CASE OF NICULESCU v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-a - Information on nature and cause of accusation);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-b - Preparation of defence);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1956 and lives in Bucharest. At the relevant time, she was a lawyer specialised in criminal matters, in the Bucharest Bar Association. 6. On 4 April 2000 the Anti-Corruption Department of the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor’s office” or “the prosecutor”) authorised telephone tapping in respect of the applicant and her husband for a period of six months, running until 4 October 2000. The authorisation was granted at the request of the Romanian Intelligence Service (“the RIS”) under the National Security Act (Law no. 51/1991). 7. On 25 August 2000 the prosecutor’s office issued a new similar authorisation, under the National Security Act, granting interception of another of the applicant’s telephone lines, also until 4 October 2000. 8. On 11 September 2000 the RIS informed the prosecutor that the applicant had given bribes to several judges and prosecutors in order to obtain decisions favourable to her clients. It based the accusation on information obtained through the telephone tapping. Several conversations between the applicant and judge V.A. concerning cases of the applicant’s clients had been recorded between 7 and 14 June 2000. The RIS handed over the audio tapes and their transcripts to the prosecutor’s office. The prosecutor then continued the surveillance of the applicant’s activities, including through telephone tapping. 9. In its report, the RIS referred to G.D. as the applicant’s “intimate friend”, whereas other participants in the various conversations recorded are referred to simply as “friend”. Those syntagms were reproduced several times in the decision adopted by the first-instance court. 10. On 30 April 2001 the prosecutor instituted criminal proceedings against the applicant (începerea urmăririi penale). 11. In the evening of 3 May 2001, as the applicant was returning home by car accompanied by T.C., a fellow lawyer, she was apprehended by the police and taken to the prosecutor’s office for questioning on charges of corruption. 12. The applicant was shown the RIS report of 11 September 2000 (see paragraph 8 above) and then questioned throughout the night. According to her, T.C. was not allowed to attend the actual questioning; he was allowed to see the applicant only afterwards, when she was writing a statement, which he then read and countersigned. In her statement the applicant confessed to the crimes and gave a detailed description of the facts. While the applicant was in the prosecutor’s office, T.C. completed a power of attorney document so that he could represent her in the event that she was taken into custody that night. The applicant did not sign that document. 13. The applicant lodged a criminal complaint against the prosecutor in charge of the proceedings on the night of 3 May 2001, but on 2 September 2002 the Prosecutor’s Office attached to the Supreme Court of Justice decided not to prosecute. The applicant did not object to that decision before the courts. 14. On 4 May 2001 the applicant was hospitalised for panic attacks, impulsive personality disorders and stress induced by her workload. She left the hospital the next day, on her own initiative. 15. On 7 May 2001 the prosecutor ordered the applicant’s detention pending trial. However, she could not be arrested, as she had left the country. On 14 July 2001 the applicant was apprehended in Bulgaria. She was extradited at the prosecutor’s request. 16. On 6 June 2001 the prosecutor set in motion the criminal trial against the applicant (punerea în mişcare a acţiunii penale). 17. On 18, 22 and 26 September, and 1 October 2001 the applicant gave new statements to the prosecutor in the presence of her appointed counsels. She retracted her initial confession, claiming that it had not represented the truth but was a mere reproduction of what the prosecutor had read to her from the RIS report (see paragraph 8 above). She claimed that at the time she had made the initial statement she had been in a state of shock, having been traumatised by the prosecutor and forced to confess to deeds that she had not committed. The prosecutor had suggested that if she confessed, only disciplinary action would be taken against the judges and prosecutors suspected of corruption; she was therefore led to believe that through her action she would help the magistrates who were under investigation. She denied having committed any of the acts of corruption imputed to her and claimed that she could not remember what she and the other defendants had been referring to in the conversations recorded by the RIS and played to her by the prosecutor during questioning. Mention was made in the statements that the applicant had been informed of the charges brought against her and of the rights of the defence. 