THIRD SECTION

Application no. 19314/07 Calin Eusebiu MIREA against Romania lodged on 19 April 2007

STATEMENT OF FACTS

The applicant, Mr Calin Eusebiu Mirea , is a Romanian national, who was born in 1968 and lives in BraÅŸov . He is represented before the Court by Mr Radu Corneliu Butnaru , a lawyer practising in BraÅŸov .

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

1. Background of the case

At the date of the facts, the applicant was occasionally working for Mr M.V. and also providing information on the latter ’ s business activities to S.S., an operative officer of the Romanian Intelligence Service (“the R.I.S.”).

In the evening of 25 September 2002 E. paid a visit to M.V. at the latter ’ s business headquarters in Braşov and asked him to return 50,000 US dollars which E. had allegedly lent him to help him start his activity. M.V. had previously refused to pay him the money back and contested the amount of the alleged loan. That evening, he and four other individuals sequestered E. and beat him severely to persuade him to give up the debt demand. Later that night M.V. called the applicant and asked him to come by car to the headquarters in order to transport someone to Bacău .

The applicant arrived at the place later in the evening, and found E. severely beaten and begging M.V. for forgiveness. The aggressors tied the victim up and put him in the trunk of his own car. They drove away, murdered E. and staged a road accident as cover-up. The applicant arrived at the scene by car and then drove the aggressors back to their homes.

Few days later, when S.S. returned from his holidays, the applicant told him what had happened that night. S.S. transmitted the information through his hierarchy, to the police.

The criminal investigations into the events did not start until a year later when one of the participants confessed the crimes.

2. First set of criminal proceedings against the applicant

On 18 January 2004 the applicant and the other persons involved in the events of 25 September 2002 were committed to tri a l on counts of illegal deprivation of liberty and extremely aggravated murder.

Throughout the proceedings the applicant argued that he had infiltrated M.V. ’ s group as an informant on the behalf of the R.I.S. He also stated that M.V. had forced him to participate in the events by threatening him and his family.

On 10 November 2004 he was convicted at the first instance by the Braşov County Court for aiding and abetting illegal deprivation of liberty and extremely aggravated murder. He was sentenced to seven years ’ imprisonment and prohibition of certain rights. The judgment was first upheld by the Braşov Court of Appeal on 26 January 2006 and finally by the High Court of Cassation and Justice on 24 October 2006. The High Court increased the sentence to ten years in prison.

The courts acknowledged that the applicant was transmitting information on M.V. ’ s group to officer S.S. They also took note that the R.I.S. denied that the information provided by the applicant on the murder had been the result of his collaboration with the Service.

The county court heard testimony from F.B. who confirmed that both he and the applicant had been infiltrating M.V. ’ s group on behalf of the R.I.S. F.B. had been informed by S.S. that after September 2002 it had become too dangerous for the applicant to stay in direct contact with M.V. due to certain information that the applicant had held.

S.S. gave testimony only in the appeal proceedings, and confirmed that he had been informed by the applicant about the murder. He reiterated in detail the events described by the applicant but refused to answer to certain questions concerning the nature of the relationship between him and the applicant asserting that the information requested by the court was classified.

The court considered further that as Law no. 39/2003 on the prevention and fight against organised crime (“Law no. 39/2003”) regulated the use of informants only when there were indications that a crime was committed or was about to be committed and that, as no such indication existed in the present case, the applicant could not benefit from his status as R.I.S. informant.

The court was also not convinced by the applicant ’ s allegations of coercion.

3. Procedure in revision of the final decision

The applicant asked for a revision of the final decision. He reiterated that it was impossible to prove, before the ordinary courts, that he was a R.I.S informant as, on the one hand, the information had been classified and, on the other hand, S.S. risked losing his job if he divulged such information. He requested that the information be declassified. Furthermore, he pointed out that, as the police failed to act upon the information he had transmitted through the R.I.S., he could not even benefit from a more clement sentence as had been the case with the other participant who had confessed to the crimes.

On 25 July 2007 the request was accepted in principle by BraÅŸov County Court. It considered that the information could constitute relevant evidence, which had not been available to the ordinary courts.

The county court heard a fresh testimony from S.S. who admitted his relationship with the applicant. However, he could not reveal whether the applicant had infiltrated M.V. ’ s group as an informant, nor could he discuss the nature or content of the information which the applicant had given him, save that it concerned “threats to the national security” according to the applicable law (“Law no. 51/1991 on the national security”). He reiterated that the law considered it classified information. He could not clarify either whether as a general rule, an informant who participated in a crime would benefit from protection.

On 12 September 2007 the R.I.S. informed the county court that it could not give clarifications on the relation between the applicant and themselves as the information was classified under Law no. 182/2002 on the protection of classified information and, if revealed, could “severely affect the national security”.

The country court made an extensive examination of the evidence in the file and the applicable laws. It acknowledged that the applicant failed to provide it with conclusive evidence of his status as a R.I.S. informant, but considered that the situation was not imputable either on him or on the courts. It noted that the declassification of documents was left to the discretion of R.I.S. which, claiming “national security”, refused to reveal relevant information in the case at hand. Moreover, the declassification followed a lengthy and cumbersome procedure which undermined the rights of the defence as guaranteed by Article 6 of the Convention.

For these reasons, the court considered that given the difficulty of obtaining unequivocal evidence on the applicant ’ s status, the partial information provided by the R.I.S. and by S.S. should be given increased significance in favour of the applicant.

It thus concluded that the applicant had participated in the events solely as a R.I.S. informant and that the representation of his own role and his feelings of fear, horror, despair and repugnance at the scene of the abuse against E., removed his criminal responsibility.

For these reasons, on 20 November 2008, the County Court partially annulled the previous decisions and acquitted the applicant on both counts.

On 22 October 2009, acting upon an appeal lodged by the Prosecutor ’ s Office, the Braşov Court of Appeal quashed that judgment and dismissed the request for revision. It considered that that remedy could not be used solely to adduce new evidence and that the ordinary courts had already examined the theory according to which the applicant had been a R.I.S. informant infiltrated in M.V. ’ s group. It also considered that the fact that the status of a R.I.S. informant is not regulated by law, made it impossible for the courts to establish the extent of such activities, thus leaving room for abuse of such a status.

On 28 October 2010 the High Court of Cassation and Justice dismissed the appeal on points of law lodged by the applicant and upheld the decisions rendered by the court of appeal, on similar grounds as those given by the lower court.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that in starting the criminal investigations over one year after his report, the authorities protracted unreasonably the criminal proceedings against him.

2. Under Article 6 § 3 (a) he complains that it was impossible for him to present his case and make his defence in so far as the R.I.S. refused to release evidence to the court.

3. He considers that his conviction and sentence have been unjust and humiliating and constitute a severe miscarriage of justice, in violation of Articles 3 of the Convention and 3 of Protocol No. 7 to the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, were the rights of the defence guaranteed by Article 6 § 3 of the Convention and the principle of equality of arms respected as regards the applicant ’ s possibility to call witnesses on his behalf and to obtain relevant information from the Romanian Intelligence Service?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?