THIRD SECTION

DECISION

Application no . 43943/07 Vasile MÄ‚LÄ‚ ESCU against Romania

The European Court of Human Rights (Third Section), sitting on 9 July 2013 as a Chamber composed of:

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

Having regard to the above application lodged on 4 October 2007,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Vasile Mălă escu, is a Romanian national, who was born in 1947 and lives in Ploieşti. He is represented before the Court by Ms Graziela Bârlă, a lawyer practic ing in Bucharest.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. At the time of the events giving rise to the present application the applicant was a judge at Vălenii de Munte District Court, in Prahova County.

1. The genesis of the case

4. On 17 January 2006 P.C. informed the PloieÅŸti Anti ‑ Corruption Department of the Prosecutor ’ Office (the “DNA”) that on 16 January the applicant had asked money from him as a reward for having drafted a judgment that he had rendered in a civil lawsuit won by P.C. According to P.C. ’ s statements, the applicant asked 1,000,000 Romanian lei (ROL) in order to fill up his car fuel tank. P.C. was expected to pay the money the next day.

5. The same day, the prosecutor handed P.C. the money in ten banknotes of ROL 100,000 each. They were marked with the inscription “undue benefits” ( foloase necuvenite ) in a special ink. The prosecutor also authorised the recording of the conversations between the applicant and P.C. He relied on Article 91 2 § 2 of the Code of Criminal Procedure (“CCP”) which allowed, in urgent cases, that interception of communication be done without a judge ’ s order.

6. On 18 January 2006 at 8 a.m. P.C. went to the applicant ’ s office fitted with an audio-video recorder. The applicant greeted P.C. and asked him if “that paper had been good” (which the prosecutor explained as referring to the court judgment rendered by the applicant), received the money from P.C. and confirmed that the sum was sufficient and then put the banknotes in his pocket.

7. After P.C. had left, the prosecutor and a police officer entered the applicant ’ s office. The applicant admitted to having received money from P.C. and at the prosecutor ’ s request, took the money out from his pocket and handed them to the prosecutor. Eight banknotes of ROL 100,000 each were found bearing the markings in special ink inscribed by the prosecutor beforehand. The remaining two banknotes were found in P.C. ’ s pocket. He explained that he had omitted to hand them to the applicant, because the latter had been in a hurry to get the money from him and see him out.

2. The prosecution

8. On 18 January 2006 the prosecutor started the criminal prosecution against the applicant ( începerea urmăririi penale ) and informed the applicant, in the presence of his counsel, of the charges brought against him. The applicant gave statement. He admitted to having received the money, but denied having asked P.C. for anything. He pointed out that P.C. had come uninvited to his office.

9. On 18 January 2006 the Ploieşti Court of Appeal upheld the prosecutor ’ s authorisation for the interception of conversations.

10. The applicant was interviewed again by the prosecutor on 19 January and was confronted with P.C. The court clerk who typed the judgments rendered by the applicant was interviewed by the prosecutor. She confirmed that on 16 January 2006, while she was working with the applicant, P.C. had entered the applicant ’ s office and had asked if his judgment had been typed. The court clerk left the applicant ’ s office and could not tell how the conversation between the judge and P.C. had gone. Later that day, the applicant told her that they should type P.C. ’ s court judgment, but then realised together that the judgment had been drafted that very morning, before P.C. ’ s visit.

11. The court clerk who participated with the applicant in the court hearing giving rise to the judgment favourable to P.C. declared that on 16 January 2006 after drafting the judgment the applicant brought the case ‑ file to her office, and that later on, on the same day, he returned with P.C. and asked her to deliver a copy of the judgment to the latter.

12. On 15 February 2006 the Ploieşti Court of Appeal sitting in private, in the presence of the prosecutor and the applicant, certified that the interception constituted relevant evidence in the case (procedure under Articles 91 3 and 91 5 of the CCP) and accepted them in the file. The transcripts of the recorded conversations were attached to the court ’ s report.

13. On 1 March 2006 the prosecutor committed the applicant to trial under accusation of having received undue benefits ( primirea de foloase necuvenite ) before the PloieÅŸti Court of Appeal.

3. The first-instance proceedings

14. On 17 April 2006 the High Court of Cassation and Justice, acting on the applicant ’ s request, transferred the case to the Cluj Court of Appeal.

15. On 21 June 2006 the Court of Appeal heard testimony from the applicant. He maintained that he had not requested any sum of money from P.C. and had not expected to receive money from him either. He explained that when the prosecutor had entered his office he was heading out to find P.C. and return the money to him.

At the same hearing, the applicant argued that the interceptions and the marking of the banknotes by the prosecutor constituted preliminary investigation ( acte premergătoare ) and therefore they had been unlawfully obtained and could not be used as evidence in the file.

