THIRD SECTION

Application no . 18034/08 Eugen Nicolae TOD against Romania lodged on 1 April 2008

STATEMENT OF FACTS

The applicant, Mr Eugen Nicolae Tod , is a Romanian national, who was born in 1964 and lives in Brad.

A. The circumstances of the case

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

The applicant was a chief police inspector at the Hunedoara County Police Inspectorate.

On 30 October 2002, the applicant was apprehended by a team of police officers lead by a prosecutor of the National Anti-Corruption Service attached to the Alba- Iulia Court of Appeals (“the NAP”) and escorted to police headquarters for questioning. On the same occasion, the applicant was informed that the NAP had opened a criminal investigation against him on the ground that he had committed two separate offences of trading in influence ( trafic de influenţă , under Article 257 of the Criminal Code ) . The applicant maintains that he was held in police custody and questioned for a period of twenty-four hours. According to the applicant, said measure was in fact a remand in custody ( reţinere , under Articles 143-144 of the Code of Criminal Procedure).

On an unspecified date in November 2002, the NAP issued two bills of indictment against the applicant for the two separate offences of trading in influence. On 14 November 2002 , respectively 22 August 2008, the NAP dismissed the charges against the applicant on the ground that he had not committed the offences in question.

On 31 October 2004, the applicant lodged an action against the State at the Hunedoara County Court on the basis of Articles 504-506 of the Code of Criminal Procedure and Article 5 § 5 of the Convention, seeking compensation for unlawful remand in custody. He claimed EUR 50,000 in respect of non-pecuniary damage.

During the proceedings, two witnesses testified to the effect that the applicant had been in fact remanded in custody. The Ministry of Finance, on behalf of the State, maintained the contrary, namely that the applicant had not been deprived of his liberty.

On 1 March 2006, without specifying the evidence on which its decision was based, the Hunedoara County Court dismissed the applicant ’ s action as unfounded on the ground that he had not been deprived of his liberty at any stage of the criminal investigation and that therefore, he could not avail himself of a right to compensation for unlawful detention or deprivation of liberty under Articles 504-506 of the Code of Criminal Procedure.

The applicant lodged an appeal in front of the Alba-Iulia Court of Appeals. The applicant argued that his apprehension and subsequent questioning in police custody for twenty-four hours had in fact been a remand in custody under Articles 143-144 of the Code of Criminal Procedure. To support his claim, the applicant asked the Court of Appeals to request the criminal investigation case-file from the NAP. According to the applicant, the NAP would only release the case ‑ file upon an official request by the Court of Appeals. The applicant maintained that the case-file in question was crucial evidence inasmuch as it would normally contain the prosecutor ’ s order for remand in custody.

By an interlocutory judgment of 20 October 2006, the Alba-Iulia Court of Appeals dismissed the applicant ’ s request to adduce the criminal investigation case-file as evidence on the ground that it was irrelevant for the applicant ’ s case.

On 27 October 2006, the Alba-Iulia Court of Appeals dismissed the applicant ’ s appeal as unfounded. It held that, despite the applicant ’ s allegations, he had failed to adduce evidence to support his claim that his apprehension and subsequent questioning in police custody were in fact a remand in custody.

The applicant appealed again, on points of law. He claimed that, by dismissing his request to adduce evidence of decisive importance, namely the criminal investigation case-file from the NAP, the Alba-Iulia Court of Appeals breached his right to a fair trial . In a final decision of 2 October 2007, the High Court of Cassation and Justice dismissed the applicant ’ s appeal as unfounded.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure read as follows.

Article 504

“(1) Anyone who has been finally convicted is entitled to compensation from the State for any loss or damage suffered where it is held in a fresh judgment against which no appeal lies that he did not commit the offence in question or that the offence was not committed .

(2) Anyone who has been unlawfully deprived of his liberty or whose liberty has been unlawfully restricted during criminal proceedings is entitled to compensation from the State for any loss or damage suffered.

(3) The unlawfulness of a deprivation or restriction of liberty will be established, accordingly, by a prosecutor ’ s order to revoke a preventive or restrictive measure, by a prosecutor ’ s order to dismiss criminal charges, by a prosecutor ’ s order to discontinue a criminal investigation (...), by a court ’ s decision to revoke a preventive or restrictive measure, by a final decision of acquittal or by a final decision to discontinue criminal proceedings (...).”

Article 505

“ (1) When establishing the amount of compensation, consideration will be given to the length of the preventive or restrictive measure, as well as the consequences of the measure for the person who has been deprived of his liberty or whose liberty has been restricted...”

Article 506

“ (1) The claim can be lodged b y the person who, under Article 504, is entitled to compensation (...).”

COMPLAINT

Relying on Article 6 § 1 of the Convention , the applicant complains that, by refusing to request the criminal investigation case-file from the NAP and denying him the opportunity to adduce evidence of crucial and decisive importance in support of his claim, the domestic courts reviewing his complaint breached his right to a fair trial.

QUESTION to the parties

Did the applicant have a fair trial in the determination of his civil claims, in accordance with Article 6 § 1 of the Convention? In particular, in the procedure concerning the complaint lodged a gainst the State under Articles 504-506 of the Code of Criminal Procedure, was the principle of equality of arms respected as regards the applicant ’ s request to adduce the prosecutor ’ s case-file as evidence in support of his claims?