FOURTH SECTION

DECISION

Application no. 33705/16 Hüseyin SINCAR against Romania

The European Court of Human Rights (Fourth Section), sitting on 9 November 2021 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President, Iulia Antoanella Motoc, Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar,

Having regard to the above application lodged on 16 November 2016,

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 Hüseyin Sincar, is a Turkish national, who was born in 1983 and, at the date of the facts in the present case, was detained in Giurgiu prison. He was represented before the Court by Mr I. Olteanu, a lawyer practising in Bucharest.

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

3. The Turkish Government, invited to intervene on the basis of the applicant’s nationality, decided not to make use of their right to participate in the proceedings (Article 36 § 1 of the Convention).

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

5. The applicant and other individuals were the subject of a criminal investigation on suspicion of organised crime, and national and international drug trafficking.

6 . On 29 July 2015 the Bucharest County Court granted a request made by the division for the investigation of organised crime of the prosecutor’s office attached to the High Court of Cassation and Justice, and placed the applicant and three other persons in pre-trial detention.

7 . The applicant’s detention was subsequently extended on a monthly basis, first by the Bucharest County Court and then, from January 2016, by the Vâlcea County Court, to which the case was transferred.

8 . On each occasion the courts examined the lawfulness of the applicant’s detention and the justification for extending it. They relied on Articles 223 and 224 of the Code of Criminal Procedure (“the CCP”) concerning the conditions to be met and the situations in which the detention of an accused may be ordered, including the existence of sufficient suspicion that the person had committed a drug-related offence of a certain gravity which had endangered public order (Article 223 § 2 of the CCP). They also relied on Article 5 of the Convention and on the Court’s case-law concerning the notion of “reasonable suspicions”. They gave the following reasons for his detention and its subsequent extensions:

(i) the evidence presented by the prosecutor (in particular witness statements; transcripts of intercepted telephone conversations; reports of the search and seizure operations in the suspects’ homes and cars, and in the trucks used for the alleged drug trafficking; and statements made by the suspects, including a confession) gave rise to a reasonable suspicion that the applicant and the other three persons had committed the crimes they had been accused of, details having been given as to each suspect’s alleged participation in and contribution to the criminal activity;

(ii) the criminal offences in question carried a sentence of more than five years’ imprisonment;

(iii) the crimes allegedly committed represented a danger to public order, bearing in mind the gravity of the acts under investigation (it was one of the largest seizures of illegal drugs in Romania at that time), and the suspects’ perseverance in committing the acts under investigation;

(iv) in the light of the rampant increase in drug trafficking, the need to secure the public’s trust in the authorities’ ability to tackle dangerous criminal activity had become a matter of public order;

(v) the need to protect public order superseded the suspects’ interest in being released;

(vi) bearing in mind the suspects’ personal circumstances, it could not be ruled out that if released, they might commit criminal acts – possibly acts even more dangerous than those under investigation;

(vii) it was possible that if given their freedom, the suspects would try to abscond, thus hindering the investigation;

(viii) the applicant and two other suspects had apparently threatened the fourth suspect to pressure him to withdraw his confession, in which he had incriminated them;

(ix) no other less severe preventive measure had been deemed suitable;

(x) the overall length of the measure was reasonable, and justified by the necessity of the proper administration of justice and by the complexity of the case, taking into account factors such as the nature of the crimes, the number of participants and the damage caused, as well as the scope of the criminal investigation measures;

(xi) the reasons which had justified the taking of the measure of pre‑trial detention still existed and there were no new elements that could allow the courts to conclude that the detention was no longer justified.

9 . The applicant appealed against all but two of the interlocutory judgments in which the courts had extended the preventive measure of pre ‑ trial detention. He also lodged several requests for the termination of that measure or for its replacement with a less severe measure.

10 . Those applications were rejected by the Bucharest Court of Appeal and the PiteÅŸti Court of Appeal respectively (see paragraph 6 above). The courts gave reasoned decisions providing answers to the arguments made by the applicant and the co ‑ accused.

