CASE OF ŢEHANCIUC v. ROMANIA
Inadmissible
Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
1. The applicant, Mr Marcel Ţehanciuc, is a Romanian national who was born in 1966 and lives in Suceava. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 8 December 2003 the applicant, who was a customs officer in the Siret customs service, was indicted and sent before the criminal courts, accused of having accepted bribes, of committing forgery and of abuse of his official position, offences sanctioned by Article 254 § 2, Article 248 and Article 289 of the Romanian Criminal Code and sections 7(1) and 17(c) and (d) of Law no. 78/2000 on the prevention, discovery and sanctioning of acts of corruption. The indictment contained detailed references to the criminal investigation started in 2002 and conducted with respect to a certain Mr. E. It stated that in 2002 the police had found that Mr. E had been illegally importing goods into Romania without paying the taxes due, allegedly with the help of some customs officers and some border policemen to whom he had allegedly given various amounts of money. The goods, which had been declared as destined for private use, had in fact been subsequently placed on the market and sold, and as such were not exempted from customs duties. Besides Mr. E. and the applicant, eight customs officers were sent for trial before the Suceava County Court. The customs officers, including the applicant, were charged with taking bribes, but also with improper conduct in the exercise of their professional duties, namely in the application of the customs regulations concerning the importing into the country of the goods in question. Some customs officers and the members of the border police were not indicted on the ground that the acts committed by them lacked intention or that they had only committed professional faults, while some of them received an administrative fine. The evidence adduced by the prosecution included the statements of Mr. E. accusing the customs officers of taking bribes, statements which he partially withdrew later before the courts, testimonials of witnesses to the effect that E. had declared as private goods merchandise belonging to his company, a notebook belonging to E. containing inscriptions with dates when he entered the country, initials of persons (presumed to be those of the customs officers), figures placed in reference to those initials (presumed to represent amounts of money given to those customs officers), the customs forms signed by the customs officers upon each entry into Romania of E., as well as a list of telephone calls delivered by the telephone companies to the prosecution and indicating numbers called by E. and the duration of the calls during the relevant period. 4. As a result of his being sent for trial, the applicant was suspended from his public duties pending the outcome of the criminal proceedings. The National Customs Authority, the applicant’s employer, issued its decision in accordance with the provisions of section 79(2) of Law no. 188/1999 on the Regulations governing Public Servants. 5. On 9, 10 and 11 December 2003 several local newspapers published articles about the applicant’s case. The articles included the list of all the customs officers sent for trial. The newspapers did not disclose the source of their information and no public authority was cited in the articles; no direct reference to documents in the prosecution file was made. 6. During the proceedings before it, the Suceava County Court allowed further evidence to be adduced, namely documents and other testimonials. The applicant claimed his innocence, stating that he had not received any amount of money, that he had drawn up the customs forms according to the appropriate Customs Regulations and that the internal rules applied in his work provided that in order to avoid errors committed by a customs officer, random checks were to be made upon vehicles entering the country by a superior or by the border police, which had been done in the case of E. He further claimed that he could not be convicted for taking bribes in the absence of evidence that he had received undue amounts of money and that he had done so intentionally. In his defence, he requested, among other things, that an accounting and customs report be produced to prove that the customs operations had been conducted by him in accordance with the customs regulations. The prosecution objected to the production of an expert’s report. The court rejected the request as not relevant, in so far as the file contained documents drawn up in the preliminary investigation establishing the amount of the damage. On 1 July 2005 the Suceava County Court found the applicant guilty of all the crimes he had been charged with and sentenced him to one year of imprisonment. The sentence was suspended and he was given three years’ parole. The civil claims submitted by the Suceava General Department of Public Finance and the Iaşi Customs Department concerning alleged pecuniary damage were dismissed for belatedness. 7. The applicant appealed against this judgment. He claimed that the first-instance court had relied on evidence that was inconsistent and not sufficient to prove the charges brought against him, especially considering that Mr E. had withdrawn his statements according to which he had bribed the customs officers. The applicant also submitted that the legal classification of the alleged criminal acts was incorrect. The parties that had submitted civil claims, namely the Suceava General Department of Public Finance and the Iaşi Customs Department also challenged the judgment with respect to their requests concerning the alleged pecuniary damage. On 13 February 2006 the Suceava Court of Appeal upheld the first-instance judgment with regard to the applicant’s conviction and also concerning the civil claims of the public institutions. 