European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF POP AND OTHERS v. ROMANIA

 

(Application no. 31269/06)

 

 

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

 

 

 

24 March 2015

 

 

 

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 Pop and Others v. Romania,

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

          Josep Casadevall, President,
          Luis López Guerra,
          Ján Šikuta,
          Dragoljub Popović,
          Kristina Pardalos,
          Valeriu Griţco,
          Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 3 March 2015,

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

PROCEDURE

1.  The case originated in an application (no. 31269/06) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Romanian nationals, Mr Daniel Viorel Pop, Mr Ion Florin Roman, Mr Zoltan Vasile Szilaghyi and Mr Zoltan Ştefan Vrasgyak (“the applicants”), on 16 June 2006.

2.  The applicants were represented by Mr V. Jurj, a lawyer practising in Baia Mare. The Romanian Government (“the Government”) were represented by their co-Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.

3.  The applicants alleged a breach of their rights guaranteed by Article 6 §§ 1 and 3 as well as Article 8 of the Convention, because they had been unable to prepare their defence on account of lack of access to the secret surveillance file containing the complete transcripts of their telephone conversations; the secret surveillance file had not adequately been adduced and discussed at the trial in their presence, and the domestic courts had relied mainly on unlawfully obtained recordings of their telephone conversations to convict them. Moreover, the domestic courts had lacked impartiality and independence in so far as the third and the fourth applicant had been convicted by military courts and the courts had failed to examine the appeal point raised by the fourth applicant concerning his argument that a criminal investigation had not been initiated against him. Lastly, the authorities’ unlawful monitoring of their telephone conversations amounted to an interference with their right to respect for their private lives.

4.  On 6 October 2011 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1967, 1974, 1953 and 1961 respectively and live in Baia Mare.

6.  On 1 April 2001 the Cluj Military Security Department started secretly monitoring the applicants’ telephone conversations on the basis of an order issued by the Military Prosecutor’s Office attached to the National Anti-Corruption Prosecutor’s Office (“the Military Prosecutor’s Office”). The surveillance order issued by the Military Prosecutor’s Office was based on Law no. 51/1991 on national security (“the National Security Act”). The applicants were suspected of being part of a network trafficking in Schengen visas.

7.  The first two applicants were at the material time Romanian army officers, while the last two applicants were civilians.

8.  On 2 October 2002 the first two applicants were questioned for the first time at the Military Prosecutor’s Office as part of the investigation initiated by the domestic authorities against a network of individuals trafficking in Schengen visas. At the material time the two applicants had not been charged with any offence and were not assisted by a lawyer. The first applicant had allegedly been pressurised by the prosecutor to sign a written statement. The second applicant was detained by the Military Prosecutor’s Office for twenty hours, allegedly without an arrest warrant in his name and without being informed about the reasons for his detention.

9.  On 3 October 2002 the second applicant was heard by the Military Prosecutor’s Office for the second time. No charges had been brought against him at the time. He was informed of his right to be assisted by a legal representative and agreed that one could be appointed for him.

10.  On 12 December 2002 the third applicant was questioned at the Military Prosecutor’s Office for the first time. At the time he had not been informed of the charges brought against him and he was not assisted by a lawyer.

11.  On 13 December 2002 the fourth applicant was questioned for the first time at the Military Prosecutor’s Office. At the time he had not been charged with any criminal offence and was not assisted by a legal representative. His written statement contained only confirmation that he had been using a company mobile phone and the phone number attached to the phone since May 2000. On the same day the fourth applicant was summoned to appear at the Military Prosecutor’s Office on 16 December 2002.

12.  By a Military Prosecutor’s Order issued on the same date a criminal investigation was opened (ȋnceperea urmăririi penale) against the first three applicants for complicity in bribery and aiding an offender. The Prosecutor’s Order did not expressly state that a criminal investigation had been opened against the fourth applicant as well, although his name and the unlawful act he was suspected of was mentioned in the order.

