FESIUC v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
1. The applicant, Ms Rodica Fesiuc, is a Romanian national, who was born in 1940 and lives in Bucharest. She was represented before the Court by Mr Ion Gheorghișan, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms Irina Cambrea, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the relevant time, the applicant was a judge at the Bucharest Court of Appeal. 5. On 11 September 2000 the Romanian Intelligence Service (“the RIS”) informed the Anti-Corruption Department of the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor”) that the lawyer L.P. (the applicant in case no. 25333/03) had given bribes to several judges, including the applicant, in order to obtain decisions favourable to her clients. It based the accusation on information obtained through intercepting L.P.’s telephone, measure taken because one of her clients was suspected of crimes against national security. The surveillance activity was carried out under Law no. 51/1991 on national security. The RIS handed over the audio tapes and their transcription to the prosecutor’s office. The prosecutor then continued the surveillance of L.P.’s activities, including through telephone tapping. Several conversations between L.P. and other individuals (but not the applicant) had been recorded; the applicant’s alleged involvement in the suspected criminal acts had been mentioned by the participants in those conversations. 6. On 4 May 2001 the prosecutor obtained the Ministry of Justice’s approval to start criminal investigations in respect of the judges involved that is the applicant and V.A. On the same day he started criminal proceedings against the applicant (începerea urmăririi penale). 7. On 7 May 2001 the prosecutor invited the applicant to his office, informed her of the accusations against her and ordered her not to leave town for thirty days. 8. On 8 May 2001 the applicant retired from office. Her request was accepted by the Superior Council of magistrates on 18 September 2001. 9. Throughout the proceedings, the applicant denied having committed the crimes. 10. On 12 December 2001 the prosecutor indicted the applicant and committed her and several other persons to trial. In particular, he accused her of having received through V.A.’s intermediary, 500 US dollars (USD) in bribes from L.P., in order to release one of her clients pending trial. 11. The case was heard by the Criminal Division of the Supreme Court of Justice. 12. On 31 January 2002 the Supreme Court heard testimony from each defendant separately and the relevant parts of the audio tapes were played in their presence. None of them denied having had the recorded conversations. The defendants complained that the time between hearings was too short and that they could not properly prepare their defence. The Supreme Court allowed their complaint and decided to extend the period from two to three weeks while nevertheless reiterating that where defendants were in detention pending trial (as in the case of L.P.) the case had to be examined promptly. 13. The applicant again denied having committed any crime. She claimed that the only relevant discussions she had had with V.A. were in connection with the cases in which they had been sitting on the same bench. She declared that she did not know L.P., had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate. 14. L.P. and V.A. also denied committing any crime. 15. At the same hearing on 31 January 2002, the co-defendants alleged that there were procedural defects. They argued that as the prosecutor had failed to request the necessary authorisation for intercepting magistrates’ conversations, the audio recordings were illegal. The court gave detailed answers to their complaints. Concerning the telephone tapping, it noted that one of L.P.’s clients had been indicted for weapons and ammunition smuggling, which, under the National Security Act, constituted a threat to national security and thus allowed the RIS, under procedure regulated by the Code of Criminal Procedure, to seek authorisation from the prosecutor to intercept the suspect’s conversations. The fact that during the surveillance activity the authorities came across telephone discussions among the codefendants which led them to believe that L.P. was trying to corrupt the defendant judges constituted preliminary investigation (acte premergătoare). The Supreme Court reiterated that so long as the recordings had been obtained during the preliminary investigation phase, they did not constitute evidence. Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file. 16. On 21 February 2002 the declarations given by the defendants were read out in court. They were allowed to supplement their testimony and put questions to their codefendants. 17. The applicant’s counsel opposed hearing testimony from an informer, arguing that “the prosecutor is using [him] even though he is an offender” (“infractor”), to which the prosecutor, I.K., replied “an offender who is giving statements about other offenders”. The applicant and V.A. asked for the prosecutor to withdraw from the case for having breached the presumption of innocence. 18. At the same hearing of 21 February 2002 the Supreme Court heard testimony from witnesses for the prosecution. 19. On 27 February and 25 March 2002 the Supreme Court dismissed the objections raised concerning the prosecutor’s withdrawal. I.K. continued to represent the prosecutor’s office throughout the first-instance and appeal proceedings. 20. On 14 March 2002, at the defendants’ request, the Supreme Court ordered an expert examination of the audio tapes, in accordance with Article 915 of the Code of Criminal Procedure (“CCP”). 21. At a hearing on 4 April 2002 the Supreme Court dismissed a request by the applicant and V.A. for the RIS to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the RIS and the prosecutor’s office. The Supreme Court considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations. 22. On 4 April, 25 April, 9 May and 6 June 2002 the Supreme Court heard eight witnesses for the defence. 23. On 3 June 2002 the two experts rendered their report, as requested by the Supreme Court. They concluded that the audio tapes were neither authentic nor original and advised against admitting them as evidence in the criminal trial. 24. On 6 November 2002 the Supreme Court of Justice, sitting as a three-judge bench, rendered its decision. It unanimously convicted the applicant for receiving bribe and sentenced her to three years’ imprisonment and two additional years of suspension of certain rights. V.A. was also convicted by a majority of two votes. 25. The Supreme Court considered that the statements made by the defendants and the witnesses both before the prosecutor and in open court corroborated the theory that some of L.P.’s clients had been released from prison because she had bribed the judges, including to the co-defendants. The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted, either before the prosecutor or in court that they had been pressured by the defendants into changing their declarations. The court also considered that the testimonies given by the witnesses corroborated the transcripts of the telephone conversations. 