THIRD SECTION

Application no. 39273/07 Liviu Aurel MAN and others against Romania lodged on 31 August 2007

STATEMENT OF FACTS

The first applicant, Liviu Man, president of “ Gazeta ” press group, is a well-known journalist. He was a BBC reporter and director of the Cluj department of the National Romanian Television for several years. He is a founder member of the newspapers “ Ziua de Ardeal ” (2000), “ Gazeta de Cluj ”(2002) and “ Bună Ziua , Ardeal ” (2003). They belong to “ Gazeta ” press group and are investigation newspapers. Most of their articles covered corruption at high level, including abusive conducts of police officers and prosecutors.

The second applicant, Milena Man is the first applicant ’ s wife.

The rest of the applicants , SC EXPLOZIV MEDIA SRL, SC LORETTO PRESS SRL and SC TOKEN MEDIA SRL are commercial companies located in Cluj , which ensured the publication of a part of the newspapers belonging to “ Gazeta ” press group .

A. The circumstances of the case

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

1. The criminal investigation agains t the first applicant and other journalists of Gazeta group

In 2005 the Anti-Corruption Department of the Prosecutor ’ s Office (“the DNA”) started a criminal investigation against the first applicant and five other journalists, members of the management of Gazeta on suspicion of blackmail and association in an organised criminal group, following complaints submitted by local politicians and businessmen. According to the denouncers, the journalists were collecting compromising information about them with a view to disclose it unless they bought advertising from the newspapers belonging to Gazeta press group.

The prosecutor sought an order for the interception of the journalists ’ telephone calls. According to an article published in “ Evenimentul Zilei ” newspaper on 9 December 2006, about fifty thousand conversations were tapped. The transcripts of the telephone interceptions were admitted as evidence against the journalists.

Excerpts from these conversations were subsequently published in several newspapers despite the fact that the criminal investigation was still pending. Other pieces of evidence from the prosecution file were likewise publis hed and commented in the press.

2 . The events of 30 October 2006

At about 8 a.m., on the morning of 30 October 2006, eleven masked police officers carried out a search in the first two applicants ’ home on the basis of a court warrant. A number of the applicants ’ assets were seized. Almost at the same time, searches were carried out at the home of four other journalists, members of the “ Gazeta ” group management.

The search warrant was drafted in very broad terms, without making any reference to the nature of the offences to which the search was related and th e assets to be found or seized.

The first applicant was handcuffed and taken out of his flat through the main door with a view to his transfer to the prosecutor ’ s office for questioning. He was accompanied by police officers of the special intervention forces, who were wearing masks. Newspaper and television crews, allegedly invited by the prosecutor, were present and the events were g iven widespread media coverage.

Footage of the journalists ’ arrest was broadcast live and shown again on the main channels ’ evening news programmes.

News reports about the prosecution, acc ompanied by images of the first applicant wearing handcuffs, were given a lot of airtime. Numerous panel discussions were broadcast and journalists and politicians co mmented publicly on the events.

At about 9 a.m. two concomitant searches were carried out at the premis es of “ Gazeta de Cluj ” and “Bun ă ziua , Ardeal ”, two newspapers belonging to Gazeta group. All their accounting and financial documents were seized and placed under seal. All their computers and cars were seized. The applicant companies alleged that the searches were carried out in the absence of their legal representatives. They also claimed that the seized documents were not individually mentioned in the drawn up inventory (given a number and mentioned in the report of the search) and that many of them h ad no connection with the case.

They alleged that the authorities refused to return the seized items despite their repeated requests in this respect. They also claimed that all these measures impeded the activity of the newspapers.

3. The journalists ’ pre-trial detention

At about 11 p.m., on 30 October 2005, the prosecutor issued an arrest warrant in the name of the first applicant and four other journalists and proposed their remand in custody.

The journalists ’ pre-trial detention was ordered by an interlocutory judgment delivered by the Cluj County Court on the same day. The court justified the detention on the concrete danger posed by the defendants to the society; they used publications of a press group for blackmail generating fear and uncertainty among the businessmen in Cluj and Bi striţ a . It also found that the defendants tried to impede the finding of the truth by destroying and altering eviden ce relevant to the proceedings.

The first applicant appealed.

On 4 November 2006 the Clu j Court of Appeal dismissed his appeal upholding the interlocutory judgment.

