THIRD SECTION

DECISION

Application no . 26939/06 Fănică TUCALIUC against Romania

The European Court of Human Rights (Third Section), sitting on 21 April 2015 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , Branko Lubarda , judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 17 June 2006 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr F ă nic ă Tucaliuc , is a Romanian national, who was born in 1950 and lives in Bucharest . He was represented before the Court by Ms Diana-Elena Dragomir , a lawyer practising in Bucharest .

2 . The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar , of the Ministry of Foreign Affairs .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 21 October 2003 the National Anticorruption Prosecutor ’ s Office decided to commence a criminal prosecution against the applicant, a colonel in the Romanian army and employee of the Ministry of Defence , for abuse of office and bribe-taking. He was subsequently indicted and on 31 March 2011 the Bucharest County Court convicted him of the above-mentioned crimes and sentenced him to seven years ’ imprisonment.

5 . The applicant ’ s appeal against this decision was partially allowed on 2 April 2012 by the Bucharest Court of Appeal which decided to reduce his sentence to five years ’ imprisonment.

6 . The applicant filed an appeal on poin ts of law ( recurs ) against the decision of the Bucharest Court of Appeal. Among other requests, he claimed before the High Court of Cassation and Justice (“High Court”) non ‑ pecuniary damage in compensation for the excessive length of the proceedings.

7 . In its judgment of 30 January 2014 the High Court took note of the length of the proceedings , acknowledging that it had exceeded the reasonable time requirement and breached the provisions of Article 6 of the Convention in respect of the applicant. It further held that , in order to remedy this situation, the applicant ’ s sentence would be reduced to three years although the punishment for the crimes of which the applicant was convicted was between five to seventeen years ’ and three to fifteen years ’ imprisonment respectively. The High Court also mentioned that it was not competent to examine the applicant ’ s request for non-pecuniary damage arising out of the excessive length of the proceedings but that such a request could be addressed by the applicant to the civil courts.

8 . The High Court further decided to suspend the execution of the applicant ’ s sentence, having in mind the timeframe that had elapsed from the date the crime was committed - a period of time in which the applicant had been of good behaviour and taking into account the fact that he had been held in pre-trial detention for eleven months - a period sufficient for him to understand the gravity of his acts. The elements analysed under the issue of the length of the proceedings were also taken into consideration for this decision.

Relevant domestic law

9 . The relevant Romanian legal provisions on the issue of length of criminal proceedings are described in the case of Vlad and Others v. Romania ( nos. 40756/06, 41508/07 and 50806/07, §§ 62- 63, 68, 70-7 2 and 75, 26 November 2013 ).

COMPLAINT

10 . The applicant complained under Article 6 § 1 of the Convention about the length of criminal proceedings in which he w as involved .

THE LAW

11 . Complaining of the length of the criminal proceedings the applicant reli e d on Article 6 § 1 of the Convention which in so far as relevant, reads as follows :

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

12 . The Government submi t t ed that the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention, since on 3 0 J anuary 201 4 the High Court acknowledged the alleged violation of the Convention due to the excessive length of the proceedings and accordingly reduced the applicant ’ s sentence below the statutory minimum. Thus, the Government maintain ed , the High Court both recognised that the proceedings took a long time and provided redress thereof in relation to the Convention.

13 . The applicant disagreed, saying that the excessive length of the proceedings was not the sole reason for which his sentence was suspended. He further alleged that, while the High Court had indeed reduced his sentence , t his could only be regarded as a partial redress for the breach of h is Convention rights .

14 . T he Court will consider whether the applicant may continue to claim to be a victim of a violation of Article 6 § 1 of the Convention on the grounds of the length of the criminal proceedings against him.

15 . In this regard the Court recalls that mitigation of sentence alone does not in principle remedy a failure to comply with the reasonable time requirement contained in Article 6 § 1 of the Convention with regard to criminal proceedings. However, this general rule might be subject to an exception when the national authorities have acknowledged, either expre ssly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Morby v. Luxembourg (dec.), no. 27156/02 , EC HR 2003-XI; Sheremetov v. Bulgaria , no. 16880/02, § 33, 22 May 2008 ; and Nachev v. Bulgaria , no. 27402/05, § 30, 21 December 2010 ) .

16 . Applying these principles in the present case, the Court notes in the first place that the High Court expressly upheld the substance of the applicant s ’ complaint under Article 6 § 1 of the Convention that the proceedings had exceeded a reasonable time .

17 . Secondly, the Court observes that, despite the gravity of the offences in question, the applicant was sentenced to three years ’ imprisonment - which was below the statutory minimum of punishment authorised by the relevant penal provisions (see paragraph 7 above) - and less than half of his initial prison sentence.

18 . In addition, the High Court also took into account the excessive length of the proceedings amongst other elements in order to suspend the execution of the applicant ’ s sentence. The Court is not convinced by the applicant ’ s argument that the length factor had been of minor importance in the suspension of the sentence. The High Court made it very clear in its reasoning that it decided first to reduce the applicant ’ s sentence in order to remedy the breach of his right to a trial within a reasonable time. Secondly, the applicant ’ s reduced sentence was also suspended taking into account several factors amongst which was also the length of the proceedings.

19 . The Court is thus satisfied that the national authorities afforded adequate redress to the applicant by reducing his sentence in an express and measurable manner as well as by suspending its execution (see Beck v. Norway , no. 26390/95, § 27, 26 June 2001 ).

20 . In these circumstances, the applicant can no longer claim to be a victim under Article 34 of the Convention of his right to a hearing within a reasonable time, as guaranteed under Article 6 § 1 of the Convention.

It follows that the application must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 May 2015 .

Stephen Phillips Josep Casadevall Registrar President