CASE OF G.C.P. v. ROMANIA
Remainder inadmissible;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
6. The applicant was born in 1938 and lives in Bucharest. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 16 December 1996 a third party brought criminal proceedings against the applicant for wrongful misappropriation. The third party claimed that the applicant had unlawfully used private funds belonging to his companies in order to increase the capital of a commercial bank (Bankcoop) and become a major shareholder in the said bank. 9. On 14 January 1997 the Judicial Police attached to the Romanian Ministry of the Interior asked the third party to provide additional information in respect of the unlawful acts allegedly committed by the applicant. 10. On 19 February 1997, the Adevărul daily newspaper published an article entitled “The investigation files of G.C.P. – strictly secret?” The article quoted statements by D.I.C., one of the prosecutors conducting the investigation against the applicant, of which the most relevant part reads as follows: “We have been accused of insisting on imposing [on G.C.P.] an order not to leave the city, a measure which is usually taken when there are suspicions that somebody has committed an unlawful act. However, as I already told you and as [can be seen] from checks carried out by the Financial Control Office [Garda Financiară], here there have been unlawful acts committed, not only suspicions. In spite of that, we have proven to be humane, when at his [G.C.P.’s] request we allowed him to leave Bucharest for forty-eight hours.” 11. On 10 April 1997 the applicant was charged with fraud, forging documents and use of forged documents, embezzlement, using the goods of a commercial company against its interests and undermining the national economy, on account of the fact that, by acting on behalf of the private company (G.C.P. S.A.), which the applicant controlled as the major shareholder, he had allegedly made false statements in an official document submitted to the Romanian National Bank on 31 August 1995 in order to obtain its permission to increase the capital of Bankcoop by the amount of 10,000,000 United States Dollars (USD). More specifically, the applicant was suspected of declaring the aforementioned amount as his personal funds, when in fact it had been obtained as a loan taken out by G.C.P. S.A. from a foreign bank, which was contrary to the National Bank’s regulations on acceptable sources of money used to increase a bank’s capital. 12. On 2 June 1997 the applicant brought a challenge against the two prosecutors, including D.I.C., charged with the investigation of his case at the time, arguing, inter alia, that press statements made by the said prosecutors on 28 May 1997 in the Evenimentul Zilei daily newspaper – claiming that the applicant’s financial investments were “acts of fraud” – amounted to a breach of his right to the presumption of innocence. 13. According to the applicant, his challenge of 2 June 1997 against the prosecutors G.M. and D.I.C. was allowed by a final Prosecutor’s Office Order of 23 June 1997 and a new prosecutor was appointed to investigate his case. The applicant failed to include in the file a copy of the order of 23 June 1997. 14. On 2 July 1997 the Naţional daily newspaper published an article entitled “G.D. states that G.C.P. should have been indicted long ago for two of the proven crimes”. The most relevant part of the article, which quoted statements by G.D., the Romanian Minister of the Interior at the time, reads as follows: “G.C.P. could be indicted for two already proven crimes, namely the ones connected to the embezzlement through Bancorex, from Chemical Bank to Bankcoop. The 10 million dollars taken by G.C.P. from Chemical Bank for a factory in Arad were embezzled so that he could take over the majority of the shares in Bankcoop. (...) Although there is proof that several crimes have been committed by G.C.P., he is only under investigation for two, and the prosecutor’s investigation is lasting a suspiciously long time. ” 15. On 3 July 1997, the Evenimentul Zilei daily newspaper published an article entitled “G.C.P. and R.T. accused of undermining the national economy”. Quoting the same prosecutor, D.I.C., the relevant parts of the article read as follows: “On 1 July 1997 in file no. 180/P/97 of the General Prosecutor’s Office, the file concerning the defendant G.C.P., the criminal investigation was extended with respect to the crime of undermining the national economy, punishable under Article 165 § 1 of the Criminal Code. Hence, between 1994 and 1997, [G.C.P.] used a state-owned public interest bank, Bancorex S.A., in order to obtain certain financial facilities in the amount of 202.6 million dollars, to be used for the reimbursement of certain loans contracted by his commercial company, G.C.P. S.A. This undermined the national economy and disturbed the activity of Bancorex S.A. and, as a consequence, the national economy.” 16. By letter of 17 November 1997 prosecutor C.M., the prosecutor investigating the applicant’s case at the time, asked the Prosecutor General of Romania to confirm that he could continue the investigation in the case. He expressly stated that he did not have any personal interest or otherwise in respect of the investigation and that he would accept the Prosecutor General’s decision. He informed the Prosecutor General that if he was allowed to continue working on the case he would not be subject to any outside influence or pressure in carrying out the investigation. 17. On 19 December 1997, the Evenimentul Zilei published an article entitled “S.M. found the solution for destroying the mafia in Romania overseas: The Mexicans should come with bazookas”. The article quoted statements made by S.M., the Prosecutor General of Romania at the time. The most relevant part reads as follows: “In the case of G.C.P., who knew all about financial tricks [ingineriile financiare] and covered his tracks with lots of documents, the experts’ report is not finished yet. I believe that there is a 99% chance that he will also be sent to trial, but I would make a suggestion to the police to not just stick to the small cases of T. and G.C.P., because the two of them have [done] more than this.” 18. In addition, the parties agree that a total of around 350 articles containing information on the investigation and the trial against the applicant were published between 1997 and 2002 in all the major national newspapers, including Ziua, Adevărul, Evenimentul Zilei, Cotidianul, Naţional and Libertatea. Some of the most relevant story titles quoted by the applicant in this respect read as follows: “The trap is tightening” (Evenimentul Zilei, 17 March 1997); “Chess at millionaires!” (Evenimentul Zilei, 9 April 1997); “The return of the jackals” (Evenimentul Zilei, 18 August 1997); “Sharks at large” (Evenimentul Zilei, 28 April 1998); “G.C.P.’s companies have filled their bank accounts on Bancorex’s back” (Ziua, 12 February 1999); “Just when the prosecutors were on the point of indicting him, G.C.P. found refuge in a hospital in Switzerland” (Adevărul, 12 March 1999); “G.C.P. ran away in the U.S.A.” (Libertatea, 5 October 1999); and “The heroes G.C.P. and T.” (Evenimentul Zilei, 10 April 2002). 