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THIRD
SECTION
CASE OF POPA AND TĂNĂSESCU v. ROMANIA
(Application
no. 19946/04)
JUDGMENT
STRASBOURG
10
April 2012
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 Popa and Tănăsescu
v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and Santiago
Quesada,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19946/04)
against Romania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Romanian
nationals, Mr Ioan Ştefan Popa (“the first applicant”)
and Mr Aurelian Ştefan Tănăsescu (“the
second applicant”), on 5 April 2004.
- The
first applicant was represented by Mr S. Bartha and
Mr M. Stoica, lawyers practising in Bucharest. The second
applicant was initially represented by Mr. I. Căpăţână,
a lawyer practising in Bucharest. During the proceedings before the
Court he withdrew the power of attorney granted to his lawyer and was
authorised to represent himself. The Romanian Government
(“the Government”) were represented by their Agent,
Mr Răzvan Horaţiu Radu.
- As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of the Rules
of Court), the President of the Chamber appointed Mr Mihai Poalelungi
to sit as ad hoc judge (Article 26 § 4
of the Convention and Rule 29 § 1 of the
Rules of Court).
4. The
applicants alleged that they had been subjected to an unfair
trial which had resulted in an unfair conviction.
- On 7 July 2009
the President of the Third Section decided to
give notice of the application 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
applicants were born in 1971 and 1974 respectively.
7. The
first applicant started serving a seven-year prison sentence in
October 2007. On 8 January 2012 his sentence was suspended on
probation. According to the latest information submitted by
the second applicant he is serving a prison sentence and is detained
in Ploieşti Prison.
A. The Car Boot Affair
- In
January 2000, the applicants were involved in an affair which had
large scale media coverage called “The Car Boot Affair”
(Afacerea Portbagajul). R.V., the applicants’ friend,
was kidnapped and subjected to ill treatment for almost five
weeks by people paid by a businessman, B.M., to get back money he had
allegedly stolen from the boot of a car belonging to the businessman.
- In
the evening of 11 January 2000, a little before midnight, R.V.
received a phone call from one of his friends, D.C., who informed him
that he was invited at the headquarters of B.M.’s company to
clarify the situation of the stolen money. R.V. accepted the
invitation and went to the place indicated. Immediately after his
arrival, R.V. admitted under threat that he had stolen the money,
with another person. From that moment he was kept prisoner,
permanently guarded by the people being paid by B.M., in different
buildings in Bucharest.
- On
7 February 2000 he was taken to a villa belonging to B.M. in Breaza.
On 14 February 2000, taking advantage of a lapse of attention on the
part of the people guarding him, R.V. climbed out of a window of the
toilets and escaped.
- Immediately
after R.V.’s escape, B.M. left the country in order to avoid
arrest.
B. The role played by the applicants in the kidnapping
and illtreatment of R.V.
- The
role played by the applicants in this affair was highly
controversial.
- The
prosecutors presented them as individuals paid by B.M. to kidnap R.V.
and keep him under guard.
- According
to the statements given by R.V., the victim, and other witnesses, the
applicants were friends of the victim and they were present at the
meeting between B.M. and R.V. as protection for the latter.
- According
to a statement given by a witness, P.C., before the Bucharest County
Court on 28 May 2001, the applicants were sent to the headquarters of
B.M.’s company to protect R.V. and to keep their mutual friends
informed of what was happening.
- In
his statement given on 2 February 2001, D.C. recognised that he had
contacted the applicants and asked them to be present at the meeting.
He also added that they had informed him that their friend R.V.
needed help, which they could not provide as they were outnumbered
and surrounded by armed persons.
- Furthermore,
at the last hearing before the Bucharest County Court held on 8
February 2002, R.V.’s lawyer called for the two applicants to
be acquitted, stressing that they were the victim’s friends,
who had tried to make their friend’s situation easier under the
circumstances.
