenite ) in a special ink. The prosecutor also gave authorisation for the recording of conversations between the applicant and P.C. In so doing, he relied on Article 91 2   §   2 of the Code of Criminal Procedure (“CCP”) which, in urgent cases, allows the interception of communications without a judge’s order. 6.     On 18 January 2006 at 8 a.m. P.C. went to the applicant’s office fitted with an audio-video recorder. The applicant greeted P.C. and asked him if “that paper had been good” (which the prosecutor explained as referring to the court judgment delivered by the applicant). He accepted the money from P.C., confirmed that the amount was correct, and then put the banknotes in his pocket. 7.     After P.C. had left, the prosecutor and a police officer entered the applicant’s office and found the applicant sitting at his desk. The applicant admitted having received money from P.C. and, at the prosecutor’s request, took the notes out of his pocket and handed them to the prosecutor. Eight banknotes of ROL   100,000 each were found, bearing the markings in special ink inscribed by the prosecutor beforehand. The remaining two   banknotes were found in P.C.’s pocket. He explained that he had not handed them over to the applicant because the latter had been in a hurry to get the money from him and see him out of the office. 2.     The prosecution 8.     On 18 January 2006 the prosecutor instituted a criminal prosecution against the applicant ( începerea urmăririi penale ) and informed the applicant, in the presence of his counsel, of the charges brought against him. The applicant gave a statement. He admitted having received the money, but denied having asked P.C. for anything. He pointed out that P.C. had come to his office uninvited. 9.     On 18 January 2006 the Ploieşti Court of Appeal reaffirmed the prosecutor’s authorisation for the interception of conversations. 10.     The applicant was interviewed again by the prosecutor on 19 January and was brought face to face with P.C. The court clerk who typed the judgments delivered by the applicant was interviewed by the prosecutor. She confirmed that on 16   January 2006, while she was working with the applicant, P.C. had entered the applicant’s office and had asked if his judgment had been typed. The court clerk left the applicant’s office and was unable to say how the conversation between the judge and P.C. had gone. Later that day, the applicant told her that they should type out P.C.’s court judgment, but then they both realised that the judgment had been drafted that very morning, before P.C.’s visit. 11.     The court clerk who had been present during the applicant’s court hearing which had resulted in the judgment favourable to P.C. declared that on 16   January 2006, after drafting the judgment, the applicant had brought the case file to her office, and that later on the same day he had returned with P.C. and had asked her to provide the latter with a copy of the judgment. 12.     On 15 February 2006 the Ploieşti Court of Appeal sitting in private, in the presence of the prosecutor and the applicant, affirmed that the transcripts of the recorded conversations constituted relevant evidence in the case (procedure under Articles 91 3 and 91 5 of the CCP) and accepted their addition to the file. The transcripts were attached to the court’s report. 13.     On 1 March 2006 the prosecutor committed the applicant for trial before the Ploieşti Court of Appeal on the charge of having received undue benefits ( primirea de foloase necuvenite ). 3.     The first-instance proceedings 14.     On 17 April 2006 the High Court of Cassation and Justice, acting at the applicant’s request, transferred the case to the Cluj Court of Appeal. 15.     On 21 June 2006 the Court of Appeal heard testimony from the applicant. He maintained that he had not requested any sum of money from P.C. and had not expected to receive money from him either. He explained that when the prosecutor had entered his office he had been about to go out to find P.C. and return the money to him. At the same hearing the applicant argued that the recording of conversations and the marking of the banknotes by the prosecutor constituted elements of the preliminary investigation ( acte premergătoare ) and that as such they had been unlawfully obtained and could therefore not be used as evidence in the file. 16.     P.C. also gave a statement before the court. The two court clerks could not be questioned as they were absent for personal reasons from the court hearings. The defence counsel agreed that the witness statements given before the prosecutor could be read in open court. 17.     On 20 September 2006 the applicant was convicted of having received undue benefits and was given a six month suspended sentence. The court established the facts based on the transcripts of the conversations, testimony given by the two court clerks before the prosecutor, and P.C.’s and the applicant’s statements. The court dismissed the applicant’s complaint concerning the alleged unlawfulness of the evidence on the grounds that the prosecutor had respected the procedure provided for by the CCP in the matter and that the court had authorised the recordings and their utilisation in the case. 4.     The appeal proceedings 18.     The applicant appealed against the judgment delivered by the Court of Appeal. 19.     