CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 avril 2017

.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 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .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 27 April 2017   FOURTH SECTION Application no. 45776/16 Stelian JIDIC against Romania lodged on 25 July 2016 STATEMENT OF FACTS The applicant, Mr Stelian Jidic, is a Romanian national who was born in 1964 and lives in Bragadiru. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was a professional driver and since 1984 has worked for several organisations. On 16 July 2012 he was driving his own car on a public road and was involved in a violent incident with several other people. During the incident, the applicant moved his car and injured one of those involved. Police officers were called to the scene and tested the applicant with a breathalyser. The test showed that he had been driving his car with a blood alcohol level over the legal limit of 0.8 grams per litre. They withheld ( reținut ) his driving licence, suspended him from driving and took him to hospital to have his blood tested. On the same date the police officers carried out a preliminary investigation at the scene of the accident. On 26 July 2012 the forensics department attached to the Bucharest Police produced a photographic plan of the evidence found at the scene. On 10 September 2012 a police officer took a statement from one of the other people involved. On 21 August 2013 the applicant sold his apartment. On 22 November 2013 the traffic accidents department attached to the Bucharest Police (“the TAD”) opened a criminal investigation ( a ȋnceput urmărirea penală ) against the applicant on the basis of Article 87 § 1 of Government Ordinance no. 195/2002 on the grounds that he had been driving his car on a public road with a blood alcohol level over the legal limit of 0.8 grams per litre. On the same date the Bucharest prosecutor’s office (“the prosecutor’s office”) approved the TAD’s decision to open a criminal investigation against the applicant. On the same date the TAD asked the National Institute of Forensic Medicine to produce a forensic report within thirty days to determine the exact level of alcohol in the applicant’s blood on the day of the accident. On 23 November 2013 the TAD took a statement from the applicant regarding the circumstances of the accident. He admitted to driving his car on a public road with a blood alcohol level over the legal limit of 0.8 grams per litre. On 9 and 27 January 2014 the TAD took statements from the other people involved. On 30 April 2014 the TAD changed the legal classification ( a schimbat ȋncadrarea juridică ) of the acts for which the applicant was being investigated from Article 87 § 1 of Government Ordinance no. 195/2002 to Article 336 § 1 of the new Romanian Criminal Code (“the NRCC”). It held that the NRCC had entered into force on 1 February 2014 and provided for a lighter penalty for the acts in question. Article 5 of the NRCC also provided that if several criminal laws were in force between the moment an act was committed and the moment a final court judgment was delivered in a case, the more lenient criminal law had to be applied.   On 2 July 2014 the National Institute of Forensic Medicine produced the forensic report requested by the TAD on 22 November 2013. On 5 August 2014 the prosecutor’s office charged the applicant ( a pus ȋn mişcare acțiunea penală ) under Article 336 § 1 of the NRCC. On 29 August 2014 the TAD informed the applicant of the charges brought against him and took a statement from him. On 17 March 2015 the applicant asked the prosecutor’s office to expedite the proceedings and send the case to trial as soon as possible. He argued that the criminal investigation was complete and there was no valid reason for delaying sending the case to trial. He submitted that he had been unable to work since 16 July 2012 because he had been suspended from driving. Moreover, he had been forced to sell his apartment in order to support himself. Given his age, he was not in a position to requalify in a different profession and he had almost run out of financial resources. Even though the case was not complex, the criminal investigation had been excessively lengthy. On 28 April 2015 the prosecutor’s office sent the case to trial. On 24 September 2015 a hearing took place before the Bucharest District Court (“the District Court”). It heard evidence from the applicant in respect of the circumstances of the accident and allowed his request to be tried under a summary procedure on the grounds that he had admitted the offence. On the same date the court noted that the prosecutor’s office had asked to change the legal classification of the offence for which the applicant was being tried from Article 336 § 1 of the NRCC to Article 87 § 1 of Government Ordinance no. 195/2002 because the latter provision was the more lenient criminal law for him in so far as the choice of sentence was concerned. The court also noted that the applicant disagreed with the prosecutor’s office’s argument concerning the legal classification of the offence. He contended that Article 336 § 1 was the more lenient criminal law in his case in so far as the choice of sentence was concerned because under that provision the court had discretion to postpone or waive the imposition of a sentence ( amână sau renunță la aplicarea pedepsei ) which in turn would render the revocation of his driving licence unnecessary. He argued that the conditions for postponing or waiving the imposition of a sentence had been met because, inter alia , the criminal investigation had been excessively lengthy even though the case was not complex and he had not delayed the proceedings. Furthermore, he was unable to work because he had been suspended from driving, and he had been forced to sell his apartment in order to be able to live. On the same date the court adjourned the proceedings in order to allow the applicant to submit written observations. On 29 September 2015 the applicant submitted his written observations to the court. He argued, inter alia , that Article 336 § 1 was the most lenient criminal law in his case because under that provision the offence committed by him was punishable either by imprisonment or a fine. Moreover, the court had discretion to postpone or waive the imposition of a sentence. As a result Article 114 of Government Ordinance no. 195/2002 would not apply in his case and his driving licence would not be revoked. Under Article 87 §   1 of Government