European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

CASE OF LEONTIN POP v. ROMANIA

 

(Application no. 1956/06)

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

 

1 October 2013

 

 

 

 

 

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 Leontin Pop v. Romania

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

          Josep Casadevall, President,
          Alvina Gyulumyan,
          Corneliu Bîrsan,
          Luis López Guerra,
          Nona Tsotsoria,
          Johannes Silvis,
          Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 10 September 2013,

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

PROCEDURE




.  The case originated in an application (no. 1956/06) 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 Leontin Pop (“the applicant”), on 29 December 2005.




.  The applicant was represented by Ms O. R. Pintea, a lawyer practising in Cluj Napoca. The Romanian Government (“the Government”) were initially represented by their Agents, Mr R.-H. Radu, and subsequently by Ms I. Cambrea.




.  The applicant complained under Article 5 of the Convention that he had been held in pre-trial detention for an unreasonably long period of time, and that the domestic courts had provided only summary reasoning for keeping him in pre-trial detention. Relying on Article 6 of the Convention, he also complained of lack of impartiality of domestic judges and about the evidence used for his conviction.




.  On 21 October 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




.  The applicant was born in 1954 and lives in Cluj-Napoca.

A.  Background to the case




  The applicant and several other persons were charged in criminal proceedings concerning five international drug-trafficking networks. The proceedings were widely reported in the media, as they concerned one of the biggest drug-trafficking cases investigated by the Romanian authorities at the time.

B.  The events leading to the applicant’s arrest

7.  On the night of 9 to 10 April 2003, a lorry entering Romania from Turkey had its papers checked by customs officers at the Negru Vodă checkpoint. As the customs officers had identified certain irregularities in connection with the transportation documents, they decided to carry out a search of the lorry in the presence of a prosecutor.

8.  The prosecutor unsealed the lorry and inspected its contents in the presence of the customs authorities. A large quantity of heroin (174 kilograms) was found hidden in its load. A report was immediately drawn up. Photographs of the packets of heroin were taken and attached to the report.

9.  The lorry driver, S.I.V, was questioned by the prosecutor. He signed the search report without raising any objections to its findings. He stated that the lorry belonged to the applicant’s company and that the applicant had been in Turkey when the loading of the lorry took place. This led to the commencement of the criminal investigation against the applicant.

10.  The packets of heroin, the load, and the lorry itself were retained in the interest of the investigation. A new search of the lorry was carried out on the same day in Constanța. Two assistant witnesses signed the report drafted on that occasion.

11.  On 10 April 2003, on the basis of the outcome of the inspection of the lorry, the prosecutor ordered a search at the applicant’s company. In the presence of two assistant witnesses, the investigators found relevant documents, which were confiscated for the purpose of investigation. On the same date a search was carried out at a former office of the applicant’s company, where documents were found and confiscated. Search reports were drawn up in both occasions.

C.  The applicant’s arrest and pre-trial detention




.  The applicant was arrested on 10 April 2003 in Bucharest, immediately after he arrived from Turkey. On the night of 10 to 11 April he was taken to Constanța, to the Local Centre for the Fight against Organised Crime and Drug Trafficking.




.  On 15 July, 4 and 28 September 2003 the Bucharest County Court extended the applicant’s pre-trial detention by interlocutory judgments concerning all the accused persons who had been arrested in the criminal investigation. The reasons adduced to justify this measure were: the existence of reasonable suspicion that the accused had committed the offences alleged; the gravity and the nature of the offences alleged; and the necessity for further procedural acts (including extension of the investigations to involve other individuals, checking of the criminal record of the accused, obtaining lists of telephone calls between those accused, and site investigations.)




.  On 23 October 2003, at the first hearing on the merits, the Bucharest County Court reviewed the lawfulness of the accused’s pre-trial detention. It held that their detention was justified, as there was a reasonable suspicion that they had committed the offences alleged, and that their release could obstruct the course of justice. It also held that the nature of the offences, the large number of accused, and the fact that they were organised in networks were all evidence of a danger to public order.

15.  The accused’s detention was repeatedly extended. The first-instance court decided each time that the initial reasons that justified their detention persisted. The applicant lodged appeals against the interlocutory judgments issued; all the appeals were dismissed by final decisions of the Bucharest Court of Appeal, without additional reasons being given.




