CASE OF MIREA v. ROMANIA
No violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
Branko Lubarda;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits
5. The applicant was born in 1968 and lives in Braşov. 6. At the time of the events in question the applicant was occasionally working for M.V. and also providing information on the latter’s business activities to S.S., an operative officer of the Romanian Intelligence Service (“the SRI”). 7. In the evening of 25 September 2002 E. paid a visit to M.V. at the latter’s business headquarters in Braşov and asked him to return 50,000 United States dollars (USD) which E. had allegedly lent him to help him start his activity. M.V. had previously refused to pay the money back. That evening, an argument broke out among them. M.V. and four other individuals kidnapped E. and beat him severely to induce him to give up the debt demand. Later that night M.V. called the applicant and asked him to come by car to the headquarters to transport someone to Bacău. 8. The applicant arrived later in the evening, and found E. severely beaten and begging M.V. to spare him. The attackers tied the victim up and put him in the boot of his own car. They drove away, murdered E. and staged a road accident as cover-up. The applicant arrived at the scene by car and drove the attackers back to their homes. 9. On 5 October 2002 the applicant contacted S.S., who was away on holiday, to tell him what had happened. They met a few days later, upon S.S.’s return, and on 23 October 2002 S.S. transmitted the information to the police via his superiors. 10. There was no criminal investigation of the events until a year later, when one of the participants confessed to the police. 11. On 27 October 2003 the applicant was informed that accusations had been brought against him, and made a statement to the prosecutor’s office. A lawyer of his choice was present at that meeting. 12. On 18 January 2004 the applicant and the others involved in the events of 25 September 2002 were committed for trial on charges of illegal deprivation of liberty and extremely aggravated murder. 13. Throughout the proceedings the applicant argued that he had infiltrated M.V.’s group as an informant on the behalf of the SRI. He also stated that M.V. had forced him to participate in the events by threatening him and his family. 14. On 10 November 2004 he was convicted by the Braşov County Court of aiding and abetting illegal deprivation of liberty and extremely aggravated murder. He was sentenced to seven years’ imprisonment and removal of certain rights. 15. The court based the conviction on a whole body of evidence, consisting of witness testimony, the statements made by the accused persons during the proceedings, expert examinations and police reports. Based on the evidence in the file, the County Court established that the fact for the applicant to come to the M.V.’s business headquarters at M.V.’s request and to drive alongside the car where the victim was transported and to drive the culprits back with his car constituted the crimes he was accused of; the court considered that he had helped the other culprits to commit their crimes. 16. As for the applicant’s connection with the SRI, the County Court acknowledged that he was transmitting information on M.V.’s group to officer S.S. It also took note that the SRI denied that the information about the murder provided by the applicant had been the result of collaboration with the Service. The County Court heard testimony from F.B., who confirmed that both he and the applicant had infiltrated M.V.’s group on behalf of the SRI. F.B. had been informed by S.S. that after September 2002 it had become too dangerous for the applicant to stay in direct contact with M.V., because of certain information in the applicant’s possession. 17. The County Court considered the Prevention and Combat of Organised Crime Act (see paragraph 37 below) and decided that the applicant could not benefit from any status as an SRI informant, for the following reasons: “Under Article 21 of the Prevention and Combat of Organised Crime Act, in exceptional situations, when there are indications that a crime has been committed or is being planned by members of an organised criminal group, and neither the crime nor its perpetrators can be identified by other methods, informants may be used in order to gather data concerning the commission of crimes and the identification of the perpetrators. No such indication ... existed in the present case and [the applicant] was not an informant used for gathering data concerning the crimes of illegal deprivation of liberty and extremely aggravated murder.” 18. The court also examined and discarded as unfounded the applicant’s allegations of coercion and considered that the applicant could have refused to help or informed the authorities about what was happening. It maintained as follows: “[The applicant] had the option to leave when, after arriving at the [scene], he realised what was going on, but at no point during the events had he expressed the intention to leave the group. Even assuming that he had only remained in order to collect data for the SRI, he had had an obligation to inform immediately the police or the SRI about what was happening. From the statements given by the participants, including the applicant himself, it appears that on several occasion [during that night, the applicant] remained alone and could have used his mobile phone to call the police but he did not do it, claiming that the mobile phone keyboard was blocked. However, the court cannot accept this explanation, as it is notorious that calling the police phone number is free of charge.” 19. The judgment was upheld by the Braşov Court of Appeal on 26 January 2006. 20. S.S. gave testimony in the appeal proceedings, and confirmed that he had been informed about the murder by the applicant. He reiterated in detail the events described by the applicant. As for the nature of the collaboration between him and the applicant, S.S. explained as follows: “My collaboration with [the applicant] was based on friendship and I confirm that he is an exceptional man. Our friendship goes back some twenty years. I knew that [the applicant] had relations with a certain group, but the members of the group and its activity was of no interest for the SRI, as it did not concern threats to the national security. ... I expressly declare that I cannot give any information about specifically infiltrating [the applicant] in [M.V.]’s group, because at that point, the group was not of interest for the national security.” 