CASE OF POP AND OTHERS v. ROMANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicants were born in 1967, 1974, 1953 and 1961 respectively and live in Baia Mare. 6. On 1 April 2001 the Cluj Military Security Department started secretly monitoring the applicants’ telephone conversations on the basis of an order issued by the Military Prosecutor’s Office attached to the National Anti-Corruption Prosecutor’s Office (“the Military Prosecutor’s Office”). The surveillance order issued by the Military Prosecutor’s Office was based on Law no. 51/1991 on national security (“the National Security Act”). The applicants were suspected of being part of a network trafficking in Schengen visas. 7. The first two applicants were at the material time Romanian army officers, while the last two applicants were civilians. 8. On 2 October 2002 the first two applicants were questioned for the first time at the Military Prosecutor’s Office as part of the investigation initiated by the domestic authorities against a network of individuals trafficking in Schengen visas. At the material time the two applicants had not been charged with any offence and were not assisted by a lawyer. The first applicant had allegedly been pressurised by the prosecutor to sign a written statement. The second applicant was detained by the Military Prosecutor’s Office for twenty hours, allegedly without an arrest warrant in his name and without being informed about the reasons for his detention. 9. On 3 October 2002 the second applicant was heard by the Military Prosecutor’s Office for the second time. No charges had been brought against him at the time. He was informed of his right to be assisted by a legal representative and agreed that one could be appointed for him. 10. On 12 December 2002 the third applicant was questioned at the Military Prosecutor’s Office for the first time. At the time he had not been informed of the charges brought against him and he was not assisted by a lawyer. 11. On 13 December 2002 the fourth applicant was questioned for the first time at the Military Prosecutor’s Office. At the time he had not been charged with any criminal offence and was not assisted by a legal representative. His written statement contained only confirmation that he had been using a company mobile phone and the phone number attached to the phone since May 2000. On the same day the fourth applicant was summoned to appear at the Military Prosecutor’s Office on 16 December 2002. 12. By a Military Prosecutor’s Order issued on the same date a criminal investigation was opened (ȋnceperea urmăririi penale) against the first three applicants for complicity in bribery and aiding an offender. The Prosecutor’s Order did not expressly state that a criminal investigation had been opened against the fourth applicant as well, although his name and the unlawful act he was suspected of was mentioned in the order. 13. On the same date, in the presence of the chosen legal representative of the first two applicants and of the officially appointed legal representative of the third applicant, the previously mentioned three applicants were charged by the domestic authorities with complicity in bribery and aiding an offender, and were heard in respect of the charges brought against them. They maintained and reiterated their previous statements and they were presented with the evidence available in the file. In addition, they stated that they did not request any other evidence. 14. On 16 December 2002, in the presence of an officially appointed legal representative, the fourth applicant was charged with complicity in bribery and was questioned in respect of the charges brought against him. He too reiterated his previous statement. He was presented with the evidence available in the file. 15. On 20 December 2002 the Military Prosecutor’s Office indicted the four applicants and sent their case to trial before the Bucharest Military County Court. The Military Prosecutor’s Office relied mainly on transcripts of the recordings of the applicants’ telephone conversations, witness statements by some of the individuals the applicants had unlawfully helped to obtain visas, and the applicants’ own statements. 16. On 23 and 24 December 2002 three newspaper articles were published in a national newspaper and on news websites reporting on the four applicants’ indictment and the offences they were suspected of. 17. At the hearing of 4 March 2003 the applicants sought an adjournment of the proceedings in order to allow them to acquaint themselves with the contents of the secret file of the case to prepare their defence. 18. At the hearing of 11 March 2003 the four applicants were heard by the Bucharest Military County Court. They all maintained their statements given before the domestic authorities over the course of the criminal investigation. The first-instance court also ordered the summoning of the individuals unlawfully helped by the applicants to obtain visas, although the applicants expressly stated that they did not insist on those people being heard. 19. At the hearing of 18 March 2003 the first-instance court heard some of the witnesses summoned on 11 March 2003 and ordered the resummoning of the witnesses who had not attended the hearing, although the applicants had once more expressly stated that they did not insist on the remaining witnesses being heard. 20 21. At the hearing of 8 April 2003 the first-instance court allowed the applicants to submit documentary evidence and acceded to their request that the hearing of the remaining witnesses be dispensed with as not necessary to the case. In addition, it noted that no other demands or requests for evidence had been lodged by the applicants, and declared the judicial investigation of the case closed. The court adjourned the hearing in order to allow the parties to make written submissions. 22. By a judgment of 22 April 2003 the Bucharest Military County Court convicted all the applicants of complicity in bribery and aiding an offender, and sentenced them to prison terms of between six months and three years and six months. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. It found amongst other things that once they had been presented with the transcripts of their phone conversations the applicants had admitted to committing the offences they were charged with. Moreover, the transcripts of the applicants’ telephone conversations contained proof of their involvement in unlawful activities, although the court held that the secret monitoring of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, in spite of the court’s repeated requests, the prosecution had failed to submit: the Military Prosecutor’s Office’s order authorising the tapping of the applicants’ phones between 17 April 2001 and 2 October 2002; the complete transcripts of the recordings; the certification of the recordings’ authenticity; and the records containing the list of the telephone numbers monitored by the authorities. The applicants appealed against the judgment. 