THIRD SECTION

DECISION

Application no . 30164/04 Norbert SZILAGYI against Romania

The European Court of Human Rights ( Third Section ), sitting on 17 December 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan , Ján Šikuta , Nona Tsotsoria, Kristina Pardalos, Johannes Silvis, judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 22 July 2004 ,

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 Norbert Szilagyi , is a Romanian national who was born in 1981 and lives in the United Kingdom . He wa s represented before the Court by Ms F. Kenyon , a lawyer practising in London .

2. The Romanian Government (“the Government”) we re represented by their Agent s , Mr R.-H. Radu and Ms C. Brumar , of the Ministry of Foreign Affairs .

A. The circumstances of the case

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

4 . On 8 July 2002, following a large - scale police operation, sixty ‑ one pe ople were found consuming drugs in flagrante delicto . They were all placed in pre-trial detention and charged with drug consumption and /or drug trafficking. Six of them stated before the prosecutor that the applicant sold drugs.

5. Subsequently, the applicant ’ s house was searched. From 20 July 2002 the applicant was held in pre-trial detention, which continued until 8 April 2003.

6 . On 27 July 2002, the p rosecutor ’ s o ffice attached to the Satu Mare County Court presented the applicant with the evidence against him ( prezentarea materialului de urmărire penală ) , consisting of witness statements, transcripts of phone conversations between co-defendants and third parties, and a video of the applicant recorded on a surveillance camera in the toilets of a nightclub where he was alleged to have been taking amphetamines. The applicant was accompanied by his lawyer at the meeting in the p rosecutor ’ s o ffice. During this meeting, the applicant, who tested positive in a toxicolog y test, confessed to having possessed drugs but only for personal consumption. He asked for a face-to-face confront ation with the witnesses who had stated that he sold drugs but, by a reasoned decision adopted by the prosecutor on the same day, his request was denied as not being useful to the case .

7. The applicant was indicted and, together with fifty co-defendants, appeared before the Satu Mare County Court.

8 . Testimony from t he six co-defendants who had stated during the investigation that the applicant sold drugs (see paragraph 4 above) was heard by the court in the presence of the applicant and his legal representative. On this occasion they retracted their previous statements, claiming that they had been obtained under pressure from the investigating prosecutor.

9. On 8 April 2003 the applicant was convicted by the Satu Mare County Court o f the illegal distribution and sale of drugs , under article 2 ( 1 ) and ( 2 ) of Law no. 143 / 2000. The applicant was also convicted of possessi ng illegal medium- risk drugs for personal consumption, under article 4 of the same law. He received a three-year prison sentence, conditionally suspended.

10 . The Satu Mare County Court based its ruling against the applicant on the co-defendants ’ statements, corroborated by transcripts of phone conversations between the applicant ’ s co-defendants and third p arties (but no conversa tion with the applicant) obtained by means of telecommunications surveillance ; t he applicant ’ s alleged involvement in the suspected criminal acts had been mentioned by the parties to those conversations. The court decided to take into consideration the statements made by the co-defendants before the prosecutor, since they had been given in the presence of their lawyers and no complaints had been submitted at any time during the proceedings with respect to any pressure exerted by the prosecutor . T h e applicant ’ s positive drug test also served as evidence .

11 . The applicant claimed during the trial that no authorisation had been given by the prosecutor for conducting the telecommunications surveillance, contrary to the law at that time. The court analysed the applicant ’ s allegations and held that, since he was not disputing either the truthfulness or the content of the transcripts, the minutes containing the authorisation number and the prosecutor ’ s signature certifying the accuracy of the transcripts were sufficient to allow these to be placed on file as evidence.

12 . The applicant appealed against the judgment of the Satu Mare County Court , claiming that there was no supporting evidence on which he could be lawfully convicted.

13 . On 24 September 2003 the Oradea Court of Appeal dismissed the applicant ’ s appeal as ill-founded.

14 . The applicant appealed on point s of law against the decision given by the Oradea Court of Appeal, again challenging the validity of the evidence against him. He alleged that the testimonies of the co-defendants had been obtained unlawfully a nd that they had been forced to testify against him as a result of threat s by the prosecutors. He contested the legal ity of the evidence based on the surveillance of telephone conversations and alleg ed that the prosecutor ’ s office had not submitted the relevan t phone- tapping authorisation. Furthermore, the applicant claimed that he had never been involved in drug trafficking. He argued that although his name was mentioned in the intercepted telephone conversations, the events described in that connection had never taken place.

15 . On 30 March 2004 the High Court of Cassation and Justice partly allowed the appeal, correcting the legal classification of the applicant ’ s crime that had been made by the lower courts . Accordingly, the applicant was convicted for delivery and consumption of medium- risk drugs as provided by article 2 (1) and (4) of Law no. 143/2000 . The three-year conditionally suspended prison sentence imposed by the Satu Mare County Court was upheld.