- According
to the applicants, they were present at the meeting which took place
on 11 January 2000 between their friend and B.M. They informed D.C.
and M.C. (another friend of R.V.) that R.V. would not be released
until he returned the stolen money. When they saw that the people
paid by B.M. had left the headquarters of B.M.’s company with
their friend, they tried to find out where he had been taken. On
being informed that their friend was being kept in a deserted
house outside Bucharest, they went there and tried to release him.
- When
threatened by B.M. and the people paid by him they were forced to
give up and leave. They maintained that they did not inform the
police, because they were frightened by B.M.’s threats.
- Also,
when they found out that D.C.’s house had been set on fire and
that M.C.’s car had been found full of spent bullets, the
applicants decided to run and hide in Moldova until the situation was
clarified even though they knew that warrants had been issued on them
as witnesses.
C. The criminal proceedings against the applicants
- By
a bill of indictment delivered on 25 May 2000 by the prosecutor’s
office attached to the Prahova County Court, the applicants and ten
other defendants were charged with conspiracy to commit a crime under
Article 323 of the Criminal Code and with deprivation of liberty
under Article 189 of the Criminal Code. Their arrest was also
ordered. It was not possible to arrest the applicants as they were
hiding in Moldova.
- On
26 May 2001 the applicants informed the mass media that they intended
to surrender to the Romanian authorities the next day. They alleged
that in this way they had tried to obtain some protection against the
individuals in the pay of B.M., who were continuing to threaten them.
The next day they surrendered to police at Otopeni Airport.
- At
a hearing on 18 July 2001 the Bucharest County Court replaced the
arrest warrant on the applicants with an obligation not to leave the
city, citing as a reason that the justification for keeping them
under arrest had changed in the light of the evidence adduced before
the court.
- By
a judgment delivered on 15 February 2002 the Bucharest
County Court acquitted the applicants. It found the rest of the
defendants guilty as charged and sentenced them to imprisonment (most
of them to seven years). It noted that the victim had stated before
the court that the applicants “did not threaten or hit him or
keep him prisoner, but on the contrary they protected him as much
they could, and maybe if they had not been there he would be dead”.
Furthermore, it referred to the victim’s statement of
12 May 2000, which reads as follows: ”Stef and Auras
untied me and they could not simply just leave as they were
afraid...and on the other hand they tried to calm things down,
helping me as much they could so as not to be killed (omorât
în bătaie)”. The Court also noted that
this statement was in agreement with the statements of the
witnesses B.F., D.C. and M.C.
- The
prosecutor’s office attached to the Bucharest County Court
lodged an appeal, seeking, inter alia, a guilty verdict
on the applicants. It maintained that the applicants were part of the
group controlled by B.M. and that they had contributed to R.V.’s
being held captive, as they had invited him to the place where he was
kidnapped.
- On
5 July 2002 the Bucharest Court of Appeal allowed the appeal in part
but maintained the not-guilty verdict on the applicants. It held that
the mere fact of their presence at the headquarters of B.M’s
company could not lead to the conclusion that they were guilty, in
the absence of any incriminatory evidence.
- The
prosecutor’s office attached to the Bucharest Court of Appeal
lodged an appeal on points of law, again seeking the conviction of
the applicants. In its grounds for appeal it maintained that even if
the applicants could not be convicted as perpetrators they should be
convicted as accomplices.
- At
the last hearing before the High Court of Cassation and Justice held
on 18 September 2003, all the lawyers representing the defendants
submitted oral conclusions on the admissibility of the appeals. No
other evidence was adduced before the court. The applicants were
invited to speak only before the end of the hearing (ultimul
cuvânt al inculpatului). They said that they agreed with
the statements submitted by their lawyers.
- Public
pronouncement of the decision was adjourned until 13 October 2003,
as the court needed more time for deliberation.
- On
13 October 2003 the High Court of Cassation and Justice allowed in
part the appeal on points of law lodged by the prosecutor, set aside
the decisions of the first two courts with respect to the acquittal
of the applicants, and retained the file for fresh consideration
without setting a date for a new hearing. It found the applicants
guilty as charged and sentenced each of them to seven years’
imprisonment.