.  Between 12 February 2004 and 4 October 2005, when a judgment on the merits was delivered, all interlocutory judgments extending the applicant’s pre-trial detention were delivered by the same judge, Judge M.




.  On 15 June 2005, taking into account the progress of the judicial investigation and the already lengthy duration of the pre-trial detention, Judge M. decided to replace pre-trial detention with an obligation not to leave the country, in respect of all the accused. She held that despite the existence of strong indications that the accused had committed the offences, keeping the accused in detention was no longer necessary for the good administration of justice. She also held that public order would not be affected if the accused were released from pre-trial detention. The prosecutor lodged an appeal. Over the following days, according to the applicant, the prosecutors directed a nationwide media campaign through newspapers and television programms, and the day before the delivery of the appeal decision the prosecutor attached to the High Court of Cassation and Justice issued a press release in which it stated that the release decision had been taken following a bribe of one million dollars paid by an organised crime network from Turkey.




.  On 17 June 2005 the Bucharest Court of Appeal allowed the prosecutor’s appeal, judging that the first-instance court had erred in finding that the reasons which had so far justified the pre-trial detention had changed. It considered that the requirement of a reasonable length of proceedings needed to be considered in the light of the complexity of the case, which involved many accused, and that it was for the first-instance court to speed up the proceedings.

D.  The proceedings on the merits of the case




.  On 25 September 2003 the prosecutor issued an indictment in respect of twenty-six accused persons, including the applicant, and the file was registered with the Bucharest County Court the next day. The indictment also indicated that ten of the accused had absconded from investigations.




.  The judicial investigation before the first-instance court lasted from 26 September 2003 until 4 October 2005, when the first-instance judgment was delivered.




.  On 6 September 2004 the County Court decided to disjoin the case in respect of the co-accused who had absconded, given that the proceedings concerning them were more complex and this was likely to affect the length of the trial.




.  The applicant was assisted by a lawyer of his choice throughout the proceedings.




.  The County Court took statements from the accused and witnesses from 14 October 2004 onwards.

24.  In his statements before the prosecutor and the first-instance court, I.P., one of the co-accused, gave a chronological account of events, starting with the moment of meeting the supplier of the drugs from Turkey, the connection with the applicant, the organisation of the criminal activity, the method used to bring the drugs into the country, an indication of who was involved, and the amounts of money obtained by each participant from the operation. I.P. expressly mentioned that the applicant played a prominent part in the operation of the criminal network, as he provided the means of transportation and the documents necessary to disguise the criminal activity in a legal trade.

25.  According to I.P., the applicant went to Turkey to give him the keys of the lorry and to see for himself that there were no problems with the loading of the heroin, as the lorry drivers were not aware of the presence of the drugs hidden in the load.

26.  I.P.’s statements revealed aspects of fact confirmed by four witnesses who had driven the applicant’s lorry, thus the merchandise had been transported from Turkey to Romania on four occasions. All four drivers confirmed that the applicant had accompanied them to Turkey, being present on each occasion when the merchandise was loaded into the lorry. Once the merchandise had been loaded the applicant went back to Romania by bus, not before asking them to call him each time they crossed a border, to inform him whether there were any problems.




.  On 29 September 2005 the judicial investigation was closed and the lawyers of the accused or the accused themselves submitted their arguments on the merits of the case.




.  By a first-instance judgment of 4 October 2005 a single-judge panel of the Bucharest County Court, namely Judge M., found the applicant guilty and sentenced him to sixteen years’ imprisonment. He was found guilty of taking part in international drug trafficking by facilitating the transport of drugs from Turkey to Romania, in a lorry belonging to his company. His conviction was based on statements by I.P., who was considered to have been the link between the distributors in Turkey and the buyers in Romania, as corroborated by the statements of some of the other accused and several witnesses. The County Court found the arguments raised by the applicant in his defence inconsistent and illogical. It also concluded that the requests to adduce technical evidence concerning the state of the lorry and its itinerary in Turkey were not pertinent to the case, since the evidence already adduced established the relationship between the applicant and I.P. and the illicit nature of their cooperation.

