Published on 11 April 2023

FOURTH SECTION

Application no. 83692/17 Ina-Ana CRUDU against Romania lodged on 11 December 2017 communicated on 20 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the criminal proceedings opened against the applicant by the authorities for constituting an organised criminal group and for being an accomplice to bribery. By an interlocutory judgment of 13 August 2014 the pre-trial judge attached to the High Court of Cassation and Justice (“the Court of Cassation”) – sitting in chambers and in the absence of the parties – dismissed the applicant’s objections concerning the alleged unlawfulness of the act of indictment and of the available evidence and sent her case to trial. By a final judgment of 28 June 2017 (available to the applicant on 17 October 2017) the Court of Cassation convicted the applicant of constituting an organised criminal group and of complicity to bribery and sentenced her to a suspended penalty of 2 years of imprisonment.

Relying expressly or in substance on Article 6 of the Convention, the applicant alleged that the pre-trial judge proceedings were unfair and violated her rights to oral and adversarial proceedings as well as the principle of equality of arms. In particular, the proceedings had taken place in chambers, in her and her lawyer’s absence, without them being summoned and with the prosecution alone being notified of the arguments and exceptions raised by the defence in respect of the lawfulness and validity of the evidence. The latter included the surveillance of her phone conversations and activities conducted by the Romanian Intelligence Service ( Serviciul Român de Informații – “the SRI”) acting as a criminal investigation body on the basis of Law no. 51/1991 on national security for a time frame exceeding the facts she was accused of, before a criminal investigation was opened against the applicant and even though she was investigated for ordinary corruption offences. The applicant further alleged that the trial against her had been unfair because, even though she had been convicted on the basis of the unlawful surveillance of her phone conversations and activities by the SRI, the judicial authorities had transcribed only part of the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording as required by the criminal procedure rules. Requests for the said recordings to be reviewed by an expert had not been allowed. Moreover, according to the applicant, the first ‑ instance trial court had not been established according to law and had been biased, given that the single judge sitting on the bench had already participated in the case as an instruction judge. Lastly, the Court of Cassation judges had allegedly lacked independence and impartiality because their participation in proceedings involving classified evidence gathered by the SRI had been based on classified cooperation protocols concluded between the court, the prosecution and the SRI.

The applicant also alleged a violation of her right to respect for her private life and correspondence guaranteed by Article 8 of the Convention. In this respect, she raised the following complaints: (i) the SRI acting as a criminal investigation body had surveyed her phone conversations and activities on the basis of national security legislation and classified cooperation protocols singed between the intelligence service and the judicial authorities allegedly lacking clarity and foreseeability, even though the applicant was investigated for ordinary corruption offences; and (ii) that the relevant rules applicable in the applicant’s case as well as the authorities’ actions had lacked adequate counterbalancing safeguards given that the judicial authorities had transcribed only part of the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording; requests for the said recordings to be reviewed by an expert had not been allowed.

Relying in substance on Article 13 of the Convention taken jointly with Articles 6 and 8, the applicant alleged that she did not have any judicial remedy enabling her to give effect in her case to the Constitutional Court’s case-law of 28 February 2018. The latter expressly acknowledged that possible corruption offences could not constitute threats to national security capable of justifying restrictions on individual fundamental rights under the relevant national security laws. According to the applicant, this prevented her from remedying the violation of her rights to a fair trial and to respect for her private life and correspondence.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair trial in the determination of the criminal charge against her in accordance with Article 6 of the Convention? In particular, were the applicant’s rights to oral and adversarial proceedings and to an independent and impartial tribunal established by law and the principles of equality of arms and of legal certainty affected in such a way as to render the criminal proceedings against her as a whole unfair within the meaning of Article 6 of the Convention given that

(i) the surveillance of the applicant’s phone conversations and activities had been done allegedly unlawfully by the SRI acting as a criminal investigation body on the basis of Law no. 51/1991 on national security for a time frame exceeding the facts she was accused of, before a criminal investigation was opened against the applicant and notwithstanding the fact that the applicant was investigated for ordinary corruption offences;

(ii) the pre-trial judge proceedings had not been adversarial, had allegedly breached the principle of equality of arms, and had taken place in chambers, in the applicant’s and her lawyer’s absence and without the applicant and her lawyer being summoned;

(iii) the judicial authorities had transcribed only part of the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording as required by the criminal procedure rules and have not allowed requests for the said recordings to be reviewed by an expert;

(iv) the first-instance trial court had allegedly lacked independence and impartiality and had not been established according to law because the single judge sitting on the bench had been incompatible to sit in the case according to national law;

and (v) the Court of Cassation judges had allegedly lacked independence and impartiality because their participation in proceedings involving classified evidence gathered by the SRI had been based also on classified cooperation protocols concluded between the Court of Cassation, the prosecution and the SRI?

2. Has there been a violation of the applicant’s right to respect for her private life and correspondence guaranteed by Article 8 of the Convention in view of the fact that:

(i) the SRI acting as a criminal investigation body had surveyed her phone conversations and activities on the basis of national security legislation and classified cooperation protocols singed between the SRI and the judicial authorities allegedly lacking clarity and foreseeability, notwithstanding the fact that the applicant was investigated for ordinary corruption offences; and

(ii) the relevant rules applicable in the applicant’s case as well as the authorities’ actions had allegedly lacked adequate counterbalancing safeguards given that the judicial authorities had transcribed only part of the recorded materials and had never been in possession of the original recordings or been able to certify the transcripts against the original recording and have not allowed requests for the said recordings to be reviewed by an expert?

3. Did the applicant have any judicial remedy at her disposal enabling her to give effect to the Constitutional Court’s case-law of 28 February 2018 in her case? Was the applicant provided with an effective remedy for her complaints under Articles 6 and 8 of the Convention, as required under Article 13?