MUCEA v. ROMANIA
Inadmissible
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Dorinel Mihai Mucea, is a Romanian national, who was born in 1947 and lives in Bucharest. He was represented before the Court by Ms Diana-Elena Dragomir and Ms R. Chiric, lawyers practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was a high-level civil servant in the Ministry of Economy and Commerce, who at the time of the events was in charge of the privatisation of numerous State-owned strategic companies in the field of energy, oil and natural resources. 5. On 8 June 2006 Romanian Intelligence Service (Serviciul Român de Informaţii - “the SRI”) informed the Department for the Investigation of Organised Crime and Terrorism from the prosecutor’s office attached to the High Court of Cassation and Justice (“the High Court”) that the applicant was part of an organised criminal group which included senior government officials and foreign citizens. The group’s purpose was to help foreign companies to illegally acquire ownership of important Romanian State-owned companies which were in the process of privatisation. These accusations were based on information obtained through intercepting the telephone conversations of the members of the group, including the applicant. 6. The surveillance activity was carried out under Law no. 51/1991 (on the national security of Romania) and started in respect of the applicant on 30 May 2005. This activity had been authorised by a judge of the High Court. 7. On 21 November 2006 the applicant was charged with treason for the disclosure of State secrets and with creating an organised criminal group. 8. The criminal investigation and the surveillance of the applicant continued after the above date and on 18 April 2007 the applicant was indicted for the crimes charged, together with nine co-accused. 9. On 4 September 2007 the applicant’s lawyer sent a letter to the president of the Bucharest Court of Appeal, where his prosecution file had initially been registered, requesting that the transcripts of the intercepted phone conversations for the period between 30 May 2005 and 21 November 2006 should not be accepted as evidence against him since they had been obtained unlawfully. He argued that this part of the surveillance had been conducted before he had been charged with a crime and therefore should not have been accepted as evidence in the proceedings. 10. At a hearing held on 31 January 2013 before the High Court, where the applicant’s case had been sent for examination, the applicant contested the accuracy of the transcripts of the telephone conversations submitted as evidence in the proceedings. He alleged that there were discrepancies between the originals in English and their translated Romanian versions, discrepancies which implied that he had divulged State secrets when in fact that had not been the case. 11. On this occasion, the applicant lodged a written request asking the court to order the prosecutor’s office to submit as evidence the audio tapes of all his phone conversations recorded in the course of the investigation. The applicant explained that only a combined analysis of the entirety of his phone conversations in the period in question would prove his innocence. Relying on the provisions of Article 6 of the Convention the domestic court rejected the request considering that the tapes as well as the transcripts of all the phone conversations used as evidence in the case were already in the case file and no additional transcripts were necessary. 12. At the hearing of 31 October 2013 the High Court also held that the applicant’s allegations concerning the existence of discrepancies in the translation of the phone conversations had been noted and would be taken into consideration in the deliberations. 13. On 3 December 2013 the High Court convicted the applicant of treason for disclosure of State secrets and of creating an organised criminal group, and sentenced him to six years’ imprisonment. 14. The applicant appealed against the decision claiming in principal that the information he had indeed transmitted to the co-accused could not be considered a State secret. Quoting extensively from transcripts of his phone conversations submitted as evidence in his case file, the applicant explained that his actions had been in accordance with the law. As regards the interception of his phone conversations the applicant complained of the transcription and translation errors which had changed the true meaning of the discussions. He mentioned that the content of the intercepted phone conversations had not been sufficient to prove his guilt. 15. At two hearings held before the five-judge panel of the High Court on 17 and 19 December 2014, the applicant’s representatives argued as regards the interception of the applicant’s phone conversations that the transcripts submitted to the case file had discrepancies due to translation errors and that the court of first instance had not quoted them accurately in its judgment. 