E.  The appeal proceedings




.  The applicant lodged an appeal against the judgment of the first-instance court, complaining, inter alia, of lack of impartiality on the part of Judge M., excessive length of pre-trial detention, and wrong assessment of evidence.




.  During the appeal proceedings on 2 December 2005 the accused, including the applicant, lodged a challenge against the Bucharest Court of Appeal. Their request was reviewed by the High Court of Cassation and Justice. The accused contested the impartiality of all the judges of the court of appeal, as they had regularly reviewed the decisions of the first-instance court to extend their pre-trial detention, which ultimately lasted two years and four months. At the hearing the High Court of Cassation and Justice decided to extend the pre-trial detention of the accused, and postponed a ruling on the challenge to 5 December 2005. The challenge was dismissed as unfounded on this later date.




.  The applicant’s appeal against the first-instance judgment was dismissed by a decision of the Bucharest Court of Appeal on 7 June 2006.




.  The applicant lodged an appeal on points of law, claiming, inter alia, that the lower courts had unlawfully relied in their decisions on the statements of I.P., which were not corroborated by the statements of five of the other accused, and which I.P. had given with a view to securing a milder sentence for himself; that the search of the lorry had been unlawful; and that he had been denied the opportunity to adduce evidence that could have proved his innocence (including technical information on the itinerary of the lorry in Turkey). The applicant also complained that the domestic courts had been influenced by the media when delivering their judgments on the merits, and that they had not been impartial, given that they had prejudged his case, in delivering their decisions confirming the lawfulness of his pre-trial detention.

33.  By a final decision of the High Court of Cassation and Justice of 14 June 2007, the applicant’s appeal on points of law was allowed in part in respect of the gravity of the sentence, and his sentence was reduced to eight years’ imprisonment. The High Court of Cassation examined the first-instance court’s findings and noted that that court had carried out a thorough and extensive examination of the evidence put before it and that the reasoning given was in all respects convincing.

II.  RELEVANT DOMESTIC LAW




.  The relevant domestic provisions of the Romanian Code of Criminal Procedure (CCP) concerning the pre-trial detention as in force at the material time are set forth in the case of Riccardi v. Romania (no. 3048/04, §§ 42-43, 3 April 2012).




  The provisions of Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”) are described in Constantin and Stoian v. Romania (nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

36.  The applicant complained that he had been held in pre-trial detention for an unreasonably long period of time and that the domestic courts had provided only summary reasoning for their decision to keep him in pre-trial detention in breach of Article 5 §§ 3 and 4 of the Convention, which reads as follows:

“3.  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.”

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”




.  The Court considers that the above complaints fall to be examined solely under Article 5 § 3 of the Convention, and that it is not necessary to also examine them under Article 5 § 4 of the Convention provisions relied on by the applicant (see Riccardi, cited above, § 79).

A.  Admissibility




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

B.  Merits

1.  The parties’ submissions




.  The applicant argued that the domestic courts had extended his pre-trial detention for an excessively long time without relying on any relevant evidence to justify their view that releasing him would have posed a danger to public order.




.  The Government submitted that the applicant’s pre-trial detention could not be considered excessive, because of the complexity of the case, which concerned drug trafficking committed by an organised criminal group acting internationally. They also emphasised the large number of accused and hence the difficulty the investigating authorities faced in establishing the facts and the degree of responsibility of each member of the group. The Government concluded by noting that the authorities had taken effective action in dealing with the case, and that there had not been any delays for which they could be held liable. The Government further argued that the domestic courts had repeatedly assessed and extended the applicant’s detention, taking his arguments into consideration and providing relevant and sufficient reasons.

2.  The Court’s assessment

(a)  General principles




.  The Court will examine the applicant’s complaint in the light of the general principles emerging from its case-law concerning the reasonableness of detention within the meaning of Article 5 § 3 of the Convention (see Calmanovici v. Romania, no. 42250/02, §§ 90-94, 1 July 2008, and Tiron v. Romania, no. 17689/03, § 36, 7 July 2009).




  The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the basis of the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).




The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non condition for the lawfulness of the continued detention. However, 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 continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities have displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).