The first applicant ’ s pre-trial detention was regularly extended by interlocutory judgments of the Cluj County Court until 23 March 2007. The court provided detailed reasons in order to justify the extension, such as: the nature and severity of the offences for which he was under investigation, the fact that he tried to obstruct the course of justice by contacting possible witnesses and the persons who lodged complaints against him, th e high number of victims (fifty three).

The first applicant lodged appeals against t he interlocutory judgments; all the appeals were dismissed by final decisions of the Cluj Court of Appeal.

4. The first applicant ’ s alleged solitary confinement

The first applicant was transported to Gherla prison immediat ely after his pre ‑ trial detention had been ordered by the c ourt. He alleged that for sixty days he was completely isolated from other detainees. The sole contact he had with the outside world was with his family for one hour per week. He could only have a solitary walk in the prison yard thirty minutes per day. He also alleged that he was not allowed to read or listen to the radio.

No documents were submitted by the fir st applicant in support of this complaint.

5. The seizure of the applicants ’ assets

On 8 November 2006 the prosecutor ’ s office attached to the High Court of Cassation and Justice ordered, as an interim measure, the confiscation of all assets belonging to the first two applicants and the applicant companies. The measure was based on Article 163 o f the Romanian Code of Criminal Procedure and intended to ensure the payment of compensation claimed by the alleged victims.

The applicants repeatedly asked the restoration of the assets seized. According to the applicants, their requests were dismissed.

6. Further developments of the case

On 8 December 2006 criminal proceedings were initiated against the second applicant for blackmailing and adhering to a criminal group. The prosecutor issued an order in her name prohibiting her to leave the city for the following thirty days. Her prohibition to leave the city was extend ed for another thirty days on 4 January 2007.

The first applicant alleged that the second applicant was never involved in the activity of the newspapers as she was a doctor. He also maintained that the authorities had initiated criminal proceedings against her in order to justify the seizure of all their family ’ s a ssets and the freezing of their common bank accounts.

On 3 and 4 January 2007 two other journalists, D.P. and A.G., managers of two other newspapers belonging to Gazeta group were arrested.

7. Criminal proceedings against the first applicant

On 19 January 2007 the prosecutor issued an indictment concerning seven journalists, including the first applicant, and the case was registered with the Cluj County Court. They were charged with qualified blackmail in continuous form and a ssociation to a criminal group.

The prosecutor decided to severe the proceedings against the second applicant in order to complete the evidence against her.

Paragraphs from the bill of indi ctment were published in media.

By a decision of the High Court of Cassation and Justice delivered on 7 March 2007 the file was transferred to Br ăila County Court upon the journalists ’ application in order to avoid any possible lack of impartiality of the judges.

Consequently the journalis ts were transferred from Gherla Prison to Br ăila Prison.

On 23 March 2007, at its first hearing in the file, the Br ăila County Court ordered the release from prison of the first applicant a nd two other journalists. It replaced their pre-detention with the prohibition to leave the city.

By a decision of 7 May 2008 the county court referred the case back to the prosecutor. It considered that the criminal investigation had been marred by procedural irregularities and that it should be carried out again and completed in compliance wi th all procedural requirements.

It held that all procedural steps undertaken before 30 October 2006 were unlawful as the journalists ’ right to defence was seriously breached. However it found that the phone calls interception and the searches performed at the newspapers ’ headquarters had been carried out in accordance with the applicable legal provisions.

It also allowed the complaints lodged by the first two applicants and the applicant companies concerning the seizure of their assets and accounts and ordered the lift of the measures. It held that the measures were no longer justified given that the initial number of victims dropped from forty ‑ two to eighteen and the level of damages claimed by them was relatively low. It dismissed the defendants ’ requests to have the prohibition to leave the city lifted.

By a decisi on of 6 November 2009, the Galaţ i Court of Appeal allowed the appeal on points of law lodged by the Prosecutor ’ s office, quashed the judgment of 7 May 2008 and sent the file back to the county court for the continuance of the proceedings. It held that the procedural steps were taken in accordance with the law. It also considered that the lifting of the seizure measures was not justified given that there were still several victims claiming damages.

According to the latest information, the criminal proceedings are still pending and no judgment on the merits was delivered yet.

B. Relevant domestic law

The relevant provisions of domestic law concerning the use of handcuffs are described in Ali v. Romania , no. 20307/02 , § 46, 9 November 2010. In particular, the use of handcuffs is expressly forbidden by the Criminal Justice and Sentencing Act ( Law no. 275 of 20 July 2006), save for in exceptional circumstances (Article 37), and cannot be used as a sanction (Article 71).