13.  On the same date, in the presence of the chosen legal representative of the first two applicants and of the officially appointed legal representative of the third applicant, the previously mentioned three applicants were charged by the domestic authorities with complicity in bribery and aiding an offender, and were heard in respect of the charges brought against them. They maintained and reiterated their previous statements and they were presented with the evidence available in the file. In addition, they stated that they did not request any other evidence.

14.  On 16 December 2002, in the presence of an officially appointed legal representative, the fourth applicant was charged with complicity in bribery and was questioned in respect of the charges brought against him. He too reiterated his previous statement. He was presented with the evidence available in the file.

15.  On 20 December 2002 the Military Prosecutor’s Office indicted the four applicants and sent their case to trial before the Bucharest Military County Court. The Military Prosecutor’s Office relied mainly on transcripts of the recordings of the applicants’ telephone conversations, witness statements by some of the individuals the applicants had unlawfully helped to obtain visas, and the applicants’ own statements.

16.  On 23 and 24 December 2002 three newspaper articles were published in a national newspaper and on news websites reporting on the four applicants’ indictment and the offences they were suspected of.

17.  At the hearing of 4 March 2003 the applicants sought an adjournment of the proceedings in order to allow them to acquaint themselves with the contents of the secret file of the case to prepare their defence.

18.  At the hearing of 11 March 2003 the four applicants were heard by the Bucharest Military County Court. They all maintained their statements given before the domestic authorities over the course of the criminal investigation. The first-instance court also ordered the summoning of the individuals unlawfully helped by the applicants to obtain visas, although the applicants expressly stated that they did not insist on those people being heard.

19.  At the hearing of 18 March 2003 the first-instance court heard some of the witnesses summoned on 11 March 2003 and ordered the re-summoning of the witnesses who had not attended the hearing, although the applicants had once more expressly stated that they did not insist on the remaining witnesses being heard.

20.  At the hearing of 26 March 2003 the first-instance court ordered the re-summoning of the witnesses who had not attended the previous hearings, although the applicants had expressly stated that the hearing of those witnesses was not necessary and could not provide any new information in respect of the circumstances of the case.

21.  At the hearing of 8 April 2003 the first-instance court allowed the applicants to submit documentary evidence and acceded to their request that the hearing of the remaining witnesses be dispensed with as not necessary to the case. In addition, it noted that no other demands or requests for evidence had been lodged by the applicants, and declared the judicial investigation of the case closed. The court adjourned the hearing in order to allow the parties to make written submissions.

22.  By a judgment of 22 April 2003 the Bucharest Military County Court convicted all the applicants of complicity in bribery and aiding an offender, and sentenced them to prison terms of between six months and three years and six months. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. It found amongst other things that once they had been presented with the transcripts of their phone conversations the applicants had admitted to committing the offences they were charged with. Moreover, the transcripts of the applicants’ telephone conversations contained proof of their involvement in unlawful activities, although the court held that the secret monitoring of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, in spite of the court’s repeated requests, the prosecution had failed to submit: the Military Prosecutor’s Office’s order authorising the tapping of the applicants’ phones between 17 April 2001 and 2 October 2002; the complete transcripts of the recordings; the certification of the recordings’ authenticity; and the records containing the list of the telephone numbers monitored by the authorities. The applicants appealed against the judgment.

23.  On 11 November 2003 the Military Court of Appeal, sitting in a panel of judges which included the judge P.P., allowed the applicants’ appeal, quashed the judgment of 22 April 2003, and ordered a retrial from the moment of deliberation. The court of appeal held that the first-instance court had disregarded the applicable rules on criminal procedure and had deliberated on the case in a single-judge formation, while the legal requirement was a two-judge formation.

