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THIRD
SECTION
DECISION
Application no.
31973/03
by Victoria LAZARIU
against
Romania
The
European Court of Human Rights (Third Section), sitting on
22 November 2011 as a Chamber composed of:
Josep
Casadevall,
President,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 15 August 2003,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mrs Victoria Lazariu, is a Romanian national
who was born in 1951 and lives in Iaşi. She is currently serving
a prison sentence in the Bacău High Security Prison.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
1. Background to the case
- In
1998, the applicant lodged a criminal complaint against four persons
who were sharing the house where she lived at the time, alleging that
they had beaten and insulted her on 17 April 1998. In a final
decision of 19 December 2000, the Military Court of Appeal found
G.C.L. guilty of bodily harm and insult and gave him a one-year
suspended sentence. The other three persons were given a criminal
fine. All of them jointly were ordered to pay the applicant
10,000,000 Romanian lei in civil damages.
- This
decision was based on the applicant’s statements, a medical
certificate confirming the bodily harm inflicted on her, and
statements she produced by witnesses who were also living in the same
house and allegedly witnessed the incident between her and the four
accused.
- Subsequently,
the four persons convicted lodged a criminal complaint against the
nine witnesses who had testified against them, alleging that they had
given false testimonies at the applicant’s instigation. By a
decision of 13 December 1999 the prosecutor attached to the Iaşi
District Court decided not to prosecute the witnesses, considering
that there was no evidence that they had made false statements. The
prosecutor’s decision was upheld in a final decision of the
Iasi County Court of 7 November 2002.
2. Applicant’s attempts to join the Bar
Association
- In
February 2000 the applicant made a request to join the Bucharest Bar
Association (BBA) without an exam. Her request was endorsed by the
BBA on 30 March 2000. A table was published by the BBA, with the
title List of persons approved to practise as lawyers, exempted
from exam, based on the endorsement of the Bar Council. The
applicant’s request was sent for further processing by the
Union of Lawyers of Romania (ULR). On 15 December 2000 the
Standing Commission of the ULR rejected the applicant’s request
to be exempted from an exam in order to enter the Bar Association.
- The
applicant lodged a civil action against the ULR and BBA requesting
that the defendants be ordered to issue a decision admitting her to
the Bar association. In a final decision of 15 December 2004,
the High Court of Cassation and Justice ruled that the defendants
should issue the decision to appoint the applicant as a lawyer and
enter her name on the lawyers’ register kept by the BBA.
3. Criminal proceedings against the applicant
(a) The applicant’s pre-trial
detention
- On
25 February 2003 the applicant was informed by prosecutor E.E., in
the presence of a court-appointed counsel, that she was suspected of
incitement to false testimony, for having persuaded the nine
witnesses in the first proceedings above to make false statements
about the alleged incident of 17 April 1998.
- She
was arrested on 26 February 2003, by virtue of an arrest warrant
issued by prosecutor E.E. The warrant indicated that she was under
investigation for incitement to false testimony in the framework of
the criminal proceedings described under 1) above. The warrant
indicated that the sentence for the crime with which the applicant
was charged was more than two years’ imprisonment, that setting
her free would pose a threat to public order considering that her
acts had had significant legal consequences and that throughout the
investigation she had attempted to incite several persons to give
untrue statements.
- The
applicant went on hunger strike from the first day of her detention.
It appears from the medical records that she was examined by a doctor
six times and that on two occasions she was given medication.
- On
28 February 2003 the Iasi District Court confirmed the legality of
the arrest warrant. The applicant lodged an appeal. It appears from
the case file that she was summoned to appear before the Iasi County
Court on 4 and 11 March 2003, but she refused, stating that she felt
too weak because she had been on hunger strike since her arrest.
- Eventually
her appeal was reviewed on 25 March 2003 by the Iaşi County
Court, which concluded that the measure to place her in pre-trial
detention was unlawful as there were not sufficient reasons to
suspect that she had committed a criminal act, and ordered her
immediate release. She was released on the same day.
(b) The applicant’s forced
confinement in a mental institution
- On
28 May 2003, the applicant went to the Prosecutor’s Office
attached to the Iasi District Court. According to her, she wanted to
submit a complaint against the superior of the prosecutor
investigating the case against her. On the same day, prosecutor E.E.
issued a decision ordering the applicant’s immediate commitment
to the Iasi Psychiatric University Hospital for psychiatric
evaluation of her mental state. The reasons given were the following:
“Taking into account that the applicant manifests
an exaggerated appetite for complaining and an exacerbated violence
in her spoken expression, facts that give rise to doubts as to her
psychological state, and having regard to Articles 116, 117 and
203 of the Code of Criminal Procedure and section 14 of Decree
no 79/1971, I order that a psychiatric evaluation be conducted ...”
- As
the applicant refused to go to the hospital, the prosecutor asked the
police to execute the order. It appears that, as the applicant
resisted, she was dragged by the hands and lifted by force into the
car which took her to the hospital. At the same time, the newspapers
had been alerted and journalists were waiting outside the building
when this happened. Photos were taken of the applicant, on her knees,
being dragged by police officers, and were published in the local
media.
