THIRD SECTION

Application no. 2175/05 Ion NICOLAE against Romania lodged on 30 December 2004

STATEMENT OF FACTS

The applicant, Mr Ion Nicolae , is a Romanian national who was born in 1969 and lives in Râmnicu Vâlcea .

A. The circumstances of the case

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

1. The applicant ’ s pre-trial detention

On 8 September 2003 the National Anti-Corru ption Prosecution Service (“the NAP”) started a criminal investigation against the applicant a nd three other persons for fraud, forgery and use of forged documents.

On the same day he was invited at the NAP ’ s headquarters and arrested.

On the next day the NAP asked the Gorj County Court to remand the applicant and the three other defendants in custody for twenty ‑ nine days. In its interlocutory judgment of 9 September 2003, the Gorj County Court stated that there was evidence in the file that the applicant had committed the offences.

His pre-trial detention was regularly extended by interlocutory judgments of the Gor j County Court until 10 January 2005.

The applicant lodged appeals against the interlocutory judgments; all the appeals were dismissed by final decisions of the Craiova Court of Appeal.

By an interlocutory judgment of 2 October 2003, the G orj County Court extended the applicant ’ s detention on the ground that “there was evidence that the defendants had committed the offences retained in their charge”. On 9 October 2003, the Craiova Court of Appeal upheld the judgment, dismissing the appeal lodged by the defendants. It also stated that the evidence in the file proved that the defendants had committed the offences.

On 31 October 2003 the Craiova Court of Appeal dismissed the applicant ’ s appeal against the interlocutory judgment which extended h is detention indicating as sole reason the necessity to administer further evidence, without making reference to any concrete piece of evidence.

On 8 December 2003 the Craiova Court of Appeal dismissed the appeals lodged by the defendants holding that the extension of the detention by the county court had been justified by the high value of the prejudice caused by the offenders and “the way they committed their offences by unlawfully granting bank credits”.

The main reason provided by the Gorj County Court and the Craiova Court of Appeal for justifying the applicant ’ s detention in their interlocutory judgm ents of 23 December 2003 and 12 January 2004 respectively, was the fact that the court had not heard the defendants yet. The same reason was mentioned in th e interlocutory judgments of 13 January, 12 Fe bruary, 25 March, 8 April and 6 May 2004.

On 24 June 2004 the Gorj County Court decided to replace the detention of the offenders with an obligation not to leave the country. The court held that the defendants had not tried to obstruct the course of justice since the beginning of the criminal investigation. It concluded that the risk of influencing potential witnesses after almost one year had considerably diminished.

The appeal lodged by the prosecutor was all owed by the Craiova Court of Appeal on 28 June 2004 on the ground that the defendants could still influence witnesses.

The main reason relied on by the Gorj County Court in order to justify the applicant ’ s detention for the next five months, between 8 July and 11 November 2004 was that the appellate court had decided that the extension of the applicant ’ s detention was necessary without providing additional reasons.

On 11 November 2004 the Gorj County Court again decided to replace the applicant ’ s detention with an obligation not to leave the country holding that the conclusions of a technical report raised doubts about the applicant ’ s guilt.

The prosecutor lodged an appeal submitting that the report ’ s conclusions were not relevant without examining all the eviden ce against the applicant. On 15 November 2004 the Craiova Court of Appeal allowed the prosecutor ’ s appeal, judging that the first ‑ instance court had erred in finding that the reasons which had so far justified the pre-trial detention had changed. The only reason for maintaining the detention was the necessity to examine further evidence as the expert report ’ s conclusions were in contradiction with other pieces of evidence. It stated inter alia that “the defendants had carried out repeated criminal acti vities in 2002 and 2003”.

On 6 December 2004 the applicant lodged an application for the removal of his case to another court. The High Court of Cassation and Justice granted his application ordering the removal of the case to the Sibiu County Court.

On 5 January 2005 the Sibiu County Court decided to maintain the applicant ’ s detention on the sole ground that the reasons which justified his arrest subsisted. It did not provide any additional reason.

The applicant lodged an appeal asking for his release from detention on the ground that a forensic report had stated that his physical condition imposed surgical interventions.

On 10 January 2005 the Alba Iulia Court of Appeal allowed his appeal and ordered his release from prison on the ground that new evidence in the file, especially an accounting report, disclosed no guilt in connection with the offences in his charge.

2. The proceedings on the merits of the case

On 27 July 2007 the Sibiu County Court ordered the applicant ’ s acquittal in respect of all charges on the ground that one element of the offences was missing. The judgment became final on 12 February 2010, when the Alba Iulia Court of Appeal dismissed the appeal against it.

B. Relevant domestic law

1. Relevant provisions concerning the pre-trial detention

The relevant domestic provisions o f the Romanian Code of Criminal Procedure (CCP) concerning the pre-trial detention are set forth in the case of Riccardi v. Romania (no. 3048/04 , §§ 42-43 , 3 April 2012).

2. Relevant provisions concerning the presumption of innocence

The relevant provisions of the Romanian Constitution concerning the presumption of innocence in force at the relevant time are worded as follows:

Article 23

“[...]

(8) A person is considered innocent pending a final court conviction.”

The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time are worded as follows:

Article 66

“(1) The person accused of or charged with a criminal offence does not have to prove his innocence.

(2) Where evidence is adduced proving a person ’ s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.”

COMPLAINTS

1. Relying on substance on Article 5 § 3 of the Convention, the applicant complains 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 standard type, not focused on his individual case.

2. Relying on Article 6 § 2 of the Convention, he complains that the judges who reviewed the lawfulness of his pre -trial detention pre ‑ judged his case on the merits by making statements reflecting the opinion that he was guilty.

3. Under Article 6 § 3 of the Convention he claims that on 8 September 2003 he gave a written statement before being informed about the charges against him and in the absence of a legal counsel. He also claims that he did not have time and en ough information to prepare his defence.

QUESTIONS

1. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Did the authorities rely on “relevant and sufficient reasons” for the continued detention of the applicant?

2. Was the principle of presumption of innoc ence guaranteed by Article 6 § 2 of the Convention respected in the present case, having regard to the statements of the domestic courts in their interlocutory judgments of 9 September and 2 Octobe r 2003 and final decisions of 9 October and 8 December 2003 and 15 November 2004?