CASE OF STOICAN v. ROMANIA
Violation of Article 5 - Right to liberty and security
Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1963 and lives in Bucharest. 6. At the material time she was a judge in a first-instance court in Bucharest. Two sets of criminal investigations were started against her, on suspicion of having repeatedly falsified official documents in the exercise of her duties, as part of an organised group, with the aim of illegally obtaining title to various properties in the centre of Bucharest. 7. Under the provisions of Law no. 92/1992 on the Organisation of Justice, the applicant was automatically suspended from her post during the criminal trial. 8. On 18 September 2001 she was dismissed from her post by an order of the Supreme Council of the Judiciary (Consiliul Superior al Magistraturii) for manifest professional unfitness. On 15 July 2003 the decision was endorsed by the President of the Republic and on 3 November 2003 it was upheld by the High Court of Cassation and Justice (former Supreme Court of Justice), upon an appeal by the applicant. 9. On 9 October 2001 the prosecutor at the Supreme Court of Justice started the criminal investigations against the applicant. 10. On 27 November 2001 the applicant was arrested for thirty days, on the orders of the prosecutor, in connection with the criminal investigations against her. The applicant appealed against the arrest order on the grounds that it did not satisfy the domestic-law requirements or those set forth in Article 5 § 3 of the Convention. 11. On 5 December 2001 the Bucharest Court of Appeal upheld the arrest order. It found that the evidence in the file disclosed a reasonable suspicion that she had committed the offences she was accused of. It considered that her actions, which were contrary to public policy, had been aggravated by the fact that the applicant had been a judge at the time. On 14 December 2001 the Supreme Court of Justice upheld the order by two votes to one. The third judge expressed his separate opinion that there were no grounds for arresting the applicant. 12. On 19 December 2001 the Court of Appeal extended the applicant's pre-trial detention by thirty days, upon a request by the prosecutor. It found that: “the reasons invoked – in the light of the complexity of the case which requires that the prosecutor take the investigative measures indicated in his request – constitute sufficient justification under Articles 155 et seq. of the Code of Criminal Procedure.” On 28 December 2001 the Supreme Court of Justice upheld the abovementioned interlocutory judgment. 13. On 24 January 2002 the Court of Appeal extended the applicant's detention on the ground that the applicant's release would be contrary to public policy, given the seriousness of the offences she was accused of and the risk of generating society's mistrust in the judicial system. On 6 February 2002 the Supreme Court reduced the new term of detention to fifteen days. 14. On 7 February 2002 the Court of Appeal extended the detention for a further thirty days on the ground that the reasons invoked for the arrest still existed. On 15 February 2002 the Supreme Court reduced the duration of detention to fifteen days again. 15. On 21 February 2002 the Court of Appeal extended the detention by nineteen days on the same grounds, in order to allow the prosecutor to finalise the investigations. On 5 March 2002 the Supreme Court upheld the interlocutory judgment. 16. On 14 March 2002 the Court of Appeal dismissed a new request by the prosecutor for another extension of the applicant's pre-trial detention, from 15 April to 14 May 2002. It found that the reasons that had justified the taking of the measure did no longer exist. It noted that the applicant had been suspended from her position and pointed out that the alleged danger in terms of public policy should not be assessed in abstract terms. It also noted that the prosecutor had not made progress with the investigations after the applicant's arrest and had not carried out the procedural measures for which he had repeatedly sought an extension of the detention. On 15 March 2002 the Supreme Court of Justice reversed the decision on the ground that the documents in the file justified the extension. 17. On 10 April 2002 the Court of Appeal rejected, on the same grounds as before, another extension request. On 12 April 2002 the Supreme Court reversed the interlocutory judgment again. 18. In the following interlocutory judgments in the case the Court of Appeal did not examine the applicant's detention, as she had been “arrested in connection to other criminal proceedings” (point B below). 19. On 13 June 2002 the applicant was committed to stand trial along with several other persons. The prosecution examined some forty witnesses, documents were transferred from various authorities and several expert reports submitted. 20. The Court of Appeal gave judgment on 31 October 2003, convicting the applicant of abuse of power and forgery and sentencing her to five years' imprisonment. The applicant's sentence was increased to seven years' imprisonment on appeal (decision of 28 February 2005 of the Supreme Court of Justice) and became final on 24 March 2006. 21. The applicant was released from prison on 13 November 2007. 22. On 11 April 2002 the applicant was arrested by the prosecutor at the Bucharest Court of Appeal in connection with criminal investigations against her. The prosecutor justified his order on the grounds that the criminal offence that she had been accused of was punishable by a term of imprisonment of more than two years and that her continued freedom would run counter to public policy. 