CASE OF CARAIAN v. ROMANIA
Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1940 and lives in Bucharest. 6. On 23 August 1996 the Sibiu Police Department remanded the applicant in custody for twenty-four hours on suspicion of intellectual forgery (fals intelectual) and use of forged documents (uz de fals). 7. By an order of 24 August 1996 the Sibiu Prosecutor’s Office detained the applicant for five days pending trial on account of the seriousness of the offences and the need to protect public order. 8. By an order of 28 August 1996 the Sibiu Prosecutor’s Office extended the applicant’s pre-trial detention by twenty-five days on account of the seriousness of the offences, the need to protect public order, and the need to prevent him from destroying evidence. 9. The applicant challenged the order before the domestic courts and requested to be released under judicial supervision. 10. By a final interlocutory judgment of 18 October 1996 the Alba Iulia Court of Appeal allowed the applicant’s challenge. It held that the applicant’s arrest had been lawful; however there was no lawful reason concerning the applicant that would prevent the court from releasing him under judicial supervision. 11. On 2 September 1997 the Sibiu Prosecutor’s Office indicted the applicant and other co-accused for bribery, influence peddling, complicity in fraud, intellectual forgery, and use of forged documents, and referred the case to the Sibiu County Court. 12. On 17 April 1997, 15 May, 2 July and 17 September 1998 the Sibiu County Court heard the applicant, his co-accused and the witnesses in the case. In addition it allowed the applicant’s and his co-accuseds’ request for documentary evidence, and ordered an expert financial report to be produced in the case. The applicant submitted that he did not agree that a financial expert report should be produced in the case, and refused to submit observations on the report’s objectives following the court’s request. 13. On 15 October 1999 the applicant informed the Sibiu County Court that he had no objections in respect of the financial expert report. 14. On 22 May 2000 the applicant’s chosen legal representative submitted oral observations to the court in respect of the merits of the case. 15. On 15 June 2000 the Sibiu County Court acquitted the applicant on the basis of documentary, testimonial and expert evidence in addition to the applicant’s statements, on the ground that no unlawful act had been committed. 16. The Sibiu Prosecutor’s Office appealed against the judgment. 17. On 5 December 2000 the Alba Iulia Court of Appeal allowed the Sibiu Prosecutor’s Office’s appeal on the merits, quashed the judgment of 15 June 2000, convicted the applicant of bribery, trafficking influence, complicity in fraud, and forgery of privately signed documents (fals ȋn ȋnscrisuri sub semnătură privată) which following changes to the relevant domestic legislation had absorbed the offences of intellectual forgery (fals intelectual) and use of forged documents (uz de fals), and sentenced him to three years’ imprisonment. 18. The applicant appealed on points of law (recurs) against the judgment. 19. On 1 March 2002 the Court of Cassation allowed the applicant’s appeal on points of law, quashed the judgments of 15 June and 5 December 2000, and referred the case back to the Sibiu Prosecutor’s Office for the entire criminal investigation of the case to be carried out again. The court held that the prosecutor’s office had failed to observe the lawful requirements for investigating the case, had established the facts of the case superficially, and had breached procedural rules which affected the very existence of the criminal investigation and the lawfulness of the referral of the case to the court. It noted that the investigation had been carried out mainly by the police, and not by the prosecutor as required by the applicable rules of criminal procedure; the prosecutor’s office had failed to produce all the relevant evidence in the case concerning the existence of the offences and of the defendants’ guilt, and had not clarified the contradictions in the available evidence, in particular between the expert opinions produced in respect of the case. The domestic courts which had examined the case had also been unable to clarify the existence or inexistence of the alleged damage caused by the defendants, or to quantify it. 20. On 16 October 2002 the Sibiu Prosecutor’s Office referred the applicant’s case to the National Anticorruption Prosecutor’s Office. It held that given the applicant’s status and the nature of some of the offences the National Anticorruption Prosecutor’s Office was competent to carry out the criminal investigation in respect of the case. 21. From 27 November 2002 to 13 January 2003 the prosecutor attached to the National Anticorruption Prosecutor’s Office heard the applicant and his co-accuseds 22. On 30 June 2003 the National Anticorruption Prosecutor’s Office discontinued the criminal proceedings opened against the applicant for bribery and influence peddling on the ground that no unlawful act had been committed. The prosecutor’s office relied on testimonial evidence, including statements by the applicant produced both before the courts and before the prosecutor’s office after the case had been referred back there by the courts. In addition, it referred the case to the Sibiu Prosecutor’s Office in order to carry out the criminal investigation opened against the applicant for complicity in fraud and forgery of privately signed documents, on the ground that it was not competent to carry out the investigation in respect of those offences. 