16 . However, the applicant ’ s claims w ere not accepted by t he High Court of Justice , which analysed in detail the legal safeguards afforded by domestic law against obtaining evidence through violence, threats or other similar methods. One of the safeguards wa s the presence of the accused ’ s legal representative during hearings. As the co-defendants ’ legal representatives had been present during the hearings, they had had the opportunity to submit complaints alleging the use of force or threats by the prosecutor. The court stressed the fact that no such complaint had been filed. In addition, the court declared that the statements made during the investigation, when the defendants had not had time to consult each other , were more relevant than the ones made before the court following time spent together in pre-trial detention – a fact also confirmed by one of the defendants.

17 . As regards the phone surveillance authorisation s , the High Court of Justice pointed out that, although the authorisation s w ere not in the case file, the certificate issued by the criminal investigation body attesting to the legality of the surveillance and the evidence obtained thereby were , by contrast, included in the file . These documents complied with the requirements set out in article 91 2 of the Code of Criminal Procedure , namely that the identity of the prosecutor authorising the surveillance should be kept confidential. Thus, the submission of a certificate was considered to be a sufficient legal guarantee.

18. In 2006 the applicant fled the country, thus breaking the conditions of his suspended prison sentence under supervision, which had been due to remain in force until 2010. As a consequence , the conditional suspension of his prison sentence was revoked by a final judgment of the Oradea Court of Appeal of 8 May 2007.

B. Relevant domestic law

19. The legislation concerning telephone tapping in force at the material time, including the National Security Act, is described in Dumitru Popescu v. Romania (no. 2) ( no. 71525/01, § § 39- 4 6 , 26 April 2007 ) .

20. The relevant provisions of Law no. 143/2000 on combating the illegal trafficking and consumption of drugs read:

Article 2

“ (1) Growing, producing, making, experimenting with , extracting, preparing, transforming, offering, selling, distributing, delivering in any manner whatsoever , sending, transporting, procuring, buying, holding or any other operations involving medium- risk drugs , without authorisation , shall be punished with imprisonment lasting from three to fifteen years and the restriction of certain rights.

(2) If the acts specified in paragraph ( 1 ) involve high - risk drugs, the punishment shall be imprisonment lasting from ten to twenty years and the restriction of certain rights.

Article 4

Growing, producing, making, experimenting with , extracting, preparing, transforming, buying or holding drugs for an individual ’ s own consumption without authorisation shall be punished with imprisonment from two to five years.”

COMPLAINTS

21. The applicant complained under Article 6 §§ 2 and 3 (d) of the Convention that the proceedings in his case had been unfair as the courts had convicted him on the basis of unlawfully obtained evidence. He alleged that the witness statements incriminating him had been made under pressure from the case prosecutor and that his request for a face-to-face confrontation with the witnesses had been wrongfully denied. He further alleged that the phone tapping conducted in the case was unlawful since the authorisations had never been included in the case file.

22. Under Article 7 of the Convention, the applicant complained that he had been convicted of a crime that did not exist in law, since the consumption of drugs was not prohibited by Law no. 143/2000.

23. Invoking Article 8 of the Convention, the applicant complained that his right to respect for his private life had been infringed by the surveillance of telephone conversations and the video recording made without his consent. He also complained that the search conducted at his house had been unlawful and had breached his right to respect for his private life. He further alleged that he had not been allowed to meet his grandmother during pre-trial detention , in breach of his right to family life.

THE LAW

A. C omplaints under Article 6 §§ 1 and 3 (d) of the Convention

24. The applicant complained that the criminal proceedings against him had not been fair, breaching his rights under Article 6 §§ 2 and 3 (d) of the Convention. Bearing in mind that the complaints the applicant raised under Article 6 § 2 focus more on the evaluation of the evidence by the domestic courts, the Court will examine them under pa ragraphs 1 and 3 (d) of Article 6 (see Kruitbosch v. Romania ( dec. ), no. 25812/03, § 26, 19 March 2013).

Article 6 §§ 1 and 3 (d), in so far as relevant, reads:

“ 1 . In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hear ing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

25 . The applicant argued that the evidence used to convict him had been unlawfully obtained. Hence, the witness statements had been given under pressure and threats from the prosecutor, who subsequently had not allowed him a face-to-face confrontation with the persons who had accused him. The phone tapping evidence had also been unlawful since no authorisation had ever been included in the case file.

26. The Court reiterates that w hile Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Brualla Gómez de la Torre v. Spain , 19 December 1997, § 31, Reports of J udgments and D ecisions 1997 ‑ VIII , and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I) . It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the e vidence was obtained, were fair .

28 . The Court observes in the current case that, pursuant to the relevant provisions of the Code of Criminal Procedure, the domestic courts accepted as evidence in the case file the contested witness statements given during the criminal investigation and the transcripts of phone conversations between the co-defendants and third parties during which the applicant ’ s name was mentioned.

29. The Court not es that the applicant availed himself of numerous opportunities to contest the validity of both types of evidence in question , and the domestic courts responded extensively to his objections (see paragraphs 8 , 11, 16 and 17 above) .

