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G.C.P. v. ROMANIA - 20899/03 [2011] ECHR 2231 (20 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2231.html
Cite as:
[2011] ECHR 2231
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THIRD
SECTION
CASE OF
G.C.P. v. ROMANIA
(Application
no. 20899/03)
JUDGMENT
STRASBOURG
20
December 2011
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 G.C.P. v. Romania,
The
European Court of Human Rights (Third Section),
sitting as a Chamber composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and
Santiago Quesada,
Section
Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 20899/03)
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, Mr G.C.P. (“the applicant”), on 20 June 2003.
The President of the Section acceded to the
applicant’s requests and decided that the entire file
shall remain confidential and that the applicant’s
name shall not be disclosed (Rules 33 § 1 and 47 § 3
of the Rules of Court).
2. The
applicant was represented by Mr M. Voicu, a lawyer practising in
Bucharest. The Romanian Government (“the
Government”) were
represented by their Agent, Mr Răzvan Horaţiu Radu,
from the Ministry of Foreign Affairs.
3. As
Mr Corneliu Bîrsan, the judge elected in respect of Romania,
had withdrawn from the case (Rule 28 of the Rules of Court), the
President of the Chamber appointed Mr Mihai Poalelungi to sit as
ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1
of the Rules of Court).
4. The
applicant alleged, in particular, that his right to the presumption
of innocence had been breached by a negative media campaign
and statements made during the criminal proceedings initiated against
him by one of the investigating prosecutors, by the Prosecutor
General of Romania and by the Romanian Minister of the Interior,
contrary to Article 6 § 2 of the Convention.
5. By
a decision of 2 June 2009, the Court decided to give notice
to the respondent Government of the applicant’s complaint under
Article 6 § 2 of the Convention concerning an
alleged breach of his right to the presumption of innocence and
declared the remainder of the application inadmissible.
It was also decided to rule on the admissibility and merits of
the applicant’s complaint under Article 6
§ 2 of the Convention at the same time (former Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1938 and lives
in Bucharest.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On
16 December 1996 a third party brought criminal proceedings
against the applicant for wrongful misappropriation. The third party
claimed that the applicant had unlawfully used private funds
belonging to his companies in order to increase the capital of a
commercial bank (Bankcoop) and become a major shareholder in the said
bank.
On
14 January 1997 the Judicial Police attached to the
Romanian Ministry of the Interior asked the third party to provide
additional information in respect of the unlawful acts allegedly
committed by the applicant.
On
19 February 1997, the Adevărul daily newspaper
published an article entitled “The investigation files of
G.C.P. – strictly secret?” The article quoted statements
by D.I.C., one of the prosecutors conducting the investigation
against the applicant, of which the most relevant part reads as
follows:
“We have been accused of insisting on imposing [on
G.C.P.] an order not to leave the city, a measure which is usually
taken when there are suspicions that somebody has committed an
unlawful act. However, as I already told you and as [can be seen]
from checks carried out by the Financial Control Office [Garda
Financiară], here there have been unlawful acts committed,
not only suspicions. In spite of that, we have proven to be humane,
when at his [G.C.P.’s] request we allowed him to leave
Bucharest for forty-eight hours.”
On
10 April 1997 the applicant was charged with fraud, forging
documents and use of forged documents, embezzlement, using the goods
of a commercial company against its interests and undermining the
national economy, on account of the fact that, by acting on behalf of
the private company (G.C.P. S.A.), which the applicant controlled as
the major shareholder, he had allegedly made false statements in an
official document submitted to the Romanian National Bank on
31 August 1995 in order to obtain its permission to
increase the capital of Bankcoop by the amount of
10,000,000 United States Dollars (USD). More
specifically, the applicant was suspected of declaring the
aforementioned amount as his personal funds, when in fact it had been
obtained as a loan taken out by G.C.P. S.A. from a foreign bank,
which was contrary to the National Bank’s regulations on
acceptable sources of money used to increase a bank’s capital.