19. By an order of 30 January 1998 the Prosecutor General dismissed C.M. from his position of Head Prosecutor of the Criminal Department of the Bucharest Prosecutor’s Office and transferred him to the Secretarial and Public Relations Department. At the same time, M.I. was tasked with continuing the criminal investigation against the applicant. The Prosecutor General held that the criminal investigation had been unreasonably lengthy without any objective reasons and that Bancorex, one of the parties involved in the matter, had lodged a challenge and had complained about C.M. 20. On 17 June 1999 the applicant was indicted for making false statements in an official document, as he had not declared the true source of the money used for increasing the capital of Bankcoop. 21. The investigation also continued separately in respect of the charge of undermining the national economy and using the goods of a commercial company against its interests. At the same time, the charges concerning fraud, forging documents, use of forged documents and embezzlement were dropped and the part of the criminal investigation covering those charges was closed on the grounds that the applicant’s actions were found to have been lawful. 22. By a final Prosecutor’s Order of 3 September 2001 the criminal investigation initiated against the applicant for undermining the national economy was discontinued on the grounds that no unlawful act had been committed. 23. By a judgment of 11 September 2001 the Bucharest District Court decided that the indictment of 17 June 1999 was null and void because the applicant had not been informed of the charges against him, as he had been in the United States of America at the time of his indictment. Consequently, the court ordered the file to be sent back to the Prosecutor’s Office. 24. The prosecutor submitted an appeal on points of law (recurs) against the judgment of 11 September 2001. 25. By a judgment of 18 January 2002 of the Bucharest County Court the Prosecutor Office’s appeal was allowed and the case was sent back to the first-instance court for a retrial on the merits. The County Court held that there had been no reason for the indictment to be annulled, as the decision of the investigating prosecutors to send the case before the court without informing the applicant of the charges against him had been in accordance with the legal provisions of the Code of Criminal Procedure applicable to persons avoiding the investigative authorities. In reaching this decision, the court took into account the fact that neither the applicant nor his attorney had provided the investigators with an exact address at which the applicant could be summoned during the investigation. 26. By a final Prosecutor’s Order of 12 March 2002 the criminal investigation initiated against the applicant for using the goods of a commercial company against its interests was discontinued on the grounds that no unlawful act had been committed. 27. On 13 May 2002 the first hearing in the retrial of the case was held before the Bucharest District Court following the judgment of 18 January 2002. The applicant was heard by the court. He argued, inter alia, that the criminal investigation against him had been based on political motives, a fact which could be confirmed by the negative media campaign conducted against him and by the public statements made by the Prosecutor’s Office representatives. 28. By a judgment of 17 June 2002 the Bucharest District Court acquitted the applicant on the grounds that from all the evidence produced it emerged that his actions had been in accordance with the law. The Prosecutor’s Office appealed against the judgment. 29. By a judgment of 14 November 2002 the Bucharest County Court allowed the Prosecutor Office’s appeal, convicted the applicant of making false statements in an official document and sentenced him to one year of imprisonment, a sentence which was considered pardoned according to the law. The court held that, on the basis of the evidence available in the file, the applicant had made false statements in an official document and had been aware of the legal consequences of his statements. The applicant lodged an appeal on points of law (recurs) against the judgment. He argued that the criminal investigation against him had been politically motivated, a fact confirmed by the alleged failure of the domestic courts to take into account and to examine the evidence submitted by him in his defence. In addition, the applicant argued that the domestic courts had wrongfully assessed the evidence, had misinterpreted the applicable legal provisions and had ignored the fact that the indictment brought against him had been null and void because the investigating prosecutor had failed to inform him of the charges brought against him prior to sending the case before the domestic courts. 30. By a final judgment of 23 December 2002 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law and his conviction became final. The court held, on the basis of the evidence available in the file, that the lower courts had correctly assessed the evidence and interpreted the applicable legal provisions and that the applicant had been informed of the charges brought against him by the Prosecutor’s Office. 31. On 26 February, 26 April, 16 July, 21 September, 19 October, 11 November 2004 and on 18 January, 10 February, 17 March and 19 April 2005 the applicant lodged repeated extraordinary appeal of annulment (recurs în anulare) requests against the final judgment of 23 December 2002 with the Public Prosecutor’s Office attached to the Court of Cassation. He argued, inter alia, that his right to the presumption of innocence had been breached on account of an aggressive media campaign led by the Prosecutor’s Office and the Minister of the Interior which had resulted in the criminal investigation being opened against him and in him being indicted. 32. On 20 April 2005 the applicant’s extraordinary appeal applications were dismissed by the Prosecutor’s Office attached to the Court of Cassation on account of statutory amendments to the applicable rules of criminal procedure abolishing that form of appeal. 33. The relevant provisions of the Romanian Constitution in force at the relevant time are worded as follows: “ [...] A person is considered innocent pending a final court conviction.” 34. The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time are worded as follows: “(1) The person accused of or charged with a criminal offence does not have to prove his innocence. (2) Where evidence is adduced proving a person’s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.”