Communicated on 20 October 2015

THIRD SECTION

Application no. 38134/10 Alin Marius IONESCU against Romania lodged on 28 June 2010

STATEMENT OF FACTS

The applicant, Mr Alin Marius Ionescu , is a Romanian national, who was born in 1977 and lives in Giurgiu. He is represented before the Court by Mr E. Man, a lawyer practising in Bucharest.

A. The circumstances of the case

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

1. Criminal investigation

At the end of 2004, S.A. lodged a criminal complaint against the applicant and his girlfriend, M.A., with the Bologna Police. She claimed that the applicant and M.A. had taken her passport and had forced her into prostitution.

A search was carried out by the Italian police officers at the flat indicated by S.A. The flat belonged to M.A. ’ s parents and was used by the applicant and M.A. at the time of the events. A few other persons lived with them.

All the persons found in the flat were taken to the police headquarters and invited to give statements.

On 28 October 2005 the Giurgiu Police Inspectorate proposed the opening of an investigation against the applicant and his girlfriend for human trafficking. The prosecutor ’ s office of the Giurgiu Department for the Investigation of Organised Crime and Terrorism delegated the police officers of the Giurgiu Police Inspectorate with the identification of the applicant, the questioning of the victims and witnesses and any other activities considered necessary by the investigators.

On 29 March 2006 the Giurgiu Police Inspectorate proposed the opening of another criminal investigation against the applicant and his girlfriend for trafficking in respect of the two girls found in the flat occupied by the accused in Bologna, P.A.L. and M.C.E.

On 30 March 2006 the prosecutor decided to join the two files.

I.I. was the police officer in charge of the investigation in both files. He questioned most of the witnesses and the victims at the pre-trial stage of the investigation. On 6 April 2006 the police officer questioned P.A.L. In the contents of her written statement it was stated that the handwriting belonged to I.I. and that she had signed it after it had been read to her.

On 5 May 2005 I.I. questioned S.F., who stated that she had met S.A. at an Italian foundation which helped S.A. to return to Romania. Her statement was also handwritten by I.I. and signed by her. S.F. changed her statement before the court of first instance and stated that she had never met S.A. She also alleged that that she had not been aware about the contents of her statement because she had just signed it; moreover, at that time she had been a minor and had given her statement in the absence of her parents.

At the end of the preliminary stage of the investigation police officer I.I. proposed the institution of criminal proceedings against the applicant and his girlfriend noting that they had recruited, ensured the transportation, and harboured two girls, S.A. and P.A.L., for the purpose of their sexual exploitation .

On 23 October 2007 the Giurgiu Prosecutor ’ s Office indicted the applicant and his girlfriend for human trafficking in connection with only one victim, S.A. (as part of the case concerning the other victims had been disjoined in the meantime) and sent their case to trial.

2. Proceedings before the first-instance court

At the hearing of 13 February 2008 S.A. was heard by the court. The applicant ’ s lawyer asked the victim whether she had had a relationship with the police officer who had carried out the preliminary investigation. The court did not allow his question on the ground that it infringed the victim ’ s right to private life.

The applicant ’ s lawyer requested that a copy of the statement given by P.A.L. to the Italian police officers on the occasion of the search of the flat in Bologna be submitted to the file. The court dismissed this request on the ground that P.A.L. had not given any statement to the Bologna Police.

A few witnesses (N.G.C., I.P. and C.M.N.) questioned by police officer I.I. changed their initial statements claiming that they had been dictated by the police officer.

Two other witnesses, I.P. and I. F., heard by the Giurgiu County Court on 13 October 2008 stated that the victim and I.I. were involved in a romantic relationship and lived together.

Two witnesses, who shared the flat in Bologna with the applicant and his girlfriend, did not agree with the version of events presented by the victim. They stated that the victim, an old acquaintance of the applicant, had been living in the flat until she was able to find a job. They asked her to leave because her lifestyle was not compatible with theirs; she used to go out and come back late and disturb the others who were sleeping. They also contended that when she left she had stolen their money for the rent kept in an envelope.

At the last hearing held on 23 February 2008, the statement given by P.A.L. in the course of the police interrogation was read out in the court as it was noted that despite repeated summons at her domicile she could not be heard by the court.

In his last pleadings submitted before the court, the applicant stated that he was innocent and that the whole trial had been set-up by the victim who had an intimate relation with police officer I.I.

The county court delivered its judgment on 14 April 2008. It convicted the applicant and his girlfriend as charged and sentenced them to six years ’ imprisonment.

In its decision the court held that the applicant had forced S.A., I.N. and P.A.L. into prostitution.

3. Proceedings before the appellate courts

The applicant and his girlfriend appealed.