The relevant provisions of Decree No. 31/1954 concerning remedies for persons claiming damage to their dignity or reputation are available in Rotaru v. Romania ([GC], no. 28341/95, § 29, ECHR 2000 ‑ V).

Under Article 163 of the Romanian Criminal Procedure Code, the interim measure of seizure can be ordered by the prosecutor or the court to prevent the disposal or disappearance of goods, eventually to cover the prejudice caused by an offence or to guarantee the execution of a criminal fine. In order to repair the damage, the interim measures can only be ordered against the goods of the accused or the indicted and the person bearing civil liability, up to th e probable value of the damage.

COMPLAINTS

1. The first applicant complains that he was handcuffed and publicly exposed in a degrading manner, treatment which was not made necessary by the criminal investigation, in violation of the requirements of Artic le 3 of the Convention.

2 . Under the same article of the Convention the first applicant complains that he was kept in solitary confinement for sixty days.

3. Citing Article 5 § 1 (c) of the Convention, the first applicant complained that he had been arrested even though there had not been any reasonable suspicion that he had committed a crime and though the prosecutor had not given s pecific reasons for his arrest.

4. Under Article 5 § 3 of the Convention the first applicant claims that his pre ‑ trial detention between 30 October 2006 and 24 March 2007 was not justified; namely that the Cluj District Court did not provide sufficient reason s for keeping him in detention.

5. Under Article 5 § 4 of the Convention he complains about the lack of impartiality of the courts which re ndered decisions concerning his pre ‑ trial detention. In this respect he contends that immediately after the file was transferred to the Bră ila County Court he was released from detention.

6. Under Article 6 § 1 of the Convention the first applicant claims that all the procedural steps taken against him before 30 October 2006 were not in accordance with the applicable legal provisions.

7. Relying upon Article 8 of the Convention, the applicants complain about the unlawful way the searches were carried out at their home and respectively their headquarters. The search at the home of the first two applicants was carried out by eleven masked police officers causing panic. They also claim that their assets were seized without a proper inventory and individualisation. They also complain about the very general terms in which were drafted the search warrants.

8. Under the same provision, the first applicant complains that private telephone conversations (not connected to the case) which were intercepted by the authorities ended u p being published in the press.

9. Under the same provision, the first applicant claims that his public exposure by the authorities infring ed his right to respect for his privacy, in so far as it related to his image, di gnity, honour and reputation.

10. The first applicant complains that he had not had an effective remedy for his complaints under Articles 3 (concerning the wearing of handcuffs) and 8 (except from the complaint concerning the search) within the meaning of Article 13 of the Convention.

11. Relying on Article 10 of the Convention the first applicant and the applicant companies complain that the arrest of the whole management of a press group and the seizure of all technical devices and materials which were necessary for editing their newspapers represent an infringement to the freedom of expression. In this respect they cont end that after the events of 30 October 2006 a part of their publications ceased to appear and another part were suspended for a certain period.

12. Under Article 1 of Protocol No. 1 to the Convention they complain that the discretionary seizure of all their assets for an unlimited period of time infringed their right for peaceful enjoyment of their possessions. They claim that the Romanian law, namely Article 163 of the CCP, did not offer sufficient guarantees against arbitrary measures.

QUESTIONS TO THE PARTIES

1 . Has the first applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, given the manner in which he was presented in public handcuffed from the beginning of the investigation and subjected to solitary confinement for sixty days?

2 . Has there been an interference with the first applicant ’ s right to respect for his private life, w ithin the meaning of Article 8 of the Convention, in so far as transcripts of his intercepted telephone conversations from the prosecution file were published in newspapers and the prosecutor called the media to take photographs of him handcuffed and surrounded by masked police officers?

If so, were those interferences necessary in terms of Article 8 § 2?

3 . As regards the search of the first two applicants ’ home and the other applicants ’ headquarters on 30 October 2006, has there been a violation of Article 8 of the Convention?

4. Did the first applicant have at his disposal an effective domestic remedy for his complaints under Articles 3 ( concerning his handcuffing) and 8 (except from the complaint concerning the search), as required by Artic le 13 of the Convention?

5. Has there been an interference with the first applicant and the applicant companies ’ freedom of expression , within the meaning of Article 10 § 1 of the Convention?

If so, was that interference prescribed by law and necessary i n terms of Article 10 § 2 of the Convention?

6. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

If so, was that interference necessary to control the use of property in accordance with the general interest?