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Cite as: [2011] ECHR 2065

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THIRD SECTION

DECISION

Application no. 31973/03
by Victoria LAZARIU
against Romania

The European Court of Human Rights (Third Section), sitting on 22 November 2011 as a Chamber composed of:

Josep Casadevall, President,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 15 August 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Victoria Lazariu, is a Romanian national who was born in 1951 and lives in Iaşi. She is currently serving a prison sentence in the Bacău High Security Prison.

A. The circumstances of the case

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

1. Background to the case

In 1998, the applicant lodged a criminal complaint against four persons who were sharing the house where she lived at the time, alleging that they had beaten and insulted her on 17 April 1998. In a final decision of 19 December 2000, the Military Court of Appeal found G.C.L. guilty of bodily harm and insult and gave him a one-year suspended sentence. The other three persons were given a criminal fine. All of them jointly were ordered to pay the applicant 10,000,000 Romanian lei in civil damages.

This decision was based on the applicant’s statements, a medical certificate confirming the bodily harm inflicted on her, and statements she produced by witnesses who were also living in the same house and allegedly witnessed the incident between her and the four accused.

Subsequently, the four persons convicted lodged a criminal complaint against the nine witnesses who had testified against them, alleging that they had given false testimonies at the applicant’s instigation. By a decision of 13 December 1999 the prosecutor attached to the Iaşi District Court decided not to prosecute the witnesses, considering that there was no evidence that they had made false statements. The prosecutor’s decision was upheld in a final decision of the Iasi County Court of 7 November 2002.

2. Applicant’s attempts to join the Bar Association

In February 2000 the applicant made a request to join the Bucharest Bar Association (BBA) without an exam. Her request was endorsed by the BBA on 30 March 2000. A table was published by the BBA, with the title List of persons approved to practise as lawyers, exempted from exam, based on the endorsement of the Bar Council. The applicant’s request was sent for further processing by the Union of Lawyers of Romania (ULR). On 15 December 2000 the Standing Commission of the ULR rejected the applicant’s request to be exempted from an exam in order to enter the Bar Association.

The applicant lodged a civil action against the ULR and BBA requesting that the defendants be ordered to issue a decision admitting her to the Bar association. In a final decision of 15 December 2004, the High Court of Cassation and Justice ruled that the defendants should issue the decision to appoint the applicant as a lawyer and enter her name on the lawyers’ register kept by the BBA.

3. Criminal proceedings against the applicant

(a) The applicant’s pre-trial detention

On 25 February 2003 the applicant was informed by prosecutor E.E., in the presence of a court-appointed counsel, that she was suspected of incitement to false testimony, for having persuaded the nine witnesses in the first proceedings above to make false statements about the alleged incident of 17 April 1998.

She was arrested on 26 February 2003, by virtue of an arrest warrant issued by prosecutor E.E. The warrant indicated that she was under investigation for incitement to false testimony in the framework of the criminal proceedings described under 1) above. The warrant indicated that the sentence for the crime with which the applicant was charged was more than two years’ imprisonment, that setting her free would pose a threat to public order considering that her acts had had significant legal consequences and that throughout the investigation she had attempted to incite several persons to give untrue statements.

The applicant went on hunger strike from the first day of her detention. It appears from the medical records that she was examined by a doctor six times and that on two occasions she was given medication.

On 28 February 2003 the Iasi District Court confirmed the legality of the arrest warrant. The applicant lodged an appeal. It appears from the case file that she was summoned to appear before the Iasi County Court on 4 and 11 March 2003, but she refused, stating that she felt too weak because she had been on hunger strike since her arrest.

Eventually her appeal was reviewed on 25 March 2003 by the Iaşi County Court, which concluded that the measure to place her in pre-trial detention was unlawful as there were not sufficient reasons to suspect that she had committed a criminal act, and ordered her immediate release. She was released on the same day.