.  Lastly, the Court accepts that in cases involving numerous accused, the risk that if released a detainee might put pressure on witnesses or otherwise obstruct the proceedings is often particularly high. All these factors can justify a relatively long period of detention. However, they do not give the authorities unlimited power to extend this preventive measure (see Osuch v. Poland, no. 31246/02, § 26, 14 November 2006). The fact that a person is charged with acting in a criminal conspiracy is not in itself sufficient to justify long periods of detention; his personal circumstances and behaviour must always be taken into account (see Velichko v. Russia, no. 19664/07, § 87, 15 January 2013).

(b)  Application of these principles to the present case




. The Court notes from the outset that the applicant was held in pre-trial detention from the date of his arrest on 10 April 2003 until he was sentenced following the first-instance judgment on 4 October 2005 that is for a total duration of two years, five months and twenty-four days.




.  The Court notes in the present case that the domestic courts regularly and repeatedly extended the applicant’s pre-trial detention. It also notes the abstract and brief reasoning in the domestic courts’ judgments, which were limited to mentioning certain grounds provided for by the CCP, but failed to explain how this criteria came into play in the applicant’s case (see Calmanovici, cited above, §§ 97-98). Moreover, the court orders maintaining detention almost always used identical and even stereotyped wording, and relied repeatedly on the same criteria, a practice which cannot be considered to comply with the requirements of Article 5 § 3 of the Convention (see Mansur v. Turkey, 8 June 1995, § 55, Series A no. 319-B, and Tiron, cited above, § 39). The court considered all the accused together, without any individual analysis of their personal circumstances (see paragraph 13).




.  The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he had committed serious offences. However, with the passage of time those grounds inevitably became less sufficient. Accordingly, the domestic authorities were under an obligation to examine the applicant’s personal situation in greater detail and to give specific reasons for holding him in custody (see I.A. v. France, 23 September 1998, §§ 104-05, Reports of Judgments and Decisions 1998-VII, Tiron, cited above, § 40 and Luković v. Serbia, no. 43808/07, § 50, 26 March 2013)




.  Lastly, the Court emphasises that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial (see Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). In the present case, the authorities did not consider the possibility of ensuring his attendance by the use of other “preventive measures” which are expressly provided for by Romanian law to ensure the proper conduct of criminal proceedings.




.  Having regard to the above, the Court considers that by failing to address the specific facts of the case or consider alternative “preventive measures”, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify the applicant’s remaining in custody for two years and four months. It holds that the applicant’s pre-trial detention was unreasonably long.

There has accordingly been a violation of Article 5 § 3 of the Convention.

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




.  The applicant complained that he had not had a fair trial. He alleged in particular:

(i)  that the judges ruling in the first-instance and appeal proceedings lacked impartiality, as they were the same judges who had kept him in pre-trial detention for the duration of the trial;

(ii)  that the domestic courts had based their decisions on evidence obtained during searches carried out unlawfully, and that his sentence was based to a large extent on the statements of one of his co-accused.

The applicant relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A.  Alleged lack of impartiality of judges

1.  The parties’ submissions




.  The Government submitted that the applicant had raised this complaint before the domestic courts only on 19 May 2008, two years after he had lodged his application with the Court on 5 March 2006.




.   The applicant submitted that Judge M., who had presided over the single-judge panel of the Bucharest County Court which had convicted him and sentenced him to sixteen years’ imprisonment, had also extended his pre-trial detention. The applicant contended that as the judge who had extended his pre-trial detention Judge M. had already formed an opinion about the charges against him. As regards all judges of the Bucharest Court of Appeal, the applicant contended that they lacked impartiality because they regularly reviewed the decisions of the first-instance court to extend his pre-trial detention.

2.  The Court’s assessment




.  The Court reiterates that Article 6 of the Convention requires courts to be independent and impartial. The existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the tribunal offered guarantees sufficient to exclude any legitimate doubt in this respect (see Hauschildt v. Denmark, 24 May 1989, § 46, Series A no. 154 and Micallef v. Malta [GC], no. 17056/06, § 63, ECHR 2009). In the present case the objective test is at issue, as the applicant did not complain of personal bias against him on the part of the judges.




