THIRD SECTION

Application no. 31259/06 Sorin Cleonic POPA against Romania lodged on 22 June 2006

STATEMENT OF FACTS

The applicant, Mr Sorin Cleonic Popa , is a Romanian national, who was born in 1963 and lives in Sibiu. He is represented before the Court by Ms M. Dumitru , 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.

On 17 April 2001 the Cluj Military Security Department started secretly surveying the applicant ’ s telephone conversations on the basis of an order issued by the Military Prosecutor ’ s Office attached to the National Anticorruption Prosecutor ’ s Office (the Military Prosecutor ’ s Office). The applicant, the driver of the German Consul in Romania, was suspected of being part of a network trafficking Schengen visas.

By a Military Prosecutor ’ s Order of 13 December 2002 a criminal investigation was opened against the applicant and seven other individuals. The applicant was suspected of committing the offences of traffic of influence, association for committing an offence and driving a vehicle which was not lawfully registered.

The applicant and three other accused were civilians, while the other four accused were army officers.

On 20 December 2002 the Military Prosecutor ’ s Office indicted the applicant and the seven other accused and sent their case to trial before the Bucharest Military County Court. The Military Prosecutor ’ s Office relied mainly on the transcripts of the recordings of the accused ’ s phone conversations and the accused ’ s own statements.

By a judgment of 22 April 200 3 the Bucharest Military County Court convicted the applicant of traffic of infl uence and sentenced him to four year ’ s imprisonment. It acquitted him for association to commit an offence and noted that the sentence for driving a vehicle unlawfully registered had been pardoned. It found, inter alia , that once the defendants had been presented with the transcripts of their phone conversations they had admitted to committing the offences they were charged with. Moreover, the transcripts of the defendants ’ telephone conversations contained proof of their involvement in unlawful activities, although the court held that the secret monitoring of the defendants ’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, in spite of the court ’ s repeated requests, the prosecution had failed to submit: the Military Prosecutor ’ s Office ’ s order authorising the tapping of the defendants ’ phones between 17 April 2001 and 2 October 2002, the complete transcripts of the recordings, the certification of the recordings ’ authenticity and the minutes containing the list of the phone numbers monitored by the authorities. The defendants appealed against the judgment.

By a final judgment of 11 November 2003 the Military Court of Appeal allowed the defendants ’ app eal, quashed the judgment of 22 April 2003 and ordered a retrial from the moment of deliberation. The court of appeal held that the first-instance court had disregarded the applicable rules on criminal procedure and had deliberated on the case in a single judge formation, while the legal requirement was a two judge formation.

By an interim judgment of 5 March 2003 the B ucharest Military County Court allowed the defendants ’ request for the hearing of the witnesses C.C., P.M. and M.A. and ordered the Military Prosecutor ’ s Office to provide additional explanations concerning the lawfulness of the interception of the defendants ’ telephone conversations. The first ‑ instance court ’ s order to the Military Prosecutor ’ s Office followed an objection raised by the defendants that the recordings of their phone conversations could not be added to the file as lawfully obtained evidence. At the same time, however, the court failed to summon the above ‑ mentioned witnesses.

By a judgment of 15 April 200 4 the Bucharest Military County Court convicted the applicant of traffic of infl uence and sentenced him to four year ’ s imprisonment. In delivering its sentence the court relied mainly on the defendants ’ statements. It also held that the secret monitoring of the defendants ’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure and that the Military Prosecutor ’ s Office had failed to submit the full content of the secret surveillance file to the court, although it had been repeatedly asked to do so.

The defendants appealed against the judgment. They argued that the first ‑ instance court had wrongly assessed the evidence and misinterpreted the applicable legal provisions.

By a judgment of 31 January 2005 the Military Court of Appeal mainly upheld the judgement of the lower court but taking into account the personal circumstances of the applicant sentenced him to three year ’ s imprisonment, suspended.

The defendants lodged an appeal on points of law against the decision. They reiterated their arguments that the lower courts had wrongly assessed the evidence and misinterpreted the applicable legal provisions.

By a final judgment of 22 December 2005 the Court of Cassation, sitting as an ordinary criminal court, dismissed the defendants ’ appeal on points of law ( recurs ) upholding the decision of the Military Court of Appeal.

B. Relevant domestic law

The legislation in force at the relevant time concerning telephone tapping, including Law no. 51/1991 on national security, is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).

COMPLAINTS

1. Invoking Article 5 of the Convention the applicant complains that he was unlawfully arrested on 3 October 2002 by a military prosecutor and that his arrest was not subject to independent judicial review.

2. Relying on Article 6 § 1 of the Convention the applicant complains that the domestic courts had lacked impartiality and independence in so far as he was convicted by military courts although he was a civilian.

3. Under the same article the applicant also claims that the domestic courts had relied mainly on the defendants ’ statements and on the unlawfully obtained recordings of their telephone convers ations in order to convict him.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges brought agai nst him, as required by Article 6 § 1 of the Convention?

In particular, did the examination of the applicant ’ s case by military courts and the reliance of the domestic courts mainly on the recordings of the applicant ’ s telephone conversations in order to convict him, compromise the fairness of the proceedings in question?