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STOICAN v. ROMANIA - 3097/02 [2009] ECHR 1455 (6 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1455.html
Cite as:
[2009] ECHR 1455
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THIRD
SECTION
CASE OF STOICAN v. ROMANIA
(Application
no. 3097/02)
JUDGMENT
STRASBOURG
6 October
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Stoican v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 3097/02) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mrs Georgeta Stoican (“the
applicant”), on 22 December 2001.
The
applicant was represented by Dumitrescu and Dinu, a firm of lawyers
based in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu, of
the Ministry of Foreign Affairs.
The
applicant alleged, in particular, that her arrest and pre-trial
detention had not met the requirements of Article 5 § 3, as she
had not been brought promptly before a judge and had been kept too
long in detention, in the absence of concrete grounds.
On
28 February 2008 the President of the Third Section decided to give
notice of the complaints above to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1963 and lives in Bucharest.
At
the material time she was a judge in a first-instance court in
Bucharest. Two sets of criminal investigations were started against
her, on suspicion of having repeatedly falsified official documents
in the exercise of her duties, as part of an organised group, with
the aim of illegally obtaining title to various properties in the
centre of Bucharest.
Under
the provisions of Law no. 92/1992 on the Organisation of Justice, the
applicant was automatically suspended from her post during the
criminal trial.
On
18 September 2001 she was dismissed from her post by an order of the
Supreme Council of the Judiciary (Consiliul Superior al
Magistraturii) for manifest professional unfitness. On 15 July
2003 the decision was endorsed by the President of the Republic and
on 3 November 2003 it was upheld by the High Court of Cassation and
Justice (former Supreme Court of Justice), upon an appeal by the
applicant.
A. The first set of proceedings
On
9 October 2001 the prosecutor at the Supreme Court of Justice started
the criminal investigations against the applicant.
On
27 November 2001 the applicant was arrested for thirty days, on the
orders of the prosecutor, in connection with the criminal
investigations against her.
The
applicant appealed against the arrest order on the grounds that it
did not satisfy the domestic-law requirements or those set forth in
Article 5 § 3 of the Convention.
On
5 December 2001 the Bucharest Court of Appeal upheld the arrest
order. It found that the evidence in the file disclosed a reasonable
suspicion that she had committed the offences she was accused of. It
considered that her actions, which were contrary to public policy,
had been aggravated by the fact that the applicant had been a judge
at the time.
On 14
December 2001 the Supreme Court of Justice upheld the order by two
votes to one. The third judge expressed his separate opinion that
there were no grounds for arresting the applicant.
On
19 December 2001 the Court of Appeal extended the applicant's
pre-trial detention by thirty days, upon a request by the prosecutor.
It found that:
“the reasons invoked – in the light of the
complexity of the case which requires that the prosecutor take the
investigative measures indicated in his request – constitute
sufficient justification under Articles 155 et seq. of the
Code of Criminal Procedure.”
On 28
December 2001 the Supreme Court of Justice upheld the above mentioned
interlocutory judgment.
On
24 January 2002 the Court of Appeal extended the applicant's
detention on the ground that the applicant's release would be
contrary to public policy, given the seriousness of the offences she
was accused of and the risk of generating society's mistrust in the
judicial system.
On 6
February 2002 the Supreme Court reduced the new term of detention to
fifteen days.
On
7 February 2002 the Court of Appeal extended the detention for a
further thirty days on the ground that the reasons invoked for the
arrest still existed.
On 15
February 2002 the Supreme Court reduced the duration of detention to
fifteen days again.
On
21 February 2002 the Court of Appeal extended the detention by
nineteen days on the same grounds, in order to allow the prosecutor
to finalise the investigations. On 5 March 2002 the Supreme Court
upheld the interlocutory judgment.
On
14 March 2002 the Court of Appeal dismissed a new request by the
prosecutor for another extension of the applicant's pre-trial
detention, from 15 April to 14 May 2002. It found that the reasons
that had justified the taking of the measure did no longer exist. It
noted that the applicant had been suspended from her position and
pointed out that the alleged danger in terms of public policy should
not be assessed in abstract terms. It also noted that the prosecutor
had not made progress with the investigations after the applicant's
arrest and had not carried out the procedural measures for which he
had repeatedly sought an extension of the detention.