26. The Supreme Court also made a lengthy analysis of the transcripts thus responding to the defendants’ allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage. The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court. It noted that the experts had not questioned that aspect either. As for the authenticity and originality of the tapes, which the experts contested, the court pointed out that, in the sense of Article 224 of the Code of Criminal Procedure, the report concerning the transcripts, drafted by the prosecutor after the opening of the criminal proceedings, represented the evidence and not the tapes themselves (which were attached to the prosecutor’s report, as the law required); nor did the original harddisk onto which the recording had been done. In his report, the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected. The court confirmed those aspects. The defendants had had ample opportunity to challenge it, as provided for by the CCP. Moreover, the court observed that the original recording had been digital, done straight onto the hard-disk of the equipment used by the RIS for telephone tapping; the tapes attached to the prosecutor’s report were consequently copies of the original recordings. Because of its nature and purpose, the hard-disk could not be attached to the prosecutor’s report; furthermore, it did not need to be attached as it did not constitute evidence. The court concluded that the absence of the hard-disk did not automatically disqualify the transcripts from being used as evidence. Furthermore, the court noted that, for obvious reasons related to respect for the private life of those involved, it had not listened to all the conversations recorded by the RIS, but only to those relevant to the charges brought before it. However, the parts presented to it and to the defendants by the prosecutor represented full conversations. The dialogues were coherent; the sentences were not truncated and no words were missing or had been inserted into the dialogues. It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified. 27. The court was therefore satisfied that the prosecutor’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file. 28. All parties appealed against the judgment. In particular, the applicant argued that the indictment was illegal, in so far as the prosecutor lacked the credentials for working on the case (years of experience) and because the indictment had not been signed by the Prosecutor General; that the criminal proceedings were illegal in so far as she had not been informed of the accusation. She also alleged a breach of the right to defence during the investigations. Furthermore, she argued that the judgment had not been signed by the dissenting judge and that the operative part of the decision did not correspond to the one delivered in public. She complained about the court’s interpretation of the evidence in the file, in particular that the audio tapes had been taken into account despite the expert opinion and the defendants’ opposition to their admission to the file. She lastly complained about the fact that the prosecutor did not withdraw from the case after having breached her presumption of innocence with his statements. 29. The case was heard by a nine-judge bench of the Supreme Court who rendered a final decision on 8 October 2003. The Supreme Court dismissed the applicant’s appeal and maintained the sentence. The Supreme Court gave a detailed answer to all arguments raised by the defence concerning both the procedural and the substantive aspects of the case before the prosecutor and the first-instance court. 30. The Supreme Court also considered that the prosecutor was right not to withdraw from the case after having called the defendants “offenders”, as those remarks had been uttered in the course of debates, where prosecutor and defendants were in positions of equality and had been provoked by the offensive statements of the applicant’s counsel concerning the witness. 31. The Supreme Court noted that the telephone tapping had not observed the stricter requirements relating to magistrates. It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping; on this point it reiterated that the information concerning the magistrates’ alleged involvement had been obtained incidentally by the prosecutor. It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations. The court also reiterated that as the tapes had disclosed information on the commission of crimes, they could not have been ignored by the authorities. Furthermore, the tapes had been made with the prosecutor’s prior approval, as the law had required at the time, and had not contravened public order. The Supreme Court attached great importance to the fact that the defendants had not denied having had the recorded conversations. It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file. It therefore concluded that the tapes could be used as evidence. The Supreme Court also decided that the evidence had to be interpreted in its entirety and in context, and reiterated that the law did not give precedence to any type of evidence to the detriment of others. 32. The Supreme Court noted that the first-instance court had changed the legal classification of the crimes committed by L.P. from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by V.A. from a continuous crime of trading in influence and aiding and abetting L.P. to give bribes to several individual crimes of trading in influence and aiding and abetting L.P. to give bribes. It accepted that the first-instance court had erred in not allowing the parties to discuss the new legal classification given by it to the crimes committed by V.A. However, it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification as the consequences in law for both situations were identical. 33. On 13 October 2003 the applicant started serving her sentence. She was released from prison on 25 October 2004. 34. The legislation in force at the relevant time concerning telephone tapping, including the National Security Act, is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007). 35. The relevant provisions of the Code of Criminal Procedure concerning the preliminary investigation read as follows: “1. The criminal investigation authorities may conduct any preliminary investigation measures. ... 3. The report of execution of any preliminary investigation measure shall constitute evidence.” “The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article 221 shall order, by decision (rezoluţie), the opening of criminal proceedings where the content of that application or the preliminary investigation does not disclose any grounds for not prosecuting, as provided for in Article 10, with the exception of the ground set out in subparagraph (b)1.” 36. Concerning the telephone tapping at the preliminary investigation stage, the High Court of Cassation and Justice considered, in a decision rendered in an appeal on points of law (decision no. 10 of 7 January 2008) that the lawfulness of the interception was not dependent on whether criminal proceedings had been opened; it further noted that the law did not impose an obligation on the authorities to inform the person concerned of that measure, an omission which the High Court found reasonable, given the purpose of the telephone tapping and its secrecy. However, the person concerned had subsequently had an opportunity to listen to the recordings and contest their content. The High Court also reiterated that there was no prior value attached to the report drafted by the prosecutor, as the courts were free to assess the evidence in the context of the files under examination. By its decision no. 962 of 25 June 2009, the Constitutional Court confirmed that Article 911 of the CCP did not allow for evidence to be gathered during the preliminary investigations; any such evidence would fall under the courts’ scrutiny.