THIRD SECTION

Application no. 38289/07 Ovidiu Vasile PARFENI against Romania lodged on 24 August 2007

STATEMENT OF FACTS

The applicant, Mr Ovidiu Vasile Parfeni , is a Romanian national, who was born in 14 March 1963 and lives in Vaslui .

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

A. Background information

At the material time the applicant was working as doctor for the Vaslui Health Insurance and Pension House. His tasks consisted in examining patients in order to establish their degree of di sablement and accordingly their entitlement to social insurance benefits or retirement on medical grounds.

On 21 March 2002 M.V. lodged a criminal complaint against the applicant alleging that he had demanded bribe in exchange for a medical certificate stating that he qualified for a disability allowance. The prosecutor decided to organise a flagrante delicto in order to catch the applicant in the act of taking bribe from M.V. Thus M.V. received 500,000 Romanian lei (“ROL”) specially marked to provide evidence of bribe taking and a device for recording the conversation with the doctor.

The recording of the applicant ’ s telephone conversations was authorised by the prosecutor in charge.

B. The applicant ’ s arrest

On 25 March 2002, when M.V. had another medical appointment, he entered into the applicant ’ s office and proposed to give the marked money. The applicant declined his offer and invited him to leave his medical documents in the office and wait outside. Their conversation was recorded by M.V. with the device handed to him by the prosecutor.

Shortly after, police officers carried out a search of the applicant ’ s office. They found the marked money on the applicant ’ s desk covered by other documents. The examination of the applicant ’ s hands did not reveal traces of the substance with which the money were treated. The applicant maintained that he was not aware that M.V. le ft the money in his office. His allegations were contested by L.N., a witness heard by the prosecutor on the same day. L.N. claimed that he had entered into the applicant ’ s office immediately after M.V. had left and had seen the money on the desk, while the applicant was trying to hide them under other documents.

A search of the applicant ’ s home was carried out on the same day.

The applicant was remanded in custody and questioned for ten hours by the investigation body. He alleged that he did not receive any food or water during his questioning.

The applicant ’ s detention was successively extended until 11 September 2002 when the Vaslui County Court replaced it with the prohibition not to leave the country.

C. The first set of criminal proceedings against the applicant

Six other patients, F.M., A.S., L.C., R.T., A.I. and P.E., lodged criminal complaints claiming that the applicant had demanded bribe in return for medical certificates confirming their entitlement to health insurance benefits.

On 18 June 2002 the prosecutor issued a bill of indictment charging the applicant with seven counts of bribe-taking. The file was re gistered with the Vaslui County Court.

On 11 September three out of the seven persons (A.I., R.T. and P.E.) who lodged criminal complaints against the applicant gave evidence before the court. They changed their v ersion of facts stated in their criminal complaints and declarations given during the investigation stage and claimed that the applicant had not demanded any bribe.

On 30 June 2004 the Vaslui County Court acquitted the applicant in connection with the complaints filed by A.I., R.T. and P.E. and found him guilty on four accounts of bribe-taking. The applicant was sentenced to a suspended term of two years ’ imprisonment.

The applicant lodged an appeal claiming inter alia , that there was no evidence to support his conviction. In this respect he pointed out that the victims ’ statements were not supported by further evidence and that the police had faile d to catch him red-handed on 25 March 2002.

On 14 December 2004 the Iaş i Court of Appeal dismissed the applicant ’ s appeal upholding the judgment of the first-instance court.

The applicant lodged an appeal on points of law on the ground that there was no evidence that he had committed the offences.

On 30 March 2005 the High Court of Cassation and Justice allowed the appeal on points of law on the ground that the two lower courts were composed of two judges instead of three as requested by law. It quashed the decisions delivered by the lower courts and sent the file back to the first ‑ instance court for a fresh examination on the merits.

D. The second set of criminal proceedings against the applicant

A.S., one of the applicant ’ s alleged victims, gave a new statement before the first ‑ instance court. He stated that the applicant had never asked money from him and that he had submitted the criminal complaint against him at F.M. ’ s suggestion. He added that he was afraid to change his initial statements because F.M. and L.C. had threatened him.

On 15 February 2006 the first-instance court heard L.N., who gave the following statement “I don ’ t remember what happened ... I have problems with my memory ... Next day after a seizure I don ’ t remember anything. I am neighbour and relative of police officer Z.M. He invited me to the police station and told me what to declare.”

On 6 March 2006 the Vaslui County Court acquitted the applicant. It noted that at the origin of the criminal complaints against the applicant was F.M. ’ s dissatisfaction about the medical opinion expressed by the applicant about his health condition. F.M. suggested to other applicant ’ s patients to file criminal complaints.

The court further noted that the evidence against the applicant consisted mainly in the victims ’ statements. The cou rt also held that other fifteen patients were heard by the investigation body and none of them confirmed the allegation that the applicant used to take bribe.

The prosecutor ’ s office appealed the judgment alleging that the applic ant was caught red-handed on 25 March 2002.

On 28 September 2006 the Ia ÅŸ i Court of Appeal dismissed the appeal upholding the judgment of the first-instance court. The appeal court held that the applicant ’ s guilt had not been proven. It also noted that the experts could not establish the authenticity of the recording made by M.V. with the device handed by the investigation body. The appeal court concluded that there was no evidence that the applicant had committed any of the bribe ‑ taking offences.

The prosecutor ’ s office filed an appeal on points of law with the High Court of Cassation and Justice asking for the conviction of the applicant.

The applicant contested the authe nticity of the recording of his conversation with M.V. in his written submissions with the court.

On 1 February 2007 the parties made their final oral submissions. None of the alleged victims were present. The court heard the applicant, the prosecutor and the applicant ’ s lawyer. It did not administer any evidence.

By a decision delivered on 1 March 2007 the High Court of Cassation and Justice allowed the appeal on points of law. It convicted the applicant of taking bribe from M.V. and sentenced him to one year ’ s imprisonment suspended.

It started its reasoning by noting that the statements of victims A.S., F.M. and L.C. could not be corroborated with any other evidence. However, M.V. ’ s allegations were supported by the report describing the flagrante delicto , the statement of L.N. and the transcription of the recorded conversation between the applicant and M.V.

The last-instance court concluded by attaching relevance to L.N. ’ s statement according to which the applicant had been aware that M.V. had left the money in his office.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he had been subjected to degrading treatment on account of the fact that he had to present himself before the first-instance court handcuffed and dressed as a detainee.

2. Under the same article the applicant complains about the alleged inhuman conditions of his de tention between 25 March and 11 September 2002.

3. Relying on Article 5 of the Convention, the applicant complains that he was not brought promptly before an independent magistrate upon his arrest, that the length of his pre-trial detention exceeded a reasonable time and that the reasons provided by the domestic courts to justify the extension of the detention measure were of a st andard type, not focused on his individual case. He further maintains that the domestic courts did not consider the imposition of other, less severe, preventive measures.

4. Und er Article 6 § 1 of the Convention the applicant alleges that he was subjected to an unfair trial which resulted in an unfair conviction. He claims that the last instance court convicted him and sentenced him to imprisonment, despite having been acquitted twice by the lower courts, without a direct assessment of the evidence.

5. The applicant alleges under Article 8 that his right to private life was infringed by the recording of his private telephone conversations. Under the same article he claims that his correspondence was monitored by the prison authorities.

QUESTION TO THE PARTIES

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? In particular, was the applicant ’ s conviction by the High Court of Cassation and Justice, without hearing the witnesses and examining the evidence, compatible with the guarantees set forth in that provision?