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Cite as: [2011] ECHR 1040

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THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22015/10
by Cătălin VOICU
against Romania

The European Court of Human Rights (Third Section), sitting on 7 June 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 12 April 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Cătălin Voicu, is a Romanian national who was born in 1965 and lives in Bucharest.

At the relevant time, the applicant was a senator and had a private practice as a lawyer.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 10 December 2009 the Anti-Corruption Department of the Prosecutor’s Office attached to the High Court of Cassation and Justice (“the prosecutor” and “the DNA”) started criminal proceedings against the applicant (urmărirea penală) on suspicion of trading in influence (traffic de influenţă). In particular, the prosecutor alleged that: (i) the applicant had accepted 200,000 euros from a businessman, C.C., in return for using his connection to a judge, F.C., of the High Court of Cassation and Justice in order to influence the outcome of a case pending before that court which concerned a dispute between C.C.’s company and a state agency; and (ii) that he had accepted money from M.L., under the pretext of providing legal services through his law firm, in order to facilitate M.L.’s access to the head of the police with the aim of discussing criminal investigations that were being conducted against M.L.

On 11 December 2009 the applicant was returning home during the day in a car belonging to the Senate. Close to his home, his route was blocked by another car. Several armed individuals jumped out, dragged the applicant from his car and, in front of his neighbours and a crowd of passers-by, handcuffed him and put him in their car. He was then taken to the DNA’s headquarters, where he was informed of the criminal proceedings against him. The applicant gave a statement to the prosecutor.

On the same date, the prosecutor issued an order prohibiting the applicant from leaving town for thirty days.

At the DNA’s headquarters, the applicant found out that he had been under investigation for a crime against national security. However, the prosecutor had decided on 27 November 2009 not to prosecute that offence. The evidence gathered in that investigation, in particular through intercepting the applicant’s telephone, had led the investigators to suspect the commission by the applicant of the crimes of corruption for which he was currently under investigation by the DNA.

Upon the applicant’s request, on 12 January 2010 the prosecutor sent him a copy of the resolution of 27 November 2009.

On 9 March 2010 the prosecutor sought, through the Minister of Justice, the Parliament’s approval for the arrest of the applicant. On the same date, the DNA issued a press release informing the public that it had sought authorisation to arrest the applicant. From this point on, the media took great interest in the case. Excerpts from the prosecution file and pieces of evidence, in particular, transcripts of telephone conversations that the applicant had had with various people including his co-defendants, were published.

On 12 April 2010 the President of the Republic declared in a TV show that he knew that the applicant’s telephone had been tapped since 2008.

On 24 March 2010 the Senate met to discuss the prosecutor’s request. The applicant could not participate in the session, as he was in the hospital at the time. The Senate allowed the prosecutor’s request.

Upon obtaining the Senate’s approval, the prosecutor sent a detention order to the High Court of Cassation and Justice, which addressed it in private on 30 March 2010 and upheld it. The applicant was arrested on the same day.

Before the High Court, the applicant’s defence counsel argued that the Senate’s decision was null and void, as the Minister of Justice was not authorised to address a request to Parliament’s Chamber and as the Senate had taken its decision without hearing the applicant.

The High Court dismissed the defence’s arguments, and found that the proceedings before the Senate had respected the Constitution and that the decision of 24 March was final and enforceable, no other State authority having been granted the power to review it.

The High Court then took a statement from the applicant and proceeded to examine the prosecutor’s request for the applicant’s pre-trial detention. It heard from the parties, reviewed the evidence presented by the prosecutor and, in a fully reasoned decision, concluded that there were serious indications and evidence in the file that the applicant had committed the crimes of which he was accused and that he had abused his important official position, which damaged the reputation of the legislature and the judiciary, as well as the public’s trust in the judicial system. It therefore considered that the specific danger that the applicant posed to public order was serious enough to justify his detention.

Upon the applicant’s appeal, by a final decision of 2 April 2010 the High Court, sitting as a nine judge bench, upheld the previous decision. At the applicant’s request, this hearing was held in secret and journalists and the public were removed from the courtroom. The High Court found that the evidence lawfully included in the file justified a reasonable suspicion that the applicant had committed the crimes under investigation. It also dismissed the applicant’s argument as to procedural flaws, in so far as it found that the prosecutor had heard the applicant on 11 December 2009 and considered that his right to mount a defence had not been disregarded because of the mere fact that a certain lapse of time had passed between the date of his statement and that of the arrest order.

The applicant sought his conditional release. On 12 April 2010 the High Court dismissed his request, on the grounds that the evidence in the file indicated that the applicant had tried to influence one of the witnesses and to create false evidence in his defence. It also considered that the reasons underlying the court decision to place him in pre-trial detention were still valid, in particular, as such a short time had passed since that decision.

This decision became final on 16 April, when the High Court dismissed the applicant’s appeal.

On 23 April 2010 the High Court extended the applicant’s pre-trial detention by thirty days upon the prosecutor’s request. It noted that the telephone tapping had observed the legal procedure in place, but reiterated that the admissibility and the assessment of evidence were to be decided by the court dealing with the merits of the case. It considered that the evidence in the file offered a reasonable indication that the applicant had committed the crimes he was accused of and that his continuous detention was needed given the difficulty involved in investigating such crimes. It concluded that the applicant’s detention was justified in the circumstances of the case and was compatible with the requirements of Article 5 of the Convention.

The decision became final on 26 April 2010 when the High Court, sitting as a nine-judge bench, upheld it.

On 20 May 2010 the prosecutor indicted the applicant and committed him to trial (rechizitoriul).

