THIRD SECTION

DECISION

Application no . 21949/04 Costin URSU against Romania

The European Court of Human Rights (Third Section), sitting on 4 June 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Kristina Pardalos , Valeriu Griţco , judges,

and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 18 May 2004,

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

Having regard to the decision taken by the President of the Chamber to appoint Mrs Kristina Pardalos to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan , the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Costin Ursu , is a Romanian national, who was born in 1971 and lives in TimiÅŸoara . He was represented before the Court by Ms C.L. Schwartz, a lawyer practising in TimiÅŸoara .

2. The Romanian Government (“the Government”) were represented successively by their Agent s , Mr R ăzvan-Horaţiu Radu, Mrs Carmen Ciută and Mrs Irina Cambrea , of the Ministry of Foreign Affairs .

A. The circumstances of the case

3. On 4 February 2000 the applicant was taken to the Bihor police headquarters for questioning in relation to fraud charges. He was suspected, together with P.C.C., his business associate, of having written cheques to be drawn on the bank account of the company they owned together, despite being aware that there was no money in that account. In the absence of a lawyer, the applicant gave a statement and maintained that he had acted in accordance with the law at all times. At 11.30 pm, after he gave this statement, the police informed the applicant that he was accused ( învinuit ), according to domestic law. The applicant waived his right to have an appointed lawyer.

4. On 5 February 2000 the applicant was brought before a prosecutor. He gave a new statement in the presence of a lawyer who had been appointed to represent him. It appears from the documents in the file that he maintained his initial statement. He was then placed under arrest and taken to the cells of Bihor police station.

5. On 29 February 2000 a complaint that the applicant had lodged against the arrest warrant was allowed and the Oradea Court of Appeal ordered his immediate release.

6. On 22 March 2000 he was summoned to appear in front of the prosecutor for further questioning. On that occasion, he was again placed in pre-trial detention. He was subsequently released on 31 March 2000, following a decision of the Oradea Court of Appeal allowing a challenge to his arrest brought by the applicant.

7. Before being released, on 29 March 2000 he was transferred to Oradea Prison, where his head was shaved.

8. The applicant was committed for trial and the case was registered with the Bihor County Court. On 24 April 2000 the county court fixed a new date for the start of the trial, because the summons had not been served on the applicant at the correct address. On 29 May 2000 following a written request from the applicant, the trial was again postponed to 26 June 2000. On that date, the applicant was absent from the trial hearing but his lawyer was present. The county court questioned P.C.C. and dismissed further requests for witnesses to be heard made by P.C.C. and the prosecutor, holding that the written evidence in the file was a sufficient basis on which to decide the case. It proceeded to judge the case, convicting the applicant of having been an accessory to fraud and sentencing him to six years ’ imprisonment. In so ruling, the county court mainly relied on the parties ’ submissions and on the commercial and accounting evidence adduced before it.

9. The applicant lodged an appeal. On 26 April 2001 the Oradea Court of Appeal examined the case by calling, at the applicant ’ s request, one witness and also hearing the parties ’ submissions. The applicant was present on this occasion. On 3 May 2001, the Court of Appeal acquitted the applicant of all charges, holding that the first-instance court had erred in its interpretation of the evidence as to the applicant ’ s guilt. It considered that the simple fact that the applicant had written two cheques following the instructions of his co-accused did not indicate that he was guilty, as long as he had not been aware that the cheques could not be cleared because of a lack of money in the account.

10. The prosecutor appealed. The case was heard by the Supreme Court of Justice on 10 December 2003. The applicant was present at the hearing and he was also represented by three lawyers of his choosing. His lawyers presented arguments for dismissing the appeal on points of law. From the report of the hearing, it appears that the applicant made a concluding statement to the effect that he agreed with his lawyers ’ submissions.

11 . In his application, the applicant maintained that both he and his co ‑ accused had been heard by the Supreme Court. However, he submitted that he had only been asked two questions during the hearing, namely: (i) if he was a business associate of his co ‑ accused; and (ii) if the new criminal proceedings pending against him also related to fraud. He also claimed that these two questions, and his answers to them, were purposely omitted from the transcript of the hearing. The Government did not provide any clarification on that point.

12. On 10 December 2003, the same date as the hearing, the Supreme Court of Justice delivered a final decision by which it found the applicant guilty, convicted him of having been an accessory to fraud and sentenced him to six years ’ imprisonment. It held that the evidence available in the case file was sufficient to indicate that the applicant had knowingly written the cheques and had been aware that there was no money in the account to clear them.