24.  By an interlocutory judgment of 5 March 2004 the Bucharest Military County Court allowed the applicants’ request for the hearing of the witnesses C.C., M.P. and A.M., after their legal representative took it upon himself to submit to the court the addresses of the aforementioned witnesses. In addition, the court allowed of its own motion the parties to submit observations on the admissibility as evidence of the transcripts of the recordings of the applicant’s telephone conversations included in the secret surveillance case file. Furthermore, it noted that the applicants’ legal representatives had argued that the aforementioned recordings had been carried out unlawfully and could not be considered as evidence in the case. The court also ordered the summoning by orders to appear (mandate de aducere) of all the witnesses mentioned by the Military Prosecutor’s Office in the order of indictment who had not previously been heard by the court, including the three witnesses expressly requested by the applicants. Lastly, it ordered the Military Prosecutor’s Office to provide additional explanations concerning the lawfulness of the interception of the applicants’ telephone conversations, the recordings of which were attached to the secret surveillance file of the case.

25.  On the same date the applicants’ legal representative submitted to the court the addresses of witnesses C.C., M.P. and A.M.

26.  At the hearing of 23 March 2004 the first-instance court noted that only some of the summoned witnesses were present, and proceeded to hear them. Witnesses C.C., P.M. and M.A. had not attended the hearing. In addition, it ordered the re-summoning of some of the missing witnesses, but not of witnesses C.C., P.M. and M.A.

27.  By an interlocutory judgment of 6 April 2004 the first-instance court acknowledged the applicants’ decision not to insist on the hearing of the absent witnesses. In addition, it noted that according to the applicants’ submission the recordings of their telephone conversation could not be adduced to the file because they had been unlawful. Also, the Prosecutor’s Order of 13 December 2002 did not expressly state that a criminal investigation had been opened against the fourth applicant as well, probably because there had been confusion between the fourth and the third applicants’ names.

28.  By a judgment of 15 April 2004 the Bucharest Military County Court convicted the applicants of complicity in bribery and aiding an offender and sentenced them to prison sentences of between six months and two years. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. In delivering its sentence the court relied mainly on the witnesses’ and the applicants’ statements. It also held that the transcripts of the recordings of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, after the recording of the conversation the investigating authorities had to produce records containing information about the authorisation for the surveillance, the names and numbers of the telephones used for the recorded conversations, the date and time of each conversation, and the number of the device on which the conversation had been recorded. Also, the full content of the conversation had to be reproduced in writing and certified as authentic. Moreover, the original device containing the conversation bearing the seal of the investigating body had to be made available. However, the Military Prosecutor’s Office had failed to submit the full content of the recordings to the court, although it had repeatedly been asked to do so. Furthermore, the court had requested the prosecutor’s office to submit information on whether the recordings of the applicants’ telephone conversations attached to the case file had met the lawful requirements of the Criminal Procedure Code, without success. Lastly, the court had failed to examine the fourth applicant’s argument concerning the failure of the prosecutor’s order to expressly state that a criminal investigation had also been opened against him. The applicants appealed against the judgment.

29.  They argued that the first-instance court had wrongly assessed the evidence and misinterpreted the applicable legal provisions, and that the domestic authorities had failed to open a criminal investigation against the fourth applicant.

30.  The hearings before the Military Court of Appeal were adjourned three times, on 13 September, 18 October and 22 November 2004, on account of the authorities’ failure to summon some of the parties. The merits of the case were not examined by the domestic court on the above-mentioned dates. Judge P.P. was a member of the panel of judges on all three occasions. There is no evidence in the file that the applicants challenged the composition of the court or that they raised this argument before the domestic courts at a later stage of the proceedings.

31.  By a judgment of 31 January 2005 the Military Court of Appeal dismissed the applicants’ appeal. It held amongst other things that although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. The applicants appealed on points of law (recurs) against the judgment.

32.  The applicants reiterated their arguments that the lower courts had wrongly assessed the evidence and misinterpreted the applicable legal provisions. The fourth applicant also submitted that the lower courts had failed to examine his argument concerning the failure of the domestic authorities to open a criminal investigation against him.