16. P.C. also gave statement before the court. The two court clerks could not be heard as they were absent for personal reasons from the court hearings. The defence counsel accepted that the witnesses ’ statements given before the prosecutor be read in open court.

17. On 20 September 2006 the applicant was convicted for having received undue benefits and received a six months ’ suspended sentence. The court established the facts based on the transcripts of conversations, the testimonies given by the two court clerks before the prosecutor, P.C. ’ s and the applicant ’ s statements.

The court dismissed the applicant ’ s complaint concerning the alleged unlawfulness of the evidence, on the ground that the prosecutor had respected the procedure provided by the CCP in the matter and that the court had certified the interceptions and their utility in the case.

4. The appeal proceedings

18. The applicant appealed against the judgment rendered by the Court of Appeal.

19. On 4 April 2007 the High Court of Cassation and Justice, in the presence of the parties, heard the recordings of the conversations. At the same hearing, the applicant contested some parts of the conversations, pointed out that they did not correspond to the transcripts and asked for the tapes to be examined by an expert in order to establish whether they had been tampered with. He also reiterated his complaint as to the unlawfulness of the evidence. Lastly, he contested that there was not sufficient evidence in the file to secure his conviction and that there were significant inconsistencies between P.C. ’ s various statements during the proceedings.

20. In a final decision rendered the same day, the High Court dismissed the applicant ’ s appeal and, based on the evidence in the file, upheld the judgment delivered by the Court of Appeal as well as the reasons thereof.

The High Court made no mention concerning the request for expert examination of the transcripts.

5. The publicity of the applicant ’ s case

21 . According to the applicant, several newspapers reported on his case, thus giving rise to a press campaign against him. He made reference to the national newspaper Evenimen tul zilei which featured a series of articles concerning the case.

In particular, on 5 June 2006 the newspaper published an article entitled “The Old Man and the 80 lei [New Romanian lei, RON] bribe” describing the facts leading to the incident of 18 January 2006 between P.C. and the applicant. The article mainly presented parts of P.C. ’ s statement to the prosecutor and an interview that he gave to the newspaper. The introduction of the article read as follows:

“The judge Vasile Mălă escu from Vălenii de Munte District Court was sent to trial by the [DNA] for having received a [RON] 80 bribe from a retired person.”

The 6 June 2006 edition featured an interview with P.C. concerning the case. The headline read: “Do not give up, Mr Titi!; Example: The retired person who denounced the bribe-taking judge took a step that we all need to take for a clean justice”. The article reproduced some comments from the readers, encouraging and congratulating P.C. for his stand.

The editorial of 6 June 2006 tackled the issue of corruption, under the heading: “ [ C . H . ] explains the connection between ‘ Mătuşa Tamara ’ case and the [RON] 80 bribe from a small district court”. The article described the applicant ’ s case from P.C. ’ s perspective, but the applicant ’ s name was not mentioned. It stated:

“The judge from Vălenii de Munte might not be the most corrupt person in Romania (nor among the most incorruptible either), but the [RON] 80 makes him the symbol of the petty corruption in Romania, at the grassroots, the one that bothers us all. The justice system should solve this case exemplarily. A simple, banal case, but one that could become a landmark, a precedent. We will have either a conviction ... or a typical Romanian protraction [in the proceeding] and a weak decision.”

22 . On 17 January 2007 the Minister of Justice gave an interview to the magazine Capital . When talking about corruption among magistrates, she stated:

“We have nine magistrates under investigations, many of them already sent to trial by the DNA ... Of course, I do not know whether they are guilty or not, for the time being their cases are pending with the courts – I believe nine were put to trial in the past year. I hope that there will be no team spirit which unfortunately exists in many fields. They have to understand that it is for their own benefit to clean the system... I want to insist on the cases of corruption. I mentioned that [magistrates] had been sent to trial. In the cases we have had so far, what frighten me are the small amounts involved. There is a case, a judge from Vălenii de Munte – the case is under examination, I think the first-instance court has already decided on it – where the sum was ROL 800,000, about 25 euros. Other cases involve 200 – 300 euros. Some might say this is not the grand corruption, because the amounts are small. I see things differently: small amounts indicate that it happens frequently, because it is not in the human nature to take 25 euros or 300 euros only once. ... It is possible that it happens more frequently than I imagined. It thus affects the system.”

On 19 January 2007 the transcript of the interview was published on the Ministry of Justice ’ s website where it remained for several months.

23. On 19 March 2007 the applicant lodged a complaint against the Minister of Justice and Evenimentul zilei , with the National Council against Discrimination (the “CNCD”). He argued that the Minister ’ s statement and the press campaign had discriminated against him and breached the presumption of his innocence.

24. On 12 November 2007 the CNCD dismissed his complaint. It considered that the treatment described by the applicant did not constitute discrimination either under the relevant provisions of the Convention or under those of Government ’ s Ordinance no. 137/2000 on discrimination. The CNCD noted that the statements contested by the applicant constituted information on matters of public interest and represented manifestation of the freedom of expression and of the right to inform the public.

