CASE OF CONTOLORU v. ROMANIA
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1957 and lives in Târgu-Jiu. 6. On 25 August 2003 the applicant, who was the director of a local bank branch, was arrested and charged with several economic crimes, namely approving loans without respecting the legal requirements, abuse of office, fraud, forgery and conspiracy to commit crimes. Seven other individuals were also charged with various bank frauds allegedly committed in association with the applicant between January 2002 and April 2003. 7. On 27 July 2007 the Sibiu County Court acquitted the applicant of all the charges against him. The court held that the applicant was not guilty of the crimes of abuse of office, fraud, forgery and conspiracy to commit crimes. As regards the crime of approving loans without respecting the legal requirements, the court held that from 26 March 2007 this was no longer an offence in law and therefore acquitted the applicant of this offence too. On 2 November 2011 the applicant’s acquittal was finally upheld by a judgment of the High Court of Cassation and Justice. 8. Following the applicant’s arrest on 25 August 2003 for a period of three days, the investigating prosecutor requested the Gorj County Court to confirm the applicant’s pre-trial detention for a total period of thirty days. The prosecutor reasoned the request by quoting the text of Article 148 (1) of the Code of Criminal Procedure which provided for the cases in which a defendant may be arrested, namely that the defendant had made preparations to abscond from the authorities; that there was sufficient evidence that the defendant had tried to obstruct the investigation by influencing witnesses and destroying evidence; that the defendant had committed crimes for which the punishment was imprisonment for more than four years; that there was evidence that if released the defendant would pose a danger to public order and that there were sufficient data to justify the concern that the defendant would exert pressure on the victim or that he would try to make a fraudulent settlement of the case with the latter. No specific reference was made to the applicant’s situation or to the application of the legislation quoted in his particular case. 9. On 26 August 2003, on the basis of the reasons advanced by the prosecutor, the Gorj County Court granted this request and remanded the applicant in pre-trial custody for twenty-seven days. By the same judgment and with the same reasoning the court remanded the other three co-defendants who were arrested at the same time as he applicant in pre-trial custody. 10. On 29 August 2003 the Craiova Court of Appeal rejected an appeal by the applicant on points of law against the above-mentioned interlocutory judgment as ill-founded. The court held “In the current case the applicant has committed the above-mentioned offences and their nature leads to the conclusion that the defendant’s release would constitute an actual danger to public order.” 11. The applicant’s and his co-defendants’ pre-trial detention was subsequently extended on 10 September 2003, with the reasoning that the motives which had justified their arrest still existed. In taking this decision the court also held relevant the fact that two more suspects had been arrested since the beginning of the investigation. An appeal by the applicant on points of law against this judgment was rejected by the Craiova Court of Appeal on 12 September 2003; the court held that the applicant’s release had been correctly deemed by the lower court to be a threat to public order. 12. Between 10 September and 2 December 2003 the applicant’s and his co-defendants’ pre-trial detention was extended each month by the Gorj County Court with the same reasoning, namely that there was sufficient evidence for the conclusion that the defendants had committed the offences for which they were on trial, and that therefore their release would constitute a danger to public order. On 2 December 2003 the Gorj County Court additionally held that the defendants’ pre-trial detention was also justified by the fact that new crimes had been discovered by the investigators to have been committed at the same bank branch. No details were given about these crimes or about the defendants’ personal situation in this connection. 13. From 23 December 2003 to 24 June 2004 the Gorj County Court extended the applicant’s and his co-defendants’ pre-trial detention jointly, with the reasoning that there were no new facts capable of justifying a revocation of the remand in custody, the defendants had not yet been heard in court, and the financial losses caused by the crimes had not yet been recovered. 14. On 24 June 2004 the Gorj County Court decided to allow the applicant’s request for the replacement of his pre-trial detention with a prohibition on leaving the town. The court noted that the applicant had already been held in pre-trial detention for approximately one year, and there was no evidence that he had tried to obstruct the investigation during this period. An appeal by the prosecution on points of law against this decision was allowed on 28 June 2004 by the Craiova Court of Appeal. The court of appeal held that pre-trial detention continued to be justified for all the defendants because of the high number of offences involved, the severity of the punishment provided by law for these offences, and the fact that the defendants had rendered the investigation more difficult by requesting expert reports as well as submitting documents in their defence for the first time before the court and not during the investigation phase. 15. Between 8 July and 9 November 2004 the applicant’s pre-trial detention was extended a number of times, on the basis of the same reasoning, relying on the severity of the offence and the implied danger to public order. On 30 September 2004 the Gorj County Court additionally held that the defendants’ pre-trial detention was also justified by the fact that new accusations had been made against three of them including the applicant. 