33.  By a final judgment of 22 December 2005 the Court of Cassation, sitting as an ordinary criminal court, dismissed the applicants’ appeal on points of law. It held that the lower court had correctly assessed the available evidence and established the applicants’ guilt. The applicants’ arguments that the offences had not taken place had been examined in detail by the lower courts, were rebutted by their own actions, and did not have any lawful grounds. Although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the lower courts had correctly established that the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. In this context, the obstruction of the investigation by the second applicant could not be ignored. On 2 October 2002 the second applicant had telephoned the wife of one of the co-accused to ask her to “hide and destroy a diary” which contained a breakdown of the money taken from the victims by the aforementioned co-accused. Consequently, the second applicant’s guilt had also been correctly established. There is no evidence in the file that the last-instance court examined the appeal point raised by the fourth applicant.

34.  The applicants submitted to the Court a number of newspaper advertisements allegedly published by several third parties offering to act as intermediaries for visa applications.

II.  RELEVANT DOMESTIC LAW

35.  The legislation in force at the relevant time concerning telephone tapping, including the National Security Act, is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).

36.  The legislation in force at the relevant time concerning the jurisdiction and competence of the military courts is described in Maszni v. Romania (no. 59892/00, § 25, 21 September 2006).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

37.  The applicants complained that they had been unable to prepare their defence on account of lack of access to the secret surveillance file containing the complete transcripts of their telephone conversations; the secret surveillance file had not adequately been adduced and discussed at the trial in their presence, and the domestic courts had relied mainly on the unlawfully obtained recordings of their telephone conversations to convict them. Moreover, the domestic courts had lacked impartiality and independence, in so far as the third and the fourth applicant had been convicted by military courts and the courts had failed to examine the appeal point raised by the fourth applicant concerning his argument that no criminal investigation had been initiated against him. They all relied on Article 6 of the Convention, the relevant part of which reads as follows:

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

3.  Everyone charged with a criminal offence has the following minimum rights ...

(b)  to have adequate time and facilities for the preparation of his defence ...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”

A.  The lack of access to the secret surveillance file and the reliance of the domestic courts on the unlawfully obtained recordings of their telephone conversations

(a)  Submissions of the parties

38.  The Government submitted that the criminal proceedings opened against the applicants had been fair. In addition, although they were assisted by a legal representative of their choosing the applicants failed to raise their complaint before the domestic courts. Apart from the time when the first-instance court of its own motion invited the parties to submit observations on the admissibility as evidence of the transcripts of the recordings of the applicants’ telephone conversations included in the secret surveillance case file, the applicants had never raised any arguments in that respect, either before that time or since. Moreover, the first-instance court acknowledged in its judgment of 15 April 2004 that the said evidence had been unlawful, and decided to discard it.

39.  The Government also contended that it was only the domestic courts who had insisted that the prosecutor’s office submit all the evidence in the secret surveillance file, namely the full transcripts of the recordings of the applicants’ telephone conversations, and who decided to discard the said evidence when they noticed that the prosecutor’s office’s response to their requests had been negative.

40.  The Government submitted that the applicants’ conviction was not based on the transcripts of the recordings of their telephone conversations. The domestic courts relied on the applicants’ statements and the statements available in the file. In addition, the applicants had acknowledged before the first-instance court that they had committed the offences. Furthermore, they had not expressly contested the existence of the recordings or their content, either at the pre-trial stage of the proceedings or before the domestic courts.

41.  The applicants submitted that they had exhausted the available domestic remedies. Also, although the domestic courts had decided to discard as evidence the transcripts of the recordings of their telephone conversations, those courts had in fact relied exclusively on the aforementioned recordings to convict them. In addition, the applicants were refused access to the secret surveillance file containing the full transcripts of the recordings of their telephone conversations, and therefore were unable to contest the veracity of those recordings.

(b)  The Court’s assessment

42.  The Court considers that the Government’s submission that the applicants failed to raise their complaint before the domestic courts amounted to a preliminary objection of non-exhaustion of domestic remedies.

43.  The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them (see McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).

