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Cite as: [2011] ECHR 854

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THIRD SECTION

CASE OF TOPLICEANU AND OTHERS v. ROMANIA

(Applications nos. 4756/06, 11941/07 and 27690/07)

JUDGMENT

STRASBOURG

31 May 2011

This judgment is final but it may be subject to editorial revision.

In the case of Topliceanu and Others v. Romania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Ján Šikuta, President,
Ineta Ziemele,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 10 May 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in three applications (nos. 4756/06, 11941/07 and 27690/07) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals, Mr. Iulian Topliceanu, Mr. Gavril Pal and Mr. Liviu Coman (“the applicants”). Details as to the applicants’ dates of birth, introduction of the applications as well as their representatives are indicated in the appended table. The Romanian Government (“the Government”) were represented by their Agent, Mr. Răzvan-Horaţiu Radu from the Ministry of Foreign Affairs.

On 21 September 2009 and 9 November 2009, the President of the Third Section decided to give notice of the applications to the Government. It also decided to examine the merits of the applications at the same time as their admissibility (former Article 29 § 3). In accordance with Protocol No. 14, the applications were assigned to a Committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASES

The applicants are Romanian nationals who were charged with and subsequently prosecuted for various criminal offences. The details of the charges, reference dates for the start and end of the criminal proceedings and the length of the proceedings are set out in the table appended hereto.

THE LAW

I. JOINDER OF THE APPLICATIONS

Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government contested that argument.

The Court recalls that in criminal matters, the period to be taken into account for the purpose of assessing the reasonableness of the length of proceedings begins to run as soon as a person is “charged” (see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51).

Where the proceedings started before Romania’s ratification of the Convention the period to be taken into consideration began only on 20 June 1994, when the recognition by Romania of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.

A. Admissibility

1. As regards application no. 4756/06

The Government contended that the applicant’s complaint about the length of the proceedings was out of time within the meaning of Article 35 § 1 of the Convention as it was raised for the first time after the communication of the application to the respondent Government.

The applicant did not submit comments on this point.

The Court notes that in his letters submitted in 2006 the applicant described in detail the criminal proceedings emphasizing the different approaches of the domestic authorities throughout the proceedings, which in his opinion were dictated by the successive governments. Also, in a letter of 4 May 2010, submitted after communication of the application to the respondent Government, the applicant mentioned inter alia that he maintained his complaint about the unreasonable length of the criminal proceedings. The Court is therefore satisfied that the applicant raised this complaint in substance prior to the communication to the respondent Government (see Camenzind v. Switzerland, 16 December 1997, § 50, Reports of Judgments and Decisions 1997 VIII).

It further considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. As regards application no. 27690/07

The Government submitted that the applicant’s complaint was raised outside the six month term set forth under Article 35 § 1 of the Convention. In particular, they argued that the six month period was to be calculated from 2 December 2006 when the judgment of the Military Court of Appeal of 22 November 2006 became final.

The applicant did not submit comments on this point.

In the instant case, it notes that on 22 January 2007, the Bucharest Military Court submitted to the applicant a copy of the judgement rendered on 22 November 2006. The Court is therefore satisfied that the complaint has been raised within the six months time limit set forth under the Convention.

3. As regards application no. 11941/07

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Commencement of the period to be taken into account in respect of application no. 11941/07

The Government argued that the period to be taken into account had started on 19 February 2001, when the applicant was informed of the charges against him, during the third statement before the prosecution authorities.

The Court notes that the investigation against the applicant was formally opened on 16 September 1999. The applicant was first heard in this connection on 16 December 1999. The Court recalls that in the fulfilment of its obligations under Article 6 of the Convention, a State cannot seek refuge behind the possible failure of its own domestic law or administration of justice (see Šubinski v. Slovenia, no. 19611/04, § 67, 18 January 2007). The Court also notes that in the instant case, at the time of the applicant’s first statement, criminal investigations against him had already been opened and therefore it cannot be argued that he was heard in a different capacity than that of a suspect. The Court shall therefore take into consideration as the date for commencement of the criminal proceedings, the date of the applicant’s first declaration before the prosecution authorities.

2. The reasonableness of the length of the proceedings

The Court notes that in the present cases the proceedings have lasted for eleven years and nine months for two levels of jurisdiction in respect of application no. 4756/06; six years and ten months for three levels of jurisdiction in respect of application no. 11941/07; and seven years and six months for three levels of jurisdiction in respect of application no. 27690/07.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present cases (see Pélissier and Sassi, cited above, Abramiuc v. Romania, no. 37411/02, § 130, 24 February 2009).

