CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 mars 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 11 April 2023   FOURTH SECTION Application no. 80322/17 Gruia STOICA against Romania lodged on 20 November 2017 communicated on 20 March 2023 SUBJECT MATTER OF THE CASE The applicant is a prominent businessman and one of the wealthiest persons in the country. The application concerns the criminal proceedings opened by the authorities against the applicant for purchasing influence. On 24   April 2014 the pre-trial judge attached to the High Court of Cassation and Justice (“the Court of Cassation”) – sitting in chambers and in the absence of the parties – dismissed the applicant’s objections concerning the alleged unlawfulness of the act of indictment and of the available evidence and sent his case to trial. By a final judgment of 23 February 2016 (available to the applicant on 26 September 2017) the Court of Cassation examined the merits of the case and convicted the applicant of purchasing influence and sentenced him to the suspended penalty of 2 years and 6 months imprisonment. Relying expressly or in substance on Article 6 of the Convention, the applicant alleged that the pre-trial judge proceedings were unfair and violated his rights of defence and to adversarial proceedings as well as the principle of equality of arms. In particular, these proceedings had taken place in chambers, in his and his lawyer’s absence, without the applicant or his lawyer being summoned and without the defense being notified of or given an opportunity to comment on the prosecution’s response to the arguments and exceptions which the defense had raised in respect of the lawfulness and validity of the main evidence relied on by the authorities for his conviction. This evidence consisted namely of the audio and video surveillance of the applicant’s phone conversations and activities which had been gathered by the Romanian Intelligence Service ( Serviciul Român de Informații – “SRI”) acting as a criminal investigation body on the basis of Law no. 51/1991 on national security before a criminal investigation was opened against the applicant and notwithstanding the fact that the applicant was investigated for ordinary corruption offences. The applicant alleged further that the trial against him had been unfair because, even though he had been convicted mainly on the basis of the unlawful audio and video surveillance of his phone conversations and activities by the SRI, the courts had not granted him access to all the classified court mandates allowing the surveillance in his case, had not reviewed directly all the recorded materials produced by the SRI and had denied the applicant’s requests for an independent expert review of the authenticity, integrity and content of the recorded materials. Moreover, the judicial authorities had declassified and/or transcribed only in part the surveillance mandates and the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording as required by the criminal procedure rules. Furthermore, the Court of Cassation judges examining his case had lacked independence and impartiality because their participation in proceedings involving classified evidence gathered by the SRI had been based also on classified cooperation protocols concluded between the court, the prosecution and the SRI. The applicant also alleged a violation of his right to respect for private life and correspondence guaranteed by Article 8 of the Convention. In this respect, he raises the following complaints: (i) the SRI acting as a criminal investigation body had surveyed his phone conversations and activities on the basis of national security legislation and classified cooperation protocols singed between the intelligence service and the judicial authorities lacking clarity and foreseeability, even though the applicant was investigated for ordinary corruption offences and not for acts affecting national security; (ii)   the ab   initio judicial review allowing for the applicant’s surveillance had been formalistic and not grounded on the relevant criminal procedure rules; and (iii) the relevant rules applicable in the applicant’s case as well as the authorities’ actions had lacked adequate counterbalancing safeguards given that the judicial authorities had declassified and/or transcribed only in part the surveillance mandates and the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording. Relying in substance on Article 13 of the Convention, taken jointly with Articles   6 and 8, the applicant alleged that he did not have any judicial remedy enabling him to give effect in his case to the Constitutional Court’s case ‑ law of 28 February 2018. The latter expressly acknowledged that possible corruption offences could not constitute threats to national security capable of justifying restrictions on individual fundamental rights under the relevant national security laws. According to the applicant, this prevented him from remedying the violation of his rights to a fair trial and to respect for his private life and correspondence. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair trial in the determination of the criminal charge against him in accordance with Article 6 of the Convention?   In particular, were the applicant’s rights of defence and to an independent and impartial tribunal and the principles of equality of arms and of adversarial proceedings affected in such a way as to render the criminal proceedings against him as a whole unfair within the meaning of Article 6 of the Convention given that: (i) the audio and video surveillance of the applicant’s phone conversations and activities had been gathered allegedly unlawfully by the SRI acting as a criminal investigation body on the basis of Law no. 51/1991 on national security before a criminal investigation was opened against the applicant and notwithstanding the fact that the applicant was investigated for ordinary corruption offences; (ii) the pre-trial judge proceedings had not been adversarial, had taken place in chambers, in the applicant’s and his lawyer’s absence and without the applicant and his lawyer being summoned; (iii) the judicial authorities had not granted the applicant access to all the classified court mandates allowing the surveillance in his case, had not reviewed directly all the recorded materials produced by the SRI, had denied the applicant’s requests for an independent expert review of the authenticity, integrity and content of the recorded materials, had declassified and/or transcribed only in part the surveillance mandates and the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording as required by the criminal procedure rules; and (iv) the Court of Cassation judges examining his case had allegedly lacked independence and impartiality because their participation in the proceedings had been based also on classified cooperation protocols concluded between the Court of Cassation, the prosecution and the SRI?   2.     Has there been a violation of the applicant’s right to respect for his private life and correspondence guaranteed by Article 8 of the Convention in view of the fact that: (i) the SRI acting as a criminal investigation body had surveyed his phone conversations and activities on the basis of national security legislation and classified cooperation protocols singed between the SRI and the judicial authorities allegedly lacking clarity and foreseeability, notwithstanding the fact that the applicant was investigated for ordinary corruption offences and not for acts affecting national security; (ii) the ab initio judicial review allowing for the applicant’s surveillance had allegedly been formalistic and not grounded on the relevant criminal procedure rules; and (iii) the relevant rules applicable in the applicant’s case as well as the authorities’ actions had allegedly lacked adequate counterbalancing safeguards given that the judicial authorities had declassified and/or transcribed only in part the surveillance mandates and the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording?   3.     Did the applicant have any judicial remedy at his disposal enabling him to give effect to the Constitutional Court’s case-law of 28 February 2018 in his case? If so, was the applicant provided with an effective remedy for his complaints under Articles 6 and 8 of the Convention, as required under Article   13?