CASE OF POPA AND TANASESCU v. ROMANIA
Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence in person) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria
6. 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. 8. In January 2000, the applicants were involved in an affair which had largescale media coverage called “The Car Boot Affair” (Afacerea Portbagajul). R.V., the applicants’ friend, was kidnapped and subjected to illtreatment 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. 9. 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. 10. 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. 11. Immediately after R.V.’s escape, B.M. left the country in order to avoid arrest. 12. The role played by the applicants in this affair was highly controversial. 13. The prosecutors presented them as individuals paid by B.M. to kidnap R.V. and keep him under guard. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. Public pronouncement of the decision was adjourned until 13 October 2003, as the court needed more time for deliberation. 30. 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. 31. 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. 32. 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 fiveweek period and had subjected him to constant ill-treatment. 33. 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). 34. Law no. 356/2006 which amended the Code of Criminal Procedure made it mandatory for an appeal court to hear an accused when the firstinstance 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).