(b) The applicant’s forced confinement in a mental institution

On 28 May 2003, the applicant went to the Prosecutor’s Office attached to the Iasi District Court. According to her, she wanted to submit a complaint against the superior of the prosecutor investigating the case against her. On the same day, prosecutor E.E. issued a decision ordering the applicant’s immediate commitment to the Iasi Psychiatric University Hospital for psychiatric evaluation of her mental state. The reasons given were the following:

“Taking into account that the applicant manifests an exaggerated appetite for complaining and an exacerbated violence in her spoken expression, facts that give rise to doubts as to her psychological state, and having regard to Articles 116, 117 and 203 of the Code of Criminal Procedure and section 14 of Decree no 79/1971, I order that a psychiatric evaluation be conducted ...”

As the applicant refused to go to the hospital, the prosecutor asked the police to execute the order. It appears that, as the applicant resisted, she was dragged by the hands and lifted by force into the car which took her to the hospital. At the same time, the newspapers had been alerted and journalists were waiting outside the building when this happened. Photos were taken of the applicant, on her knees, being dragged by police officers, and were published in the local media.

On 29 May 2003 she was examined by a doctor who noted that she had various scars all over her body which could have been caused by being hit with blunt objects and by pressure exerted with the fingers. It was estimated that she needed 3 or 4 days’ medical care.

Her mental state was evaluated by a panel of three doctors on 5 June 2003. The report following this examination concluded that she was mentally sound and aware of her acts. She was released from the hospital on the same day.

At 3 p.m. on the day of her committal to the hospital, while she was still at the Prosecutor’s office, she made a handwritten complaint against the committal decision, specifying also that she had been held in the prosecutor’s office since 11 a.m. After her confinement she lodged several similar complaints.

On 9 June 2003 she was informed by a brief note that her complaint against the committal decision had been dismissed by the higher prosecutor by a decision of 6 June 2003.

4. Suspension of the applicant’s right to use her passport

By a note of 9 June 2003 the applicant was informed by the Ministry of Home Affairs that the right to use her passport was being suspended until the investigation against her had been completed.

It appears from the case file that she lodged an administrative complaint against the police officer who took this measure, asking that he be suspended. No information was submitted as to the outcome of that complaint.

On 22 July 2003 the applicant was informed that the suspension order concerning her passport had been lifted.

5. Proceedings on the merits

On 13 December 2003, the prosecutor investigating the case issued an indictment against the applicant and eight of the witnesses who had testified in the proceedings referred to in section A. above. The applicant was charged on several counts: incitement to give false testimony, unlawfully practising activities specific to the profession of an attorney, fraud, forgery and use of forged documents.

Initially, the case was assigned to the Iaşi District Court. On 5 March 2004, in response to the applicant’s challenge as to the alleged lack of impartiality of the Iaşi District Court, the case was assigned to the Cluj Napoca District Court. On 18 March 2005 the judge who took over the case made a written note that some documents relating to the charge of “fraud” were missing from the case file.

Following several postponements of the hearings, either for procedural reasons or at the applicant’s request, on 24 March 2005 the Cluj Napoca District Court read out the bill of indictment, the applicant and her chosen counsel being present. The applicant’s counsel asked that the
co-accused be heard by the court separately in order to avoid them influencing each other. Six of the co-accused were heard during this hearing. The applicant and her counsel asked them a few questions. Two of the co-accused could not be heard, as they were not present. The applicant’s request for the court to take the testimonies of four witnesses was accepted. She undertook to produce the home addresses of the witnesses in question.

The proceedings before the first-instance court lasted until 23 July 2009, when the Cluj Napoca District Court delivered its judgment in the case. Throughout the proceedings there were numerous postponements, either for procedural issues (irregularities in notifying the parties, missing case file, failure of proposed witnesses to appear before the court, requests of the co-accused or civil parties and so on), or at the applicant’s request, owing either to a change of her counsel or to her inability to appear before the court.

During a hearing held on 21 March 2006, the Cluj Napoca District Court approved the applicant’s request to have nine witnesses heard in her defence. At the same hearing another co-accused was heard by the court. The applicant’s request to have all the co-accused, the civil parties and the plaintiffs heard once again was dismissed on the grounds that their testimonies had been taken in accordance with the law. During a hearing held on 5 September 2006, the court heard the last co-accused in the procedure.