44. The Court notes in the instant case that after the applicants argued before the first-instance court that the recordings of their telephone conversations had been carried out unlawfully and could not be considered as evidence in the case, the aforementioned court discarded them as evidence and relied exclusively on other evidence to convict the applicants.

45.  While it appears from the available evidence that the second-instance court relied on the recordings of the applicants’ telephone conversations in order to dismiss their appeal against the judgment of the first-instance court, there is no evidence in the file that the applicants contested that shortcoming of the second-instance court’s judgment before the last-instance court, or that they asked the latter court to correct it. In addition, they had also failed to complain before the last-instance court about the lack of access to the secret surveillance file containing the complete transcripts of their telephone conversations, or about the fact that the secret surveillance file had not adequately been adduced and discussed at the trial in their presence.

46.  The Court notes that it has already had the opportunity to examine the scope of the Court of Cassation’s powers when examining appeals on points of law similar to the one lodged in the present case, namely after a first appeal had already been decided by a lower court. It found that proceedings before the Court of Cassation were full proceedings governed by the same rules as a trial on the merits, with the court being required to examine both the facts of the case and questions of law. The Court of Cassation could decide either to uphold the applicants’ conviction or to acquit them, after making a thorough assessment of the question of guilt or innocence. If the necessity to correct shortcomings of the proceedings arose from the circumstances of the case, the Court of Cassation could either retain the case for re-examination or if appropriate refer the case to a lower court in accordance with the provisions of the Code of Criminal Procedure in force at the material time (see Văduva v. Romania, no. 27781/06, § 43, 25 February 2014).

47.  In this context, the Court considers that by failing to raise their complaint before the last-instance court the applicants exposed themselves to the risk of having their conviction based on the transcripts of the recordings of their phone conversations even though they had not had access to the secret surveillance file containing the aforementioned transcripts, and the file had not adequately been adduced and discussed at the trial in their presence.

48.  In the light of the above, the Court considers that this part of the applicants’ complaints must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

B.  Lack of impartiality and independence in so far as the third and the fourth applicant were convicted by military courts

1.  Admissibility

49.  The Court notes that the third and fourth applicants’ complaint that the domestic courts lacked independence and impartiality because they were convicted by military courts 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 and that the Government have not made any submissions to the contrary. It must therefore be declared admissible.

2.  Merits

(a)  Submissions of the parties

50.  The third and fourth applicants did not submit observations in respect of this part of their complaints.

51.  The Government submitted that Article 35 of the Romanian Code of Criminal Procedure in force at the material time provided that the military courts had the exclusive competence to examine cases where unlawful acts had been committed jointly by civilians and military personnel. Subsequently, however, Law no. 356/2006 published in the Official Gazette of 7 August 2006 amended the aforementioned provisions of the Romanian Criminal Procedure Code and acknowledged the civilian courts to be competent in examining cases where a conflict of competence existed between military and civilian courts.

52.  The Government argued that the aforementioned legal avenues existed without any external influence, were a consequence of the proper functioning of the Romanian legislative branch, and complied with the requirements set out in the Court’s relevant case-law.

(b)  The Court’s assessment

53.  The Court observes that it has already had the opportunity to look into the question of the impartiality and independence of the Romanian military courts examining the merits of criminal cases opened against civilians, and has held that concerns raised by a Romanian civilian in respect of the independence and impartiality of the aforementioned courts were objectively justified, and therefore such proceedings were not compatible with the requirements of Article 6 of the Convention (see Maszni v. Romania, no. 59892/00, §§ 53-60, 21 September 2006).

54.  The Court notes that the circumstances of the present case are similar to those in the case of Maszni. Both the third and the fourth applicant are civilians who were tried for regular criminal offences and the first and the second-instance courts which examined the merits of their case were military courts composed exclusively of military judges.

55.  However, unlike in the case of Maszni, the last-instance court which examined their case was an ordinary court, namely the Court of Cassation, which was composed exclusively of civilian professional judges.