On
2 June 1997 the applicant brought a challenge against the
two prosecutors, including D.I.C., charged with the investigation of
his case at the time, arguing, inter alia, that press
statements made by the said prosecutors on 28 May 1997 in
the Evenimentul Zilei daily newspaper – claiming
that the applicant’s financial investments were “acts of
fraud” – amounted to a breach of his right to the
presumption of innocence.
According
to the applicant, his challenge of 2 June 1997 against the
prosecutors G.M. and D.I.C. was allowed by a final Prosecutor’s
Office Order of 23 June 1997 and a new prosecutor was
appointed to investigate his case. The applicant failed to include in
the file a copy of the order of 23 June 1997.
On
2 July 1997 the Naţional daily newspaper
published an article entitled “G.D. states that G.C.P. should
have been indicted long ago for two of the proven crimes”. The
most relevant part of the article, which quoted statements by G.D.,
the Romanian Minister of the Interior at the time, reads as follows:
“G.C.P. could be indicted for two already proven
crimes, namely the ones connected to the embezzlement through
Bancorex, from Chemical Bank to Bankcoop. The 10 million dollars
taken by G.C.P. from Chemical Bank for a factory in Arad were
embezzled so that he could take over the majority of the shares in
Bankcoop. (...) Although there is proof that several crimes have been
committed by G.C.P., he is only under investigation for two, and the
prosecutor’s investigation is lasting a suspiciously long time.
”
On
3 July 1997, the Evenimentul Zilei daily newspaper
published an article entitled “G.C.P. and R.T. accused of
undermining the national economy”. Quoting the same prosecutor,
D.I.C., the relevant parts of the article read as follows:
“On 1 July 1997 in file no. 180/P/97 of the
General Prosecutor’s Office, the file concerning the defendant
G.C.P., the criminal investigation was extended with respect to the
crime of undermining the national economy, punishable under
Article 165 § 1 of the Criminal Code. Hence, between 1994
and 1997, [G.C.P.] used a state-owned public interest bank, Bancorex
S.A., in order to obtain certain financial facilities in the amount
of 202.6 million dollars, to be used for the reimbursement of certain
loans contracted by his commercial company, G.C.P. S.A. This
undermined the national economy and disturbed the activity of
Bancorex S.A. and, as a consequence, the national economy.”
By
letter of 17 November 1997 prosecutor C.M., the prosecutor
investigating the applicant’s case at the time, asked the
Prosecutor General of Romania to confirm that he could continue the
investigation in the case. He expressly stated that he did not have
any personal interest or otherwise in respect of the investigation
and that he would accept the Prosecutor General’s decision. He
informed the Prosecutor General that if he was allowed to continue
working on the case he would not be subject to any outside influence
or pressure in carrying out the investigation.
On
19 December 1997, the Evenimentul Zilei published an
article entitled “S.M. found the solution for destroying the
mafia in Romania overseas: The Mexicans should come with bazookas”.
The article quoted statements made by S.M., the Prosecutor General of
Romania at the time. The most relevant part reads as follows:
“In the case of G.C.P., who knew all about
financial tricks [ingineriile financiare] and covered his
tracks with lots of documents, the experts’ report is not
finished yet. I believe that there is a 99% chance that he will also
be sent to trial, but I would make a suggestion to the police to not
just stick to the small cases of T. and G.C.P., because the two of
them have [done] more than this.”
In
addition, the parties agree that a total of around 350 articles
containing information on the investigation and the trial against the
applicant were published between 1997 and 2002 in all the major
national newspapers, including Ziua, Adevărul, Evenimentul
Zilei, Cotidianul, Naţional and Libertatea. Some of
the most relevant story titles quoted by the applicant in this
respect read as follows: “The trap is tightening”
(Evenimentul Zilei, 17 March 1997); “Chess at
millionaires!” (Evenimentul Zilei, 9 April 1997);
“The return of the jackals” (Evenimentul Zilei,
18 August 1997); “Sharks at large”
(Evenimentul Zilei, 28 April 1998); “G.C.P.’s
companies have filled their bank accounts on Bancorex’s back”
(Ziua, 12 February 1999); “Just when the
prosecutors were on the point of indicting him, G.C.P. found refuge
in a hospital in Switzerland” (Adevărul,
12 March 1999); “G.C.P. ran away in the U.S.A.”
(Libertatea, 5 October 1999); and “The heroes
G.C.P. and T.” (Evenimentul Zilei, 10 April 2002).