- The
High Court of Cassation and Justice considered that the findings of
fact by the first-instance courts were not ill-founded and were thus
suitable for appellate review without taking further evidence. Giving
a new interpretation to the facts it found that the applicants’
roles consisted in luring (ademenirea) the victim to the
headquarters of B.M.’s company. It also found that the
applicants were members of B.M.’s group.
- Although
it held that the applicants’ role consisted only of luring the
victim and that they were present only on the evening of 11 January
2000 and the night which followed, they were sentenced to seven
years’ imprisonment, the same punishment received by the other
co-defendants, who had kept R.V. in captivity for the whole five week
period and had subjected him to constant ill-treatment.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions concerning the appeal on points of law of the
Romanian Code of Criminal Procedure as in force at the material time
are described in Constantinescu v. Romania,
no. 28871/95, § 37, ECHR 2000-VIII), and Dănilă
v. Romania, (no. 3897/00, § 26, 8 March 2007).
- Law
no. 356/2006 which amended the Code of Criminal Procedure
made it mandatory for an appeal court to hear an accused when the
first instance court had acquitted him or her. Currently, where
an appeal court quashes a judgment given by a first-instance court,
it must decide on the evidence to be adduced and set a date on which
it will take statements from the accused if the latter has not been
heard or if he or she was acquitted by the first-instance court
(Articles 38514 § 11
and 38516, as amended).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the High Court of Cassation and Justice
had not secured a fair trial, as it had re-examined the case and
worsened their situation without hearing them or allowing them to
adduce evidence in their defence. They relied on Article 6 §§ 1
and 3 of the Convention, which provides:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights:
... (c) to defend himself in person or
through legal assistance of his own choosing ...
(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. Admissibility
- The
Court notes that the 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
Submissions of the parties
- The
first applicant complained that he and the second applicant had been
convicted by the High Court of Cassation and Justice without evidence
being heard from them in person. He submitted that the court of last
resort had ruled solely on the basis of the evidence put before the
court of first instance; it gave a new interpretation to the witness
and defendants statements without making any reference to crucial
statements which in the opinion of the first two courts proved the
applicants’ innocence.
- The
second applicant contended that the High Court of Cassation and
Justice had incorrectly stated in its decision that he was employed
by B.M. in order to associate him with the group of people who were
paid by B.M. to kidnap R.V. and keep him prisoner, although he
submitted a document proving that he had been an employee of another
company, which was not related to B.M.
- He
also contended that since the High Court of Cassation and Justice had
delivered the decision concerning the admissibility of the appeal on
points of law and the merits of the case on the same day, there had
been no proper retrial on the merits. He had not been informed about
the quashing of the two previous court decisions and had not
therefore been allowed to prepare and present his defence before the
court of last resort.
- The
Government submitted that the finding of guilt in relation to the
applicants, reached solely on the basis of the evidence put before
the court of first instance, did not breach the requirements of a
fair trial within the meaning of Article 6 § 1 of the
Convention. They averred that the court of last resort had not
determined new questions of fact, but on the basis of a new
interpretation of the facts it had determined only a question of law
relating to the subjective element of the offence, that is, whether
there had been an intention to commit the offence.
- The
Government contended that the applicants had already had the
opportunity to state their position regarding the charges before the
first-instance court, and that their written statements were
accessible in the file.
- Lastly,
the Government insisted that the applicants’ lawyers had
addressed the High Court of Cassation and Justice during the hearing
of 18 September 2000 and they did not require new evidence to be
adduced before the court. Furthermore, they maintained that the
applicants had addressed the same court last.
2. The Court’s assessment
- The
Court notes at the outset that the requirements of Article 6 § 3
are to be seen as particular aspects of the right to a fair trial
guaranteed by Article 6 § 1, and therefore the
applicant’s complaints under Article 6 §§ 1
and 3 should be examined together (see Sinichkin v. Russia,
no. 20508/03, § 36, 8 April 2010).