23. On 11 November 2003 the Military Court of Appeal, sitting in a panel of judges which included the judge P.P., allowed the applicants’ appeal, quashed the judgment of 22 April 2003, and ordered a retrial from the moment of deliberation. The court of appeal held that the first-instance court had disregarded the applicable rules on criminal procedure and had deliberated on the case in a single-judge formation, while the legal requirement was a two-judge formation. 24. By an interlocutory judgment of 5 March 2004 the Bucharest Military County Court allowed the applicants’ request for the hearing of the witnesses C.C., M.P. and A.M., after their legal representative took it upon himself to submit to the court the addresses of the aforementioned witnesses. In addition, the court allowed of its own motion the parties to submit observations on the admissibility as evidence of the transcripts of the recordings of the applicant’s telephone conversations included in the secret surveillance case file. Furthermore, it noted that the applicants’ legal representatives had argued that the aforementioned recordings had been carried out unlawfully and could not be considered as evidence in the case. The court also ordered the summoning by orders to appear (mandate de aducere) of all the witnesses mentioned by the Military Prosecutor’s Office in the order of indictment who had not previously been heard by the court, including the three witnesses expressly requested by the applicants. Lastly, it ordered the Military Prosecutor’s Office to provide additional explanations concerning the lawfulness of the interception of the applicants’ telephone conversations, the recordings of which were attached to the secret surveillance file of the case. 25. On the same date the applicants’ legal representative submitted to the court the addresses of witnesses C.C., M.P. and A.M. 26. At the hearing of 23 March 2004 the first-instance court noted that only some of the summoned witnesses were present, and proceeded to hear them. Witnesses C.C., P.M. and M.A. had not attended the hearing. In addition, it ordered the re-summoning of some of the missing witnesses, but not of witnesses C.C., P.M. and M.A. 27. By an interlocutory judgment of 6 April 2004 the first-instance court acknowledged the applicants’ decision not to insist on the hearing of the absent witnesses. In addition, it noted that according to the applicants’ submission the recordings of their telephone conversation could not be adduced to the file because they had been unlawful. Also, the Prosecutor’s Order of 13 December 2002 did not expressly state that a criminal investigation had been opened against the fourth applicant as well, probably because there had been confusion between the fourth and the third applicants’ names. 28. By a judgment of 15 April 2004 the Bucharest Military County Court convicted the applicants of complicity in bribery and aiding an offender and sentenced them to prison sentences of between six months and two years. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. In delivering its sentence the court relied mainly on the witnesses’ and the applicants’ statements. It also held that the transcripts of the recordings of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, after the recording of the conversation the investigating authorities had to produce records containing information about the authorisation for the surveillance, the names and numbers of the telephones used for the recorded conversations, the date and time of each conversation, and the number of the device on which the conversation had been recorded. Also, the full content of the conversation had to be reproduced in writing and certified as authentic. Moreover, the original device containing the conversation bearing the seal of the investigating body had to be made available. However, the Military Prosecutor’s Office had failed to submit the full content of the recordings to the court, although it had repeatedly been asked to do so. Furthermore, the court had requested the prosecutor’s office to submit information on whether the recordings of the applicants’ telephone conversations attached to the case file had met the lawful requirements of the Criminal Procedure Code, without success. Lastly, the court had failed to examine the fourth applicant’s argument concerning the failure of the prosecutor’s order to expressly state that a criminal investigation had also been opened against him. The applicants appealed against the judgment. 29. They argued that the first-instance court had wrongly assessed the evidence and misinterpreted the applicable legal provisions, and that the domestic authorities had failed to open a criminal investigation against the fourth applicant. 30. The hearings before the Military Court of Appeal were adjourned three times, on 13 September, 18 October and 22 November 2004, on account of the authorities’ failure to summon some of the parties. The merits of the case were not examined by the domestic court on the abovementioned dates. Judge P.P. was a member of the panel of judges on all three occasions. There is no evidence in the file that the applicants challenged the composition of the court or that they raised this argument before the domestic courts at a later stage of the proceedings. 31. By a judgment of 31 January 2005 the Military Court of Appeal dismissed the applicants’ appeal. It held amongst other things that although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. The applicants appealed on points of law (recurs) against the judgment. 32. The applicants reiterated their arguments that the lower courts had wrongly assessed the evidence and misinterpreted the applicable legal provisions. The fourth applicant also submitted that the lower courts had failed to examine his argument concerning the failure of the domestic authorities to open a criminal investigation against him. 33. By a final judgment of 22 December 2005 the Court of Cassation, sitting as an ordinary criminal court, dismissed the applicants’ appeal on points of law. It held that the lower court had correctly assessed the available evidence and established the applicants’ guilt. The applicants’ arguments that the offences had not taken place had been examined in detail by the lower courts, were rebutted by their own actions, and did not have any lawful grounds. Although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the lower courts had correctly established that the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. In this context, the obstruction of the investigation by the second applicant could not be ignored. On 2 October 2002 the second applicant had telephoned the wife of one of the co-accused to ask her to “hide and destroy a diary” which contained a breakdown of the money taken from the victims by the aforementioned co-accused. Consequently, the second applicant’s guilt had also been correctly established. There is no evidence in the file that the last-instance court examined the appeal point raised by the fourth applicant. 34. The applicants submitted to the Court a number of newspaper advertisements allegedly published by several third parties offering to act as intermediaries for visa applications.