By
an order of 30 January 1998 the Prosecutor General
dismissed C.M. from his position of Head Prosecutor of the Criminal
Department of the Bucharest Prosecutor’s Office and transferred
him to the Secretarial and Public Relations Department. At the same
time, M.I. was tasked with continuing the criminal investigation
against the applicant. The Prosecutor General held that the criminal
investigation had been unreasonably lengthy without any objective
reasons and that Bancorex, one of the parties involved in the matter,
had lodged a challenge and had complained about C.M.
On
17 June 1999 the applicant was indicted for making false
statements in an official document, as he had not declared the true
source of the money used for increasing the capital of Bankcoop.
The
investigation also continued separately in respect of the charge of
undermining the national economy and using the goods of a commercial
company against its interests. At the same time, the charges
concerning fraud, forging documents, use of forged documents and
embezzlement were dropped and the part of the criminal investigation
covering those charges was closed on the grounds that the applicant’s
actions were found to have been lawful.
By
a final Prosecutor’s Order of 3 September 2001 the
criminal investigation initiated against the applicant for
undermining the national economy was discontinued on the grounds that
no unlawful act had been committed.
By
a judgment of 11 September 2001 the Bucharest District
Court decided that the indictment of 17 June 1999 was null
and void because the applicant had not been informed of the charges
against him, as he had been in the United States of America at the
time of his indictment. Consequently, the court ordered the file to
be sent back to the Prosecutor’s Office.
The
prosecutor submitted an appeal on points of law (recurs)
against the judgment of 11 September 2001.
By
a judgment of 18 January 2002 of the Bucharest County Court
the Prosecutor Office’s appeal was allowed and the case was
sent back to the first-instance court for a retrial on the merits.
The County Court held that there had been no reason for the
indictment to be annulled, as the decision of the investigating
prosecutors to send the case before the court without informing the
applicant of the charges against him had been in accordance with the
legal provisions of the Code of Criminal Procedure applicable to
persons avoiding the investigative authorities. In reaching this
decision, the court took into account the fact that neither the
applicant nor his attorney had provided the investigators with an
exact address at which the applicant could be summoned during the
investigation.
By
a final Prosecutor’s Order of 12 March 2002 the
criminal investigation initiated against the applicant for using the
goods of a commercial company against its interests was discontinued
on the grounds that no unlawful act had been committed.
On
13 May 2002 the first hearing in the retrial of the case
was held before the Bucharest District Court following the judgment
of 18 January 2002. The applicant was heard by the court.
He argued, inter alia, that the criminal investigation
against him had been based on political motives, a fact which could
be confirmed by the negative media campaign conducted against him and
by the public statements made by the Prosecutor’s Office
representatives.
By
a judgment of 17 June 2002 the Bucharest District Court
acquitted the applicant on the grounds that from all the evidence
produced it emerged that his actions had been in accordance with the
law. The Prosecutor’s Office appealed against the judgment.
By
a judgment of 14 November 2002 the Bucharest County Court
allowed the Prosecutor Office’s appeal, convicted the applicant
of making false statements in an official document and sentenced him
to one year of imprisonment, a sentence which was considered pardoned
according to the law. The court held that, on the basis of the
evidence available in the file, the applicant had made false
statements in an official document and had been aware of the legal
consequences of his statements. The applicant lodged an appeal on
points of law (recurs) against the judgment. He argued that
the criminal investigation against him had been politically
motivated, a fact confirmed by the alleged failure of the domestic
courts to take into account and to examine the evidence submitted by
him in his defence. In addition, the applicant argued that the
domestic courts had wrongfully assessed the evidence, had
misinterpreted the applicable legal provisions and had ignored the
fact that the indictment brought against him had been null and void
because the investigating prosecutor had failed to inform him of the
charges brought against him prior to sending the case before the
domestic courts.
