Last Updated on June 17, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 60254/12
Ioan TARCEA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 3 July 2018 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 10 September 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr IoanTarcea, is a Romanian national, who was born in 1967 and lives in Cisnădie. He was represented before the Court by Mr L. Petruța and Mr R. Popescu, lawyers practising, respectively, in Cluj-Napoca and Sibiu.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Romanian Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 15 July 2010 the Aba-Iulia branch of the National Anticorruption Department (DirecțiaNaționalăAnticorupție – hereinafter referred to as “the DNA”) opened criminal proceedings against a private party for bribe taking and against the applicant and a second private party for complicity to bribe taking. The DNA relied on testimonial and documentary evidence and on transcripts of telephone and other conversations which had taken place between the co-accused as well as between them and third parties.
5. On an unspecified date the DNA indicted one of the applicant’s co-accused for bribe taking. They also indicted the applicant and the other co-accused for complicity to bribe taking and sent their case for trial.
6. On 5 December 2010 the applicant argued before the first instance court that the criminal proceedings opened against him should be declared null and void, inter alia, because the tapping of the conversations had been unlawful. In particular, the applicant argued that the tapping of one conversation which had started at 1:22 p.m. had been carried out on the basis of preliminary authorisation no. 11, which had authorised the tapping only starting from 1:30 p.m.
7. On 9 March 2011 the Sibiu County Court convicted the applicant for complicity to bribe taking on the basis of testimonial evidence, documents and the transcripts of the intercepted conversations and sentenced him to three years’ imprisonment, suspended. It held, without providing any additional details, that the applicant’s arguments were ill-founded.
8. The applicant appealed against the judgment. He reiterated the arguments raised before the first instance court and submitted that the said court had relied on evidence which had to be invalidated.
9. On 6 September 2011 the Alba-Iulia Court of Appeal dismissed the applicant’s appeal as ill-founded and upheld his conviction and sentence. The court did not expressly address the arguments raised by the applicant.
10. The applicant appealed on points of fact and law (recurs) against the appeal judgment. He reiterated the arguments raised before the lower courts and stated that the second instance court had failed to examine them.
11. By a final judgment of 12 March 2012, the High Court of Cassation and Justice dismissed the applicant’s appeal on points of fact and law. It held that while the unlawful tapping of the conversation which had started at 1:22 p.m. could result in the said evidence being excluded from the file, this couldn’t mean that the criminal proceedings as a whole were null and void. Moreover, the impugned conversation had been tapped lawfully on the basis of preliminary authorisation no. 10, and not of preliminary authorisation no. 11. Furthermore, the telephone conversations relevant for establishing that the applicant was aware of the unlawful activities of the co-defendant charged with bribe taking, and that therefore he had acted with the required intent in committing the offence, were the ones which had took place at 1:31 and 1:46 p.m. The tapping of these conversations was lawfully authorised. They were also fully corroborated by the testimonies of two of the witnesses and of the applicant’s co-defendant. The court further held that the intercepted conversations also disproved the applicant’s defense that the money in question had been paid for a purpose other than bribing.
COMPLAINT
12. The applicant complained under Article 6 of the Convention that the criminal proceedings opened against him were unfair in so far as the domestic courts had relied on unlawfully obtained evidence to convict him. In addition, the domestic courts had dismissed his argument that the tapping of the conversation which had started at 1:22 p.m. had been unlawful by relying on an incorrect finding, notably that the tapping in question had been duly authorised.
THE LAW
13. The applicant complained about the unfairness of the criminal proceedings opened against him. He relied on Article 6 of the Convention, which in so far as relevant, reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. The parties’ submissions
1. The Government
14. The Government acknowledged that the preliminary authorisation no. 10 could not have served as basis for the tapping of the ambient conversation which had started at 1:22 p.m. They further acknowledged that the preliminary authorisation no. 11 had authorised the tapping of ambient conversations only from 1:30 p.m. onwards.