18. On 12 December 2001 the prosecutor indicted the applicant for trading in influence (trafic de influenţă), giving bribes (dare de mită) and illegally crossing the border (trecerea frauduloasă a frontierei). Several other persons were committed to trial under the same measure, including judges V.A. and R.F. and a prosecutor. In particular, the applicant was accused of having offered money to judges, including V.A. and R.F., in an attempt to have some of her clients released from pre-trial detention. She was also accused of having fled the country in order to escape the criminal proceedings against her. 19. The case was heard by the Criminal Division of the Supreme Court of Justice. 20. On 31 January 2002 the Supreme Court heard testimony from each defendant and the relevant parts of the audio tapes were played in their presence. None of them denied having had the recorded conversations. 21. The applicant denied having committed any crime and claimed that she could not remember exactly what she had been referring to in the conversations recorded by the RIS. She maintained that the discussions with V.A. had concerned only matters of law. 22. Judge V.A. also denied having committed any crime. He explained that his discussions with the applicant, which had been recorded through secret surveillance, as well as those he had had with his fellow judges about the cases referred to by the applicant, had concerned only questions of law. He maintained that he had not accepted any money or promise of money from the applicant. He reiterated that in his capacity as judge inspector, he was entitled to discuss questions of law with his colleagues. 23. Judge R.F. also denied having committed any crimes. 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 the applicant, had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate. 24. 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 the applicant’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 a 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 the applicant was trying to corrupt 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. 25. On 21 February 2002 the statements made by the defendants were read out in court. They were allowed to supplement their testimony and put questions to their co-defendants. 26. At the same hearing the Supreme Court heard testimony from the witnesses for the prosecution. 27. 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 (“the CCP”). 28. At a hearing on 4 April 2002 the Supreme Court dismissed a request by the co-defendants, A.V. and R.F., 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. 29. On 4 April, 25 April, 9 May, and 6 June 2002 the Supreme Court heard eight witnesses for the defence. 30. Lawyer T.C. attested that the applicant had been in a state of shock the night when she had been taken to the prosecutor’s office to give a statement; that he had accompanied her there but had not been allowed to attend the actual questioning; and that only afterwards had he seen her writing the statement, which he had then read and countersigned. He reiterated that while the applicant had been in the prosecutor’s office, he had completed a power of attorney document so that he could represent her (see paragraph 12 above). 31. 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. 32. On 6 November 2002 the Supreme Court of Justice, sitting as a three-judge bench, rendered its decision. It changed the legal classification from a continuous crime of giving bribes, to three individual crimes of giving bribes. It convicted the applicant for the three counts of giving bribes, for trading in influence and for illegally crossing the border, and sentenced her to six years’ imprisonment. The co-defendants were likewise convicted and received prison sentences for their deeds. The sums of money received in bribes were confiscated. 33. 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 the applicant’s clients had been released from prison because she had bribed the judges. 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 applicant and the witnesses corroborated the transcripts of the telephone conversations. 34. 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); neither did the original harddisk on which the conversations had been recorded. 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. 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. 35. 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. 36. The Supreme Court further dismissed the applicant’s complaints concerning the manner in which she had been questioned by the prosecutor in the night of 3 May 2001. In particular, the court observed that the applicant’s statement was clear and coherent. In the court’s opinion, it showed no signs of having been given in an unbalanced mental state, as the applicant had tried to claim afterwards. The court proceeded to examine in parallel the RIS report and the applicant’s incriminatory statement, and noted that she had offered significant details that did not figure in the RIS report. This proved that she had had the conversations, as only a direct participant could have known aspects that had not been revealed in the RIS report but had later been confirmed by supporting evidence. It also noted that neither she nor her counsel had made any complaints at that time about the questioning or the alleged disregard for the rights of the defence. 