16. The applicant appealed against all the decisions extending his pre-trial detention, alleging that there was not enough evidence from which to acquire a reasonable suspicion that he had committed the offences, and there was no proof that if released he would present a danger to public order. The applicant also emphasised to the courts that the investigation was based mainly on bank documents which had all already been seized, and therefore it would not be possible for him to obstruct the investigation if released from prison. He further mentioned that he was a respected person in his local community, with a family and three minor children for whom he was responsible. He made numerous requests to the courts for his pre-trial detention to be replaced with a prohibition on leaving the town. However, his appeals were rejected as ill-founded, the courts considering that the reasons for his initial pre-trial detention still existed, without analysing the applicant’s specific allegations or his personal situation. 17. On 11 November 2004 the Gorj County Court again decided to revoke the applicant’s pre-trial detention, but that decision was quashed by the Craiova Court of Appeal on 15 November 2004, with the reasoning that not all the evidence gathered by the prosecutor had been produced before the court. 18. On 6 December 2004 the High Court of Cassation and Justice decided to grant a request made by one of the defendants and changed the location of the trial to the Sibiu County Court. 19. At the time he was placed in pre-trial detention the applicant was suffering, among others, from chronic coronary heart disease. 20. On 15 September 2003 the applicant submitted a request to the Gorj County Court for the revocation of his pre-trial detention for medical reasons. He requested a forensic medical expert report and enclosed medical documents attesting to his state of health. 21. At a hearing on 13 January 2004 the court ordered that the applicant be examined by the Gorj Forensic Medicine Service. 22. On 11 February 2004 the Gorj Forensic Medicine Service submitted to the court a forensic report concluding that the applicant was suffering from several diseases. The report estimated that the applicant’s conditions required treatment under strict medical supervision and further cardiology, neurology and orthopaedic tests, hence making him unable to cope with the detention regime. The report also suggested that the suspension of the applicant’s detention was necessary for a period of three months in order for him to seek treatment in a civil hospital. Finally, the report concluded that a failure to undertake the treatment recommended by a specialist doctor might endanger the applicant’s life. 23. The court requested on 12 February 2004 that the forensic report be supplemented with specific medical recommendations for the applicant’s health problems. A new amended report was submitted on 25 February 2004. 24. On 4 March 2004, at the request of the prosecutor, the court ordered the revision of the amended report by the Craiova County Control Commission (Comisia de avizare si control a actelor medico-legale) for more clarifications. 25. At the hearing of 25 March 2004 the court took note that the Craiova County Control Commission had confirmed the forensic report drafted by the Gorj Forensic Medicine Service, but had recommended the suspension of the applicant’s pre-trial detention for only one month instead of three. Again at the request of the prosecutor, the court ordered clarifications from the Control Commission, given that the suspension of the pre-trial detention was not provided by law. 26. In view of the lack of response from the Control Commission, on 13 May 2004 the court ordered a new forensic report to be drawn up by the Bucharest National Institute of Forensic Medicine. 27. On 16 September 2004, the court took note of the receipt of the opinion from the Bucharest Control Commission, which concluded that the applicant’s condition required a coronarography procedure, which could be done in detention and did not require him to be released for one month as previously recommended. Therefore, the court decided that the applicant could be treated within the prison health system, and refused his request for revocation of his pre-trial detention for medical reasons. An appeal by the applicant on points of law against this decision was rejected as ill-founded on 22 September 2004 by the Craiova Court of Appeal. 28. On 30 November 2004 the applicant complained to the court that his state of health had worsened during his detention, and requested a new forensic expert report to establish whether he could be treated within the prison health system. The court granted the applicant’s request and ordered the report to be carried out by the Gorj Forensic Medicine Service. No such report was ever submitted to the court. 29. On 5 January 2005, on the basis of the medical documents available in the file, the Sibiu County Court ordered the revocation of the applicant’s pre-trial detention for medical reasons. The applicant was ordered not to leave his town of residence without authorisation. An appeal by the prosecutor against this judgment on points of law was rejected on 10 January 2005 by the Alba Iulia Court of Appeal. The applicant was released the same day. 30. In 2012, after his final acquittal by the judgment of the High Court of Cassation and Justice of 2 November 2011, the applicant brought a civil action before the domestic courts which was based on the provisions of Article 504 of the Code of Criminal Procedure. He requested pecuniary damages, alleging that his pre-trial detention had been unlawfully ordered by the prosecutor and excessively and unlawfully extended by the courts, an issue which had caused him material losses and also caused his state of health to worsen. 31. On 4 February 2013 the Craiova Court of Appeal finally refused the applicant’s request. The court held that the applicant was acquitted of one of the offences he had been charged with because it was no longer punishable by law. Therefore, given that he was not held in detention once the new law entered into force, his pre-trial detention was lawful and he was not entitled to receive any kind of damages.