Six of the witnesses proposed by the applicant were heard by the district court. The other witnesses did not present themselves for various reasons (refusing or being too ill to appear before the court, for example).

During the proceedings before the district court the applicant asked for a graphology report to be prepared. This request was rejected on the grounds that that such a report had already been prepared during the criminal investigation and there was no need for a new one. The applicant also requested many times that the case be referred back to the prosecutor, but all her requests were dismissed, as the district court found that there was no reason to refer the case back.

The applicant further raised an objection of non-constitutionality, which was dismissed as ill-founded. She also argued that the proceedings in respect of the charge of false testimony should be discontinued as there was already a final decision on the subject. This objection was dismissed in an interlocutory judgment of 17 March 2009 on the grounds that a prosecutor’s decision could not be likened to a judicial decision.

From the information available in the case file it does not appear that the applicant gave a statement before the district court.

In the first-instance judgment of 23 July 2009 the Cluj Napoca District Court established that the applicant had committed all the crimes with which she was charged, but discontinued the criminal proceedings against her on the charges of incitement to false testimony, false accusation and carrying out activities specific to the profession of a lawyer, noting that criminal liability for these acts was time-barred. It further found the applicant guilty of the charges of fraud, forgery and use of forged documents and gave her a three-year suspended sentence. The court found that the evidence adduced during the prosecutor’s investigation was corroborated by the evidence adduced directly before it, namely statements by the accused persons, the civil parties and the witnesses, including the witnesses proposed by the applicant. The court further established that the applicant had forged three documents issued by a law office with a view to certifying her alleged status as an apprentice lawyer, and pretended to be a lawyer in order to represent five people before the courts. It further held that she had forged the signatures of two of her clients, without their agreement, on documents she had used in proceedings concerning those clients.

The applicant was ordered to pay civil damages to the civil parties, as follows: to the clients she had represented before the decision to appoint her as an attorney was adopted, she was ordered to pay back the amount she had charged them for her services, and to one person who had been convicted on the basis of her false accusations she was ordered to pay compensation for non-pecuniary damage.

The applicant, the prosecutor and the civil parties lodged an appeal. The applicant made written submissions in support of her appeal, asking leave, among other things, to give a statement before the appellate court. In a hearing held before the Cluj County Court on 12 April 2010, the applicant was represented by court-appointed counsel. The county court noted that the applicant had submitted a power of attorney for a counsel of her choice, indicating that he could not be present at the hearing in question and asking for its postponement. The county court decided to proceed with the review of the case even though the applicant and her chosen counsel were not present, indicating that the applicant had been lawfully summoned at the addresses she had given and that she could be represented by the court-appointed counsel.

The applicant’s representative asked that the criminal proceedings against her be discontinued and, in the alternative, that a milder sentence be applied.

The Cluj County Court delivered its decision on 27 April 2010. In reviewing the judgment on appeal, the county court found that the sentence applied to the applicant was too mild taking into account the crimes with which she was charged. It further held that the way she had committed the crimes revealed that she was highly dangerous. Taking into account her attitude after having committed the crimes, and her constant denial of guilt, it held that finding her guilty was not sufficient warning for her and that it was therefore fitting that she should serve the prison sentence.

It accordingly sentenced the applicant to five years’ imprisonment.

The appellate court further found that for two of the crimes of which she had been convicted by the first-instance court (forgery and use of forged documents) her criminal liability was time-barred, and discontinued the proceedings regarding those charges.

The applicant lodged an appeal on points of law, submitting written observations. She raised the following arguments, inter alia:

– the case file was incomplete as, according to a note of the
first-instance judge, the documents relating to the fraud charge were missing from the file;

– two of the co-accused had stated in front of the first-instance court that they were forced during the criminal investigation to declare that she had incited them to make false statements;

– the lower courts had breached her right not to be tried twice for the same acts, taking into account the final decision of 7 November 2002 by which the Iaşi County Court found that the co-accused had not given false testimonies;

– one of the civil parties had never made a request to join the proceedings as a civil party;

– her requests for evidence had not been approved;

– she had not been heard by the lower courts;

– numerous procedural errors had vitiated the entire proceedings and her right to defence had not been respected during the criminal investigation and before the courts.