8. Following the applicant’s appeal on points of law, on 9 November 2007 the High Court of Cassation and Justice held that the facts and the law applicable to the case had been established correctly by both the first-instance and appellate courts and that the applicant’s conviction was based on sufficient evidence and was in accordance with the law. With reference to the civil claims in the file and considering the appeal on points of law lodged exclusively by the Suceava General Department of Public Finance, the High Court quashed the previous judgments and decided to refer the case back to the first-instance court for a new assessment, in so far as their dismissal for belatedness with respect to the appellant had not been lawful. 9. These proceedings ended on 21 May 2008, when the Suceava County Court gave its judgment, holding that the case remained without object in so far as Mr. E. had paid all the amounts owed to the State’s budget. This judgment was not challenged and on 16 June 2008 it became final. 10. Section 79 of Law no. 188/1999 concerning Regulations governing Public Servants, as in force on 11 December 2003, provides as follows: “(1) The liability of a civil servant for offences committed in the course of his duties or in relation to his work attributions shall be established in accordance with the criminal law. (2) In the event of criminal proceedings being initiated in personam (punerea în mişcare a acţiunii penale) concerning criminal acts such as those provided for in section 49 (h) [crimes against the State, against a public authority, concerning work relations... involving corruption or otherwise... that would disqualify the person from exercising public office], the director of the public authority or institution shall order the suspension of the civil servant from the public office he/she holds. (3) If the criminal proceedings are terminated or if the court pronounces an acquittal or the termination of the case, the suspension ceases, and the public servant shall be reinstated to the previously held public office and all the salary rights corresponding to the suspension period shall be granted to him/her.” 11. The relevant provisions of the Romanian Criminal Code in force at the time of the relevant facts read as follows: “(1) The act of a public servant who, either directly or indirectly, for himself or for another, claims or receives money or other undue benefits, or accepts the promise of such benefits or does not reject it, in order to perform, not to perform or to delay the accomplishment of an act with regard to his/her service duties or in order to perform an act that is contrary to these duties, shall be punished by imprisonment from 3 to 12 years and the deprivation of certain rights. (2) The act in paragraph (1), if it has been committed by a civil servant or a person exercising a service of public interest, shall be punished by strict imprisonment from 3 to 15 years and the deprivation of certain rights.” “The act of a public servant, who, in the exercise of service prerogatives, knowingly fails to perform an act or performs it erroneously and by so doing causes significant disturbance to the proper operation of a public authority or institution or of a legal entity, or causes damage to its property, shall be punished by imprisonment from 6 months to 5 years.” “(1) The act of forging an official document when it is drawn up, committed by an employee in the exercise of his/her working duties, by certifying untrue acts or circumstances or by omitting, knowingly, to insert certain data or circumstances, shall be punished by imprisonment from 6 months to 5 years. (2) Any attempt to commit such an act shall also be punished.” 12. In 2004 the Romanian Constitutional Court was seized with a plea of unconstitutionality regarding Section 65 (3) provisions of the Government Emergency Ordinance no. 360/2002 regulating the Police Officers’ Statute; the provisions, as laid out at the time, stipulated that in the event when a police officer was charged with criminal acts allegedly committed in relation with his/her job, he/she was to be suspended from his/her office, until a final judgment in the criminal proceedings was given. In its decision delivered on 27 May 2004, the Romanian Constitutional Court held that the suspension of a police officer, as it was prescribed at the time, did not breach the presumption of innocence in so far as: Even though the suspension from office does determine the limitation of certain rights and liberties, it cannot be considered to be in breach of the presumption of innocence. This measure is necessary for the protection of public order and for the proper administration of justice. The suspension from office of a policeman is ordered when he/she has intentionally committed a criminal act that would make him/she incompatible with his office; it is a measure taken for the protection of the employer’s interests in its facing the danger that the illicit activity could continue and the consequences of the criminal acts could expand, the protection being accomplished by preventing similar acts to be perpetrated and by upholding the prestige of the institution. More particulars of the domestic legislation on the Police Officers’ Statute and of the Constitutional Court’s decision are presented in the case of Calmanovici v. Romania (no. 42250/02, §§ 50-51, 1 July 2008), in which the issue of the suspension of a police officer on account of his being arrested and sent before trial for allegedly committed criminal acts was assessed by the Court under Article 8 of the Convention (§§ 134 – 139).