By
a final judgment of 23 December 2002 the Bucharest Court of
Appeal dismissed the applicant’s appeal on points of law and
his conviction became final. The court held, on the basis of the
evidence available in the file, that the lower courts had correctly
assessed the evidence and interpreted the applicable legal provisions
and that the applicant had been informed of the charges brought
against him by the Prosecutor’s Office.
On
26 February, 26 April, 16 July, 21 September,
19 October, 11 November 2004 and on 18 January,
10 February, 17 March and 19 April 2005 the
applicant lodged repeated extraordinary appeal of annulment (recurs
în anulare) requests against the final judgment of
23 December 2002 with the Public Prosecutor’s Office
attached to the Court of Cassation. He argued, inter alia,
that his right to the presumption of innocence had been breached
on account of an aggressive media campaign led by the Prosecutor’s
Office and the Minister of the Interior which had resulted in the
criminal investigation being opened against him and in him being
indicted.
On
20 April 2005 the applicant’s extraordinary appeal
applications were dismissed by the Prosecutor’s Office attached
to the Court of Cassation on account of statutory amendments to the
applicable rules of criminal procedure abolishing that form of
appeal.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Romanian Constitution
in force at the relevant time are worded as follows:
Article 23
“ [...]
A
person is considered innocent pending a final court conviction.”
The relevant provisions of the Romanian Code of
Criminal Procedure in force at the relevant time are worded as
follows:
Article 66
“(1) The person accused of or charged with a
criminal offence does not have to prove his innocence.
(2) Where evidence is adduced proving a person’s
guilt, the accused or the person charged with a criminal offence has
the right to rebut the evidence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant complained that his right to the presumption of innocence
had been breached by a media campaign and statements made against him
during the investigation by one of the investigating prosecutors, by
the Prosecutor General and by the Minister of the Interior, contrary
to the provisions of Article 6 § 2 which reads as
follows:
“2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
A. Applicability of Article 6 § 2 and
admissibility
1. Applicability of Article 6 § 2
The
Government submitted that the period to be taken into consideration
for examining the alleged breach of the applicant’s right to
the presumption of innocence was between 10 April 1997 and
23 December 2002, the dates when the applicant was charged
and when the criminal proceedings initiated against him ended,
respectively. They argued that, consequently, all statements made by
the authorities in respect of the applicant’s case prior to
10 April 1997 could not be taken into consideration because
they fell outside the framework of the criminal proceedings initiated
against the applicant.
The
applicant disagreed.
The
Court reiterates that the expression “criminal charge” is
to be interpreted as having an "autonomous" meaning in the
context of the Convention and not on the basis of any meaning in
domestic law (see notably, mutatis mutandis, Deweer v. Belgium,
27 February 1980, § 42, Series A no. 35).
The legislation of the State concerned is certainly relevant, but it
provides no more than a starting point in ascertaining whether at any
time there was a "criminal charge" against the applicant or
he was "charged with a criminal offence" (see, mutatis
mutandis, Engel and others v. the Netherlands, 8 June 1976,
§ 82, Series A no. 22, and König v.
Germany, 28 June 1978, § 89, Series A
no. 27). The prominent place held in a democratic society by the
right to a fair trial favours a "substantive", rather than
a "formal", conception of the "charge" referred
to by Article 6; it impels the Court to look behind appearances
and examine the realities of the procedure in question in order to
determine whether there has been a "charge" within the
meaning of Article 6 (see the above-mentioned Deweer
judgment, § 44).
Moreover,
the Convention must be interpreted in such a way as to guarantee
rights which are practical and effective as opposed to theoretical
and illusory (see Artico v. Italy, 13 May 1980,
§ 33, Series A no. 37; Soering v. the United
Kingdom, 7 July 1989, § 87, Series A
no. 161; and Cruz Varas and Others v. Sweden,
20 March 1991, § 99, Series A no. 201).
That also applies to the right enshrined in Article 6 § 2.