21. S.S. refused to give details about where he had met with the applicant, asserting that the information requested by the court was classified. 22. The Court of Appeal concluded that the applicant had taken on his own initiative the role of an SRI informant: “[The applicant] claimed that he had been infiltrated in M.V.’s criminal group by the SRI, in order to gather data about its activities. However, the SRI informed the court, by address no. 49,538 of 15 April 2004 ... that the information presented by [the applicant] to S.S. was not the outcome of any collaboration between that Service and [the applicant]. Moreover, the witness S.S. (an SRI officer), declared that M.V.’s criminal group did not constitute threats to national security ..., that being the reason why [the applicant] was not requested to gather intelligence about M.V. group. It follows that [the applicant] took on his own initiative the role of “informant”, without being officially requested to do so, and without being granted permission to participate in crimes for the purpose of gathering intelligence.” 23. The decision by the Braşov Court of Appeal was upheld by the High Court of Cassation and Justice on 24 October 2006. The High Court increased the sentence to ten years in prison. This decision was final. 24. The applicant asked for a revision of the final decision. He reiterated that it was impossible to prove before the ordinary courts that he was an SRI informant, as on the one hand the information was classified at the time, and, on the other S.S. risked losing his job if he divulged such information. He requested that the information be declassified. Furthermore, he pointed out that, as the police had failed to act upon the information he had transmitted through the SRI, he could not even benefit from a more lenient sentence, as had been the case with the other participant who had confessed to the crimes. 25. On 25 July 2007 the request was granted in principle by Braşov County Court. It considered that the information could constitute relevant evidence which had not been available to the ordinary courts. 26. The County Court heard a fresh statement from S.S., who reiterated his previous statements. He further explained that he could not reveal whether the applicant had infiltrated M.V.’s group as an informant, nor could he discuss the nature or content of the information which the applicant had given him, as the law considered it classified information. Nor could he clarify whether, as a general rule, an informant who committed an offence would benefit from protection. 27. On 12 September 2007 the SRI informed the County Court that it declassified partially the report drafted by S.S. based on the information given by the applicant concerning the crimes (the report, which contained a description of the facts as presented by the applicant, was adduced to the criminal file). It further explained that the document drafted by the applicant himself for S.S. had been destroyed after verification of the information contained and communication of that information to the police. It lastly reiterated that the information concerning collaboration with the SRI was classified under Law no. 182/2002, “the Protection of Classified Information Act”, and, if revealed, could “severely affect national security”. 28. The County Court made an extensive examination of the evidence in the file and the applicable laws. It acknowledged that the applicant had failed to provide it with conclusive evidence of his status as an SRI informant, but also considered that that situation was not imputable either to him or to the courts. It noted that declassification of documents was left to the discretion of the SRI, which, claiming “national security”, refused to reveal relevant information in the case at hand. Moreover, declassification followed a lengthy and cumbersome procedure, which undermined the rights of the defence as guaranteed by Article 6 of the Convention. 29. For these reasons, the court considered that given the difficulty of obtaining unequivocal evidence as to the applicant’s status, the incomplete information provided by the SRI and by S.S. should be given increased significance in favour of the applicant. 30. It thus concluded that the applicant had participated in the events solely as an SRI informant, and that the representation of his own role and his feelings of fear, horror, despair and repugnance at the scene of the abuse against E. removed his criminal responsibility. 31. Consequently, on 20 November 2008, the County Court quashed the previous decisions in part and acquitted the applicant on both counts. 32. On 22 October 2009, acting upon an appeal lodged by the prosecutor’s office, the Braşov Court of Appeal quashed that judgment and dismissed the request for revision. It considered that that remedy could not be used solely to adduce new evidence, and that the ordinary courts had already examined the theory according to which the applicant had been a SRI informant who had infiltrated M.V.’s group: “Article 394 (a) of the Code of Criminal Procedure concerning revision does not refer to newly discovered evidence, because if it were so, revision would become another [ordinary] level of jurisdiction ... The new facts of circumstances [required by Article 394 above as reason for allowing the revision] will be confirmed by new evidence, but it is not the evidence that constitutes the reason for revision ...” 33. The court also considered that the fact that the status of an SRI informant was not regulated by law made it impossible for the courts to establish the extent of such activities, thus leaving room for abuse of that status. However, reliance of such status could not exonerate from criminal responsibility: “As there is no legal frame for regulating the status of an informant for an intelligence service, we cannot establish the scope of such a mandate, and thus the opportunity for abusing this status exists. The fact that [the applicant]’s activity as an informant would have benefitted the SRI does not exonerate [the applicant] from criminal responsibility for criminal acts.” 34. On 28 October 2010 the High Court of Cassation and Justice dismissed the appeal on points of law lodged by the applicant and upheld the decisions rendered by the Court of Appeal, on similar grounds to those given by the lower court.