- The
Court reiterates that the manner of application of Article 6 to
proceedings before courts of appeal depends on the special features
of the proceedings involved; account must be taken of the entirety of
the proceedings in the domestic legal order and of the role of the
appellate court therein.
- However,
the Court has held that where an appellate court is called upon to
examine a case as to the facts and the law and to make a full
assessment of the question of the applicant’s guilt or
innocence, it cannot, as a matter of fair trial, properly determine
those issues without a direct assessment of the evidence given in
person by an accused who claims that he has not committed the act
alleged to constitute a criminal offence (see Ekbatani v. Sweden,
26 May 1988, § 32, Series A no. 134, Andreescu
v. Romania, no. 19452/02, § 64, 8 June 2010 and Marcos
Barrios v. Spain, no. 17122/07, § 32, 21 September
2010).
- Moreover,
the Court is of the view that, in the determination of criminal
charges, the hearing of the defendant in person should nevertheless
be the general rule. Any derogation from this principle should be
exceptional and subjected to restrictive interpretation. It takes
this view notably because what was at stake for the applicants was
imprisonment, and they were actually sentenced to a seven year
term, which obviously carried a significant degree of stigma.
- Accordingly,
in order to determine whether there has been a violation of Article 6
in the instant case, an examination must be made of the role of the
High Court of Cassation and Justice and the nature of the issues
which it was called upon to try.
- The
Court reiterates that in the instant case the scope of the High Court
of Cassation and Justice’s powers, sitting as an appellate
court, is set out in Articles 38515and 38516of
the Code of Criminal Procedure. In accordance with Article 38515,
the High Court of Cassation and Justice, sitting as an appellate
court, can give a fresh judgment on the merits. On 13 October 2003
the High Court of Cassation and Justice quashed the judgment of
15 February 2002 and the decision of 5 July 2002
and gave a fresh judgment on the merits. According to the
above-mentioned legal provisions, the effect of this was that the
proceedings in the High Court of Cassation and Justice 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 High Court of Cassation and Justice could
decide either to uphold the applicants’ acquittal or convict
them, after making a thorough assessment of the question of their
guilt or innocence.
- The
Court notes that, having quashed the decisions to acquit made by the
first two courts, the Bucharest County Court and Bucharest
Court of Appeal respectively, the High Court of Cassation
and Justice determined two criminal charges against each applicant,
convicting them without hearing evidence from them.
- The
Court is not satisfied with the Government’s argument, that the
fact that the accused addressed the court last was sufficient in the
present case. Therefore, it stresses that, although an accused’s
right to address the court last is certainly of importance, it cannot
be equated with his right to be heard by the court during the trial
(see Constantinescu, cited above, § 58; Andreescu,
cited above, § 68; and Spînu v. Romania,
no. 32030/02, § 58, 29 April 2008).
- Moreover,
the High Court of Cassation and Justice only heard the parties on the
admissibility of the appeals and did not inform the applicants of its
intention to quash the decisions delivered by the Bucharest Court
of Appeal and Bucharest County Court and to re examine the
merits of the accusation. The Court considers that, as a matter of
fair trial, a court cannot quash a previous judgment and reassess
evidence without properly informing the interested parties and
allowing them the opportunity to present their case.
- The
failure to hear the accused in person is even more difficult to
accommodate with the requirements of a fair trial in the specific
circumstances of this case, where the court of last resort carried
out an assessment of the subjective element of the alleged offence,
namely the applicants’ intent to commit the offences, and was
the first court to convict them in proceedings brought to determine a
criminal charge against them (see Constantinescu, cited above,
§ 59, Andreescu, cited above, § 70, Igual Coll
v. Spain, no. 37496/04, § 35, 10 March 2009 and
Marcos Barrios, cited above, § 40).
- The
Court acknowledges the changes in the domestic legislation which seem
to bring criminal procedures closer to the Convention requirements on
this point (see paragraph 34 above). Nevertheless, those changes
occurred in 2006 and thus remain without relevance for the instant
case.
