CEDH · CASELAW;CLIN;ENG — 7 février 2012

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law 149 February 2012 Tripon v. Romania (dec.) - 27062/04 Decision 7.2.2012 [Section III] Article 6 Article 6-2 Presumption of innocence Dismissal of an official held in pre-trial detention: inadmissible Facts – In September 2001 the applicant, a civil servant who worked as a customs officer at a border post, was placed in pre-trial detention on an order by the public prosecutor’s office on suspicion that he, together with six of his colleagues from the same customs post, had committed an offence of abuse of office to the detriment of the State’s interests. In November 2001 the court of first instance extended his detention until 1   December 2001, when he was released. On 28   November 2001, by a decision of the Public Finance Ministry, the applicant was dismissed on the basis of a provision of the Labour Code which made it possible to dismiss an employee if he or she was placed in pre-trial detention for more than sixty days, on whatever grounds. The applicant appealed against his dismissal before the courts, without success. In 2003 the Constitutional Court dismissed a plea of unconstitutionality concerning the legislative provision in question, raised by the court of appeal of its own motion. In 2004 the applicant was sentenced to a suspended term of imprisonment. He lodged an appeal. In 2010 the criminal proceedings against him were discontinued on the ground that the prosecution of the offence was time-barred. The county court held that the applicant could not be acquitted on account of the evidence against him in the case file, which established his guilt. Law – Article 6 § 2: The right at the relevant time under the Labour Code to dismiss employees placed in pre-trial detention for more than sixty days had been based on an objective factor, namely the extended absence of the employees concerned from their posts, rather than on considerations linked to their guilt or innocence on the charges that had justified their placement in custody. In enacting that provision of the Labour Code the national legislature had undoubtedly sought, as the Constitutional Court had rightly observed, to protect employers, whether in the public or the private sector, against the possibly damaging consequences of the prolonged absence of an employee who did not fulfil his or her contractual obligations as a result of being placed in detention. It was not for the European Court to interfere in such legislative policy choices by the State, particularly where the national legislation provided sufficient safeguards against arbitrary or wrongful treatment of employees who were absent from work for a prolonged period because they were in custody. The Romanian legislation at the material time had contained such safeguards: beyond the time-limit of thirty days within which the public prosecutor’s office, at the time, had been empowered to issue a detention order, any extension of a period of pre‑trial detention had to be ordered by a court, giving reasons, and had to be necessary. Furthermore, no representative of the State –   be it a judge, court or other public authority   – had made any statements in the instant case reflecting an opinion that the applicant was guilty of an offence before his guilt had been established by the 2004 judgment of the court of first instance. In particular, the decisions given by the national courts concerning the applicant’s dismissal did not contain any statement suggesting that he was considered guilty of the offences with which he had been charged. Furthermore, the court decisions upholding the charges of abuse of office to the detriment of the State’s interests and forgery brought against the applicant by the public prosecutor’s office had been delivered after detailed examination in the course of adversarial proceedings held in public. In spite of everything, the courts had applied the provisions of the criminal procedure that were most favourable to the applicant, by ordering that the proceedings against him be discontinued on the ground that prosecution of the offence was time-barred. It was true that, had the applicant been acquitted, the law did not require his former employer to reinstate him. Nevertheless, he would have had the option of bringing an action against the State for compensation for the alleged judicial error made in his case. Lastly, the Romanian legislation currently in force – which in 2005 had reduced to thirty days the period of pre-trial detention beyond which an employee could be dismissed on grounds of absence from his or her post – had accompanied this measure, favourable to employers, with heightened safeguards against arbitrary or wrongful treatment of employees. Only an independent and impartial judge for the purposes of Article 6 §   1 of the Convention now had the power to place persons suspected of an offence in pre-trial detention, by means of a reasoned decision which was open to appeal. In the light of all these considerations, the decision to dismiss the applicant, taken by his employer in accordance with the national legislation in force at the material time, could not be said to amount to a statement or act reflecting an opinion that he was guilty or prejudging the assessment of the facts by the competent court. Conclusion : inadmissible (manifestly ill-founded).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes