THIRD SECTION

DECISION

Application no . 14687/08 Ioan MUREÅžAN against Romania

The European Court of Human Rights (Third Section), sitting on 2 October 2012 as a Chamber composed of:

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

Having regard to the above application lodged on 20 March 2008,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ioan MureÅŸan , is a Romanian national, who was born in 1959 and lives in Baia Mare.

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 relevant time the applicant was a businessman and a former Romanian Minister of Agriculture.

1. Criminal investigation against the applicant

4. On 12 September 2007 the Romanian Anti-Corruption Department ( Departamentul Naţional Anticorupţie ) (“the DNA”) issued a temporary order valid for forty-eight hours authorising the surveillance and recording, including video surveillance, of the applicant ’ s communications as part of a larger investigation initiated by the DNA in respect of bribes taken by appointed Government officials.

5. By a final interlocutory judgment of 14 September 2007, delivered in private, the Bucharest County Court allowed the surveillance and recording, including video surveillance, of the applicant ’ s communications for twenty eight days.

6. By an order of 4 October 2007 the DNA decided that the criminal investigation against the applicant be set in motion ( începerea urmăriri penale ) for complicity to trading in influence ( complicitate la cumpărare de influenţă ). It held that the applicant had actively participated in a third party ’ s attempt to bribe one of the acting members of the Government in order for the third party to win public auctions organised by the State. In particular, the applicant had personally organised meetings between the third party and the high ranking public official and had delivered sums of money and other products on behalf of the third party to the said official.

7. On 5 October 2007 the applicant was summoned by the DNA to appear on 9 October 2007 before the investigation body in order to be notified of the charges brought against him and to be heard.

8. On the same date the applicant contacted his legal representative and informed him about the summons he had received from the DNA and about the fact that he wanted to temporarily leave the country for a business trip on 8 October 2007. According to him his legal representative reassured him that he could live the country and that they could request an adjournment of the hearing of 9 October 2007.

9. By a final interlocutory judgment of 6 October 2007, delivered in private, the Bucharest County Court allowed the DNA ’ s request for a search warrant of the applicant ’ s home. It held that the search of the applicant ’ s home was necessary in order to collect documents and electronic devices stored in his home which contained relevant information concerning his involvement in committing the unlawful acts he was investigated for.

10. On the same date, around 4 p.m., approximately ten investigators entered the applicant ’ s home located in Baia Mare. They presented him with the search warrant and started searching the premises. In addition, they informed him that an order to appear before the DNA had been issued on his name and that he had to accompany them to the DNA ’ s Office in Bucharest .

11. Around 7 p.m. the applicant was taken to the DNA Office in Baia Mare and was heard by the prosecutor in the presence of a publicly appointed legal representative. He refused to testify in the absence of his chosen legal representative.

2. The applicant ’ s pre-trial detention

12. On 6 October 2007 at 8.30 p.m., the DNA ordered the applicant ’ s arrest on remand for twenty four hours on suspicion of complicity to trading in influence.

13. On the same date, around 10 p.m., the applicant was transferred by car to the DNA ’ s Office in Bucharest .

14. By an order of 7 October 2007 the DNA re-qualified the applicant ’ s offence to trading in influence ( cumpărare de influenţă ). After it heard the applicant it also recommended that he be detained pending trial for thirty days on account of the seriousness of the offence, the fact that he was a danger to public order, that he was preparing to abscond and to influence witnesses. It held on the basis of testimonial evidence, recordings of his phone conversations and documents that the applicant had actively participated in a third party ’ s attempt to bribe one of the acting members of the Government by personally organising meetings between the third party and the high ranking public official and had delivered sums of money and other products on behalf of the third party to the said official.

15. On the same date the applicant was taken before the Bucharest County Court and the DNA motioned the court to detain him pending trial for thirty days.

16. The pre-trial detention proceedings were held in a private hearings attended only by the parties.

17. At the hearing of 7 October 2007 the Bucharest County Court informed the applicant, in the presence of his chosen legal representative, of his procedural rights and the charges brought against him. In addition, it heard the applicant in respect of the charges brought against him and allowed the parties to submit oral observations in respect of the DNA ’ s request to detain the applicant pending trial. The applicant argued inter alia that his detention had been unlawful as it was not based on sufficient and relevant evidence.

18. By an interlocutory judgment delivered the same day the Bucharest County Court dismissed the DNA ’ s action seeking the applicant ’ s detention pending trial. It ordered the applicant ’ s release under the condition not to leave town. It held that the evidence available to the file did not prove that the applicant was a danger to public order. Moreover, it did not appear that the applicant had the intention to abscond as long as the transcripts of the phone conversations he had with third parties about the criminal proceedings opened against him suggested that his departure from the country was temporary. Furthermore, the argument that the applicant might have attempted to influence some of the prosecution ’ s witnesses was irrelevant as they had already been heard by the authorities and had provided incriminatory evidence against him. In addition, the court dismissed the applicant ’ s arguments that his detention was unlawful because he had not been heard in respect of the charges brought against him prior to his arrest. In this context the court held that after the DNA opened the criminal investigation against him and notified him of the charges against him it proceeded to hear him in the presence of a legal representative. The applicant ’ s refusal to provide the DNA with a statement and to defend himself did not amount to a breach by the domestic authorities of their lawful duty to hear the applicant prior to his arrest. Both the DNA and the applicant appealed on points of law ( recurs ) against the interlocutory judgment. The applicant argued inter alia that his detention had been unlawful as he had not been heard by the investigation bodies prior to his detention.

19. On 7 October 2007 at 8.30 p.m. the applicant was released from prison and the Bucharest Court of Appeal adjourned the proceedings for 9 October 2007 in order to allow the applicant to prepare his defence.

20. By a final interlocutory judgment of 9 October 2007 the Bucharest Court of Appeal dismissed the parties ’ appeals on points of law by a majority opinion. It held that according to the evidence in the file, prior to his arrest on 6 October 2007, the applicant had been informed of the charges brought against him but refused to testify on the ground that his chosen legal representatives lived in Bucharest . In addition, the investigation bodies also heard the applicant on 7 October 2007 in the presence of his chosen legal representative and therefore it could not be argued that they failed to hear him. Moreover, although there was sufficient evidence to suggest that the applicant committed the offence and that he attempted to influence the prosecution ’ s witnesses, his detention pending trial would be too severe and the interests of justice would be better served if his pre-trial detention was replaced with an injunction not to leave town.

21. The criminal proceedings opened against the applicant appear to be still pending before the domestic courts.

3. Additional information provided by the applicant

22. On 20 March 2008 the applicant informed the Court that for approximately twenty-nine hours between 6 and 7 October 2007 he was unable to rest or sleep because of the numerous hearings he had to attend before the judicial bodies and of the transport conditions from Baia Mare to Bucharest. In this context he stated that although the distance between his home town and Bucharest was approximately six hundred kilometres he was transferred there by car, on poor roads, at high speeds and with the police siren turned on. He arrived in Bucharest on 7 October 2007 at 6.30 a.m. and he was taken directly to the DNA ’ s Office where he was forced to sit for more than two hours in a chair before he could meet with his chosen legal representatives. On the same date, around 11.30 a.m., he was handcuffed and taken out of the DNA ’ s Office through the main entrance of the building so that the representatives of the mass-media could photograph and film him.

23. On the same date he informed the Court that for the entire period he had been under the authorities ’ control the insulin treatment required for his diabetes was administered to him with some delays. In addition, the meals provided to him were also delayed although he needed food on account of his medical condition.

24. On 2 December 2011 the applicant submitted a medical certificate issued by a private doctor ’ s practice attesting that starting from 2002 he was suffering from a stable and uncomplicated type one diabetes and that his condition required treatment with insulin.

25. On the same date he submitted video footage broadcasted by private televisions with national coverage as well as seven press articles published between 11 October 2007 and 28 May 2008 in national newspapers, in particular Gardianul , Ziua , România Liberă , Adevărul and Evenimentul Zilei , containing excerpts from conversations between the applicant, the third party and the allegedly corrupt public official which had been obtained through the criminal surveillance operation mounted by the authorities. According to the said press articles, video footage and written excerpts of the applicant ’ s conversations obtained through the surveillance carried out by the authorities in respect of the applicant ’ s case had been leaked by the DNA to the Romanian National Television who had broadcasted the material on 10 October 2007. Moreover, an investigation carried out by the Romanian High Council of Magistrates ( Consiliul Superior al Magistraturii ) established that the DNA could have been the sole perpetrator in leaking the said information to the press.

B. Relevant domestic law

26. The relevant provisions of domestic law concerning the use of handcuffs are described in Ali v. Romania , no. 20307/02 , § 46, 9 November 2010. In particular, the use of handcuffs is expressly forbidden by the Criminal Justice and Sentencing Act ( Law no. 275 of 20 July 2006), save for in exceptional circumstances (Article 37), and cannot be used as a sanction (Article 71).

27. The relevant provisions of Decree No. 31/1954 concerning remedies for persons claiming damage to their dignity or reputation are available in Rotaru v. Romania ([GC], no. 28341/95, § 29, ECHR 2000 ‑ V).

COMPLAINTS

28. The applicant complained under Article 3 of the Convention that he was subjected to inhuman and degrading treatment by the authorities in so far as he was forced to attend judicial proceedings 600 kilometres away from his home, was investigated and was moved around by the judicial bodies for almost thirty hours without sleep and rest. In addition, for the entire time he was under the authorities ’ control they failed to provide him with the treatment and food required for his medical condition, in particular diabetes.

29. The applicant complained expressly or in substance under Article 5 of the Convention that he was detained even though there was no reasonable suspicion that he had committed an offence. Also, the extension of his pre ‑ trial detention was examined during private hearings. In addition, the prosecutor failed to inform him about the reasons for his detention.

30. The applicant complained under Article 6 of the Convention that the criminal proceedings opened against him were unfair in so far as he was denied chosen legal assistance, the extension of his pre-trial detention was examined during private hearings, he was forced to attend judicial proceedings for almost two days without any rest and the prosecutor failed to inform him about the reasons for his detention.

31. Relying expressly on the same Article of the Convention and in substance on Articles 3 and 8 of he Convention the applicant complained of a breach of his right to be presumed innocent in so far as parts of the prosecution file, in particular the video footage and excerpts of his conversations obtained as a result of the surveillance carried out by the authorities, had been leaked to the media by the Romanian Anti-Corruption Department and lead to widespread media coverage of his case. In addition, he complained that he had been taken to the court hearings concerning his pre-trial detention in handcuffs, which had provided journalists with the opportunity to photograph and film him.

32. The applicant complained under Article 8 of the Convention that his right to private life had been breached as he was subjected to unlawful video and telephone surveillance by the authorities and the said evidence had ended up being published in the press and broadcasted on national television.

THE LAW

A. Complaints under Articles 3 and 8 of the Convention

33. Relying on Articles 6 and 8 of the Convention the applicant complained of a breach of his right to private life and to be presumed innocent in so far as parts of the prosecution file, in particular video footage and excerpts of his conversations obtained as a result of the surveillance carried out by the authorities, had been leaked to the media by the Romanian Anti-Corruption Department and lead to widespread media coverage of his case. In addition, he alleges that he was taken to the court hearings concerning his pre-trial detention in handcuffs, which provided journalists with the opportunity to photograph and film him.

34. The Court is master of the characterisation to be given in law to the facts, and can decide to examine complaints submitted to it under another Article than that quoted by an applicant (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I) .

35. It therefore considers that the applicant ’ s allegations of having been made to wear handcuffs in public should be examined under Article 3 of the Convention, and the allegations concerning the leaking of evidence from the file to the media and the subsequent widespread coverage of the case by the media should be examined solely under Article 8 of the Convention. These Articles read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“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.”

36. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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. Remainder of the applicant ’ s complaints

37. The Court has examined the remaining complaints as submitted by the applicant (see paragraphs 28-32, above). However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints 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 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of part of the applicant ’ s complaints concerning Article 3 (being made to wear handcuffs in public) and Article 8 (leaking of evidence from the file to the media and the subsequent widespread media coverage of the case);

Declares the remainder of the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President