THIRD SECTION

Application no. 22767/08 DragoÈ™ Ioan RUSU against Romania lodged on 6 May 2008

STATEMENT OF FACTS

The applicant, Mr Dragoş Ioan Rusu , is a Romanian national, who was born in 1974 and lives in Bacău .

A. The circumstances of the case

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

1. The investigations into suspicions of drug traffic

On 13 January 2005 the Bacău police division responsible for the fight against organised crime and drug trafficking (“the police”) was informed by the Bacău Regional Division of the Romanian Post (“the Post”) that three envelopes containing suspect merchandise had been identified by the Post. The envelopes sent by registered post abroad had been returned unopened as the receivers had failed to collect them. The senders could not be identified by the postal workers and their addresses proved to be fictive.

The police confiscated and examined the envelopes and found that they contained prescription medicine belonging to one of the categories of prohibited drugs under Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143”).

On 24 January, 9 February and 14 February 2005 other similar envelopes containing drugs meant to be sent abroad were discovered by the Post.

On 18 February 2005 the division for the investigation of organised crime and terrorism from Bacău Prosecutor ’ s Office (“the prosecutor”) started criminal investigations in the matter.

The prosecutor requested the audio-video surveillance of the post offices in Bacău . This measure was authorised by the Bacău County Court on 23 February 2005.

With the help of the surveillance mechanisms, the applicant was identified in a post office on 14 March 2005 while he deposited several other suspect envelopes to be sent abroad. The envelopes were confiscated and their examination proved that they contained drugs and that the address of the sender was false .

On 9 February, 14 February and 14 March 2005 the prosecutor issued orders authorising the confiscation of the suspect envelopes under Article 98 of the Code of Criminal Procedure (the “CCP”). He invoked the urgency of the measure and the lack of time to obtain the court ’ s approval beforehand. The three orders were subsequently sent to the County Court for information.

The prosecutor also identified two pharmacies from where the drugs had been procured without prescription. The pharmacists identified the applicant as being the person to whom they sold the medicine.

Based on the evidence gathered, the prosecutor concluded that between 2003 and 2005 the applicant had obtained medical products classified as drugs without prescription and tried to commercialise them abroad. For these reasons, on 12 April 2005 he set in motion the criminal action against the applicant ( punerea în mişcare a acţiunii penale ), arrested the applicant and sought the County Court ’ s approval for placing him in pre-trial detention.

On 13 April 2005 the County Court dismissed the prosecutor ’ s request on the ground that the evidence in the file did not confirm the suspicion of guilt. The decision was upheld by the Bacău Court of Appeal in a final decision rendered on 15 April 2005.

2. The first set of proceedings

On 2 June 2005 the prosecutor committed the applicant for trial under the accusation of dealing in drugs; five of the envelopes confiscated on 9 February, 14 February and 14 March 2005 were attributed to the applicant and used as evidence.

Before the Bacău County Court the applicant contested the lawfulness of the evidence and argued that the prosecutor had not obtained authorisation from the court to confiscate his correspondence.

On 27 February 2007 the applicant was acquitted. The County Court set aside the main evidence produced by the prosecution, considering that the confiscated envelopes had been obtained unlawfully, as the prosecutor had failed to request validation from the court of the confiscation order. As for the remaining evidence in the file it noted that the audio and video interceptions were not relevant for the accusations brought against the applicant and that the witnesses were unreliable as they changed their statements in court.

On 18 September 2007 the Bacău Court of Appeal upheld the above judgment.

However, on 28 January 2008 the High Court of Cassation and Justice allowed an appeal on points of law brought by the prosecutor. It found that the lower courts had erred when they had set aside the evidence obtained from the confiscated correspondence. It considered that according to the provisions of the CCP the prosecutor had an obligation to inform the courts about the confiscation orders and not to seek their validation. It therefore sent the case back to the County Court and recommended that the court verify whether the prosecutor ’ s orders had been sent for its information and to examine the accusation in the light of all evidence in the file. The decision was final.

3. The second set of proceedings

On 12 February 2009 the Bacău County Court convicted the applicant for trafficking in drugs, based on the evidence in the file, namely the confiscated envelopes and the expert evaluation of their content, transcripts of audio and video interceptions, statements by pharmacists and doctors. The applicant was given a three years ’ suspended sentence.

The court considered that the interception of the applicant ’ s correspondence had been legal and observed the requirements of Article 8 of the Convention and of the domestic legislation in the matter. It also reiterated that, as the situation was urgent, the prosecutor was allowed by law to intercept the correspondence without court authorisation, provided that he informed the court afterwards, which he had done in the case.

The applicant appealed against that decision. He reiterated his allegations that the interception of his correspondence had been unlawful. The court dismissed his arguments, making reference to the interpretation of law given by the High Court of Cassation and Justice in its decision of 28 January 2008.

The applicant reiterated his arguments in an appeal on points of law lodged with the High Court of Cassation and Justice which dismissed it in a final decision of 22 June 2010.

B. Relevant domestic law

The relevant provisions of the CCP concerning the interception of correspondence read as follows:

Article 98

“1. During the criminal prosecution, at the prosecutor ’ s request, the court ... may order any post office to withhold and hand over [to the investigators] any correspondence ... sent by the person under investigation or addressed to him ...

1 1 . The measure from paragraph 1 will be ordered if the requirements of Article 91 1 § 1 are met and following the procedure provided in that Article.

1 2 . In situations of urgency, solidly justified, the correspondence ... may be withheld and handed over [to the investigators] by written order given by the prosecutor; the prosecutor is under an obligation to inform immediately the court of that occurrence.”

The legislation in force at the relevant time and its evolution after 1 January 2004 concerning telephone tapping, including the provisions of Article 91 1 § 1 of the CPP is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39 ‑ 46, 26 April 2007).

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that he did not benefit from a fair trial, in so far as the main evidence for his conviction, namely the interception of his correspondence, was obtained unlawfully, in the absence of any court validation for the prosecutor ’ s orders.

2. For the same reasons, he considered that the unlawful interception of his correspondence also breached his rights guaranteed by Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his correspondence, contrary to Article 8 of the Convention?

2. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?

3. Was the evidence obtained through the interception of his correspondence decisive in securing his conviction?