37. All parties appealed against the judgment. In particular, the applicant complained that the Supreme Court had changed the classification of the crimes; that she had been forced to make the initial statement of 4 May 2001; that the telephone tapping had been illegal and in breach of Article 8 of the Convention – she asked the court to hear evidence from the experts – and lastly, that there had not been sufficient elements to justify her conviction by the lower court. The applicant made no specific complaints concerning the wording of the judgment, in particular about the manner in which the court had qualified one of her interlocutors as an “intimate friend”. 38. The case was heard by a nine-judge bench of the Supreme Court, who rendered the final decision on 8 October 2003. 39. 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. 40. It therefore concluded that the evidence in the file was sufficient and that the first-instance court had correctly interpreted the facts based on the elements at its disposal. 41. The Supreme Court noted that the first-instance court had changed the legal classification of the crimes committed by the applicant 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 the applicant to give bribes to several individual crimes of trading in influence and aiding and abetting the applicant to give bribes. It accepted that the first-instance court had erred in not allowing the parties to discuss the new legal classification of the crimes. 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. 42. From the date of her arrest on 7 December 2001 until her release on 1 March 2005, the applicant was held mainly in Bucharest-Rahova and Târgşor Prisons. She was first taken to the latter on 7 September 2002. 43. Regarding the conditions of detention in Rahova Prison, the applicant alleged that she had been held in overcrowded, badly ventilated cells. She claimed that the occupancy rate had been between nine and twenty prisoners to one six-bed cell. She had had to share the cell with individuals suffering from consumption or HIV. She alleged that the detainee who had been suffering from HIV had been violent and had threatened her fellow inmates that she would contaminate them with the virus. The applicant further alleged that the prison authorities had failed to intervene, despite her complaints. 44. It appears from the official prison documents submitted by the Government that in Rahova Prison the applicant was held in a 21 sq. m cell containing ten bunk beds. The cell had a 1.44 sq. m window, and the ventilation was ensured naturally through the door and window. It contained a separate toilet measuring 1.78 sq. m with a window and a shower room measuring 6.48 sq. m. The detainees had permanent access to running drinkable water; hot water was available twice a week for two hours at a time. The inmates were responsible for cleaning the facilities with products provided by the prison administration. The detainees were allowed daily walks of one to three hours in the prison court yard. 45. According to the applicant, during her stay in Târgşor Prison she had had to work for more than ten hours each day and received less than the monthly average salary. 46. The official prison records submitted by the Government attested that the applicant had worked an average of 17.76 days a month for an average of eight hours a day, which was below the twelve-hour working day permissible under the Execution of Sentences Act (“Law no. 23/1969”; see paragraph 59 below). In accordance with the relevant law, the applicant’s sentence was reduced in proportion to the work performed. She also received remuneration for her work, of which, in accordance with the law, 10% was paid to her and 90% to the prison. 47. During her stay in Târgşor Prison the applicant lodged a complaint under Emergency Ordinance no. 56/2003 on the rights of persons deprived of their liberty (“Ordinance no. 56/2003”; see paragraph 59 below) alleging lack of privacy when making telephone calls from prison. She complained that the telephones were too close to each other to allow for private conversations and that the wardens remained close by when prisoners were using the phones. She sought 5,000 euros (EUR) in damages for mental suffering. 48. It appears from the information submitted by the prison authorities that detainees were required to write down in a special register the date and start time of telephone calls, the number dialled, and to sign their name. 49. On 26 October 2004 the Ploieşti District Court dismissed the complaint, considering that the situation in Târgşor Prison respected the relevant regulations concerning the confidentiality of telephone conversations and that therefore no infringement of the privacy rights guaranteed under Article 8 could be found. 