On 15
March 2002 the Supreme Court of Justice reversed the decision on the
ground that the documents in the file justified the extension.
On
10 April 2002 the Court of Appeal rejected, on the same grounds as
before, another extension request.
On 12
April 2002 the Supreme Court reversed the interlocutory judgment
again.
In
the following interlocutory judgments in the case the Court of Appeal
did not examine the applicant's detention, as she had been “arrested
in connection to other criminal proceedings” (point B below).
On
13 June 2002 the applicant was committed to stand trial along with
several other persons. The prosecution examined some forty witnesses,
documents were transferred from various authorities and several
expert reports submitted.
The
Court of Appeal gave judgment on 31 October 2003, convicting the
applicant of abuse of power and forgery and sentencing her to
five
years' imprisonment. The applicant's sentence was increased to
seven
years' imprisonment on appeal (decision of 28 February 2005 of the
Supreme Court of Justice) and became final on 24 March 2006.
The
applicant was released from prison on 13 November 2007.
B. The second set of proceedings
On
11 April 2002 the applicant was arrested by the prosecutor at the
Bucharest Court of Appeal in connection with criminal investigations
against her. The prosecutor justified his order on the grounds that
the criminal offence that she had been accused of was punishable by a
term of imprisonment of more than two years and that her continued
freedom would run counter to public policy.
On
23 April 2002 the applicant was brought before the Court of Appeal
for examination of her appeal against the arrest order.
On 24
April the Court of Appeal delivered its interlocutory judgment; it
upheld the arrest order in the following terms:
“Under the terms of the last paragraph of Article
140 of the Code of Criminal Procedure, the court may quash the arrest
order ... only if it finds that the measure was illegal.
However, in the case at hand, the [applicant's] arrest
meets the conditions set forth in Article 148 of the Code of Criminal
Procedure and the criteria in Article 136 § 3 of the Code of
Criminal Procedure, to ensure the proper administration of criminal
proceedings; therefore the [applicant's] complaint against the arrest
order seems ill founded and shall be dismissed.
...
Concerning the request for conditional release from
arrest, in accordance with Articles 1604 and 1606 § 5
of the Code of Criminal Procedure, the prosecutor decides on such a
request during the prosecution phase and the court that examines the
merits of the case deals with the request made during the criminal
trial.
Therefore, the court does not have the power to examine
the request, in so far as the case is currently in the prosecution
phase, under the prosecutor's exclusive supervision.”
The
court also found that the prosecutor had the power to issue the
arrest order, and dismissed the applicant's complaint to the
contrary.
On 7
May 2002 the Supreme Court of Justice upheld the interlocutory
judgment, in particular on the ground that the reasons that had
justified the imposition of the preventive measure still existed and
thus the applicant's continued detention was legal.
On
29 April 2002 the Court of Appeal extended the detention for another
thirty days, at the prosecutor's request. It found that:
“the reasons invoked for taking the measure still
exist, with regard to the nature of the offence, the circumstances of
the facts and the consequences produced.
Moreover, the extension of the pre-trial detention is
necessary, given the complexity of the case, which requires an
examination of several witnesses, various expert investigations,
gathering of documents from the authorities and confrontations.”
On 15
May 2002 the Supreme Court of Justice dismissed the applicant's
appeal and upheld the above interlocutory judgment.
On
29 May 2002 the Court of Appeal dismissed another request by the
prosecutor and refused to extend the applicant's detention for a
month. It noted that the prosecutor had already gathered the evidence
and could not justify the need for continuing the applicant's
detention; it also found that as the applicant had been dismissed
from her post, there was no longer a public-policy issue.
On 30
May 2002 the Supreme Court reversed the above decision and extended
the detention by seven days to allow the prosecutor to gather more
evidence, as he had requested.
On
5 June 2002 the applicant was committed for trial by the prosecutor,
on charges of abuse of power and forgery, in respect of facts similar
to those under investigation in the above-mentioned criminal file
(described at A above).
On
6 June 2002 the Court of Appeal dismissed a further extension request
by the prosecutor and ordered the applicant's release as it
considered that the reasons for her detention did no longer exist.