13. On the basis of this final decision, the applicant started serving his prison sentence. He was conditionally released on 22 June 2007.

B. Relevant domestic law

14. The relevant provisions of the Romanian Code of Criminal Procedure with regard to the authority of the courts of appeal, as in force at the time of the events, read as follows:

Article 378

“(1) A court judging on an appeal shall review the contested decision on the basis of the evidence in the file and all additional written documents that were adduced before it.

(2) In order to decide on the appeal, the court can make a new assessment of the evidence in the file and can order any new evidence that it deems necessary ( ... )”

Article 379

“A court judging an appeal shall decide to:

(... ) 2. uphold the appeal and:

( a) quash the decision of the first-instance court, deliver a new decision and proceed in accordance with Article 345 et seq. to [render] a judgment on the merits (...)”

15. The relevant provisions of the Code of Criminal Procedure with regard to the authority of the courts examining appeals on points of law that were in force at the time of the events, as well as the amendments to those provisions adopted in September 2006, are detailed in the case of Găitănaru v. Romania (no. 26082/05 , §§ 17-18, 26 June 2012).

COMPLAINTS

16. The applicant complained under Article 5 §§ 1, 3 and 4 of the Convention that: he had been arrested by a prosecutor; there had been no reasonable suspicion that he had committed a crime; he had not been brought promptly before a judge; and he had been prevented from lodging a request for release pending trial.

17. Relying on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, the applicant complained that he had not had the benefit of adequate time and facilities to prepare his defence because he had been denied the assistance of a lawyer during the first round of police questioning; he had not been informed during the second round of police questioning that he could be assisted by a lawyer of his choosing; and he had been convicted without being heard in person by the courts. He further complained that the proceedings before the Supreme Court of Justice had lasted two-and-a-half years and that most of the delays in the proceedings had been unjustified.

18. Under Article 6 § 2 of the Convention he claimed that when he was arrested there had been no evidence that he had committed a crime, and that, following his placement in pre-trial detention, the investigating authorities had tried to collect evidence against him and had prevented him from having contact with his lawyer for ten days.

19. Relying on Article 1 of Protocol No. 4 to the Convention, he complained that he had been convicted for failure to fulfil a civil obligation.

20. The applicant also complained in substance under Article 3 of the Convention that whilst in pre-trial detention his head had been shaved, that he had not received medical treatment for a disease that he suffered from and that he had only been allowed to receive personal hygiene items after a delay.

21. He also complained in substance under Article 8 of the Convention that whilst in pre-trial detention he had not been allowed to have contact with his family for ten days and that he had been filmed and photographed by the press against his will. He further claimed that articles published in the media, under the tacit agreement of the investigating authorities, had been aimed at humiliating and degrading him by not respecting the confidentiality of his name and of the facts in question.

22. By letter of 14 July 2005, the applicant complained that his request to lodge an extraordinary appeal against the final decision of 10 December 2003 had been dismissed as inadmissible. He also complained that his case had not been reviewed by judges who specialised in cases involving economic crime.

23. By letter of 13 July 2006, the applicant complained that the duration of the proceedings against him had been unreasonable; that no expert financial evidence had been adduced at trial; that the final decision of 10 December 2003 had not provided reasons as to why he had been found guilty; and that some of the evidence he had adduced in his defence had been disregarded by the domestic courts.

24. By letter of 12 April 2010, the applicant complained about the conditions of his detention from 2003 to 2007.

THE LAW

A. The complaint under Article 6 §§ 1 and 3 (c) of the Convention

25. The applicant complained that the criminal proceedings against him had been unfair because, firstly, he had been denied access to a lawyer during his first questioning by the police and, secondly, the Supreme Court of Justice had convicted him without directly assessing the evidence which had led the appellate court to acquit him. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which read as follows:

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

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

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”

26. The Court notes that the applicant ’ s complaint has two heads of argument and will examine them separately.

1. The complaint related to the absence of a lawyer during the first round of police questioning

27 . The Government raised three preliminary objections. Firstly, they claimed that the applicant had not exhausted domestic remedies because he had not complained, during the criminal proceedings against him, that he had not been assisted by a lawyer during the first round of police questioning. Secondly, they argued that the applicant had not complied with the six-month rule, as the final decision in the case had been issued on 10 December 2003 and he had only sent the application form to the Court on 13 August 2004. Thirdly, they inferred that Article 6 of the Convention was not applicable ratione materiae to the case, as at the time of his police questioning the applicant had not been yet charged with a criminal offence in the sense of Article 6 of the Convention.

