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Cite as: [2011] ECHR 278

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33762/05
by Gheorghe ERIMESCU
against Romania

The European Court of Human Rights (Third Section), sitting on 18 January 2011 as a Chamber composed of:

Elisabet Fura, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra, judges,
and Santiago Quesada, Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gheorghe Erimescu, is a Romanian national who was born in 1949 and lives in Timisoara. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.

A. The circumstances of the case

The applicant is former trade director of a state-owned electricity supply company, S. He was prosecuted, together with some twenty other persons for a series of economic offences related to unlawful public acquisitions.

The applicant’s pre-trial detention

In a decision of 4 April 2005, the prosecutor initiated a criminal investigation against the applicant and five other persons, following preliminary investigations which led the authorities to believe that the general director of the company S. had instructed the applicant and a few other managers to forge the purchase documents of goods acquired from private companies in violation of the national legislation on public acquisitions. The applicant was questioned on the same date and he admitted that during 2003 the company S. purchased significant quantities of supplies from four private companies, without any public tender procedure. He acknowledged that during 2003 he was instructed by one of the co-defendants to order the payment of the invoices for the supplies and to complete the administrative papers. He further indicated that he had lacked the courage to inform the general director that the price of the products was very high and that he had to forge the purchase documents by antedating them.

The applicant was detained by the prosecutor on 7 April 2005 at 1 p.m. for 24 hours.

On 8 April 2005, the prosecutor issued an arrest warrant for
twenty-nine days against four accused, including the applicant. The prosecutor indicated that the applicant had tried to tamper with evidence after the starting of the criminal investigation against the general director of company S.

On the same day, at an unspecified time, the Timiş County Court began hearing the prosecutor’s request to order the pre-trial detention for the four accused.

The defendants, among them the applicant, were informed of the reasons for being brought before the court, and statements were taken from each of them and recorded in writing.

The legal counsel for each of the four accused took the floor, presenting the defence’s arguments. The applicant’s representative called for the dismissal of the prosecutor’s request, claiming that there was no proof of any pecuniary damage and that one of the co-accused had obliged the other employees to forge the documents relating to the public purchases. Later on, each of the accused made a statement, the applicant requesting to be released.

After reviewing all the evidence and analysing the parties’ arguments, the county court delivered an interlocutory judgment the same day, approving the prosecutor’s request. The reasons for ordering the pre-trial detention of the four defendants were the following: the fact that the sentence prescribed by law for the alleged offences was greater than four years’ imprisonment, the fact that the defendants misused the public functions entrusted to them, the high value of the pecuniary damage and the fact that the defendants had tried to forge pieces of evidence. In this connection, the county court noted that after the criminal investigation had started, the defendants had intended to produce forged minutes of the meetings of the commission in charge of evaluating public tender bids.

An appeal against the above-mentioned judgment was dismissed by a final decision of the Timişoara Court of Appeal of 13 April 2005, with the same reasoning.

The applicant’s pre-trial detention was extended regularly by interlocutory judgments of the County Court on 3 May, 2 June, 23 June, 20 July 2005 (appeals dismissed by the Timisoara Court of Appeal on 6 May, 8 June, 27 June and 22 July 2005 respectively).

The reasons given by the domestic courts throughout the whole period were similar to the ones stated above; reference was further made to the necessity to complete the investigation, by identifying all the persons involved in these criminal activities, taking statements of witnesses,
re-hearing the accused, completing the financial and accounting reports etc. By the end of the period, as the investigation extended to other persons, the interlocutory judgments mentioned above concerned ten persons.

On 8 August 2005, the prosecutor issued an indictment, committing twenty-four persons, including the applicant, to trial. The indictment, 190 pages long and based on evidence organised in 29 files, containing each around 400 pages, concluded an investigation concerning
forty-four persons, employees of the public company concerned and of the four private companies, suppliers of the goods purchased allegedly in contravention of public acquisitions law.

The case was then referred to the Timis County Court. A first hearing, held on 15 August 2005, had been postponed, following a request from some of the defendants. In a hearing held on 17 August 2005, the county court verified on its own motion the lawfulness of the pre-trial detention ordered in respect of ten defendants. After hearing the parties’ submissions, the county court concluded that the reasons justifying their pre-trial detention subsisted and decided to extend it for a period of sixty days. A next hearing date was set for 17 October 2005.

On 23 August 2005, the Timisoara Court of Appeal upheld the decision, emphasising that the defendants’ release would disturb public order, given the organised nature of the alleged facts and the fact that some of them, including the applicant, had attempted to tamper with evidence while the investigation was ongoing.

On 27 September 2005, the prosecutor lodged a request to advance the date of the hearing to 6 October, in order to review the legality of the pre-trial detention.

In an interlocutory judgment of 6 October 2005, the county court maintained the pre-trial detention. Upon appeal of the defendants, in a final decision of 18 October 2005, the appellate court declared void the appealed judgment on account of a procedural failure and ordered the immediate release of all defendants. The applicant was released on that day.

From the case-file it appears that the criminal proceedings on the merits are still pending.