At the hearing of 14 December 2009 the applicant ’ s lawyer requested the re-hearing of the victim as her statements before the first-instance court had been contradictory. He also requested the re-hearing of A.C., with whom the applicant and his girlfriend shared the flat in Bologna. The appeal court dismissed the requests on the ground that both the victim and A.C. had already been heard and there were no new elements to justify re-hearing them.

The appeal court also took note of the fact that before sending the case file to the court, the prosecutor had disjoined the two cases against the applicant and his girlfriend and that the only victim in the present case was S.A.

The appeal court noted that the defendants had recruited, trafficked and sexually exploited several girls, underlining their large-scale criminal activity.

The appeal court dismissed the applicant ’ s appeal, upholding the decision of the first-instance court.

The applicant lodged an appeal on points of law with the High Court of Cassation and Justice. He challenged the evidence on which the courts at the first two levels had based their decisions. He contended that he had been convicted on the basis of the contradictory statements of the victim, S.A, the statement given by P.A.L. at the pre-trial stage of the investigation in his absence, the statements given by close family members of the victim based on hearsay information, and the statements of witnesses I.M., S.F. and I.P. given under pressure to the police (despite the fact that they had changed their statements before the first-instance court). He claimed that the court had not taken into account the statements given by the two individuals with whom he and his girlfriend had shared their flat in Bologna. He also contested the appeal court ’ s findings concerning the alleged sexual exploitation of I.N., although she was not victim in the case and no evidence had been heard in this respect. Moreover, the court ’ s referral to the extent of his actions concerning several victims and to the fact that the victim ’ s exploitation had lasted four months (S.A. left Romania on 6 October 2004 and returned on 17 November 2004) was incorrect. He also claimed that the report drafted on the occasion of the search of the flat by Italian police officers on 9 November 2004 did not reveal any evidence against him concerning his alleged involvement in human trafficking.

On 26 February 201 0, before the last hearing of 5 March 2010, the applicant ’ s lawyer submitted several documents, including a copy of a statement given by victim S.A. before a public notary, a letter sent by the prosecutor ’ s office to the applicant and a copy of a criminal complaint lodged by the applicant against police officer I.I. for abusive behaviour .

In particular, in a notarial statement added to the case file dated 23 February 2010, S.A. described her relationship with police officer I.I. She stated that their relationship had started after she had been invited to explain to the police why she h ad returned to Romania from Italy without a passport with the help of th e Romanian Consulate. In August 2006 I.I. moved to her home and they lived together. She also maintained that she had lodged the criminal complaint against the applicant at I.I. ’ s insistence and that she and members of her family had given statements under the pressure exercised by him. S.A. further stated she had been present when I.I. had questioned P.A.L. and that the former had conceived and written the whole statement; P.A.L. had just signed the statement. S.A. claimed that I.I. had a lot of debts to the banks and had been hoping that she would be awarded a large amount of compensation for non-pecuniary damage in the proceedings against the applicant and his girlfriend.

In a letter addressed to the applicant, following his request for information concerning the case about the other three victims, the prosecutor informed the applicant that the case file had been registered only on 15 February 2010 and accordingly it was still at the prosecutor ’ s office.

On 19 March 2010 the High Court of Cassation and Justice dismissed the applicant ’ s appeal on points of law, upholding the decisions of the lower courts. The court did not make any reference to the statement given by the victim before the public notary or to the criminal complaint lodged by the applicant against I.I.

B. Relevant domestic law

Article 327 § 3 of the Romanian Code of Criminal Procedure provides that when it is impossible for a court to hear a witness it will read out his or her testimony given at the pre-trial stage of the proceedings and will take it into consideration when examining the case.

COMPLAINTS

The applicant complains that the criminal proceedings conducted against him on charges of human trafficking violated his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention. In particular, he claims that he was unable to cross ‑ examine a) a witness heard by police officer I.I. in his absence at the pre-trial stage of the investigation and b) S.A., who gave contradictory statements at different stages of the proceedings. He also alleges that the domestic courts did not address the argument put forward in his defence that the police officer who had heard most of the witnesses at the investigation stage was involved in an intimate relationship with the victim.

QUESTIONs TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accor dance with Article 6 §§ 1 and 3 (d) of the Convention?

2. In particular, did the domestic courts duly respond to the applicant ’ s argument concerning the bias of the police officer who heard most of the witnesses at the investigation stage?

3. Was the applicant ’ s conviction based to a decisive extent on the statements of P.A.L. and S.A.?

4. Were there any efforts made to establish the whereabouts of P.A.L. whose statements made during the preliminary investigation were used at the trial stage of the proceedings?

5. Was the refusal of the appellate court to re-hear S.A. and allow the applicant to cross-examine her compatible w it h the requirements of Article 6 § 3 (d)?