56.  The Court reiterates that although the possibility exists that the highest court might, in some circumstances, make reparation for the initial failures of the lower courts (see De Cubber v. Belgium, 26 October 1984, § 33, Series A no. 86), in the present case the Court of Cassation, sitting as an ordinary criminal court, failed to remedy the issue in question, as it only reviewed the case and the available evidence without directly taking evidence, and upheld the conviction and sentences of the applicants (see Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005-...). Moreover, even if the applicants had complained before the last-instance court about the impugned issue, the aforementioned court would have been unable to remedy the defect in question on account of Article 35 of the Romanian Code on Criminal Procedure in force at the material time, which provided that the military courts had the exclusive competence to examine cases where unlawful acts had been committed jointly by civilians and military personnel (see Maszni, cited above, § 58).

57.  As to the information supplied by the Government that with effect from 7 August 2006 the Romanian legislation has been amended to bring it into line with the Convention (see paragraph 51 above), the Court would point out that its task is limited to assessing the specific circumstances of the case, and does not consider that it can conclude that a case no longer has a valid legal interest for the applicant on the ground that there have been changes in domestic legislation since the material time (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 38, ECHR 2001-VIII).

58.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention in respect of Mr Zoltan Vasile Szilaghyi and Mr Zoltan Ştefan Vrasgyak.

C.  Failure of the domestic courts to examine the appeal point raised by the fourth applicant

(a)  Submissions of the parties

59.  The Government submitted that the applicant, who was assisted by a legal representative of his choosing, had raised his complaint before the domestic courts only during the second procedural cycle. In addition, he had argued on 6 April 2004 that the error might have been caused by confusion between his and the third applicant’s name.

60.  They also contended that the fact that the prosecutor’s order of 13 December 2002 did not expressly state that a criminal investigation had been opened against the fourth applicant, and the fact that the domestic courts failed to examine this point raised with them by the aforementioned applicant did not render the investigation carried out against him null ab initio, given that the applicant’s interests or situation had not been affected. The fact that the prosecutor’s order of 13 December 2002 did not expressly state that a criminal investigation had been opened against the fourth applicant as well had been amended by several procedural acts communicated to the applicant. In addition, on 20 December 2002 the fourth applicant had been indicted and his case sent to trial. Consequently, it could not be argued that the fourth applicant had been unaware of the charges brought against him or of the criminal proceedings initiated against him. Also, given his arguments raised before the domestic courts it could not be excluded that he had taken into consideration the fact that the impugned omission did not render the investigation opened against him null ab initio.

61.  The Government further argued that the impugned omission had not affected the fourth applicant’s judicial interest in any way, and he had never argued that his interests had been affected by the aforementioned omission.

62.  The fourth applicant contended that although no criminal investigation had been opened against him he was investigated and heard as a defendant, the domestic courts failed to examine his argument meant to remedy the aforementioned shortcoming.

(b)  The Court’s assessment

63.  The Court reiterates that the effect of Article 6 § 1 is, amongst others, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately met (see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005). Nevertheless, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, §§ 59 and 61, Series A no. 288, and Burg v. France (dec.), no. 34763/02, ECHR 2003-II). The extent to which this duty to give reasons applies may vary according to the nature of the decision, and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A nos. 303-A; Hiro Balani v. Spain, 9 December 1994, § 27, Series A 303-B; and Helle v. Finland, 19 December 1997, § 55, Reports 1997-VIII).

64.  In the present case, the Court notes that the fourth applicant repeatedly complained before the domestic courts that the prosecutor’s order of 13 December 2002 did not expressly state that a criminal investigation had been opened against him as well. In addition, he argued before the second-instance and last-instance courts that the lower courts had failed to examine his argument or to touch on this point of appeal.

65.  The Court also notes that neither the Court of Appeal nor the Court of Cassation ruled on the argument raised by the applicant.