15. They argued, however, that the use of unlawfully obtained recording in evidence did not necessarily deprive an applicant of a fair trial. Moreover, the conversation in question was not relied on by the last instance court as grounds for the applicant’s conviction. Furthermore, the aforementioned evidence was not decisive for the applicant’s conviction by the lower courts.
16. The Government contended that the last instance court had expressly examined the applicant’s claims and had dismissed them by providing reasons which do not appear arbitrary. In any event, a possible exclusion of the evidence in question from the case-file would not have influenced the applicant’s conviction.
2. The applicant
17. The applicant contested the Government’s submission that the conversation which had started at 1:22 p.m. was not relevant for his conviction. He argued that the only relevant evidence for establishing the facts of the case were the recordings available in the case-file. Therefore, it was difficult to determine whether the exclusion of the unlawful part of the recordings from the case-file would have influenced his conviction or not.
18. The applicant contended that the last instance court made a manifest error when examining his claims and therefore influenced the outcome of the proceedings.
B. The Court’s assessment
19. The Court reiterates the principles set out in its case-law in circumstances relating to the use of unlawfully obtained recordings in evidence during a trial (see, amongst other authorities, DumitruPopescu v. Romania (no. 2), no. 71525/01, §§ 106-107, 26 April 2007, with further references) and to a court’s duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (see, amongst other authorities, Jokšas v. Lithuania, no. 25330/07, §§ 55-56, 12 November 2013).
20. The Court recalls, in particular, that it is not its role to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where a violation of another Convention right is concerned, the nature of the violation found. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Bykov v. Russia [GC], no. 4378/02, §§ 89-90, 10 March 2009).
21. In the instant case, the Court notes that that all the recordings were part of the evidence relied on by the domestic courts in order to examine the applicant’s case.
22. The Court further notes that the Government acknowledged that preliminary authorisation no. 10 could not have served as basis for the tapping of the conversation contested by the applicant, and that the preliminary authorisation no. 11 had authorised the tapping of conversations only from 1:30 p.m onwards (see paragraph 14 above).
23. In these circumstances, the Court is unable to agree with the finding of the High Court of Cassation and Justice (see paragraph 11 above) that the tapping of the ambient conversation which had started at 1:22 p.m. was lawful.
24. That being said, the Court observes, however, that the recording of the conversation in question was not the only evidence relied on by the domestic courts for the applicant’s conviction. It did not have a significant impact on the outcome of the case. As evidenced by the High Court of Cassation and Justice (see paragraph 11 above), the main pieces of evidence proving that all the elements of an offence were met in the applicant’s case were the conversations carried out between him and one co-defendant at 1:31 and 1:46 p.m. The aforementioned conversations were tapped on the basis of a lawful authorisation and were fully corroborated by other evidence available to the case-file.
25. The Court further observes that the applicant was able to challenge the lawfulness of the tapping of the conversation which had started at 1:22 p.m. before the domestic courts and that the last instance court expressly examined and dismissed his argument. While part of the reasons relied on by the last instance court for dismissing his aforementioned argument appear erroneous, the Court notes that the exclusion of this evidence from the file would neither have rendered the criminal proceedings null and void, nor influenced the court’s guilty verdict in his case.
26. Moreover, the evidence collected against the applicant consisted mainly in the content of conversations between the co-accused, which showed that they were planning to take a bribe. Such evidence appeared very strong and the risk of it being unreliable was correspondingly low. Under these circumstances, the need for supporting evidence is weaker (see the case-law cited in paragraph 20 above).
27. In the light of the above, the Court takes the view that the failure of the last instance court to exclude the impugned evidence form the case-file had not influenced the fairness and the outcome of the proceedings opened against the applicant.
28. It follows that the criminal proceedings opened against him, taken as a whole, do not disclose any appearance of a violation of Article 6 § 1 of the Convention.
29. Therefore the application is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 July 2018.
Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President
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