11 . The applicant also complained that the County Court’s reasoning had become repetitive and stereotypical. In a decision of 21 July 2016 the Piteşti Court of Appeal dismissed that argument and observed that, as no change in the circumstances of the case or in the applicant’s personal circumstances had occurred, a certain repetition in the reasoning provided by the court was inevitable, despite that court having made a thorough examination of the case.

12 . The applicant also raised an objection to the constitutionality of the applicable Articles of the CCP, arguing that the term “reasonable suspicions” employed by the CCP lacked clarity. On 8 April 2016 the Piteşti Court of Appeal expressed the opinion that the provisions in question were sufficiently clear to allow the courts to apply them correctly. The objection was eventually dismissed on 21 March 2017, by decision no. 185 of the Constitutional Court, on the grounds that the words in question had preserved their ordinary meaning, and therefore both the subjects of the criminal law and the authorities entrusted with its application were capable of understanding it. The Constitutional Court concluded that the meaning of that expression was clear, precise and predictable and thus complied with the requirements of both the Constitution and Article 5 of the Convention.

13 . Meanwhile, in the main proceedings, on 14 January 2016 the prosecutor indicted the applicant and the other three suspects for the acts they had been accused of.

14 . On 20 April 2017 the applicant was convicted by the Vâlcea County Court and received a prison sentence of thirteen years and four months. The sentence was changed to eighteen years’ detention by a final decision of 6 March 2018 of the Piteşti Court of Appeal.

COMPLAINTS

15. The applicant complained under Article 5 § 3 of the Convention about the length of his pre-trial detention and submitted that no valid reasons had been given for its continuation.

16. He also complained, under Article 5 § 4 of the Convention, that he had been unable to take proceedings by which the lawfulness of his detention could be examined by the courts.

THE LAW

17. The applicant complained about the length of his pre-trial detention and alleged that its continuation had been unjustified. He relied on Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

(a) The Government

18. The Government argued that the courts had made a comprehensive assessment of the situation and had based their decision on the evidence in the case file, on the developments in the case and on the applicant’s personal circumstances. Moreover, both the applicant and his representatives had had ample opportunities to present their arguments before the courts, opportunities which, on two occasions, the applicant had not taken.

19. In the Government’s view, the length of the detention had been justified by the complexity of the case, and the authorities had taken the measures which were necessary and appropriate to ensure the swift and proper administration of justice.

(b) The applicant

20. The applicant argued that the courts had relied exclusively on the description of facts provided by the prosecutor, without addressing the question of the applicant’s specific contribution to the alleged commission of the crime. The detention had primarily been justified by the length of the penalty attached to the crimes allegedly committed and to the presumed circumstances of the case. In his view, the courts had failed to explain the alleged risks of his reoffending, absconding or colluding, or to balance the public interest allegedly at stake against his interest in being released from detention. Moreover, no reasons had been given as to why a less restrictive preventive measure would not suffice. In sum, he contended that the reasons adduced by the domestic courts had not been relevant and sufficient, and had lacked credibility and objectivity, thus remaining theoretical and speculative.

21. Lastly, the applicant argued that the domestic law was unclear as to what constituted “reasonable suspicion”, as he had argued in his constitutional complaint.

22. The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-102, ECHR 2016 (extracts)).

23. At the outset, the Court notes that the period of detention to be taken into consideration in the present case started on 29 July 2015, when the applicant was arrested (see paragraph 6 above), and ended on 20 April 2017, when he was convicted by the Vâlcea County Court, acting as a court of first instance (see paragraph 14 above; see also Buzadji , cited above, § 85). This period thus lasted one year, eight months and twenty-two days.