16. On 23 December 2014 one of the applicant’s two representatives submitted final written pleadings at the registry of the High Court. They included no mention of the interception of the applicant’s phone conversations. 17. On 27 January 2015 the High Court convicted the applicant of the crimes of disclosing secret information and creating an organised criminal group, and sentenced him to four years and six months’ imprisonment. The judgment became final. 18. In a letter to the Court dated 11 March 2008 the applicant complained of the fact that excerpts from his telephone conversations which had been obtained through telephone tapping during criminal surveillance operations had been disclosed to the media by the prosecutors investigating his case during the criminal proceedings against him. 19. The applicant enclosed with the above letter several copies of newspaper articles which had been published in the national media in May, November and December 2006. 20. The transcript of a discussion that one of the co-defendants in the applicant’s case had had with journalists during a television news programme on 29 November 2007 on Realitatea TV, a national channel, was also attached. The transcript read as follows: “[S.]’s network of economic espionage. The network of [S.S.] severely distorted the Romanian market, damaged Romania’s image abroad and even endangered its accession to the European Union ... In the privatisations case, DIICOT [the Department for the Investigation of Organised Crime and Terrorism] opened an investigation against eight people, all accused of blackmail, treason and complicity in these crimes. ...The Bulgarian citizen [S.S.], an international consultant, was considered the key person in the privatisations case. He is accused of espionage and of organising an espionage network.” Half an hour later, on the same channel, [M.S.] [one of the co-suspects in the applicant’s case at the time] stated: “I have not received anything official; I have only heard of the accusations from the media and from you. I am ready to come back to Romania and to contribute to the clarification of the situation, even if these privatisations have been, in my opinion, a success. [M.S.]’s agenda included the minister of economy, Dorinel Mucea, [M.O.] and [S.S.], the other accused in the case.” 21. On 21 July 2008 the applicant also sent to the Court excerpts from a television programme broadcast on 17 July 2008 on Antena 3, a national channel. According to the transcript of the discussions as published on the channel’s internet page, several journalists and political analysts presented their opinions on the case in which the applicant was standing trial at the time. The transcript of the programme reads as follows in its relevant parts: “Daily brief [Sinteza zilei]: The ‘Treason and espionage’ scandal. Is the DNA [the National Anticorruption Department] betraying the President? The DNA’s decision not to open an investigation into the “treason and espionage” scandal, two and a half years after making announcements about the fight against corruption, was the main topic of the programme Daily Brief on Antena 3. In the mentioned investigation, former ministers [Z.N.] and [C.S.], former ministry advisers Dorinel Mucea and [R.D.] and the Bulgarian consultant [S.S.], had been accused of bribe taking. The latter was even imprisoned as a result of the mentioned scandal. The political expert Bogdan Teodorescu stated that it had been proved one more time that ‘human rights are carelessly breached in Romania’. ‘These people have their lives in pieces. Who will repair it for them? If the system wants to destroy you it will ...’ said Teodorescu. Military expert Radu Tudor underlined: ‘DNA prosecutors woke up and understood that they have been used as political lure. There is a report adopted by CSM [the Superior Council of Magistracy] which mentions incredible things. It states that the manner in which investigations are carried out by the DNA is dangerous for the Romanian justice system. DNA prosecutors have brought in some cases charges which could not be found in the criminal code. So, either you are dumb, or you received a political order.’ explained Radu Tudor. ... Referring to the ‘treason and espionage’ scandal, Radu Tudor mentioned that it was all a lie, because ‘one cannot commit political treason to the advantage of a consultancy company engaged by the Romanian State, for which [S]. also worked.’ The analyst Ion Cristoiu ... also condemned the approach adopted by the media who ran with these stories without verifying all the ‘leaks of information’ from the DNA and used them deliberately to mislead the public ...” 22. On 10 January 2014, together with his observations on the admissibility and merits of his application, the applicant submitted additional copies of newspaper articles published between November 2006 and January 2007. 23. The legislation in force at the relevant time concerning telephone tapping and the changes to the law brought into force on 1 January 2004 are described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).