B. Relevant domestic law

The relevant provisions of the Romanian Code of Criminal Procedure (CPP), as in force at the time of events, read as follows:

Article 148

(1) Pre-trial detention may be imposed, among other reasons (...) only in one of the following situations:

(...)

d) when there are sufficient indications that the accused had tried to obstruct the establishment of the truth, by influencing one witness or expert, by destroying or tampering evidence or by other similar acts;

(...)

h) when the accused committed an offence in respect of which the law provides for a life custodial sentence or alternatively for a custodial sentence exceeding four years and there are serious grounds to believe that there is a concrete danger for public order; (...)”

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention was too long, in the light of the standard and non-individualised reasoning provided by the domestic courts for extending his detention. He further alleges that the domestic courts failed to address the arguments he raised against his detention.

He complained under Article 5 § 1 of the Convention that on 8 April 2005 he was illegally deprived of his liberty between 1 p.m. and 4.30 p.m., being held handcuffed in the detention room of the Timiş County Court while awaiting the delivery of the interlocutory judgment which was to determine whether the prosecutor’s request for ordering his pre-trial detention would be approved by the county court.

THE LAW

The applicant alleged a breach of Article 5 § 3 of the Convention in that his pre-trial detention had exceeded a reasonable time. The relevant part of this provision 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 Government submitted that the duration of the pre-trial detention could not be considered excessive, given the complexity of the case and the due diligence shown by the authorities in handling the case. The domestic courts, the Government added, had provided “relevant and sufficient reasons” for maintaining the custody measure.

The applicant did not submit observations within the time-limit set by the Court.

Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, § 30, Series A no. 254-A).

The Convention case-law has developed four basic acceptable reasons for justifying the pre-trial detention of an accused suspected of having committed an offence: the risk that the accused will fail to appear for trial (see Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9,); and the risks that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7), commit further offences (see Matznetter v. Austria, 10 November 1969, § 9, Series A no. 10,) or cause public disorder (see Letellier v. France, 26 June 1991, § 51, Series A no. 207).

The Court further reiterates that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see McKay v. the United Kingdom, [GC], no. 543/03, § 43, 6 October 2006).

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy, no. 26772/95, § 153, ECHR 2000-IV).

In the present case, the applicant’s pre-trial detention lasted from 7 April until 18 October 2005, thus amounting to a total of six months and eleven days. Taking into account the complex nature of the case, this duration does not appear per se to be excessive (see, per a contrario, Tiron v. Romania, no. 17689/03, § 35, 7 April 2009). Nevertheless, the Court needs to verify whether the national courts adduced “relevant and sufficient reasons” to justify the applicant’s pre-trial detention for the entire detention period.

In this respect, the Court notes that the applicant’s pre-trial detention was supervised by the competent judicial authorities at the statutory prescribed intervals. The decisions to order and prolong his pre-trial detention were based on several reasons. Firstly, the domestic authorities relied on a reasonable suspicion that the applicant committed the offences with which he was subsequently charged. The domestic authorities further relied on the fact that the applicant had tried to tamper with evidence after the start of the criminal investigation. In the light of the applicant’s own statements to the investigation authorities, the Court accepts that the domestic courts had sufficient reasons to believe that there was a real or concrete risk that, if released, the applicant might attempt again to tamper with evidence or might bring pressure to bear on witnesses.

The Court further takes note of the other reasons invoked by the domestic authorities (see paragraphs 8, 11 and 14 above), which taken together appear to be valid grounds for justifying the applicant’s pre-trial detention.

Even though some of the decisions maintaining the pre-trial detention repeated the reasoning in the previous decisions, the Court takes into account also the fact that all these decisions had been taken within a rather short period of time of six months. It cannot be considered that the initial reasoning became devoid of relevance within this timeframe.

Further, the Court is also satisfied that the domestic courts, in their decisions reviewing the necessity of keeping the applicant further in custody, did not rely on stereotyped reasons (see, a contrario, Calmanovici v. Romania, no. 42250/02, § 97, 1 July 2008). The decisions in issue detail the suspicions pending against each of the accused concerning the alleged offences, including the attempts to tamper with evidence, and they refer to the evidence on which these suspicions were based.

The foregoing considerations are sufficient for the Court to conclude that the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the relevant period.

It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings.

In this regard, the Court observes that the investigation was of considerable complexity, regard being had to the nature of the offences, the number of accused persons, the extensive evidentiary proceedings and the implementation of special measures required in cases concerning organised crimes. Moreover, it appears that the investigation became more complex as it unfolded revealing the involvement in the criminal activities in issue of many other persons, requiring thus additional questioning of the new accused persons, confrontations between defendants, gathering of additional financial information from all the private companies which supplied the goods in issue.

Under these circumstances, the Court finds that the authorities acted with the required diligence in handling the case. Thus, the indictment was prepared within four months from the date of the applicant’s arrest and after the case was referred to the county court, hearings were held at reasonable intervals. It concludes therefore that the national authorities displayed diligence in the conduct of the proceedings.

It follows that, in the circumstances of the present case, the authorities did not fail to give sufficient and relevant justification for the applicant’s continued detention and to handle the case with diligence.

The Court accordingly concludes that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected, pursuant to Article 35 § 4.

The applicant further submitted that on the date of 8 April 2005, he had been unlawfully deprived of liberty between 1 p.m. and 4.30 p.m.

Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matter complained of is within its competence, it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Elisabet Fura
Registrar President