24. The Court further notes that when deciding on the applicant’s pre ‑ trial detention, the domestic courts relied on the relevant domestic law and applied it to the specific circumstances of the case, indicating which factual elements, in their opinion, justified the measure (see, mutatis mutandis , Stavarache v. Romania (dec.), no. 27090/07, § 28, 11 March 2014, and Ghiurău v. Romania (dec.), no. 3620/04, § 23, 6 January 2015). They firstly found that there were reasonable suspicions that the applicant had committed the offences (see paragraph 8 (i) above). The courts further referred expressly to the severity of those offences and to the need to ensure the proper administration of justice (see paragraph 8 (ii) and (x) above).

25. On this point, the Court notes that both the Piteşti Court of Appeal and the Constitutional Court found that the applicable domestic law was sufficiently clear concerning the requirement of “reasonable suspicions” in justifying pre-trial detention (see paragraph 12 above). Moreover, it was also compliant with the requirements of Article 5 of the Convention.

26. The domestic courts also found that the applicant represented a danger to public order (see paragraph 8 (iii) to (v) above). The Court reiterates that it has found that by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention – at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention – in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence (see Letellier v. France , 26 June 1991, § 51, Series A no. 20). In the present case the Court cannot but note that Article 223 § 2 of the CCP, on which the county courts based their decisions, expressly recognises danger to public order as being among the reasons justifying detention pending trial (see paragraph 8 above, and, mutatis mutandis , Bivolaru v. Romania , no. 28796/04, § 69, 28 February 2017).

27. Furthermore, the county courts found that the evidence in the case file indicated a risk of reoffending, the risk of absconding and the risk of colluding with or influencing another suspect (see paragraph 8 (vi) to (viii) above respectively).

28. The county courts examined the justification for extending the pre ‑ trial detention at regular intervals (see paragraph 7 above) and took into account developments in the circumstances of the case (see paragraph 8 (x) and (xi) above; see also, mutatis mutandis, Stavarache , § 28, and Ghiurău , § 23, both cited above). In this context, the Court considers that the domestic courts did not rely on stereotypical reasoning and that a certain repetition in the wording of their reasoning in respect of the various extensions of detention was inevitable, given that they had verified at short and regular intervals the necessity of maintaining the measure (see paragraphs 7 and 11 above; see also, by contrast, Lauruc v. Romania , no. 34236/03, § 82, 23 April 2013, and Galip DoÄŸru v. Turkey , no. 36001/06, § 56, 28 April 2015).

29. Lastly, the Court also notes that the domestic courts considered but rejected the possibility of imposing a less serious measure (see paragraph 8 (ix) above; see also Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012).

30. Consequently, the Court concludes that the applicant’s detention was based on relevant and sufficient grounds.

31. It remains to be ascertained whether the relevant national authorities displayed “special diligence” in the conduct of the proceedings (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 77, 22 October 2018). Regarding this point, the Court notes that the criminal proceedings were swift and that no periods of inactivity have been reported. The investigation ended less than six months after the applicant’s arrest (see paragraphs 6 and 13 above), and the proceedings before the court of first instance lasted a little over fifteen months (see paragraph 14 above; see also, mutatis mutandis , Ghiurău , cited above, § 24).

32. Further to this point, the Court notes that the county courts were mindful of the implications that the length of the pre-trial detention had for the reasonableness of that measure (see paragraph 8 (x) above).

33. The Court therefore concludes that the length of the applicant’s pre‑trial detention does not disclose any appearance of a violation of Article 5 § 3 of the Convention (see, mutatis mutandis, Stavarache , cited above, §§ 25-30, where the Court came to a similar conclusion in relation to a pre-trial detention which lasted more than two years and two months).

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

35. The applicant complained that he had been unable to take proceedings by which the lawfulness of his detention could be examined by the courts, as required by Article 5 § 4 of the Convention.

36. 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.

37. Accordingly, 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,

Declares the application inadmissible.

Done in English and notified in writing on 2 December 2021.

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Ilse Freiwirth Gabriele Kucsko-Stadlmayer Deputy Registrar President