CASE OF NIŢULESCU v. ROMANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1964 and lives in Moreni. 6. On 17 July 2000, R.C.A. was hired as an inspector by the Moreni City Council on the recommendation of the applicant and another person, G.A. She had a contract for a limited period of time, namely three months, which was extended for another three months. In order to obtain a permanent contract she took part in a competition organised by the City Council in February 2001. She succeeded, being the only candidate. After a few months, the atmosphere at the workplace became tense. R.C.A. was on probation in her new post and was therefore monitored and kept under close scrutiny. 7. According to R.C.A.’s statements, she was persecuted by her superiors and even sexually harassed by the mayor. Therefore, she asked for the protection of the applicant, to whom she allegedly gave 1,000 German marks (DEM). 8. According to the applicant’s statement, the money was given to her as a loan with no prearranged date of reimbursement in the summer of 2001. The applicant also stated that another colleague, C.M., had borrowed money from R.C.A., and that the practice of borrowing money from each other was common in their workplace. The applicant’s statements were confirmed by her colleague, who was heard as a witness before the court. 9. On 24 January 2002 R.C.A. denounced the applicant to the police for influence peddling. She claimed that the applicant had asked her for DEM 1,000 in order to persuade the mayor to give her a permanent position within the City Council. 10. On 29 January 2002 R.C.A. obtained the authorisation of the prosecutor’s office attached to the Ploiești Court of Appeal to record conversations between herself and the applicant. Subsequently, all the conversations that took place between the applicant and herself between 29 January and 2 February 2002 were recorded. The recording was carried out using two recording devices, one belonging to R.C.A. and the other to a police officer. 11. Following a request by R.C.A. for the return of the money, the applicant and R.C.A. met in a cake shop close to the applicant’s home on 2 February 2002. The applicant stated that she was accompanied by a colleague, D.C. According to R.C.A.’s version, the applicant was alone, while she herself was accompanied by her husband and brother, who waited outside the cake shop. The applicant handed over to R.C.A. 400 United States dollars (USD) (the equivalent of DEM 1,000). 12. On 4 April 2002 a criminal investigation was initiated against the applicant on the charge of influence peddling. 13. On 12 June 2002 R.C.A. was invited to the prosecutor’s office attached to the Dâmbovița County Court to give clarification on the recordings. After some discussion of the transcripts of the conversations she said she had a headache and left, promising to come back the same day. However, she never came back to continue the discussion with the prosecutor. This was mentioned in the record of the meeting drafted by the prosecutor. 14. On 24 September 2002 the Ploiești Division of the National AntiCorruption Directorate decided to discontinue the investigation against the applicant on the ground that the actus reus of the offence was missing. 15. On 9 December 2002 the chief prosecutor decided to reopen the criminal investigation against the applicant. He noted that the investigation had been incomplete and that there were several aspects to be clarified in connection with the charges against the applicant. He also ordered a preliminary investigation against the mayor of Moreni. 16. On 27 March 2003 R.C.A. enquired the chief prosecutor about the progress of the investigation. She expressed concern about the integrity of the transcripts of the recordings, as she had noted that the parts of the conversations had been erased. 17. The file was presented to the applicant on 5 June 2003. The minute certifying the taped conversations was drafted afterwards, on 13 June 2003. 18. By a bill of indictment of 20 June 2003, the prosecutor’s office committed the applicant for trial on a charge of influence peddling in violation of Article 257 § 1 of the Romanian Criminal Code and Articles 1 (a) and 6 of Law no. 78/2000. By the same decision the prosecutor decided not to open a criminal investigation against the mayor, without giving any reasons. 19. Several hearings were held before the Dâmbovița County Court. 20. According to a witness statement given by the mayor of Moreni before the county court on 4 November 2003, R.C.A. was well known as a person who recorded her private conversations at work, about which many colleagues had complained. A similar aspect was revealed by another witness, G.A. She stated that R.C.A. had changed her behaviour at work after she had obtained a permanent contract. As G.A. was the person who had recommended R.C.A. for the job, other employees informed her that R.C.A. was leaving her office during working hours. G.A. had tried to advise R.C.A. to change her behaviour; she noted that the latter was recording their conversation. 21. On 16 December 2003 the court granted a request by the applicant for a technical report on the contents of the tape recordings. On 4 January 2004 the applicant’s lawyer asked to see the authorisation for the recording of the conversations and the minute drafted of the occasion when R.C.A. handed over the recordings. She also lodged a written request for an expert assessment of the authenticity and integrity of the recordings. 22. On 4 February 2004 the National Institute for Forensic Expert Opinions, which was in charge of the preparation of the report, asked the court to send it all the technical equipment used for the recording of the audio tapes. 