The
same day the Supreme Court reversed the decision; it held that the
Court of Appeal had not given reasons for its decision and that the
applicant's release would still be contrary to public policy in that
she had apparently committed several similar offences. It therefore
extended the detention pending trial by thirty days.
On
24 June 2002 the Court of Appeal extended the applicant's detention
by thirty days on the ground that:
“as the reasons that justified the taking of this
measure still exist, releasing her would be highly contrary to public
policy and would harm the investigations.”
On 5
July 2002 the Supreme Court declared inadmissible an appeal lodged by
the applicant, on the ground that a decision extending detention was
subject to appeal at the same time as the judgment on the merits of
the case.
On
1 August, 2 and 27 September and 1 and 22 November 2002 the Court of
Appeal extended the detention for further terms of thirty days, with
the same justification. On 15 August, 9 October and 27 November 2002
the Supreme Court declared the applicant's respective appeals
inadmissible. On two occasions – 13 September and 10
December 2002 – the Supreme Court upheld on the merits the
interlocutory judgments delivered by the Court of Appeal.
A
request by the applicant for conditional release was also dismissed
by the Court of Appeal, on 22 November 2000.
On
20 December 2002 the Court of Appeal gave judgment in the case. It
convicted the applicant of abuse of power and forgery and sentenced
her to one year and six months' imprisonment. In a final decision of
4 June 2003 the Supreme Court of Justice upheld the conviction but
reduced the sentence to one year and four months' imprisonment.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Code of Criminal Procedure concerning
pre-trial detention and its extension are set forth in Pantea
v. Romania, no. 33343/96, § 150, ECHR 2003 VI
(extracts). The procedure for lodging complaints against preventive
measures, including pre-trial detention, is described in Tase v.
Romania, no. 29761/02, §§ 14-15, 10 June 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that she had been arrested on an order of the
prosecutor that did not meet the requirements set forth in Article 5
§ 3 of the Convention. Under the same Article, she complained
that her pre trial detention had been excessively long and
extended repeatedly without relevant and sufficient reasons. Article
5 § 3 of the Convention reads as follows:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.”
A. Admissibility
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The parties' submissions
The
Government admitted that the arrest order of the Romanian prosecutor
did not meet the requirements of Article 5 § 3 of the Convention
as developed in the Court's case-law and that a delay of eight days
to be brought before a judge was a period that exceeded those that
the Court usually found acceptable. It pointed out, however, that the
Code of Criminal Procedure currently gave the judge exclusive powers
to order a person's pre-trial detention.
The
Government also argued that the applicant's detention had not been
excessively long. In their view, the two measures taken against the
applicant should be examined separately by the Court. Furthermore,
the Government averred that both investigations were extremely
complex due to the gravity of the facts and the number of persons
involved. They also pointed out that both the Court of Appeal and the
Supreme Court had given reasons for their decisions and re-examined
at short intervals the applicant's detention.
Lastly,
they argued that the two periods of pre-trial detention had been
necessary measures of public policy and complied with the Convention
requirements.
The
applicant disputed the Government's arguments. In particular, she
argued that her pre-trial detention should be examined as a single
period by the Court and that it had been excessively long.
2. The Court's assessment
(a) “Brought promptly before a judge
or other officer...”
The
Court reiterates that in the case of Pantea, cited above, it
concluded that the prosecutor did not satisfy the requirement of
independence from the executive as set out in Article 5 § 3 (see
Pantea, cited above, § 238). It sees no reason to depart
from that conclusion in the case at hand, given that the same legal
provisions applied to both cases.
It
further notes that the lapse of time before a judge examined the
arrest order was eight days in the first set of proceedings and
twelve days in the second set of proceedings.
The
Court points out that in Brogan and Others v. the United Kingdom
(29 November 1988, § 62, Series A no. 145 B), cited above,
it held that a period of detention in police custody amounting to
four days and six hours without judicial review fell outside the
strict constraints permitted by Article 5 § 3, even though it
was designed to protect the community as a whole from terrorism. A
fortiori, the Court cannot therefore accept in the instant case
that it was necessary to detain the applicant for at least eight days
before bringing her before a judge.
There
has accordingly been a violation of Article 5 § 3 of the
Convention on this point.