23. On 31 July 2003 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the documentary, testimonial and expert evidence available in the file that although the applicant’s criminal liability was undeniable, the criminal action initiated against him was time-barred. 24. The applicant challenged that decision, and on the basis of Article 13 of the Romanian Code of Criminal Procedure requested that the authorities continue the criminal investigation initiated against him to enable his innocence to be established. 25. On 11 November 2003 the Sibiu Prosecutor’s Office allowed the applicant’s challenge and reopened the criminal investigation against the applicant. 26. On 12 November 2003 the prosecutor attached to the Sibiu Prosecutor’s Office heard the applicant. On the same date the applicant stated that he did not have any more evidence to request, and that the evidence already produced fully proved his innocence. In addition, he asked the authorities to examine the circumstances of his case by relying on the evidence produced at the pre-trial and trial stages of the proceedings. 27. On 14 November 2003 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the testimonial, documentary and expert evidence available in the file, as well as the applicant’s own statements, that although the applicant’s unlawful acts had been proven, the criminal action initiated against him was time-barred. 28. The applicant appealed against the order before the Sibiu County Court. He argued that the prosecutor’s office’s order was unlawful, because the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant’s indictment. In addition, he denied committing the impugned offences. 29. On 31 May 2004 the Sibiu County Court held that it was not competent ratione materiae to examine the applicant’s action, and referred the case to the Sibiu District Court. 30. On 14 July 2004 the Sibiu District Court allowed the applicant’s action, quashed the prosecutor’s office’s order of 14 November 2003, and referred the case back to the prosecutor’s office for the criminal investigation against the applicant to be reopened. It held that the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant’s indictment. In addition, by declining to examine the remaining arguments raised by the applicant, it had instructed the prosecutor’s office to assess if the applicant’s complaint concerning the merits of the case was founded. Lastly, it instructed the prosecutor’s office to clearly determine the extent of the applicant’s involvement in committing the impugned offences and also whether he had been indicted for the same unlawful acts of which he had been informed. 31. The applicant appealed on points of law against the judgment, without providing any arguments. 32. On 18 October 2004 the Sibiu County Court dismissed the applicant’s appeal on points of law as ill-founded, and upheld the judgment of the first-instance court. The court noted that the applicant had submitted the grounds for his appeal on points of law after the debates on the merits of the case had been closed. 33. On 21 March 2005 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the documentary, testimonial and expert evidence available in the file produced both during the previous investigation and during the trials that, although the applicant was guilty of the impugned offences, the criminal proceedings initiated against him were time-barred. In addition, it described the applicant’s involvement in committing the unlawful acts and noted that after its reopening the criminal investigation against the applicant had been carried out by a different prosecutor from the one who had confirmed his indictment. Furthermore, the applicant had been indicted for the same unlawful acts of which he had been informed. In this connection, the prosecutor’s office noted that some of the offences had been examined by the prosecutor’s order of 30 June 2003. Also, following some amendments to the relevant legislation, the domestic legal practice had changed: the offences of intellectual forgery and use of forged documents had been absorbed by the offence of forgery of privately signed documents. 