On 10 June 2010 the applicant again requested that he be released under judicial supervision. His request was dismissed by the High Court on 16 June 2010. The High Court noted that on 19 April 2010 one of the witnesses had informed the prosecutor that the applicant had tried to influence his statements. In addition, the High Court considered that the nature and severity of the crimes under investigation justified the applicant’s detention. The decision became final on 21 June 2010 when the High Court, sitting as a nine-judge bench, upheld it.

On 14 July 2010 the High Court, sitting as a trial court, dismissed a request by the applicant to have the preventive measure changed into an obligation not to leave town. He argued that the reasons justifying his initial detention no longer subsisted. The court took account of the evidence in the file, referred to the European Court’s case-law and the relevant Council of Europe texts and considered that the grounds for the applicant’s detention were still valid, including that he might try to influence witnesses. It also reiterated that the threat that the crimes under investigation represented to public order could not be dissociated from the impression their commission made on society. It also noted the nature and gravity of the charges, the applicant’s personality and position during the alleged commission of the offences and the fact that the trial on the merits had just started. Lastly, it considered that the time the applicant had spent in pre-trial detention, namely three months and fourteen days, was reasonable under the standards set by Article 5 § 3 of the Convention.

According to the information available to the Court, the applicant is currently still in pre-trial detention.

COMPLAINTS

Under Article 5 § 1 of the Convention the applicant complained that the arrest order had been illegal, in so far as he had not been heard by the prosecutor before his arrest or by the Senate before the prosecutor’s request had been examined.

Under Article 5 § 3 of the Convention the applicant complained that the courts had refused to take into consideration other preventive measures that were less restrictive than pre-trial detention.

Under Article 6 § 2 of the Convention the applicant complained that the prosecution file had been made public, which had lead to widespread coverage of his case, with even the President voicing a position on the matter, which, in the applicant’s view, had been incompatible with the proper administration of justice. In addition, he complained that he had been taken to all the court hearings concerning the matter in handcuffs and had been kept handcuffed at those hearings, which had provided journalists with the opportunity to publish images of him in humiliating circumstances. He underlined that, despite his repeated requests to the contrary, journalists had been allowed to attend the court hearings. Under the same Article, he complained that when extending his pre-trial detention, the judge had infringed his right to be presumed innocent, in so far as he had stated that there was solid evidence that the applicant had committed the crimes in question.

He considered that Article 6 § 3 (a) had been violated, as he had not been informed of the criminal investigation against him for crimes against national security.

The applicant complained under Article 8 § 2 of the Convention that the telephone tapping had not complied with domestic law, in that it had lasted more than the 120 days allowed.

THE LAW

A. Complaints under Articles 3 and 8 of the Convention

Under Article 6 § 2 of the Convention the applicant complained that the prosecution file had been made public, which had lead to widespread coverage of his case – even the President had voiced a position on the matter – which, in the applicant’s view, had been incompatible with the proper administration of justice. In addition, he complained that he had been taken to all the court hearings concerning the matter in handcuffs and had been kept in handcuffs throughout those hearings, which had provided journalists with the opportunity to publish images of him in humiliating circumstances. He underlined that, despite his repeated requests to the contrary, the press had been allowed to attend the court hearings.

The Court is master of the characterisation to be given in law to the facts, and can decide to examine complaints submitted to it under another Article than that quoted by an applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 I).

It therefore considers that the applicant’s allegations of having been made to wear handcuffs should be examined under Article 3 of the Convention, and the allegations concerning the widespread coverage of his case by the media should be examined under Article 8 of the Convention. These Articles read as follows:

Article 3 (prohibition of torture)

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 (right to respect for private and family life)

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaint under Article 5 § 3 of the Convention

The applicant, who was arrested on 30 March 2010 and is currently still in detention, complained that the courts had refused to take into consideration other preventive measures that were less restrictive than pre trial detention. He relied on Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court considers that it cannot, on the basis of the documents at its disposal, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

C. Other complaints

1. Complaint under Article 5 § 1 (c) of the Convention

The applicant complained that he had not been heard by the Senate or the prosecutor before his arrest. He relied on Article 5 § 1 (c) of the Convention, which in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

The Court refers to the general principles established in its case law concerning the requirements of lawfulness and lack of arbitrariness of any deprivation of liberty (see, among many other cases, Mooren v. Germany [GC], no. 11364/03, §§ 72-81, ECHR 2009 ...).

Applying those principles to the case under examination, the Court finds that the domestic law and procedure is in conformity with the Convention standards and does not raise an issue under Article 5 (see, a contrario, Tase v. Romania, no. 29761/02, §§ 29-30, 10 June 2008) and that the applicant was heard by the prosecutor on 11 December 2009. Furthermore, the domestic courts have already addressed these complaints and dismissed them in fully reasoned decisions given on 30 March and 2 April 2010.

Therefore, 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 a violation of Article 5 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Complaints under Articles 6 §§ 2 and 3, and 8 of the Convention

Under Article 6 § 2 of the Convention, the applicant complained that, when extending his pre-trial detention, the judge had infringed his right to be presumed innocent, in so far as he had considered that there was solid evidence that the applicant had committed the crimes in question. He also considered that Article 6 § 3 (a) had been violated, as he had not been informed of the criminal investigation against him for crimes against national security. Lastly, the applicant complained under Article 8 § 2 of the Convention that the telephone tapping had not complied with domestic law, in that it had lasted more than the 120 days allowed.

The relevant provisions of Article 6 of the Convention read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

...”

The Court notes that the criminal case against the applicant is still pending before a court that has the power to examine such complaints from the applicant.

It follows that these complaints are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning Articles 3 (being made to wear handcuffs), 5 § 3 c) and 8 (media coverage of the domestic proceedings) of the Convention;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall
Deputy Registrar President