The
Court considers that the Government’s argument appears to
target in particular D.I.C.’s statement of 19 February 1997.
At
the time of the said statement, a criminal investigation had been
initiated against the applicant following a complaint lodged with the
authorities by a third party. Although he had not yet been charged
with an offence, the preliminary acts of investigation carried out by
the authorities together with their attempt to impose an order on the
applicant not to leave the city formed part of the judicial
investigation initiated against him and made him a person "charged
with a criminal offence" within the meaning of Article 6
§ 2.
D.I.C.
was conducting the investigation in the case at the time. His
remarks, made in parallel with the judicial investigation, were
explained by the existence of that investigation and had a direct
link to it. The Court considers, therefore, that Article 6 § 2
applies in respect of the statements made by public officials prior
to 10 April 1997 in general and to D.I.C.’s statement
of 19 February 1997 in particular.
2. Admissibility
The
Government also argued that the applicant’s complaint
concerning the breach of his right to the presumption of innocence as
a result of the virulent press campaign against him was inadmissible
as incompatible ratione personae. They submitted that the
media campaign had been carried out by the media and had represented
the point of view of the journalists who had authored the newspaper
articles and of the civil parties to the case, and therefore
concluded that the State could not be held responsible for their
actions or for their opinions. They further argued that the applicant
had not proved that he had been the object of a virulent media
campaign which had breached his right to the presumption of
innocence. Moreover, there had been no evidence that the media
campaign had had any influence on the outcome of the case or that the
appellate courts examining his case had started from the presumption
that the burden of proof in respect of the applicant’s guilt
did not fall on the Prosecutor’s Office. Furthermore, by
relying on the Court’s case-law, in particular Mircea v.
Romania (no. 41250/02, 29 March 2007) and Viorel
Burzo v. Romania (no. 75109/01 and 12639/02, 30 June 2009),
they submitted that the media campaign complained of by the applicant
had ended in 2000, two years prior to the decision delivered by the
first-instance court. Consequently, it could not be argued that the
judges could have continued to be influenced by the said campaign.
Also, the impact such a campaign would have had on public opinion had
been greatly diminished following the judgments of the domestic
courts.
The
applicant disagreed. He argued that following the statements of the
Romanian authorities, a virulent media campaign had been triggered
against him and had led to his conviction in the eyes of the public,
to the disturbance of the commercial activity carried out by the
applicant’s companies and to the deterioration of the
applicant’s state of health.
The
Court finds that it is not necessary to examine whether the
applicant’s complaint concerning the breach of his right to the
presumption of innocence as a result of the virulent press campaign
against him is incompatible ratione personae, as it is in any
event inadmissible for the following reasons.
The Court reiterates that a virulent press campaign
can adversely affect the fairness of a trial by influencing public
opinion and, consequently, jurors called upon to decide the guilt of
an accused (see Akay v. Turkey (dec.), no. 34501/97,
19 February 2002; Wloch v. Poland (dec.),
no. 27785/95, 30 March 2000; and Priebke v. Italy
(dec.), no. 48799/99, 5 April 2001). At the same
time, the Court notes that press coverage of current events is an
exercise of freedom of expression, guaranteed by Article 10 of
the Convention. If there is a virulent press campaign surrounding a
trial, what is decisive is not the subjective apprehensions of the
suspect concerning the absence of prejudice required of the trial
courts, however understandable, but whether, in the particular
circumstances of the case, his fears can be held to be objectively
justified (see, mutatis mutandis, Castillo Algar v. Spain,
28 October 1998, § 45, Reports of Judgments
and Decisions 1998-VIII).
The
Court acknowledges that the applicant’s case was indeed
commented upon extensively by the Romanian press starting from
19 February 1997. Some of the press articles did contain
statements by public officials, while others, for which the applicant
submitted only the titles of the articles, appear to be a
chronological narration of the criminal proceedings initiated against
him. However, the Court observes that the majority of the articles
and the most virulent of them were published mainly between 1997 and
2000. The applicant was convicted and sentenced by a judgment of the
Bucharest County Court on 14 November 2002. Therefore, a
considerable period of time had already elapsed by the time he was
convicted since the press articles referred to by the applicant in
support of his complaint under Article 6 § 2 of the
Convention were published (see Mircea, cited above, § 74,
and Viorel Burzo, cited above, § 166).