Ordinance no. 195/2002 the only form of punishment for the offence was imprisonment. Under the latter criminal law provision the court would be forced to convict him, given that he had admitted his guilt. As a result, Article 114 of Government Ordinance no. 195/2002 would become applicable to his case and his driving licence would be revoked, regardless of what sentence he was given. The applicant also argued that the educational and punitive purpose of a potential criminal conviction had already been achieved in his case because since his suspension from driving he had been unable to work during the entire course of the excessively lengthy proceedings. As a result he had lost his job, had had to sell his apartment in order to be able to live and had developed health problems. The applicant also asked the court not to suspend him from driving during the possible probation period if it decided to postpone the imposition of his sentence, because driving was his livelihood and at his age it would be impossible to requalify in a new profession. On 8 October 2015 the District Court convicted the applicant. It held that Article 336 § 1 of the NRCC was applicable because in the applicant’s case it was necessary to postpone the imposition of the sentence. Consequently, it concluded that that legal provision was the more lenient and decided to dismiss the prosecutor’s office’s request to change the legal classification of the offence. In sentencing the applicant, the court took into account a number of elements, including the fact that he had been entitled to a one ‑ third reduction in his sentence because he had admitted the offence, had not committed the act on a busy road, had no previous convictions and had been employed, responsible and fully integrated into society. It considered that setting ( a stabilit ) a penalty for the applicant would be sufficient to make him realise the consequences of his behaviour and deter him from repeating it. Consequently, it decided that the immediate imposition of a sentence was unnecessary, and that a probation period was required. It therefore concluded that the most appropriate manner of dealing with the case was to sentence the applicant to ten months in prison sentence and postpone its imposition for two years. Lastly, it ordered the applicant to perform certain duties during the probation period, but they did not include the obligation not to drive a vehicle. On 14 November 2015 the applicant asked the District Court to expedite the notification of its reasons for the judgment to the parties. He reiterated, inter alia , his arguments about the length of the proceedings and the fact that he had been unable to work. On an unspecified date the prosecutor’s office appealed against the first ‑ instance judgment. It reiterated its arguments concerning the need to change the legal classification of the offence. It considered that the first ‑ instance judgment had been ill-founded in so far as it concerned the ways the penalty could be implemented ( modalității de executare ) and urged the appellate court to suspend service of the applicant’s sentence for the duration of a supervision period ( suspendarea sub supraveghere pe un termen de ȋncercare ). It argued that the old criminal law provision had set out more favourable terms for the applicant than the new criminal law provision in so far as suspending service of the applicant’s sentence for the duration of a supervision period was concerned because the old criminal law provision allowed for the applicant’s automatic legal rehabilitation ( reabilitarea de drept ) if he did not reoffend during that period. It also argued that the first-instance decision to sentence the applicant to ten months in prison and then postpone it had been inappropriate, given the seriousness of the offence. On 29 January 2016 the applicant submitted written observations to the appellate court. He contested the prosecutor’s office’s arguments and reiterated the arguments he had raised before the first-instance court. By a final judgment of 2 February 2016 the Bucharest Court of Appeal allowed the prosecutor’s office’s appeal and quashed the first-instance judgment. Referring to the general sentencing criteria set out in both the new and old criminal law provisions, the court held that the penalty imposed on the applicant had not been appropriate to ensure his rehabilitation. Taking into account the particular circumstances in which he had committed the offence and the new domestic criminal procedure rules concerning the one-third reduction in penalties where there was an admission of guilt, the court decided to impose a penalty on the applicant between the special limits provided for by law for his offence and reduce it in accordance with the law. Subsequently, it held that the old criminal law provisions had been the more lenient in the applicant’s case, given the conditions set out for the suspension of the sentence for the duration of a supervision period. Citing the provisions of the old criminal law and the provisions of the new criminal procedure law only in so far as they concerned the one-third reduction in penalties where there was an admission of guilt, the court convicted the applicant and sentenced him to three years and four months in prison. It also imposed additional penalties ( pedeapsa accesorie ), such as the removal of his right to vote or be elected for public office or in public institutions and a ban on him occupying a position involving the exercise of State power. Subsequently, it decided to suspend both the applicant’s prison sentence and the additional penalties for seven years. Moreover, it ordered the applicant to perform certain duties, which included the obligation not to drive a vehicle during the supervision period. B.     