On 4 April 2007 the High Court of Cassation and Justice, in the presence of the parties, listened to the recordings of the conversations. At the same hearing, the applicant contested some parts of the conversations ‒ pointing out that they did not correspond to the transcripts ‒ and asked for the tapes to be examined by an expert in order to establish whether they had been tampered with. He also reiterated his complaint as to the unlawfulness of the evidence. Lastly, he contended that there was not sufficient evidence in the file to secure his conviction and that there were significant inconsistencies between P.C.’s various statements during the proceedings. 20.     In a final decision delivered the same day, the High Court dismissed the applicant’s appeal and, based on the evidence in the file, upheld the judgment delivered by the Court of Appeal as well as its reasoning. The High Court reiterated that the legality of the evidence had been correctly examined, at the applicant’s request, by the first-instance court. It also found the evidence sufficient to establish that the applicant had requested and received money from P.C. It furthermore concluded that ‒ even if it could not be proven that there had been discussions whereby the applicant could have requested money from P.C. ‒ the fact that the applicant had accepted money proved his intent to commit the crime. B.     Relevant domestic law 21.     The legislation concerning interception of conversations in force at the relevant time and its evolution after 1   January 2004 is described in Dumitru Popescu v.   Romania (no. 2) (no. 71525/01, §§   39 ‑ 46, 26 April 2007). 22.     Under the Criminal Code it is a punishable act for a public servant to receive money or other undue benefits for a task he has carried out during the exercise of his duty (Article 256). The Anti-Corruption Act (Law no.   78/2000 on the prevention, discovery and punishment of acts of corruption) provides for an aggravating factor if the above crime is committed by a judge (Article 7). COMPLAINT 23.     The applicant complained under Article 6 §§ 1 and 3 of the Convention that he had been convicted on the basis of transcripts of conversations between himself and P.C. which had been unlawfully obtained before the beginning of the criminal prosecution, and which had been tampered with. THE LAW 24.     The applicant complained about the manner in which evidence had been obtained and used against him. He relied on Article 6 §§ 1 and 3 of the Convention which, in so far as relevant, read: “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: ... (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.     The parties’ arguments 25.     The Government contended that the evidence in dispute had not played a decisive role in securing the applicant’s conviction and that in their decisions the courts had relied on an important body of other evidence. They maintained that there had been no indication of arbitrariness in the case, and that the applicant had enjoyed all the guarantees of adversarial proceedings, including the possibility of challenging evidence. They further pointed out that the applicant had admitted receiving money from P.C. 26.     The applicant reiterated that he had not had a real possibility of challenging the evidence obtained through police recordings of the conversations and pointed out the numerous flaws in the transcripts, as described throughout the domestic proceedings. B.     The Court’s assessment 27.     The Court reiterates that in determining whether the proceedings as a whole were fair, it must consider whether the rights of the defence were respected. It must examine in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Bykov v. Russia [GC], no. 4378/02, § 90, 10   March 2009). 28.     While it is primarily the task of the national authorities to interpret and apply domestic law, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law (see Scordino v. Italy (no. 1) [GC], no.   36813/97, §§ 190-191, ECHR 2006 ‑ V). 29.     In the present case the Court notes that the evidence in dispute was used to determine whether the applicant had requested money from P.C. However, this element ‒ important as it may be ‒ was not decisive for the conviction (see, mutatis mutandis , Al-Khawaja and Tahery v. the United Kingdom [GC], nos.   26766/05 and 22228/06, §§ 119 and 147, ECHR 2011). In its final decision of 4 April 2007, the High Court of Cassation and Justice found that whether or not the applicant had requested the money, his intention to commit the crime was proved by the fact that he had subsequently accepted it. The Court further points out that the Criminal Code defines the crime as the act of receiving undue benefits, thus attaching no significance to whether or not such benefits were requested prior to the commission of crime. 30.     In these circumstances, and being mindful of its subsidiary role (see paragraph 28 above), the Court finds no reason to depart from the interpretation given to the law and facts of the case by the domestic courts. 31.     It follows that 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. This complaint is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the remainder of the application inadmissible.   Done in English and notified in writing on 2 April 2015. Stephen Phillips   Josep Casadevall   Registrar   President