The hearing was held on 20 October 2010. The applicant was represented by court-appointed counsel different from the one representing her in the appeal proceedings. She did not attend the hearing. The court-appointed counsel indicated that the applicant had instructed her to ask for a postponement of the hearing. The request was dismissed. The applicant’s representative asked for her acquittal or for a milder sentence. In a decision issued on 20 October 2010 the Cluj Court of Appeal dismissed the applicant’s appeal on points of law as manifestly ill-founded. The court found that the applicant’s right to defence had been respected throughout the proceedings. The court further held that the lower courts had reviewed extensive evidence and correctly determined the facts of the case and established her guilt beyond any doubt. It also held that the sentence given to her had been correctly determined.

6. Complaints lodged by the applicant against different journalists

At the Registry’s request, the applicant submitted to the Court copies of judicial decisions delivered by the domestic courts concerning the complaints she lodged against the journalists who published articles following the events of 28 May 2003, when she was taken by force from the prosecutor’s office to the hospital.

In a first-instance decision of 19 November 2004, the Mediaş District Court ended the criminal procedure against one journalist, who had died, sentenced a second journalist to an administrative fine of some 110 euros (EUR) and ordered him, jointly with the newspaper company, to pay compensation to the applicant of some EUR 2,320 for non-pecuniary damage.

In a different set of proceedings, lodged by the applicant against a third journalist and a photographer, the Năsăud District Court delivered a first-instance judgment on 24 November 2004 by virtue of which the journalist was sentenced to an administrative fine and ordered to pay approximately EUR 2,320 to the applicant in respect of non-pecuniary damage. Her complaint against the photographer was dismissed because he had not taken photographs of her and, in any event, taking a person’s photograph was not a punishable offence.

The applicant did not provide any information as to whether these judgments became final or were appealed against.

B. Relevant domestic law

Under Article 117 § 1 of the Romanian Code of Criminal Procedure (CCP), as in force at the material time, a psychiatric evaluation of the accused was mandatory in cases of murder and when the investigating authorities or the competent court had doubts about the mental state of the accused. Paragraph 2 of the same article stipulated that this measure was to remain in place for as long as necessary. The order was enforceable and, in the event of resistance, was to be enforced by the police.

Article 278 of the CCP provided for complaints against decisions taken by prosecutors to be examined by a higher prosecutor.

COMPLAINTS

A. Complaints concerning the pre-trial detention

Relying on Articles 3 and 5 of the Convention, the applicant complained that on 26 February 2003 she was unlawfully arrested by a prosecutor and during the month she spent in pre-trial detention she was subjected to ill-treatment and publicly taken away in handcuffs. She further complained that during her pre-trial detention she went on hunger strike and was not given the required medical assistance. She submitted that she was assigned a court-appointed lawyer against her will, when she wanted to represent herself, and that in any event that lawyer had had insufficient time to review the file and defend her properly.

Relying on Article 8 of the Convention, she complained that her right to correspondence had been violated during the pre-trial detention and that she was not given paper on which to file her complaints.

In a letter of 7 March 2010 she complained that when arrested in February 2003 she had been subjected to an unlawful gynaecological examination.

B. Complaints concerning the forced confinement

Relying on Articles 3 and 5 of the Convention, she complained that on 28 May 2003 she had been held at the prosecutor’s office from 9.30 a.m. to 5 p.m. and that later she had been committed against her will to a psychiatric hospital, and subjected to ill-treatment during her forced transfer from the prosecutor’s office to the hospital and also during her stay in the hospital. She argued that the order to place her in the hospital had been unlawful and that her complaint against it had been reviewed only after she had been released from hospital.

In connection with the events of 28 May 2003, she complained under Article 8 that at the prosecutor’s instigation an aggressive press campaign has been initiated against her, and that the press had been alerted to be present when she was dragged from the stairs of the prosecutor’s office to the van which took her to the hospital. As a result of this humiliating photos of her were published in various newspapers.

She complained that her criminal complaints concerning the ill treatment to which she had been subjected had not been reviewed fairly and speedily and were still pending.

