MĂLĂESCU v. ROMANIA
Inadmissible
Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Vasile Mălăescu, is a Romanian national who was born in 1947 and lives in Ploieşti. He was represented before the Court by Ms G. Bârlă, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. At the time of the events giving rise to the present application, the applicant was a judge at Vălenii de Munte District Court, in Prahova County. 4. On 17 January 2006 P.C. informed the Ploieşti AntiCorruption Department of the Prosecutor’ Office that on 16 January the applicant had requested money from him as a reward for having drafted a judgment that he had delivered in a civil lawsuit won by P.C. According to P.C.’s statements, the applicant asked for 1,000,000 Romanian lei (ROL) in order to fill up the fuel tank of his car. P.C. was expected to pay the money the next day. 5. On the same day, the prosecutor supplied the money to P.C. in the form of ten banknotes of ROL 100,000 each. They were marked with the inscription “undue benefits” (foloase necuvenite) in a special ink. The prosecutor also gave authorisation for the recording of conversations between the applicant and P.C. In so doing, he relied on Article 912 § 2 of the Code of Criminal Procedure (“CCP”) which, in urgent cases, allows the interception of communications without a judge’s order. 6. On 18 January 2006 at 8 a.m. P.C. went to the applicant’s office fitted with an audio-video recorder. The applicant greeted P.C. and asked him if “that paper had been good” (which the prosecutor explained as referring to the court judgment delivered by the applicant). He accepted the money from P.C., confirmed that the amount was correct, and then put the banknotes in his pocket. 7. After P.C. had left, the prosecutor and a police officer entered the applicant’s office and found the applicant sitting at his desk. The applicant admitted having received money from P.C. and, at the prosecutor’s request, took the notes out of his pocket and handed them to the prosecutor. Eight banknotes of ROL 100,000 each were found, bearing the markings in special ink inscribed by the prosecutor beforehand. The remaining two banknotes were found in P.C.’s pocket. He explained that he had not handed them over to the applicant because the latter had been in a hurry to get the money from him and see him out of the office. 8. On 18 January 2006 the prosecutor instituted a criminal prosecution against the applicant (începerea urmăririi penale) and informed the applicant, in the presence of his counsel, of the charges brought against him. The applicant gave a statement. He admitted having received the money, but denied having asked P.C. for anything. He pointed out that P.C. had come to his office uninvited. 9. On 18 January 2006 the Ploieşti Court of Appeal reaffirmed the prosecutor’s authorisation for the interception of conversations. 10. The applicant was interviewed again by the prosecutor on 19 January and was brought face to face with P.C. The court clerk who typed the judgments delivered by the applicant was interviewed by the prosecutor. She confirmed that on 16 January 2006, while she was working with the applicant, P.C. had entered the applicant’s office and had asked if his judgment had been typed. The court clerk left the applicant’s office and was unable to say how the conversation between the judge and P.C. had gone. Later that day, the applicant told her that they should type out P.C.’s court judgment, but then they both realised that the judgment had been drafted that very morning, before P.C.’s visit. 11. The court clerk who had been present during the applicant’s court hearing which had resulted in the judgment favourable to P.C. declared that on 16 January 2006, after drafting the judgment, the applicant had brought the case file to her office, and that later on the same day he had returned with P.C. and had asked her to provide the latter with a copy of the judgment. 12. On 15 February 2006 the Ploieşti Court of Appeal sitting in private, in the presence of the prosecutor and the applicant, affirmed that the transcripts of the recorded conversations constituted relevant evidence in the case (procedure under Articles 913 and 915 of the CCP) and accepted their addition to the file. The transcripts were attached to the court’s report. 13. On 1 March 2006 the prosecutor committed the applicant for trial before the Ploieşti Court of Appeal on the charge of having received undue benefits (primirea de foloase necuvenite). 14. On 17 April 2006 the High Court of Cassation and Justice, acting at the applicant’s request, transferred the case to the Cluj Court of Appeal. 15. On 21 June 2006 the Court of Appeal heard testimony from the applicant. He maintained that he had not requested any sum of money from P.C. and had not expected to receive money from him either. He explained that when the prosecutor had entered his office he had been about to go out to find P.C. and return the money to him. At the same hearing the applicant argued that the recording of conversations and the marking of the banknotes by the prosecutor constituted elements of the preliminary investigation (acte premergătoare) and that as such they had been unlawfully obtained and could therefore not be used as evidence in the file. 16. P.C. also gave a statement before the court. The two court clerks could not be questioned as they were absent for personal reasons from the court hearings. The defence counsel agreed that the witness statements given before the prosecutor could be read in open court. 17. On 20 September 2006 the applicant was convicted of having received undue benefits and was given a six month suspended sentence. The court established the facts based on the transcripts of the conversations, testimony given by the two court clerks before the prosecutor, and P.C.’s and the applicant’s statements. The court dismissed the applicant’s complaint concerning the alleged unlawfulness of the evidence on the grounds that the prosecutor had respected the procedure provided for by the CCP in the matter and that the court had authorised the recordings and their utilisation in the case. 18. The applicant appealed against the judgment delivered by the Court of Appeal. 19. On 4 April 2007 the High Court of Cassation and Justice, in the presence of the parties, listened to the recordings of the conversations. At the same hearing, the applicant contested some parts of the conversations ‒ pointing out that they did not correspond to the transcripts ‒ and asked for the tapes to be examined by an expert in order to establish whether they had been tampered with. He also reiterated his complaint as to the unlawfulness of the evidence. Lastly, he contended that there was not sufficient evidence in the file to secure his conviction and that there were significant inconsistencies between P.C.’s various statements during the proceedings. 20. In a final decision delivered the same day, the High Court dismissed the applicant’s appeal and, based on the evidence in the file, upheld the judgment delivered by the Court of Appeal as well as its reasoning. The High Court reiterated that the legality of the evidence had been correctly examined, at the applicant’s request, by the first-instance court. It also found the evidence sufficient to establish that the applicant had requested and received money from P.C. It furthermore concluded that ‒ even if it could not be proven that there had been discussions whereby the applicant could have requested money from P.C. ‒ the fact that the applicant had accepted money proved his intent to commit the crime. 21. The legislation concerning interception of conversations in force at the relevant time and its evolution after 1 January 2004 is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 3946, 26 April 2007). 22. Under the Criminal Code it is a punishable act for a public servant to receive money or other undue benefits for a task he has carried out during the exercise of his duty (Article 256). The Anti-Corruption Act (Law no. 78/2000 on the prevention, discovery and punishment of acts of corruption) provides for an aggravating factor if the above crime is committed by a judge (Article 7).