  The Court also reiterates that the mere fact that a trial judge or an appeal judge has also made pre-trial decisions in the case, including those concerning pre-trial detention, cannot be held as in itself justifying fears as to the judge’s impartiality; there would need to be special circumstances for a different conclusion to be warranted (see Hauschildt, cited above, § 50).

(a)  As regards Judge M.’s impartiality




.  In the present case, the Court notes that Judge M. was the judge who repeatedly extended the applicant’s pre-trial detention between 12 February 2004 and 4 October 2005.




.  The Court also notes that the applicant never argued that the decisions by which his pre-trial detention had been extended had not been served on him or that he had been unaware of the composition of the panel which had decided on his detention.




.  The trial in the applicant’s case ended on 4 October 2005, and Judge M. found the applicant guilty of drug trafficking and sentenced him to sixteen years’ imprisonment. It is undisputed between the parties that during the period of more than one year in which the applicant’s trial was being conducted before the single-judge panel presided over by Judge M., he never lodged any complaints alleging a lack of impartiality on the part of that judge, even though he was aware of Judge M.’s previous involvement in his case. The applicant raised the complaint concerning that judge’s alleged lack of impartiality for the first time in his appeal lodged with the Bucharest Court of Appeal against the first-instance judgment, which had been unfavourable to him.




.  In view of the relevant domestic law, the Court sees no reason why the applicant could not have submitted a request for Judge M. to withdraw before she delivered the first decision on the merits. Moreover, the applicant never argued that he had been prevented from making such a request or from otherwise complaining about the composition of the trial panel during the period of more than one year while the proceedings were pending before the trial panel presided over by Judge M.




.  In this connection the Court has held that the existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, are a relevant factor. The existence of such rules displays the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned, and also constitutes an attempt to ensure impartiality by eliminating the causes of such concerns (see Mežnarić v. Croatia, no. 71615/01, § 27, 15 July 2005). Therefore, the Court considers that when the domestic law offers the possibility of eliminating the causes of concerns regarding the impartiality of the court or a judge, it would be expected (and in terms of the national law required) of an applicant who truly believed that there were arguable concerns on that account to raise them at the first opportunity. This would above all allow the domestic authorities to examine the applicant’s complaints at the relevant time and to ensure that his rights are respected.




.  In the present case, however, the applicant, who was assisted by a lawyer, failed to use the opportunity to submit his complaints about the composition of the trial court or Judge M.’s alleged lack of impartiality at the trial stage of the proceedings.




.  Furthermore, the Court notes that on 15 June 2005 Judge M. ordered the replacement of the applicant’s pre-trial detention with an obligation not to leave the city. She held that there were no longer strong indications that the applicant’s release from detention would pose a danger to public order or the good administration of the pending trial. However, it was the Bucharest Court of Appeal which allowed the prosecutor’s appeal and quashed the interlocutory judgment of 15 June 2005, considering that the initial reasons for keeping the accused in detention persisted.




.  The Court further observes that the findings of the first-instance judge on the merits of the case were upheld by a three-judge panel of the Bucharest Court of Appeal, which dismissed the applicant’s appeal. The reasoning of the first-instance judge was also upheld by the High Court of Cassation and Justice, which allowed the applicant’s appeal on points of law only in respect of the individualisation of the imprisonment sentence.




  Having regard to the above considerations and the absence of any prior personal involvement or interest in the subject matter of the case, the Court does not find that any doubts on the part of the applicant as to Judge M.’s impartiality would be legitimate.

(b)  As regards the impartiality of all the judges of the Bucharest Court of Appeal




.  As regards the alleged lack of impartiality of all the judges of the Bucharest Court of Appeal on the ground that they regularly reviewed the decisions of the first-instance court to extend the applicant’s pre-trial detention, the Court considers that the applicant did not sufficiently substantiate this complaint. He did not indicate which judges had confirmed the extension of his pre-trial detention and had also delivered a decision on appeal. Furthermore, the appeal decision delivered by a three-judge panel was examined by a three-judge panel of the High Court of Cassation and Justice.

