CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 septembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .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 } .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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     Communicated on 14 September 2015   THIRD SECTION Application no. 60254/12 Ioan TARCEA against Romania lodged on 10 September 2012 STATEMENT OF FACTS The applicant, Mr Ioan Tarcea, is a Romanian national, who was born in 1967 and lives in Cisnădie. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 15 July 2010 the Aba-Iulia branch of the National Anticorruption Department (“the NAD”) opened criminal proceedings against a third party for bribe taking and against the applicant for complicity to bribe taking, relying on testimonial and documentary evidence as well as transcripts of their telephone conversations and of their ambient conversations with other third parties. On an unspecified date the NAD indicted the applicant’s co-accused for bribe taking and the applicant for complicity to bribe taking and sent their case to trial. On 5 December 2010 the applicant argued before the first-instance court that the criminal investigation opened against him had been null inter alia because the tapping of the ambient and telephone conversations had been unlawful. In particular, the applicant argued that the tapping of the ambient conversation which had started at 1.22 p.m. had been carried out on the basis of the preliminary authorisation no. 11 which had authorised the tapping of that ambient conversations only starting from 1.30 p.m. On 9 March 2011 the Sibiu County Court convicted the applicant for complicity to bribe taking on the basis of testimonial evidence, documents and the transcripts of the telephone and ambient conversations and sentenced him to three years’ imprisonment, suspended. It held, without providing any additional arguments, that the applicant’s arguments were ill ‑ founded. The applicant appealed against the judgment. He reiterated the arguments raised before the first-instance court and submitted that the said court had ignored them. On 6 September 2011 the Alba-Iulia Court of Appeal dismissed the applicant’s appeal as ill-founded and upheld the judgment of the first ‑ instance court. The court did not carry out an express examination of the arguments raised by the applicant. The applicant appealed on points of law ( recurs ) against the judgment. He reiterated the arguments raised before the lower courts and stated that the second-instance court had failed to examine them. By the final judgment of 12 March 2012 the Court of Cassation dismissed the applicant’s appeal on points of law. It held that while the unlawful tapping of the ambient conversation which had started at 1.22 p.m. would not have nullified the criminal investigation opened against him, it would have resulted in the said evidence being excluded from the file. However, the impugned conversation had been tapped lawfully based on the preliminary authorisation no. 10 and not no. 11. Relying on the telephone and ambient conversations, the court dismissed the applicant’s arguments that he had been unaware of the third party’s unlawful activities and therefore he had lacked the lawfully required intent in committing the offence. COMPLAINT The applicant complains under Article 6 of the Convention that the criminal proceedings opened against him were unfair in so far as the domestic courts had relied on unlawfully obtained evidence to convict him. In addition, the domestic courts had dismissed his argument that the tapping of the ambient conversation which had started at 1.22 p.m. had been unlawful by relying on an incorrect finding that it had been lawfully authorised.   QUESTION TO THE PARTIES Did the applicant have a fair hearing in the determination of a criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts rely on unlawfully obtained evidence in order to convict him? Moreover, were the arguments presented by the applicant in his defence considered by the domestic courts, and did they provide sufficient reasons for dismissing his complaint against the tapping of the ambient conversation that started at 1.22 p.m.?