66.  The Court observes, however, that the order of 13 December 2002 mentioned the applicant’s name and the unlawful act he was suspected of. Moreover, in all the domestic proceedings which followed the applicant behaved and was treated by the authorities as an accused. Also, on 20 December 2002 he was indicted and his case was sent to trial. Furthermore, given his submissions before the first-instance court on 6 April 2004, the applicant appears to have been fully aware that the prosecutor office’s omission could have been a simple error generated by a name confusion.

67.  In the light of the foregoing, even though the domestic courts failed to rule on his argument, the Court does not accept that the fourth applicant’s case received an unfair hearing.

68.  It follows that this part of the fourth applicant’s complaints is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

69.  The applicants complained that the authorities’ unlawful monitoring of their telephone conversations amounted to an interference with their right to respect for their private lives. They relied on Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

a)  Submissions of the parties

70.  The Government submitted that the applicants were no longer victims of the alleged violation of the Convention provisions. The first-instance court had examined the lawfulness of the phone-tapping measure and had declared it unlawful on the ground that it had not met the formal requirements demanded by the Romanian Code of Criminal Procedure. Subsequently, the first-instance court did not rely on the aforementioned evidence in order to convict the applicants. Its judgment was also upheld by the appellate courts, which confirmed the assessment carried out by the lower court.

71.  Consequently, the Government contended that the domestic courts had indirectly acknowledged in substance that the provisions of Article 8 of the Convention had been breached. According to the Court’s case law the acknowledgement of a breach of the Convention’s provisions could amount to sufficient just satisfaction for the non-pecuniary damage suffered by the applicants. In addition, the applicants had failed to demand before the domestic courts any compensation for damage as a result of the alleged breach of the Convention provisions, and therefore the domestic courts could have at most only acknowledged the breach claimed, as they did.

72.  The Government also submitted that the applicants had failed to exhaust the available domestic remedies, because according to the available evidence they had not complained before the domestic courts of a breach of their right to private life on account of the surveillance of their phone conversations. In addition, they had not argued either explicitly or implicitly that the domestic law did not provide sufficient guarantees aimed at protecting the individual against arbitrariness at the time of the surveillance.

73.  The Government contended that except for the time when the first-instance court of its own motion invited the parties to submit observations on the lawfulness of the transcripts of the recordings of their telephone conversations included in the secret case file, the applicants had never raised any arguments in that respect, either before that time or since. Even on that occasion they had insisted only on the rejection of the impugned evidence.

74.  The applicants contended that they had not lost victim status, because although the domestic courts examined their arguments concerning the phone recordings they still based their conviction on them. In addition, the simple acknowledgment of a violation was not sufficient to remove victim status in the absence of appropriate redress.

75.  The applicants also submitted that they had exhausted the available domestic remedies and the Government had failed to expressly mention the other remedies the applicants could have exhausted.

b)  The Court’s assessment

76. The Court finds that it is not necessary to examine whether the applicants have victim status as, even assuming that they do, the complaint is in any event inadmissible, for the following reasons.

77.  The Court reiterates that it has already established that at the time when the criminal investigation was carried out against the applicants, the individuals whose telephone conversations had been intercepted by the authorities on the basis of an order issued by a prosecutor did not have an effective remedy to redress the interference, as the prosecutor’s order could not be subjected to any review by a judge or by any other independent authority (see Dumitru Popescu, cited above, § 69; Bucur and Toma v. Romania, no. 40238/04, § 155, 8 January 2013; and Draşoveanu v. Romania (dec.), no. 10239/06, § 16, 3 June 2014).

78.  The Court also observes that the legislative changes which entered into force on 1 January 2004 increased the courts’ powers concerning interception. Therefore, in respect of applicants whose cases were pending at the time before domestic courts with full jurisdiction to examine the merits of their complaint, it found that they could have opted to contest the lawfulness of the interception and covert recording during the trial against them; this would have made it sensible for them to await the outcome of the domestic proceedings before lodging their complaint before the Court (see Bălteanu v. Romania, no. 142/04, §§ 36 and 37, 16 July 2013).