23. On 30 March 2003 R.C.A. submitted written notes by which she informed the court that on 12 June 2002 she had refused to confirm that the transcripts of the recorded conversations presented by the prosecutor corresponded to the recordings performed by her (see paragraph 17 above). 24. On 11 May 2004, the court imposed a fine on R.C.A. as she had refused to provide the court with the original tapes and equipment used for recording the applicant. 25. As R.C.A. refused to attend the court hearings or to submit the original tapes, two orders for her to be brought before the court were issued by the county court. 26. By a judgment rendered on 2 July 2004, the Dâmbovița County Court acquitted the applicant on the ground that the elements required for the offence were not present. 27. The county court held that R.C.A.’s version of events was supported only by the testimony of her husband and brother and by the taped conversations, whose authenticity and integrity could not be established by an expert, mainly because R.C.A. had refused to provide the expert with the technical equipment used for the recording. Moreover, R.C.A.’s statements contained many contradictions. In this respect the county court stated: “... although R.C.A. stated that the money was given to the applicant before the competition which was to take place on 6 February 2001, during the proceedings before the court she stated that it was given later, after the competition, then she changed her previous statement only when she was asked by the prosecutor attending the hearing about the logic of such an action ... In conclusion, the statements mentioned above are not corroborated by the facts or circumstances resulting from all the evidence adduced in the case, and cannot be confirmed by the audio recording of the conversations, since these were not executed in accordance with the provisions of Article 911 or with the Code of Criminal Procedure (in force until 1st January 2004, in accordance with Law 281/2003) ... Contrary to the above-mentioned legal provisions, in the case file there are three minutes, all dated 13 June 2003, which mention only that the conversations between R.C.A. and the defendant were authorised under no.502 on 29 January 2002 (although the transcripts from pages 75-78 of the file indicate a previous date, namely 22 January 2002), and after the tapes had been heard it was confirmed that their contents were mentioned in the transcripts. Moreover, according to the letter of 8 April 2004 from the Dâmbovița Police Department and the statements of R.C.A. and the witness B.M., the recording of the conversations was made by devices belonging to R.C.A., who submitted to the criminal investigation body recordings made before she had made her accusations, and thus before she had obtained authorisation from the prosecutor. Despite the fact that a forensic report intended to establish the contents of the audio tapes was ordered at the request of the defendant ... it could not be adduced before the court in the absence of the technical equipment (microphone and tape recorder) used for the recording of the tapes. The Dâmbovița Police Department stated in the abovementioned letter that the police officer’s recording device had been lost, and the other one was in the possession of R.C.A., who had refused to hand it over.” 28. The prosecutor’s office appealed against the judgment rendered by the Dâmbovița County Court. It argued that the applicant’s guilt was proved by the statements of the accuser, R.C.A., and confirmed by the audio recordings of the conversations between R.C.A. and the applicant. 29. On 14 October 2004 the Ploiești Court of Appeal ordered an expert technical report on the authenticity or otherwise of the tape recordings. At the hearing held on 7 March 2005 the court revoked that order on the ground that “R.C.A. no longer has the originals of the audio tapes”. 30. On 15 March 2005, the Ploiești Court of Appeal dismissed the appeal on the ground that the applicant could not be convicted on the basis of recordings obtained in breach of the applicable legal provisions. It noted that the prosecutor had not observed the legal provisions concerning the attestation of the authenticity of the recordings, and considered that the correct procedures for telephone tapping had not been observed. With respect to R.C.A.’s statements the Court of Appeal arrived at the same conclusion as the first-instance court. It held that most of her statements were contradictory and were corroborated only by her husband and brother. However, the applicant’s statement that she had received the money from R.C.A. as a loan was confirmed by the statements of four other colleagues. Two of them stated that they had heard R.C.A. threatening the applicant that she would claim that the money given as a loan was in fact a bribe. 31. The appeal on points of law submitted by the prosecutor was allowed by the High Court of Cassation and Justice on 14 October 2005. That court quashed the decisions of the first two domestic courts and convicted the applicant of influence peddling, sentencing her to two years’ imprisonment, suspended, with probation. Without hearing evidence directly from the applicant, R.C.A. or any witnesses, the court arrived at the conclusion that R.C.A.’s statements were not contradictory and that in fact the applicant’s statements were corroborated only by the testimony of one witness, C.M., a colleague of the applicant and one of the individuals who had also persecuted R.C.A. 32. It mainly based its decision on the statements of R.C.A., the testimony of R.C.A.’s husband and brother and the audio tapes containing the conversations between R.C.A. and the applicant.