- The
foregoing considerations are sufficient to enable the Court to
conclude that in the instant case the High Court of Cassation and
Justice failed to comply with the requirements of a fair trial.
- Since
that requirement was not satisfied, the Court considers that there
has been a violation of Article 6 § 1 in
conjunction with Article 6 § 3 (c) and (d)
of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 5 of the Convention that
they were arrested on the basis of an order issued by a prosecutor
who according to the Romanian Constitution could not be considered a
magistrate. They also claimed that their arrest was ordered by a bill
of indictment, contrary to Romanian law. In this respect the Court
notes that the bill of indictment ordering their arrest was issued on
25 May 2000, while their application was lodged with the Court on
5 April 2004.
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant claimed 29,614 euros (EUR) in respect of
pecuniary damage, representing the salary to which he would have been
entitled during his detention and the expenses he incurred during
his detention. The second applicant claimed EUR 81,905 in
respect of pecuniary damage, of which EUR 57,500 represented the
amount he lost because he was forced to sell his apartment and
EUR 24,405 the salary to which he would have been entitled if
not detained and the cost of the expenses he incurred during
detention.
In
respect of non pecuniary damage, the first applicant asked for
EUR 10,000 and the second applicant for EUR 30,000
justified by the pressure, stress and suffering to which they were
exposed by the Romanian authorities.
- The
Government stated that the amounts claimed by the applicants for
pecuniary damage were speculative, excessive and not proven.
In
respect of the compensation for non-pecuniary damage claimed by the
applicants, the Government stated that it was excessive and asked the
Court, if it found a violation, to consider that violation of itself
to be sufficient just satisfaction.
- The
Court notes that in the present case an award of just satisfaction
can only be based on the fact that the applicants did not have the
benefit of the guarantees of Article 6. Whilst the Court cannot
speculate as to the outcome of the trial had the position been
otherwise, it considers that the applicants suffered a non-pecuniary
damage.
- Therefore,
ruling on an equitable basis, in accordance with Article 41, it
awards them EUR 5,000 each in respect of non pecuniary
damage.
- Moreover,
the Court reiterates that when a person, as in the instant case, was
convicted in domestic proceedings which failed to comply with the
requirements of a fair trial, a new trial or the reopening of the
domestic proceedings at the request of the interested person
represents an appropriate way to redress the inflicted violation. In
this respect, it notes that Article 408 1 of the Romanian
Code of Criminal Procedure provides for the possibility of revision
of a domestic trial where the Court has found a violation of an
applicant’s fundamental rights and freedoms.
B. Costs and expenses
- The
first applicant also claimed EUR 5,830 for costs
and expenses incurred before the domestic courts and the Court
representing lawyers’ fees, translation fees and transport
fees. He submitted invoices for 6,500 Romanian lei (RON)
paid to the lawyers and RON 1,500 paid for translation.
The
Government considered that the first applicant had justified with
invoices only RON 6,500 representing expenses for lawyers’
fees.
The
second applicant claimed EUR 4,500 for lawyers’ fees and
EUR 300 for translation of documents submitted to the Court and
correspondence costs.
The
Government contended that the second applicant had not submitted
documents to justify those expenses and costs.
- 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 rejects the claim for costs and
expenses lodged by the second applicant and considers it reasonable
to award the sum of RON 8,000 (the equivalent of EUR 1,900)
to the first applicant to cover costs and expenses in the
proceedings before the Court.
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
- Declares the complaint concerning the fairness
of the proceedings under Article 6 § 1 in
conjunction with Article 6 § 3 (c) and (d) of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article 6 §
1 in conjunction with Article 6 § 3 (c) and (d) of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months of 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
respondent State’s national currency at the rate applicable at
the date of settlement:
(i) EUR 5,000
(five thousand euros), plus any tax that may be chargeable to each of
the two applicants, in respect of non pecuniary damage;
(ii) EUR 1,900
(one thousand nine hundred euros), plus any tax that may be
chargeable to the first applicant, 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