In
addition, the Court notes that the charges against the applicant were
determined by professional judges, who would have been less likely
than a jury to be influenced by the press campaign against the
applicant on account of their professional training and experience,
which allows them to disregard any external influence. Moreover,
taking account of the reasoned judgments adopted by the domestic
courts at three levels of jurisdiction, there is no evidence in the
file to suggest that the judges who assessed the arguments put
forward by the applicant and who examined the charges brought against
him and the merits of the case were influenced by any of the articles
published by the press (see Mircea, cited above, § 75,
and Viorel Burzo, cited above, § 166).
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.
The
Court notes that the part of the applicant’s complaint
concerning the statements made by public prosecutors and the Romanian
Minister of the Interior in respect of his guilt is not manifestly
ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that that part of his complaint is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Submissions of the parties
The applicant
The
applicant disagreed with the Government’s submissions and
stated, inter alia, that his situation was different from that
of the applicants in the cases cited by the Government, in so far as,
unlike in those cases, there had been a coordinated action in the
applicant’s case of the highest public officials and
prosecutors, who had presented as an established fact the idea of the
applicant’s guilt in respect of the charges which had been
brought against him. They had also argued that Public Prosecutor’s
Offices had had press departments designed to provide press releases
and information to the media about cases without involving the
prosecutors charged with the investigation of cases. However, in the
applicant’s case, between February 1997 and June 1999
the investigating prosecutor, the Prosecutor General of Romania and
the Romanian Minister of the Interior had made statements directly to
the press expressing without doubt the applicant’s guilt in
respect of the unlawful acts he had been accused of. Moreover,
according to his statement of 19 February 1997, prosecutor
D.I.C. had considered the applicant guilty of the alleged offences
from the early stages of the preliminary investigation carried out
against the applicant. In addition, the domestic authorities had
acknowledged the breach of the applicant’s right to the
presumption of innocence by allowing the challenge lodged by the
applicant against prosecutors G.M. and D.I.C.
The Government
The
Government argued that all the statements of the Romanian public
officials concerning the criminal investigation of the applicant had
been in compliance with the public authorities’ duty to inform
the public of the development of the said investigation and had to be
considered in the context of the intense media coverage enjoyed by
the fight against corruption. Moreover, the present case had
concerned a public figure in Romania and anti-corruption measures
taken by the authorities, which had been a topic of concern for
Romanian society. D.I.C.’s press statement of 3 July 1997
had not assessed the applicant’s guilt and had not been in
breach of the professional conduct requirements applicable to
prosecutors. At the same time, S.M.’s press statement of
19 December 1997 had only contained his personal assessment
and opinion in respect of the applicant’s potential indictment
following the inclusion of additional evidence in the file. That
statement had raised suspicions in respect of the applicant’s
alleged unlawful activities, without providing the public with
statements of absolute certainty. Lastly, G.D.’s political
status had allowed him greater flexibility and the possibility to be
less strict in respect of his statements from a legal point of view.
The
Government also submitted that, unlike in the cases of Samoilă
and Cionca v. Romania (no. 33065/03, 4 March 2008),
Vitan v. Romania (no. 42084/02, 25 March 2008)
and Khuzhin v. Russia (no. 13470/02, 23 October 2008),
D.I.C.’s statement had not been of a nature such as to
influence or to prejudice the decisions of the judges examining the
case and/or public opinion to the applicant’s disadvantage, had
been strictly and legally focused on the development of the criminal
investigation against the applicant and had not been represented as
established fact without any qualification or reservation.