34. The applicant appealed against the decision before the Sibiu District Court by relying on Article 2781 § 8 (c) of the Romanian Code of Criminal Procedure. He argued that the domestic court should quash the prosecutor’s decision, retain the case for examination, and acquit him. In addition, he contended that the prosecutor’s order had been unlawful because it concerned acts with which the criminal investigation was not concerned, and was in any case not supported by the evidence available to the file. Also, without providing any grounds the investigating authorities had ceased to accuse him of intellectual forgery or use of forged documents. Furthermore, the Sibiu Prosecutor’s Office did not follow the mandatory instructions received from the court. There was no evidence in the file that he had been an accomplice to an offence. Lastly, he had disagreed with being charged with forgery of privately signed documents; he had argued that the parties had not been allowed to submit observations in respect of the requalification carried out. 35. On 18 January 2006 the applicant and his chosen legal representative informed the Sibiu District Court that he did not have other requests in respect of the judicial investigation of the case. They further argued, among other things, that although in July 2004 the Sibiu District Court had ordered the prosecutor’s office to reopen the criminal proceedings against him and had given the investigating authorities several instructions, none of those instructions had been followed. In particular, no evidence was adduced, and they were not called to take part in the production of evidence. Also, the investigating authorities did not clarify any of the issues identified by the court. Consequently, they requested that on the basis of Article 2781 § 8 (c) the court should quash the prosecutor’s order and, given that the production of other evidence was not necessary, acquit the applicant in respect of the merits of the case. 36. By a judgment of 2 February 2006 the Sibiu District Court dismissed the applicant’s appeal and upheld the prosecutor’s decision, relying on the available evidence. It held that the investigating authorities had not ceased to accuse him of intellectual forgery or use of forged documents, but had requalified those offences as forgery of privately signed documents. Also, the Sibiu Prosecutor’s Office had observed the mandatory instructions received from the court. In particular, the criminal investigation had been carried out by a different prosecutor from the one who had indicted the applicant, the prosecutor had explained in detail how the applicant had helped and contributed to the commission of the offences, and had verified that the acts for which the criminal investigation had been opened were identical to those indicated by the prosecutor’s order. Furthermore, the prosecutor’s order had clearly described in detail, by relying on evidence, why the applicant had been an accomplice to an offence. Lastly, the applicant’s own statements amounted to an acknowledgment that he had forged privately signed documents. 37. The applicant appealed against the judgment on points of law. He argued that the domestic court should quash the prosecutor’s decision, retain the case for examination, and on the basis of the same evidence available in the file acquit him of fraud and forgery of privately signed documents. He further contended that the evidence in the file and the examination carried out by the prosecutor’s office did not prove that he had committed the offences. Also, the parties had not been allowed to submit observations following the requalification of two of the offences he had been charged with to forgery of privately signed documents. 38. By a final judgment of 30 March 2007 the Bacău County Court dismissed the applicant’s appeal on points of law and acknowledged the lawfulness of the prosecutor’s order of 21 May 2005 and of the firstinstance court’s judgment. It so held on the basis of the available documentary, testimonial and expert evidence produced both during the criminal investigation and before the domestic courts that the applicant had committed the offences of complicity in fraud and forgery of privately signed documents. In addition, the prosecutor’s office had examined the applicant’s guilt on the merits, and had established that the acts had existed and therefore the criminal proceedings against the applicant could not have been discontinued on the ground that no unlawful act had been committed. Therefore, the prosecutor’s office had correctly held that the criminal proceedings initiated against him had been time-barred. 39. In a letter of 28 February 2008 the applicant informed the Court that the criminal proceedings initiated against him had destroyed his reputation, and that a virulent press campaign had been initiated against him and his company at the time of his arrest. The applicant submitted three articles published in local and national newspapers between June 1997 and March 1998 describing the events which led to the charges being brought against him and a chronological narration of the criminal proceedings initiated against him.