Communicated on 10 July 2015

THIRD SECTION

Application no. 47170/10 Gyorgy NYERLUCZ against Romania lodged on 10 August 2010

STATEMENT OF FACTS

The applicant, Mr Gyorgy Nyerlucz , is a Hungarian national, who was born in 1981 and lives in Szigetszentmiklos .

A. The circumstances of the case

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

1. The first round of court proceedings

On 27 January 2009 the Satu-Mare Prosecutor ’ s Office indicted the applicant and his co-accused for aggravated theft and sent their case to trial. The Prosecutor ’ s Office supported its decision to indict the applicant with, amongst other evidence, the secret recordings of the applicant ’ s and his co ‑ accused ’ s conversations during their pre-trial detention in the cells of the Satu-Mare Police Department ’ s Arrest.

On 22 June 2009 the Satu-Mare District Court convicted the applicant of aggravated theft and sentenced him to two years ’ imprisonment. The applicant appealed against the judgment.

On 22 October 2009 the Satu-Mare County Court dismissed the applicant ’ s appeal as ill-founded. The applicant appealed on points ( recurs ) of law against the judgment.

On 26 January 2010 the Oradea Court of Appeal allowed the applicant ’ s appeal on points of law, quashed the judgments of the lower courts and referred the case for examination back to the first-instance court. It held, among other things, that the lower courts had ignored the arguments concerning the nullity of some of the evidence such as the secret recording of the applicant ’ s and his co-accused ’ s conversations which breached a person ’ s right to private life.

2. The second round of court proceedings

On 30 April 2010 the Satu-Mare District Court convicted the applicant of aggravated theft and sentenced him to three years and six months ’ imprisonment, relying on testimonial and forensic expert evidence. It held, among other things, that the secret recordings of the applicant ’ s and hi s co ‑ accused ’ s conversations were not relevant evidence proving their guilt, as the conversations concerned their discontentment and their perceptions of the court proceedings and of the way they had been caught. The applicant and the prosecutor ’ s office appealed against the judgment. The applicant argued, among other things, that the secret reco r ding of his conversations with his co-accused had been unlawful and they did not contain any relevant evidence for the case.

On 28 October 2010 the Satu-Mare County Court dismissed the applicant ’ s appeal against the first-instance court ’ s judgment and upheld his sentence, relying on the available evidence, including the secret recording of his conversations. It held that the secret recordings had been lawful as they had been carried out on the basis of an authorisation delivered by a court. Also they contained information that was relevant for the examination of the case. The applicant appealed on points of law against the judgment. He argued, among other things, that the secret recording of his conversations breached his rights guaranteed by Article 8 of the European Convention of Human Rights. Also, to the extent that the second-instance court had used the secret recording as additional evidence, it had to be removed from the file before the factual circumstances of the case could be established.

By a final judgment of 15 February 2011 the Oradea Court of Appeal dismissed the applicant ’ s appeal on poi nts of law. It held that the co ‑ accused ’ s conviction was neither generally nor exclusively based on the secret recordings of their conversations.

B. Relevant domestic law

The relevant provisions of the Constitution and of the former Romanian Criminal Procedure Code are described in Konolos v. Romania (no. 26600/02, §§ 19 and 24, 7 February 2008) and Calmanovici v. Romania (no. 42250/02, § 40, 1 July 2008).

COMPLAINT

The applicant complains under Article 8 of the Convention of a breach of his right to respect for his private life following the unlawful secret recording by State Agents of his conversations with his co-accused during his pre-trial detention in the Satu-Mare Police Department ’ s Arrest. He further argues that the recordings did not contain evidence supporting the charges brought against him and only made public conversations that concerned aspects of his private life.

QUESTION S TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 § 1 of the Convention on account of the secret recording of his conversations with his co-accused in the Satu-Mare Police Department ’ s Arrest during his pre-trial detention?

2. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?