25. Upon objections raised by the applicant, the decision was upheld by the Bucharest Court of Appeal (decision of 9 September 2008) and by the High Court of Cassation and Justice (final decision of 15 May 2009). The courts considered that the CNCD had correctly interpreted and applied the relevant laws and that there had been no difference in treatment between the applicant and other persons in his position.

B. Relevant domestic law

26. The legislation in force at the relevant time and its evolution after 1 January 2004 concerning telephone tapping is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39 ‑ 46, 26 April 2007).

COMPLAINTS

A. Complaints raised in the initial application

27. The applicant complains under Article 6 §§ 1 and 3 of the Convention that he was prosecuted without the required authorisation from the Ministry of Justice and that he was convicted on the basis of the transcripts of the conversations between him and P.C. which were unlawfully obtained, before the beginning of the criminal prosecution, and which were tampered with.

28. He further complains, under Article 6 § 2 of the Convention that his right to presumption of innocence has been breached by the statements made by the Minister of Justice and by the press campaign in Evenimentul zilei .

B. Complaints raised on 19 November 2009

29. The applicant complains, under Article 6 of the Convention, that the criminal proceedings against him were not fair and in particular that the principle of equality of arms was breached, in so far as the courts decided his case amid an on-going press campaign against him.

30. Lastly, he complains that the press campaign and the statements by the Minister of Justice were discriminatory against him, in breach of the requirements of Article 14 of the Convention and of those of Protocol No. 12 to the Convention.

THE LAW

A. On the fairness of the proceedings: the evidence

31. The applicant complains under Article 6 §§ 1 and 3 of the Convention that he was convicted on the basis of unlawfully obtained evidence which in addition had been tampered with.

32. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. On the presumption of innocence

33. Under Article 6 § 2 of the Convention, the applicant complains that his right to presumption of innocence has been breached by the statements made by the Minister of Justice in the interview to the magazine Capital and by the press campaign in Evenimentul zilei .

34. The Court reiterates that the presumption of innocence enshrined in Article 6 § 2 is one of the elements of the fair criminal trial that is required by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty (see Daktaras v. Lithuania , no. 42095/98, § 41, ECHR 2000 ‑ X and Virabyan v. Armenia , no. 40094/05 , § 185, 2 October 2012 ). Moreover, the principle of the presumption of innocence may be infringed not only by a judge or court but also by other public authorities, including by the M inister of Justice (see Viorel Burzo v. Romania , nos. 75109/01 and 12639/02 , §§ 159 and 164, 30 June 2009 ).

35. However, a fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The latter infringes the presumption of innocence, whereas the former has been regarded as unobjectionable in various sit uations examined by the Court ( see Virabyan, cited above, § 186 with further reference ).

36. The Court further reiterates that Article 6 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected. The Court has also acknowledged that in certain cases a virulent press campaign can adversely affect the fairness of a trial by influencing public opinion and consequently the jurors called upon to decide the guilt of an accused (see Viorel Burzo , cited above, § 158).

37. Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the i mpugned statement was made (see Daktaras , cited above § 43).

38. Turning to the facts of the present case, the Court notes that both the press campaign and the Minister of Justice ’ s statements were made in the context of general discussions about corruption among magistrates which represents a topical issue in Romania.

39. While the press articles used words to describe the applicant which could let believe that he committed a crime of corruption, the overall language remained within the acceptable limits of journalistic freedom (see paragraph 21 above). The Court considers it inevitable, in a democratic society, that the press publishes harsh commentaries concerning sensitive cases such as the present one which tackled the issue of corruption among magistrates (see Viorel Burzo , cited above, § 160).

However, the Court does not find any indication in the file that the courts dealing with the applicant case, which were constituted entirely of professional magistrates, were somehow influenced by the press articles published on the case.

40. As for the interview given by the Minister of Justice, the Court notes that the expressions allegedly prejudicial to the applicant were part of the presentation by the Minister of the corruption phenomenon and the manner in which it has been tackled by the authorities, namely prosecutor and courts. The Minister clearly specified that the applicant ’ s case was at that time pending with the courts and made no statements concerning his alleged criminal guilt or the legal classification of the crimes he was accused of. The discourse remained neutral and the words used were moderate (see paragraph 22 above).

41. For all these reasons, the Court considers that neither the press campaign from Evenimentul zilei , nor the interview with the Minister of Justice have had as a consequence a breach of the presumption of the applicant ’ s innocence.

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

C. On the remaining complaints

42. The applicant raised several other complaints, under Articles 6 and 14 of the Convention and 1 of Protocol No. 12 to the Convention.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the fairness of the proceedings (the evidence);

Declares the remainder of the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President