In the present cases, having regard to the length of the proceedings as mentioned in the appended table, and having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion. In the light of its case-law on the subject, the Court considers that in these cases the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant in application no. 4756/06 also complained under Articles 2 § 2 (a) and 15 of the Convention about an infringement of the right to life, under Article 6 §§ 1, 3 (b), (c) and (d) of the Convention about the fairness of proceedings, assessment of evidence, misinterpretation of the law and the lack of impartiality of the courts and under Article 7 about the crime not being prescribed by law at the relevant time.

The applicant in application no. 11941/07 complained under Article 6 § 1 of the Convention about the outcome of the proceedings.

The applicant in application no. 27690/07 complained under Article 3 of the Convention about alleged insults of the public prosecutor and under Article 6 §§ 1, 3 (b), (c) and (d), about assessment of evidence, misinterpretation of the law, assistance of a lawyer, impartiality of the courts.

A. Admissibility

Having considered the applicants’ submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

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

IV. 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.”

The applicant in application no. 4756/06 did not submit any just satisfaction claims. Accordingly, the Court makes no award in this respect.

A. Damage

The applicants in the other two cases under examination have submitted the following claims in respect of pecuniary and non-pecuniary damage:

No.	Application no.	Pecuniary damage	Non-pecuniary damage
1.	11941/07	RON 17,656	-
2.	27690/07	RON 30,000	EUR 200,000

The Government contested these claims.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. Further, concerning application no. 11941/07, the Court notes that the applicant did not make any claim in respect of non-pecuniary damage; it therefore makes no award under this head.

Lastly, in the light of its case-law and ruling on an equitable basis, the Court awards EUR 1,600 to the applicant in application no. 27690/07.

B. Costs and expenses

The applicant in application no. 11941/07 claimed RON 146 for transportation costs incurred during the domestic proceedings. The applicant in application no. 27690/07 claimed RON 13,100.30 representing costs and expenses incurred before domestic courts and the Court.

The Government disputed the claims. In particular, they argued that the applicants did not provide justifying documents for the costs and expenses incurred.

Taking into consideration that the applicants did not in fact submit any justifying document for the costs and expenses incurred the Court dismisses these claims.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to join the applications;

Declares the complaints concerning the excessive length of the proceedings in respect of all applicants admissible and the remainder of the applications inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all three applications;

4. Holds

(a) that the respondent State is to pay the applicant in application no. 27690/07, within three months, EUR 1,600 (one thousand six hundred euros) in respect of nonpecuniary damage, plus any tax that may be chargeable, to be converted into Romanian lei at the rate applicable at the date of settlement;

(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;

5. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ján Šikuta
Deputy Registrar President

Case of Topliceanu and Others v. Romania

Appendix

Case no. and date of lodging

Applicant’s Details

Length of the proceedings

Subject Matter

4756/06

9 January 2006

TOPLICEANU Iulian

Romanian citizen, born on 28 July 1929, residing in Bucharest

Represented by Dan Ioan, attorney at law

Beginning: Unspecified date in 1990 (beginning of the investigation). On 20 June 1994 ratification of the Convention by Romania

End: 20 March 2006 (High Court of Cassation and Justice)

Length after ratification: 11 years and 9 months

Criminal proceedings brought against the applicant for incitement to homicide in the course of the events of December 1989 which led to the overthrow of the communist regime in Romania (Articles 174 § 1, 175 (e), 176 (b) of the Romanian Criminal Code).

On 20 March 2006, the High Court of Cassation and Justice convicted the applicant for incitement to homicide and sentenced him to ten years of imprisonment.

11941/07

24 February 2007

PAL Gavril

Romanian citizen, born on 19 September 1941, residing in Păuleni Ciuc, Harghiţa county

Beginning: 16 December 1999 (the applicant’s first statement before the prosecution authorities)

End: 6 November 2006 (Galaţi Court of Appeal)

Length: 6 years and 10 months

Criminal proceedings brought against the applicant for fraud and forgery (Article 215 and 290 of the Romanian Criminal Code).

On 6 November 2006 the Galaţi Court of Appeal convicted the applicant for fraud and sentenced him to three years of suspended sentence.

27690/07

18 June 2007

COMAN Liviu

Romanian citizen, born on 12 February 1962, residing in Ploieşti, Prahova county

Beginning: 7 May 1999 (the applicant was informed of the charges)

End: 22 November 2006 (Military Court of Appeal)

Length: 7 years and 6 months

Criminal proceedings brought against the applicant for forgery, use of forged documents and aiding a criminal (Articles 289, 291 and 264 of the Romanian Criminal Code)

On 22 November 2006 the Military Court of Appeal acquitted the applicant ruling that he did not commit any criminal offence. Neither the applicant nor the prosecution appealed the aforementioned judgement which became final on 2 December 2007.