23. On 23 April 2002 the applicant was brought before the Court of Appeal for examination of her appeal against the arrest order. On 24 April the Court of Appeal delivered its interlocutory judgment; it upheld the arrest order in the following terms: “Under the terms of the last paragraph of Article 140 of the Code of Criminal Procedure, the court may quash the arrest order ... only if it finds that the measure was illegal. However, in the case at hand, the [applicant's] arrest meets the conditions set forth in Article 148 of the Code of Criminal Procedure and the criteria in Article 136 § 3 of the Code of Criminal Procedure, to ensure the proper administration of criminal proceedings; therefore the [applicant's] complaint against the arrest order seems illfounded and shall be dismissed. ... Concerning the request for conditional release from arrest, in accordance with Articles 1604 and 1606 § 5 of the Code of Criminal Procedure, the prosecutor decides on such a request during the prosecution phase and the court that examines the merits of the case deals with the request made during the criminal trial. Therefore, the court does not have the power to examine the request, in so far as the case is currently in the prosecution phase, under the prosecutor's exclusive supervision.” The court also found that the prosecutor had the power to issue the arrest order, and dismissed the applicant's complaint to the contrary. On 7 May 2002 the Supreme Court of Justice upheld the interlocutory judgment, in particular on the ground that the reasons that had justified the imposition of the preventive measure still existed and thus the applicant's continued detention was legal. 24. On 29 April 2002 the Court of Appeal extended the detention for another thirty days, at the prosecutor's request. It found that: “the reasons invoked for taking the measure still exist, with regard to the nature of the offence, the circumstances of the facts and the consequences produced. Moreover, the extension of the pre-trial detention is necessary, given the complexity of the case, which requires an examination of several witnesses, various expert investigations, gathering of documents from the authorities and confrontations.” On 15 May 2002 the Supreme Court of Justice dismissed the applicant's appeal and upheld the above interlocutory judgment. 25. On 29 May 2002 the Court of Appeal dismissed another request by the prosecutor and refused to extend the applicant's detention for a month. It noted that the prosecutor had already gathered the evidence and could not justify the need for continuing the applicant's detention; it also found that as the applicant had been dismissed from her post, there was no longer a public-policy issue. On 30 May 2002 the Supreme Court reversed the above decision and extended the detention by seven days to allow the prosecutor to gather more evidence, as he had requested. 26. On 5 June 2002 the applicant was committed for trial by the prosecutor, on charges of abuse of power and forgery, in respect of facts similar to those under investigation in the above-mentioned criminal file (described at A above). 27. On 6 June 2002 the Court of Appeal dismissed a further extension request by the prosecutor and ordered the applicant's release as it considered that the reasons for her detention did no longer exist. The same day the Supreme Court reversed the decision; it held that the Court of Appeal had not given reasons for its decision and that the applicant's release would still be contrary to public policy in that she had apparently committed several similar offences. It therefore extended the detention pending trial by thirty days. 28. On 24 June 2002 the Court of Appeal extended the applicant's detention by thirty days on the ground that: “as the reasons that justified the taking of this measure still exist, releasing her would be highly contrary to public policy and would harm the investigations.” On 5 July 2002 the Supreme Court declared inadmissible an appeal lodged by the applicant, on the ground that a decision extending detention was subject to appeal at the same time as the judgment on the merits of the case. 29. On 1 August, 2 and 27 September and 1 and 22 November 2002 the Court of Appeal extended the detention for further terms of thirty days, with the same justification. On 15 August, 9 October and 27 November 2002 the Supreme Court declared the applicant's respective appeals inadmissible. On two occasions – 13 September and 10 December 2002 – the Supreme Court upheld on the merits the interlocutory judgments delivered by the Court of Appeal. A request by the applicant for conditional release was also dismissed by the Court of Appeal, on 22 November 2000. 30. On 20 December 2002 the Court of Appeal gave judgment in the case. It convicted the applicant of abuse of power and forgery and sentenced her to one year and six months' imprisonment. In a final decision of 4 June 2003 the Supreme Court of Justice upheld the conviction but reduced the sentence to one year and four months' imprisonment. 31. The relevant provisions of the Code of Criminal Procedure concerning pre-trial detention and its extension are set forth in Pantea v. Romania, no. 33343/96, § 150, ECHR 2003VI (extracts). The procedure for lodging complaints against preventive measures, including pre-trial detention, is described in Tase v. Romania, no. 29761/02, §§ 14-15, 10 June 2008.