50. In an appeal lodged against the District Court’s judgment, the applicant pointed out that all the phone numbers dialled from prison were recorded in a special register, along with the date and time of the respective calls. 51. In a final decision of 15 December 2004 the Prahova County Court dismissed the appeal and upheld the District Court’s decision. It observed that the telephones were placed at regular two-metre intervals approximately three to four metres from the warden’s booth. Under the regulations, the warden had an obligation to check that the telephone number dialled was the same as that entered by the prisoner in the special register, but she did not monitor the telephone conversation itself. The court considered that the registration of the dialled numbers did not constitute a breach of prisoners’ privacy rights. 52. On 4 September 2003 the applicant filed for divorce and custody of her minor child, on the grounds that her relationship with her husband had started to become tense in 2000; he had neglected their two children and had ultimately left home in May-June 2001. 53. The request was granted and in a decision of 13 November 2003 the Bucharest District Court declared the couple divorced. The applicant reverted to her maiden name, Niculescu. 54. On 10 May 2001 the applicant was suspended from the Bar Association for the duration of the criminal proceedings against her. On 27 October 2003 the Bucharest Bar Association decided, based on a recommendation by the National Bar Association, to exclude the applicant from its list of members. This decision was not communicated to the applicant. 55. As the final decision of 8 October 2003 (see paragraphs 38 and following, above) did not prohibit the applicant from exercising her profession, on 5 May 2005 she asked the Bucharest Bar Association to reinstate her. On 20 April 2005 the Bucharest Bar refused her request and informed her of the decision taken on 27 October 2003. 56. Having objected unsuccessfully to the National Bar Association, the applicant lodged a complaint with the administrative courts, invoking both procedural and substantive flaws in the contested decision. 57. On 8 January 2008 the Bucharest Court of Appeal dismissed the complaint, giving detailed responses to all the arguments raised by the applicant. In particular, the court noted that the applicant’s name had been struck from the Bar Association’s list of lawyers not to prohibit her from exercising her profession, but because, in committing crimes in the exercise of her profession, she had become unfit to practise as a lawyer, in accordance with the Legal Profession Act (Law no. 51/1995). 58. An appeal lodged by the applicant was subsequently dismissed by the High Court of Cassation and Justice, which gave the final ruling in the case on 22 October 2008. 59. The relevant legal provisions concerning the conditions of detention, including a succession of laws on the execution of sentences – Law no. 23/1969, Ordinance no. 56/2003 (in force since 27 June 2003) and Law no. 275/2006 (in force since 23 July 2006) – and the effective remedies they introduced are summarised in Iacov Stanciu v. Romania (no. 35972/05, §§ 11319, 24 July 2012). In addition, the provisions of the above laws concerning prison work are detailed in Floroiu v. Romania (dec.), no. 15303/10, §§ 17-21, 12 March 2013). The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and the reports by the Council of Europe Commissioner for Human Rights, made following numerous visits to Romanian prisons, are also summarised in Iacov Stanciu, cited above, §§ 125-29). There is no CPT report concerning Rahova Prison. However, a Romanian NGO, APADOR-CH (Association for the Defence of Human Rights in Romania – the Helsinki Committee) visited that establishment on 13 February 2009. The report prepared following its visit indicated that, based on the information submitted by the authorities, the average personal space for each prisoner was 2.77 sq. m. The overcrowding was obvious when visiting individual cells: one of the cells visited, measuring 18 sq. m, had accommodated eleven prisoners, even though only ten beds had been available. The report indicated that only one detainee had complained about the quality of the prison food and that many prisoners had preferred to eat the food they received from home or bought from the shop (see Goh v. Romania, no. 9643/03, § 38, 21 June 2011). 60. 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). 61. 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.” 62. 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. 63. The provisions of Ordinance no. 56/2003 and the subsequent Execution of Sentences Act (Law no. 275/2006), concerning the use of public telephones in prison, are described in Brânduşe v. Romania (no. 6586/03, § 26, 7 April 2009) and in Coscodar v. Romania ((dec.), no. 36020/06, § 12, 9 March 2010). In addition, in accordance with Article 7 of Order no. 4622 issued on 22 September 2003 by the Director General of the Prison Administration pursuant to the above Ordinance, the prison staff had to keep a record of the numbers dialled by the detainees and the start time of telephone calls.