C. Complaints concerning the criminal proceedings against the applicant

The applicant raised the following complaints under Article 6 of the Convention:

– that the proceedings against her were unfair, that she had not been heard by the domestic courts, especially considering that, on appeal, her sentence had been made much harsher;

– that the domestic courts had failed to respond to the arguments raised in her defence and dismissed her requests to adduce evidence;

– that she had been ordered to pay civil damages to persons who had not actually lodged a civil claim;

– that her co-accused had been forced by the prosecutors to give incriminating statements; that most of the time they had been represented by the same court-appointed counsel, even though they had conflicting interests; that their counsel had not made requests in their defence and that the co-accused had not been subjected to a psychiatric examination;

– that the domestic courts had lacked impartiality and that one of the judges ruling in the first-instance proceedings should have abstained from participating in the proceedings against her;

– that the bill of indictment had not been valid; that she had not been involved in the gathering of evidence at the criminal investigation stage; that she had not had access to the full criminal investigation file, and that there were various procedural errors throughout the proceedings;

– that the court-appointed lawyer representing her had not defended her properly and that she had not been presumed innocent;

– that the proceedings had not been completed within a reasonable time.

Relying on Article 7 of the Convention and on Article 4 of Protocol No. 7 to the Convention, the applicant complained that she had been convicted even though criminal liability for the imputed acts was time-barred and despite the fact that a previous judicial decision had established that her co-accused had not given false testimonies in the criminal proceedings initiated by her against her other neighbours.

D. Other complaints

Relying on Article 2 of Protocol No. 4 to the Convention, the applicant complained that the suspension of the right to use her passport had prevented her from travelling.

In general terms she complained of violations of Articles 10, 13, 14 and 17 of the Convention, as well as Article 3 of Protocol No. 7 and Article 1 of Protocol No. 12 to the Convention.

She further complained that the judgments by which she was awarded damages against the journalists who had written about her had not been enforced, as the bailiffs had not had the courage to proceed with their enforcement.

THE LAW

A. Complaints under Article 3 of the Convention

The applicant complained that on 28 May 2003 she had been subjected to ill-treatment while she was transferred to Socola Hospital and that her complaints concerning the ill-treatment had not been properly investigated.

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. Complaints under Article 5 of the Convention

Relying on Article 5 § 1 of the Convention, the applicant complained that she had been unlawfully deprived of her liberty on 28 May 2003 for several hours, while at the prosecutor’s office, and from 28 May to 5 June 2003 when she was confined to a psychiatric hospital by order of the prosecutor. She further alleged a violation of Article 5 § 4 of the Convention on account of the fact that her complaint against the prosecutor’s decision to order her confinement had not been reviewed by a court.

C. Complaints under Article 6 of the Convention

The applicant complained that the domestic courts had failed to respond to arguments that she had raised in her defence and which could have been essential to the outcome of the case. She further alleged that none of the courts reviewing the case had taken her testimony and that the duration of the criminal proceedings had not been reasonable.

D. Complaint under Article 8 of the Convention

The applicant complained that on 28 May 2003 the prosecutor had alerted the press to be present in front of the prosecutor’s office when she was transferred by force to Socola Hospital. As a consequence, photos were taken of her in humiliating circumstances and were later published in several local newspapers.

The Court considers that it cannot, on the basis of the case file, 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.

E. Remaining complaints

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 all the other complaints raised by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that these complaints must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Article 3 of the Convention concerning the alleged ill-treatment on 28 May 2003, Article 5 § 1 concerning the legality of the alleged deprivation of liberty on 28 May 2003 and from 28 May to 5 June 2003 when she was held in Socola Hospital, Article 5 § 4 concerning the right to a judicial review of the legality of her confinement in Socola Hospital, Article 6 § 1 concerning the alleged lack of reasoning of the domestic decisions delivered in the criminal proceedings against her and the duration of those proceedings, Article 6 § 1 taken together with Article 6 § 3 c) of the Convention concerning the right to be heard by the domestic courts, and Article 8 of the Convention concerning the right to protection of private life;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President