(c)  Conclusion




.  In the light of the above it follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B.  The evidence used as the basis for the applicant’s conviction

1.  The parties’ submissions




.  The applicant submitted that the evidence collected during the searches of his lorry and his company’s office had been obtained unlawfully, and that his sentence was based to a large extent on the statements of I.P., a co-accused, who had an interest in making incriminatory statements against other persons to secure a milder sentence for himself. He further contended that the two searches of his lorry were unlawful, as they had been conducted before a criminal investigation against him had begun, and the report drawn up after the second search had not been signed by two assisting witnesses as required by law.




.  The Government contested the applicant’s allegations. They contended that the prosecutor had lawfully carried out the searches of the lorry and the applicant’s company office. They also pointed out that I.P.’s statements had been neither the sole nor the decisive evidence against the applicant, but rather a piece of evidence supported by a number of other pieces of evidence.

2.  The Court’s assessment

(a)  General principles




  The Court reiterates that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV; and Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006-IX).




  It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, evidence obtained unlawfully in terms of domestic law - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Bykov v. Russia [GC], no. 4378/02, § 89, 10 March 2009).

(b)  Application of these principles to the present case




.  In connection with the applicant’s complaint concerning evidence obtained during searches allegedly carried out unlawfully, the Court notes that the searches of the lorry containing drugs were performed in accordance with the applicable domestic law. As the customs authorities were confronted with a flagrant offence special procedural rules were applicable. During an investigation of a flagrant offence the judicial authorities were entitled to carry out whatever investigative activity is required for the facts to be established and the perpetrators identified. Besides, the customs authorities’ main duties refer to the checking of all vehicles passing through the customs point.




.  As regards the applicant’s complaint about the domestic court’s reliance on I.P.’s testimony, the Court notes that they found his statements coherent and supported by corroborating evidence. The statements of several witnesses, as well as part of the applicant’s statements, had supported I.P.’s statements.




  The Court points out that 174 kilograms of heroin were found in a lorry belonging to the applicant’s company. Furthermore, the applicant has confirmed that he was in Turkey when the lorry was loaded. The explanations provided by him to justify his presence in Turkey when the lorry was loaded, as well as the justifications given by him for coming back to Romania by bus were not considered credible by the domestic courts.




.  Under these circumstances, the Court is of the opinion that I.P.’s testimony was one of the several elements which, examined for their individual probative value as well as in relation to the other available pieces of parallel evidence, led the Romanian courts to convict the applicant of drug trafficking.




  The Court further observes that the applicant had the benefit of adversarial proceedings, and had a reasonable opportunity to present his arguments before the courts and contest the evidence submitted. The first-instance court examined all the evidence before it and, in a detailed and lengthy judgment, analysed its evaluation and conclusions in this respect. The High Court of Cassation examined the first-instance court’s findings in this respect, and noted that that court had carried out a thorough and extensive examination of the evidence put before it and that the reasoning given was in all respects convincing.




  The Court considers that nothing has been shown to support the conclusion that the applicant’s defence rights were not properly complied with in respect of the evidence adduced, or that its evaluation by the domestic courts was arbitrary.




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

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION




  The applicant submitted various other complaints under Articles 3, 5, 6 §§ 1, 2 and 3 (c), and 13 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

78.  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.  Damage




.  The applicant claimed 388,184 euros (EUR) in compensation for pecuniary damage and EUR 1,894,000 for non-pecuniary damage.




.  The Government submitted that there is no causal link between the alleged violation of the Convention and the pecuniary damage claimed by the applicant. As regards the non-pecuniary damage, they maintained that the amount requested was exorbitant, and that the finding of a violation would constitute in itself sufficient just satisfaction.




.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,000 in compensation for non-pecuniary damage.

B.  Costs and expenses




.  The applicant also claimed EUR 6,404 for costs and expenses incurred before the domestic courts and the Court.




.  The Government submitted that the applicant did not submit any relevant supporting documents to substantiate his claim.




.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court rejects the claim for costs and expenses on the ground that the applicant did not submit any documents proving that the costs and expenses have been actually incurred.

C.  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

1.  Declares the complaint under Article 5 § 3 of the Convention concerning the applicant’s pre-trial detention admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

 

3.  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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada                                                                Josep Casadevall
       Registrar                                                                              President