Furthermore, the judges had not been influenced by the statements of
2 and 3 July and 19 December 1997, particularly given
that the first-instance court had delivered its judgment on
17 June 2002, almost five years later, and had decided to
acquit the applicant. The domestic courts had examined all the
preliminary objections made and the evidence submitted by the parties
over the course of what had been adversarial proceedings, and the
courts had repeatedly adjourned the proceedings in order to take
stock of the evidence proposed by the parties and to assess the
culpability of the applicant.
2. The Court’s assessment
The
Court reiterates that Article 6 § 2, in its
relevant aspect, is aimed at preventing the undermining of a fair
criminal trial by prejudicial statements made in close connection
with those proceedings. The presumption of innocence enshrined in
paragraph 2 of Article 6 is one of the elements of the fair
criminal trial that is required by paragraph 1 (see Allenet
de Ribemont v. France, 10 February 1995, § 35,
Series A no. 308). It not only prohibits the premature
expression by the tribunal itself of the opinion that the person
“charged with a criminal offence” is guilty before he has
been so proved according to law (see Minelli v. Switzerland,
25 March 1983, § 38, Series A no. 62),
but also covers statements made by other public officials about
pending criminal investigations which encourage the public to believe
the suspect guilty and prejudge the assessment of the facts by the
competent judicial authority (see Allenet de Ribemont, cited
above, § 41; Daktaras v. Lithuania, no. 42095/98,
§§ 41-43, ECHR 2000-X; and Samoilă and
Cionca v. Romania, no. 33065/03, § 92,
4 March 2008). The Court stresses that Article 6 § 2
cannot prevent the authorities from informing the public of criminal
investigations in progress, but it requires that they do so with all
the discretion and circumspection necessary if the presumption of
innocence is to be respected (see Allenet de Ribemont, cited
above, § 38).
It
has been the Court’s consistent approach that the presumption
of innocence will be violated if a judicial decision or a statement
by a public official concerning a person charged with a criminal
offence reflects an opinion that he is guilty before he has been
proved guilty according to law. It suffices, even in the absence of
any formal finding, that there is some reasoning suggesting that the
court or the official regards the accused as guilty. A fundamental
distinction must be made between a statement that someone is merely
suspected of having committed a crime and a clear declaration, in the
absence of a final conviction, that an individual has committed the
crime in question. The Court has consistently emphasised the
importance of the choice of words by public officials in their
statements before a person has been tried and found guilty of a
particular criminal offence (see Khuzhin and Others v. Russia,
no. 13470/02, § 94, 23 October 2008, with
further references). Whether a statement of a public official is in
breach of the principle of the presumption of innocence must be
determined in the context of the particular circumstances in which
the impugned statement was made (see Butkevičius v.
Lithuania, no. 48297/99, § 49, ECHR 2002-II).
The
Court notes that in the present case the impugned statements were
made by the Public Prosecutor investigating the case, the Romanian
Minister of the Interior and the Prosecutor General of Romania, in a
context independent of the criminal proceedings themselves.
The
Court acknowledges that the applicant was a prominent business man in
Romania and that his activities were of great interest to the general
public. It also acknowledges that the gravity of the unlawful acts he
was suspected of may have required the authorities to keep the public
informed of any criminal proceedings instituted in connection with
those events. However, these circumstances cannot justify a lack of
caution in the choice of words used in the officials’
statements in reference to the applicant, the person accused in those
proceedings. The statements at issue were made at a time when the
criminal investigation in respect of the applicant had just been
started. It was particularly important at this initial stage not to
make any public allegations which could have been interpreted as
confirming the guilt of the applicant in the opinion of State
authorities. Of particular concern are the statements made on
19 February, 2 and 3 July 1997 by D.I.C. and G.D. The
Court notes that these statements specifically mentioned, among other
things, the applicant’s name, and that they declared, without
any qualification or reservation, that the applicant had committed
the unlawful acts he was suspected of (see paragraphs 10, 14 and 15,
above).