79.  In the instant case, the Court notes that the applicants contested the lawfulness of the recordings before the first-instance court. The aforementioned court found that the recordings did not comply with the requirements set out by the relevant criminal procedure rules, and discarded them as evidence from the file. While the second and the last-instance courts relied on the telephone recordings in order to confirm the applicants’ convictions, the Court notes that the applicants failed to continue to contest the lawfulness and authenticity of the recordings during the entire course of the proceedings, and in particular before the last-instance court, which was fully competent to examine the merits of their case.

80.  While the Court agrees that in the particular circumstances of the present case the applicants’ choice to await the outcome of the domestic proceedings before lodging their complaint before the Court was appropriate, it considers that they should also have raised their complaint, at least before the last-instance court.

81.  In the light of the above, the Court considers that given the particular circumstances of the present case this part of the applicants’ complaints must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

82.  Relying on Articles 5, 6, 14 and 34 of the Convention the applicants raised a large number of other complaints concerning alleged breaches of their rights guaranteed by the Convention.

83.  The Court has examined these complaints as submitted by the applicants. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, 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 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

84.  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

85.  Mr Zoltan Vasile Szilaghyi and Mr Zoltan Ştefan Vrasgyak each claimed 30,000 euros (EUR) in respect of pecuniary damage for the alleged loss of revenue they had suffered during the criminal proceedings opened against them. In addition, the two applicants each claimed EUR 100,000 in respect of non-pecuniary damage on account of the suffering they had endured during the proceedings.

86.  The Government contended that there was no causal link between the two applicants’ pecuniary damage and the violations found. In addition, the two applicants failed to submit any substantiating documents regarding their alleged pecuniary damage. Furthermore, the two applicants’ claims for non-pecuniary damage were disproportionate and grossly exaggerated and the finding of violation would amount to sufficient just satisfaction.

87.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the third and the fourth applicant. However, the Court takes the view that, as a result of the violation found, the applicants undeniably suffered non-pecuniary damage which cannot be made good merely by the finding of a violation.

88.  Consequently, making an assessment on an equitable basis, the Court awards each of the two applicants EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.  Costs and expenses

89.  Mr Zoltan Vasile Szilaghyi and Mr Zoltan Ştefan Vrasgyak each claimed EUR 10,000 for costs and expenses incurred before the domestic courts and the Court. The two applicants submitted a copy of the legal assistance contract signed with their legal representative for assistance before the Court for a fee of EUR 3,000 each. The contract noted that the aforementioned fee had not been paid. Also they submitted receipts attesting the payment of RON 720 (approximately EUR 180) each for judicial costs. Furthermore, the third applicant submitted a receipt attesting the payment of a lawyer’s fee of 3,000,000 Romanian lei (ROL) (approximately EUR 75) during the proceedings before the domestic courts. Lastly, together with the first and second applicants, they submitted a return train ticket allegedly bought for their travels to appear before the domestic courts, amounting to RON 450 (approximately EUR 120).

90.  The Government submitted that there was no link between the alleged violations of the Convention and the domestic legal costs allegedly incurred by the applicant, as they would have incurred them regardless of the outcome of the proceedings before the Court. In addition, the applicants had not paid any of the fees mentioned by the legal assistance contract signed with their legal representative to assist them before the Court. In any event, the amount claimed was disproportionate, taking into account the complexity and the nature of the issues dealt with by the case.

91.  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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award each applicant the sum of EUR 1,500 for costs and expenses in the domestic proceedings and for the proceedings before the Court.

C.  Default interest

92.  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 complaints concerning the lack of impartiality and independence of the domestic courts in so far as Mr Zoltan Vasile Szilaghyi and Mr Zoltan Ștefan Vrasgyak had been convicted by military courts admissible, and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 6 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay Mr Zoltan Vasile Szilaghyi and Mr Zoltan Ștefan Vrasgyak, each, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 24 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                                   Josep Casadevall
Deputy Registrar                                                                       President