30. With respect to the second set of evidence contested by the applicant – the transcripts of phone conversations – it is to be noted that he did not question the reality of the conversations recorded or the authenticity of their content. The domestic courts also insisted on that point when they examined the applicant ’ s arguments (see paragraph 11 above and Dumitru Popescu , cited above, § 109). In this connection, t he Court reiterates that evidence does not have a predetermined role in the respondent State ’ s criminal procedure. The courts are free to interpret it in the context of the case and in the light of all the elements before them ( i bi d . , § 110). In the case at hand, the recording was not treated by the courts as a plain confession or an admission of knowledge capable of lying at the core of a finding of guilt (see Bykov , cited above, § 103) ; it played only a certain role in the body of evidence assessed by the court.

31 . Having examined the safeguards surrounding the analysis of the admissibility and reliability of the evidence concerned in the current case, the Court considers that the use of the evidence contested by the applicant in the trial did not breach his right to a fair trial .

32. With regard to the applicant ’ s complaint that he did not have the opportunity to have a face-to-face confrontation with the witnesses who gave evidence against him, the Court notes that the case prosecutor rejected the applicant ’ s request for such a confrontation in a reasoned decision adopted on 27 July 2002 (see paragraph 6 above). The applicant, who had legal representation throughout the entire criminal proceedings, did not contest this decision before a higher prosecutor. In any event, the Court observes that the witnesses in question were examined by the domestic court during a public hearing at which the applicant and his lawyer were present and had the opportunity to put questions (see paragraph 8 above and, by contrast, Saidi v. France , no. 14647/89, § 44, 20 September 1993). Therefore, the Court considers that the applicant ’ s rights of defence were not breached.

33. In view of the above, the Court finds that the proceedings in the applicant ’ s case, considered as a whole, were not contrary to the requirements of a fair trial.

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

B. C omplaint s under Article 8 of the Convention

34 . Relying on Article 8 of the Convention, the applicant complained that the telephone intercepts in his case had been unlawful . The applicant further complained that he had been filmed without his consent and that, during pre-trial detention , he had not been allowed to see his grandmother.

Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. C omplaint concerning the alleged ly unlawful phone intercepts

35. The applicant contended that – although the intercepts were carried out on a phone belonging to a third party – the y had targeted h im and had thus interfered with respect f o r h is private life. Moreover, the material had been used as trial evidence against h im , thus furt her breaching his Article 8 rights.

36. The Government contended that the applicant could not claim to be the victim of a violation of Article 8 because the authorities had not intercepted h is telephone.

37. The Court reiterates that the word “vi ctim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see Velikova v. Bulgaria ( dec. ), no. 41488/98, 18 May 1999).

38. In the case at hand, the applicant complained of an alleged infringement of h is right to respect for h is private life by the recording of telephone conversations between third parties in which h is alleged involvement in criminal acts had been mentioned. However, there was no recording of the applicant ’ s own conversations (see paragraph 8 above).

39. Therefore, the Court considers that the applicant ’ s rights under Article 8 were not genuinely affected by any measure taken by a national authority (see Viorel Burzo v. Romania , nos. 75109/01 and 12639/02, § 117, 30 June 2009). The Court further considers that the fact that the information obtained through telephone tapping was used in a trial has already been examined under Article 6 of the Convention (see paragraphs 28 and 31 a bove).

40. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be dismissed in accordance with Article 35 § 4.

2. The other complaints under Article 8 of the Convention

41 . The applicant complained that he had been unlawfully filmed and that, during pre-trial detention , he had not been allowed to see his grandmother , and that his right to private and family life had thereby been breached.

42. With respect to the applicant being filmed without his consent, the Government submitted that the applicant was referring to the privately ‑ owned video surveillance system which, in the event, had not been used as evidence against him in the trial. The Government contended that the applicant had failed to submit a complaint against the private individual in question and had therefore failed to exhaust domestic remedies with respect to this allegation. The Government further mentioned that during the applicant ’ s pre-trial detention he had not made any requests for family visits and that in any case a complaint concerning the denial of family visits for the period between 20 July 2002 and 8 April 2003 would fall outside the six month time-limit set forth by Article 35 § 1 of the Convention.

43. The Court notes that the applicant became aware of the existence of the video footage on 27 July 2002 at the latest, but did not submit any evidence explaining whether he had filed a complaint against the club owner before the domestic courts.

It follows that this complaint is inadmissible for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention .

44. Concerning the complaint about the denial of family visits, the Court observes that it concerns the period between 20 July 2002 and 8 April 2003. Hence the complaint refers to a period which ended more than six months before the submission of the present application before the Court.

It follows that this complaint must be rejected as having been lodged outside the six - month time-limit pursuant to Article 35 §§ 1 and 4 of the Convention.

C . Other complaints raised by the applicant

45. The applicant further complained that consumption of drugs did not constitute a criminal offence under Law no. 143/2000 and that his conviction therefore breached his rights guaranteed by Article 7 of the Convention. He also alleged that the search conducted at his house was unlawful and therefore in breach of his right to private life under Article 8 of the Convention.

46. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President