(b) Length of the pre-trial detention
The
Court reiterates its constant case-law on the length of pre-trial
detention, in particular concerning the presumption in favour of
release, the calculation of the detention period and the obligation
for the authorities to provide “relevant and sufficient
grounds” for continued detention (see Wemhoff v. Germany,
27 June 1968, § 9, Series A no. 7; Negoescu v. Romania
(dec.), no. 55450/00, 17 March 2005; and Bykov v. Russia [GC]
no. 4378/02, §§ 61 64,
10 March 2009 and the cases cited therein).
In
the case at hand, it notes that the parties have opposing views on
whether the two periods of detention should be examined together or
separately. However, the Court does not consider it necessary to
settle the matter as, in the circumstances of the case, even assuming
that the
two periods are to be examined separately, each one of
them contravenes the requirements of Article 5 § 3 of the
Convention for the following reasons.
The
Court notes that the applicant was detained from 27 November
2001 to 14 May 2002 in accordance with the first arrest order, and
from 11 April 2002 until 20 December 2002, in accordance with
the second arrest order.
The
courts extended the detention six times and nine times respectively,
finding that the prosecutor needed the extension in order to gather
more evidence (examine witnesses and produce expert reports), and
that the gravity of the offence and the applicant's status as a judge
raised a serious public policy issue.
However,
the courts did not give concrete reasons based on the facts of the
case to explain in what way the applicant's release would damage the
collection of evidence or run counter to public policy. The Court
further notes that the domestic courts found on a number of occasions
that the investigations had not progressed after the applicant's
arrest and that the prosecutor had failed to carry out the measures
envisaged in his requests for extension of the applicant's detention.
The
Court also notes that with the passage of time the domestic courts'
reasoning did not evolve to reflect the developing situation and that
they did not verify in the light of the circumstances of the case
whether the grounds initially invoked remained valid at the advanced
stage of the proceedings; on the contrary, the courts' reasoning
became more elliptic over time. The Court reiterates that it is only
by giving a reasoned decision that there can be public scrutiny of
the administration of justice (see Bykov, cited above,
§§ 65-66, and Suominen v. Finland,
no. 37801/97, § 37, 1 July 2003).
The
foregoing considerations are sufficient to enable the Court to
conclude that, given the lack of concrete reasons in the domestic
courts' decisions, the repeated extension of the applicant's
detention pending trial also infringed Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained, under Article 5 § 1 that there were no
concrete grounds for her arrest on 27 November 2001 and that she had
been illegally detained from 2 to 4 August 2002.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of any other violation of
the rights and freedoms set out in the Convention or its Protocols.
In particular, the Court notes that while the arrest order of 27
November 2001 did not give concrete reasons for the applicant's
arrest, the court decisions rendered following the appeal against
that order supplemented this absence (see paragraph 10 above and, by
contrast, Tase, cited above, § 29). As for the alleged
illegality of the detention, the documents in the file indicate that
the applicant was detained from 2 to 4 August 2002 in accordance with
the interlocutory judgment of 1 August 2002 (see paragraph 29 above).
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 18,000 Romanian lei (RON) in respect of
pecuniary damage for the salaries that she had not received during
her pre-trial detention. She also claimed 5,350 US dollars (USD),
representing the difference between the price of her former
apartment, which she had had to sell after being released from
prison, and that of the smaller apartment that she had bought
afterwards. She further claimed 50,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government argued that the applicant could not prove the existence of
a causal link between the violation alleged and the damages sought.
In addition, they averred that the amount claimed as non-pecuniary
damages was exaggerated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it accepts that the applicant suffered distress and
frustration because the State failed to respect her Article 5 §
3 rights. Making its assessment on an equitable basis, the Court
awards the applicant EUR 2,000 in respect of non pecuniary
damage.
B. Costs and expenses
The
applicant also claimed RON 1,374.7 for the costs and expenses
incurred before the domestic courts and the Court. She sent invoices
justifying RON 585 in payments of court fees and fines and RON 187.9
for the payment of a letter to the Court.
The
Government contested the amounts.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 250 under all heads.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning Article 5
§ 3 admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage and EUR 250 (two hundred and fifty euros),
plus any tax that may be chargeable, for costs and expenses;
(b) that
these amounts are to be converted into the respondent State's
national currency at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
