CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 26 avril 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   261 26.4.2007   Press release issued by the Registrar   CHAMBER JUDGMENTS DUMITRU POPESCU v. ROMANIA (nos. 1 and 2)   The European Court of Human Rights has today notified in writing its Chamber judgments [1] in the cases of Dumitru Popescu v. Romania (no. 1 and 2) (application nos. 49234/99 and 71525/01).   The Court held unanimously that there had been:   no violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights as regards the applicant’s allegations of ill-treatment; a violation of Article 3 as regards the ineffectiveness of the investigation into the allegations of ill-treatment; a violation of Article 8 (right to respect for private and family life); no violation of Article 6 (right to a fair hearing).   The Court considered that the finding of a violation of the Convention constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and, in the case of Dumitru Popescu v. Romania (no. 1) , awarded him 2,200 euros (EUR) for costs and expenses, less the sum of EUR 850 already received from the Council of Europe in legal aid. (The judgment is available only in French.)   1.     Principal facts   The applicant, Dumitru Popescu, is a Romanian national who was born in 1964. He is currently being held in Rahova Prison (Romania). At the material time he was the majority shareholder of an aircraft charter company.   The applicant was arrested on 27 April 1998 on suspicion of smuggling and criminal conspiracy. He was accused of being involved in trafficking cigarettes that had arrived illegally in Romania at Otopeni Military Airport.   The parties differed as to the circumstances of Mr Popescu’s arrest.   The applicant maintained that on 27 April 1998 at about 10 p.m., while he was driving, two vehicles had blocked the road, forcing him to stop. Without identifying themselves, some people had made him get out of his car, threatened him with their weapons, beaten him and taken him in handcuffs to the headquarters of the National Police Inspectorate in Bucharest. The Romanian Government denied that version of events, asserting that the members of the Special Intervention and Action Unit who had arrested the applicant had identified themselves and had had to use force to counter the resistance offered by the applicant. They had immobilised him using handcuffs, causing him a few superficial wounds.   On 28 April 1998 the applicant lodged a criminal complaint against the persons who had arrested him, alleging in particular that their conduct had been unlawful. At the public prosecutor’s request, the applicant underwent medical examinations that day and on 30 April. The examinations revealed that the applicant had abrasions and bruises on his face, arms and legs, and in the thoracic, sternum and lumbar regions.   Following a preliminary inquiry by military prosecutors attached to the Supreme Court of Justice, the investigation was discontinued on the grounds that the force used against the complainant had been mild and that the means employed had been appropriate and not disproportionate to the aim of the operation, namely the applicant’s arrest.   The applicant was committed to stand trial in the Bucharest Regional Military Court. The public prosecutor submitted transcripts and cassettes of the applicant's telephone conversations that had been intercepted by the Romanian intelligence services.   Relying in particular on the telephone tapping and the list of telephone calls between the defendants, the Bucharest Regional Military Court found the applicant guilty of smuggling and criminal conspiracy and sentenced him to 12 years’ imprisonment on 18 February 1999. The conviction was upheld on appeal on 8 June 2000. In February 2001 the Supreme Court of Justice dismissed an application by the applicant to have the conviction quashed.   2.     Procedure and composition of the Court   In the case of Dumitru Popescu v. Romania (no. 1) the application was lodged with the European Court of Human Rights on 14 April 1999 and declared partly admissible on 12   May 2005. In the case of Dumitru Popescu v. Romania (no. 2) the application was lodged on 22 June 2001 and declared partly admissible on 22 September 2005.   Judgment was given by a Chamber of 7 judges, composed as follows:   Boštjan M. Zupančič (Slovenian), President , Corneliu Bîrsan (Romanian), Elisabet Fura-Sandström (Swedish), Alvina Gyulumyan (Armenian), Egbert Myjer (Dutch), David Thór Björgvinsson (Icelandic), Isabelle Berro-Lefèvre (Monegasque), judges , and also Santiago Quesada , Section Registrar .   3.     Summary of the judgments [2]   Complaints   The applicant complained that he had been ill-treated during his arrest. He also complained that he had been convicted on the basis of evidence that had not been obtained lawfully. He relied on Articles 3, 8 and 6.   Decision of the Court   Article 3 of the Convention   Allegations of ill-treatment Having assessed all the relevant evidence, including the medical certificates attesting to the mildness of the injuries caused to the applicant, the Court considered that the means employed by the authorities had not been inappropriate and disproportionate to the aim of the operation, namely the applicant’s arrest.   Effectiveness of the investigation The Court noted that an investigation had indeed been carried out but that it had resulted in the proceedings being discontinued by the military prosecutors attached to the Supreme Court of Justice. However, the Court noted that it had previously held that, at the relevant time, the military prosecutors had not been independent. They were serving officers and had been responsible for dealing with breaches of military discipline; they had been part of the military structure based on the principle of hierarchical subordination.   Having regard to the national legislation in force at the relevant time, the Court considered that the investigation into the applicant's complaint alleging ill-treatment had lacked effectiveness. It therefore held that there had been a violation of Article 3 on that account.   Article 8 of the Convention   According to the Romanian Government, the tapping of the applicant’s telephone calls had been ordered on the basis of section 3 of Law no. 51/1991, which listed acts constituting a threat to national security. The Court considered that only a broad interpretation of that provision could allow it to be taken as a legal basis for the interference with the applicant's right to respect for his private life, having regard to the circumstances in which the cigarette smuggling had taken place, namely at a military airport, a fact that could possibly have affected the country's defence capacity.   Even supposing that such a legal basis had been established, the Court had a duty to determine whether the conditions laid down by law for the interception of telephone communications had been satisfied and accompanied by the necessary safeguards.   The Court considered it important to determine whether Romanian law had been capable of protecting the applicant against arbitrariness on the authorities’ part by providing for sufficient safeguards in such a sensitive area as the right to respect for private life.   In that connection, the Court noted in the first place that telephone tapping, a measure which seriously interfered with the right of individuals to respect to their private life, had been left to the public prosecutor's discretion. It noted that it had previously found that Romanian prosecutors, acting as members of the Procurator-General’s Office, did not satisfy the requirement of independence from the executive. Furthermore, at the relevant time permission to carry out telephone tapping was not subject to any prior or ex post facto review by a judge or other independent authority. The Court also observed that Romanian law did not provide for any safeguards concerning the need to keep recordings of telephone calls intact and in their entirety, or their destruction. Lastly, the Court noted that doubts might have been cast on the independence and impartiality of the Romanian intelligence service, the only authority empowered to certify that recordings were genuine and reliable.   In those circumstances, the Court held that there had been a violation of Article 8.   Article 6 of the Convention   The Court could not accept the applicant’s argument that the Romanian courts had not examined his submission concerning the incompatibility of national legislation with Article 8 of the Convention. It further considered that the use in evidence of the recordings in question had not deprived the applicant of a fair trial.   The Court therefore held that there had been no violation of Article 6.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.         [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.