The
Court observes that in his statement of 19 December 1997,
S.M., the Prosecutor General of Romania at the time, expressed his
belief that “there is a 99% chance that the applicant will also
be sent to trial” and that the applicant “had done more
than this”. While part of the statement, in particular the
reference to the applicant’s guilt in respect of other
potential unlawful acts, gives some cause for concern, the Court
accepts that the statement considered overall may be interpreted as a
mere assertion by the Prosecutor General that there was sufficient
evidence to support an indictment against the applicant and, thus, to
justify the opening of the criminal investigation against him.
The
Court notes that the statements of 19 February, 2 and 3 July 1997
were made by a Public Prosecutor and by the Romanian Minister of the
Interior in their official capacities and not by politicians.
Consequently, in spite of the Government’s submissions to the
contrary, they could not be considered part of a legitimate political
debate, which might arguably allow a certain degree of exaggeration
and liberal use of value judgments with reference to political
rivals.
On
the contrary, the Court considers that particular caution should have
been exercised by them in their choice of words used to describe the
pending criminal proceedings and the events that led to the
applicant’s indictment. The Court cannot agree with the
Government that the impugned statements were strictly and legally
focused on the development of the criminal investigation against the
applicant and considers that they were made without necessary
qualifications or reservations and contained wording amounting to an
express and unequivocal declaration that the applicant had committed
criminal offences. As such, they prejudged the case and could not but
have encouraged the public to believe the applicant guilty before he
had been proved guilty according to law.
Accordingly,
the Court finds that there was a breach of the applicant’s
right to be presumed innocent. There has therefore been a violation
of Article 6 § 2 of the Convention.
II. 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. Pecuniary damage
The
applicant claimed USD 144,700,000 (approximately
100,606,279 euros (EUR)), representing capital losses
suffered by his companies over the course of the criminal proceedings
initiated against him and medical expenses for treatment of the
medical condition he was suffering from. He submitted that, as a
result of the criminal proceedings initiated against him, his
companies had lost business partners and had been exposed to
substantial financial losses.
The
Government contested the existence of a causal link between the
alleged violation and the losses claimed by the applicant.
The Court considers that the statements of the
domestic authorities did not prevent the applicant’s companies
and the applicant himself from exercising business activities and
could not be perceived to be the cause of the applicant’s
medical expenses. It shares the Government’s view that there is
no causal link between the violation found and the pecuniary damage
claimed. Consequently, it finds no reason to award the applicant any
sum under this head.
B. Non-pecuniary damage
The
applicant claimed, on the one hand, USD 10,000,000
(approximately EUR 6,952,749) in respect of non pecuniary
damage on behalf of his companies, which had allegedly been
undermined as a result of the investigation initiated against him,
and, on the other hand, USD 100,000 (approximately EUR 69,527)
in non-pecuniary damage on his own behalf as a result of his
tarnished reputation.
The
Government contested the existence of a causal link between the
alleged violation and the non-pecuniary damage claimed by the
applicant on behalf of his companies. They submitted that the
applicant had lodged his application before the Court on his own
behalf and not on behalf of the said companies. Consequently his
demand had exceeded the object of the present application.
In
addition, the Government submitted that the damage claimed by the
applicant on his own behalf was excessive and argued that the
conclusion of a violation of the Convention Article would suffice to
compensate for any non-pecuniary damage incurred by him.
The
Court notes, on the one hand, that the applicant lodged the
application before the Court on his own behalf. Consequently, it
finds no reason to consider the claim made by the applicant on behalf
of his companies or to award them any sum under this head.
On
the other hand, the Court notes that it has found a violation in
respect of the applicant in the present case, a breach of his right
to be presumed innocent under Article 6 § 2 of the
Convention. In these circumstances, the Court, making its assessment
on an equitable basis, awards the applicant EUR 2,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable.
C. Costs and expenses
The
applicant expressly stated that he did not claim any costs and
expenses.
D. Default interest
The
Court considers it appropriate that the default interest rate 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 complaint concerning the breach of
the applicant’s right to the presumption of innocence under
Article 6 § 2 of the Convention as a result of
statements made by the Romanian public officials over the course of
the criminal proceedings initiated against him admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of
Article 6 § 2 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) in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(b) 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 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Santiago Quesada Josep Casadevall
Registrar President