28 . The applicant disputed those arguments. With regard to the first objection, he claimed that the proceedings in his case, especially those before the county court, had been conducted too speedily and thus he had not had the opportunity to raise any of the issues pointed out by the Government. With regard to the second objection, he pointed out that the date of lodging of his application was the date of his first letter to the Court, namely 17 May 2004. Finally, with regard to the third objection, he relied on the case of Salduz v. Turkey [GC] (no. 36391/02, ECHR 2008) in order to establish that Article 6 was applicable in his case.

29. The Court will examine the parties ’ third argument in the light of its well-established case law.

30. The Court has already reviewed the relevant domestic legislation (see Minculescu v. Romania , ( dec. ), no. 7993/05, §§ 82-83, 13 November 2012, and Argintaru v. Romania , ( dec. ), no. 26622/09, § 25, 8 January 2013) and has found that the right to a lawyer is only guaranteed under Romanian law after a person is formally accused of a criminal offence, although that person can claim to be under the protection guaranteed by Article 6 of the Convention even at an earlier stage of the domestic proceedings ( Argintaru , cited above, §§ 25 and 27). Therefore, the Court paid special attention to the manner in which the relevant provisions of domestic law were applied in the particular circumstances of the two above-cited cases. The extent to which the applicants ’ statements, given in the absence of a lawyer, influenced their final conviction by the domestic courts was an important factor in the Court ’ s analysis ( Minculescu , cited above, § 84, and Argintaru , cited above, § 33).

31. Turning to the facts of the present case, the Court notes that, during police questioning on 4 February 2000, regardless of the domestic legal provisions, the applicant could have claimed, according to the Court ’ s case ‑ law, to bein g charged with a criminal offenc e in the sense of Article 6 of the Convention ( Argintaru , cited above, § 27).

32. However, the Court notes that the applicant denied the charges brought against him and claimed that he had acted in accordance with the law. This was his constant attitude throughout proceedings and he did not claim that his initial declaration had been inexact because it had been given under pressure (contrast Salduz , cited above, § 54). Neither did the applicant change his declaration during the trial. It is therefore clear that the domestic courts did not make use of his initial statements when they convicted him of being an accessory to fraud, but rather relied on other evidence. In addition, their decisions are adequately reasoned (see Stanca v. Romania , no. 34116/04 , § 62, 24 July 2012).

33. Furthermore, the Court notes that on 4 February 2000 the applicant waived his right to an appointed lawyer (see paragraph 3 above).

34. It follows that this part of the applicant ’ s complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The complaint related to a lack of direct assessment of the evidence

35. The Government raised two preliminary objections. Firstly, they claimed that the applicant had not exhausted domestic remedies, as neither he nor his lawyers had sought to have additional evidence admitted by the Supreme Court of Justice. They pointed out that the Oradea Court of Appeal had heard the applicant and had acceded to his explicit demand for additional testimony to be heard. Secondly, they reiterated their argument that the applicant had not complied with the six-month rule (see paragraph 27 above).

36. The applicant disputed these objections and reiterated his arguments (see paragraph 28 above).

37. The Court will not examine any of these arguments, as this part of the complaint is in any event inadmissible for the following reasons.

38. The Court has held that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant ’ s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence (see Ekbatani v. Sweden , 26 May 1988, § 32, Series A no. 134, and Constantinescu v. Romania , no. 28871/95, § 55, ECHR 2000 ‑ VIII).

40. Furthermore, with regard to the fairness of proceedings taken as a whole, the Court notes that, when convicting the applicant of being an accessory to fraud, the Supreme Court relied on documentary evidence which it was able to directly assess during a public and adversarial hearing. Moreover, the Supreme Court relied on the statements of his co-accused who, according to the applicant, was heard in person during the 10 December 2003 hearing (see paragraph 11 above). The Supreme Court subsequently delivered a fully-reasoned decision. The applicant did not indicate what other evidence the Supreme Court should have examined that would have been decisive for the outcome of the case (contrast Tseber v. the Czech Republic , no. 46203/08 , §§ 53-56, 22 November 2012) .

41. Therefore, the Court concludes that the domestic courts properly protected the applicant ’ s rights.

42. It follows that this part of the applicant ’ s complaint is also inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

B. Other complaints

43. Lastly, the applicant complained of several violations of his rights under Articles 3, 5, 6 and 8 of the Convention and Article 1 of Protocol No. 4 to the Convention (see paragraphs 16-24 above).

44. 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 these complaints are 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

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President