Relevant domestic law and practice Articles 87 to 114 of Government Ordinance no. 195/2002 regarding road traffic provide, inter alia , that driving a vehicle on a public road with a pure blood alcohol level over 0.8 grams per litre is punishable by imprisonment of between one and five years. In such cases, the person’s driving licence must be withheld and a document replacing it issued, but the driver will not be permitted to drive. The prosecutor investigating or supervising the investigation of the case, or the court charged with examining the merits of the case may, during the trial stage of the proceedings, permit the driver to drive for periods of up to thirty days until the criminal investigation is concluded or, as the case may be, until the judgment of a court is final. If a driver is convicted by a final court judgment of the above-mentioned offence, his driving licence will be revoked by the traffic police. A person whose driving licence is revoked may retake a driving test one year after the judgment suspending service of the sentence for the duration of a supervision period becomes final. Articles 72 to 86 6 of the old Romanian Criminal Code provided, inter alia , that courts had to consider several criteria, including the circumstances of the case, the seriousness of the offence and the severity of the penalty provided for by law before establishing and imposing a penalty. In addition, the court also had to consider all the aforementioned criteria in circumstances where the law provided for alternative penalties for the same offence, before choosing one of the alternative penalties and determining its limits. Also, a court could decide to suspend service of a sentence for the duration of a supervision period if several conditions were met, including where the main penalty was imprisonment of less than four years. The supervision period was calculated by adding an additional period of time to the prison sentence set by the court of between two to five years. If the person convicted did not reoffend during the supervision period, he was automatically legally rehabilitated. On 1 February 2014 the NRCC and the new Romanian Criminal Procedure Code entered into force. Articles 74 to 91 of the NRCC provide, inter alia , that a court has to consider several criteria, including the circumstances of the case, the seriousness of the offence and the severity of the penalty provided for by law before establishing and imposing a penalty. In addition, the court also has to consider the aforementioned criteria in circumstances where the law provides for alternative penalties for the same offence, before choosing one of the alternative penalties. Also, a court has discretion to postpone the imposition of a sentence if several conditions are met, including where the main penalty is a fine or imprisonment of less than two years. The sentence can no longer be imposed on the person for whom the application of a sentence is postponed and he or she is not subject to any ban or limitation flowing from the offence he or she has committed, if he or she does not reoffend during the probation period, or if the postponement is not revoked or annulled. The probation period is two years. Postponement of the imposition of a sentence does not have any effect on the implementation of safety measures or civil obligations set out in the judgment. A court can also decide to suspend service of a sentence for the duration of a supervision period if several conditions are met, including where the main penalty is imprisonment of less than three years. The supervision period can be anywhere between two to four years, but cannot be shorter than the length of the prison sentence. If the person convicted does not reoffend during the supervision period, his or her sentence is considered spent once that period expires. Article 336 provides, inter alia , that driving a vehicle on a public road with a blood alcohol level over 0.8 grams per litre is punishable either by imprisonment of one to five years or a fine. Article 396 § 10 of the new Romanian Criminal Procedure Code provides that the maximum penalty provided for by law is to be reduced by a third in cases where the penalty is imprisonment and the case has been examined under a summary procedure and the person charged with the offence has admitted his guilt. In Decision no. 265/2014 of 6 May 2014 published in the Official Gazette no. 372 of 20 May 2014, the Romanian Constitutional Court held that a court acted unconstitutionally if in its attempt to determine the more lenient criminal law it combined the provisions of the old and the new criminal law. COMPLAINTS 1.     The applicant complains under Article 6 of the Convention that the criminal investigation and the overall proceedings opened against him were excessively lengthy even though his case was not complex, he agreed to be tried under a summary procedure and he cooperated with the investigating authorities and did not delay the proceedings. The diligent examination of his case was very important for him because he was a professional driver and during the excessively lengthy proceedings he was unable to work or earn a living and was forced to sell his apartment in order to cover his living costs. Relying on the same Convention provision, the applicant complains that his suspension from driving for an unlimited amount of time pending the outcome of the criminal proceedings opened against him, without a court order and an effective remedy that would have allowed him to challenge the suspension, amounted to a breach of his right to be presumed innocent 2.     The applicant complains under Article 7 of the Convention that by quashing the judgment of the first-instance court and applying the old criminal law provisions to his case, the last-instance court breached the principle of retrospective application of the more lenient criminal law. He argues that under Article 336 § 1 of the NRCC the offence committed by him was punishable either by imprisonment or a fine. The court also had discretion to postpone or waive the imposition of a sentence. As a result, his driving licence would not have been revoked. In addition, a decision by the court to postpone the imposition of his sentence would have enabled him to recover his driving licence immediately after the proceedings ended because a ban on him driving his car during the probation period could no longer have been imposed. 3.     The applicant complains under Article 13 of the Convention that he did not have an effective domestic remedy to contest the length of the criminal proceedings initiated against him. QUESTIONS TO THE PARTIES 1.     Was the length of the criminal proceedings opened against the applicant in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?   2.     Was the applicant given a heavier penalty than the one prescribed by the law which, of all the laws in force during the period between the commission of the offence and delivery of the final judgment, was most favorable to him, in breach of Article 7 of the Convention (see Scoppola v.   Italy (no. 2) [GC], no. 10249/03, 17 September 2009)?   3.     Did the applicant have an effective domestic remedy at his disposal for his complaint concerning the length of proceedings, as required by Article   13 of the Convention?