- On
29 May 2003 she was examined by a doctor who noted that she had
various scars all over her body which could have been caused by being
hit with blunt objects and by pressure exerted with the fingers. It
was estimated that she needed 3 or 4 days’ medical care.
- Her
mental state was evaluated by a panel of three doctors on 5 June
2003. The report following this examination concluded that she was
mentally sound and aware of her acts. She was released from the
hospital on the same day.
- At
3 p.m. on the day of her committal to the hospital, while she was
still at the Prosecutor’s office, she made a handwritten
complaint against the committal decision, specifying also that she
had been held in the prosecutor’s office since 11 a.m. After
her confinement she lodged several similar complaints.
- On
9 June 2003 she was informed by a brief note that her complaint
against the committal decision had been dismissed by the higher
prosecutor by a decision of 6 June 2003.
4. Suspension of the applicant’s right to use her
passport
- By
a note of 9 June 2003 the applicant was informed by the Ministry of
Home Affairs that the right to use her passport was being suspended
until the investigation against her had been completed.
- It
appears from the case file that she lodged an administrative
complaint against the police officer who took this measure, asking
that he be suspended. No information was submitted as to the outcome
of that complaint.
- On
22 July 2003 the applicant was informed that the suspension order
concerning her passport had been lifted.
5. Proceedings on the merits
- On
13 December 2003, the prosecutor investigating the case issued an
indictment against the applicant and eight of the witnesses who had
testified in the proceedings referred to in section A. above. The
applicant was charged on several counts: incitement to give false
testimony, unlawfully practising activities specific to the
profession of an attorney, fraud, forgery and use of forged
documents.
- Initially,
the case was assigned to the Iaşi District Court. On
5 March 2004, in response to the applicant’s
challenge as to the alleged lack of impartiality of the Iaşi
District Court, the case was assigned to the Cluj Napoca
District Court. On 18 March 2005 the judge who took over the case
made a written note that some documents relating to the charge of
“fraud” were missing from the case file.
- Following
several postponements of the hearings, either for procedural reasons
or at the applicant’s request, on 24 March 2005 the Cluj Napoca
District Court read out the bill of indictment, the applicant and her
chosen counsel being present. The applicant’s counsel asked
that the
co-accused be heard by the court separately in order to
avoid them influencing each other. Six of the co-accused were heard
during this hearing. The applicant and her counsel asked them a few
questions. Two of the co-accused could not be heard, as they were not
present. The applicant’s request for the court to take the
testimonies of four witnesses was accepted. She undertook to produce
the home addresses of the witnesses in question.
- The
proceedings before the first-instance court lasted until 23 July
2009, when the Cluj Napoca District Court delivered its judgment in
the case. Throughout the proceedings there were numerous
postponements, either for procedural issues (irregularities in
notifying the parties, missing case file, failure of proposed
witnesses to appear before the court, requests of the co-accused or
civil parties and so on), or at the applicant’s request, owing
either to a change of her counsel or to her inability to appear
before the court.
- During
a hearing held on 21 March 2006, the Cluj Napoca District Court
approved the applicant’s request to have nine witnesses heard
in her defence. At the same hearing another co-accused was heard by
the court. The applicant’s request to have all the co-accused,
the civil parties and the plaintiffs heard once again was dismissed
on the grounds that their testimonies had been taken in accordance
with the law. During a hearing held on 5 September 2006, the court
heard the last co-accused in the procedure.
- Six
of the witnesses proposed by the applicant were heard by the district
court. The other witnesses did not present themselves for various
reasons (refusing or being too ill to appear before the court, for
example).
- During
the proceedings before the district court the applicant asked for a
graphology report to be prepared. This request was rejected on the
grounds that that such a report had already been prepared during the
criminal investigation and there was no need for a new one. The
applicant also requested many times that the case be referred back to
the prosecutor, but all her requests were dismissed, as the district
court found that there was no reason to refer the case back.
- The
applicant further raised an objection of non-constitutionality, which
was dismissed as ill-founded. She also argued that the proceedings in
respect of the charge of false testimony should be discontinued as
there was already a final decision on the subject. This objection was
dismissed in an interlocutory judgment of 17 March 2009 on the
grounds that a prosecutor’s decision could not be likened to a
judicial decision.
- From
the information available in the case file it does not appear that
the applicant gave a statement before the district court.
- In
the first-instance judgment of 23 July 2009 the Cluj Napoca District
Court established that the applicant had committed all the crimes
with which she was charged, but discontinued the criminal proceedings
against her on the charges of incitement to false testimony, false
accusation and carrying out activities specific to the profession of
a lawyer, noting that criminal liability for these acts was
time-barred. It further found the applicant guilty of the charges of
fraud, forgery and use of forged documents and gave her a three-year
suspended sentence. The court found that the evidence adduced during
the prosecutor’s investigation was corroborated by the evidence
adduced directly before it, namely statements by the accused persons,
the civil parties and the witnesses, including the witnesses proposed
by the applicant. The court further established that the applicant
had forged three documents issued by a law office with a view to
certifying her alleged status as an apprentice lawyer, and pretended
to be a lawyer in order to represent five people before the courts.
It further held that she had forged the signatures of two of her
clients, without their agreement, on documents she had used in
proceedings concerning those clients.
- The
applicant was ordered to pay civil damages to the civil parties, as
follows: to the clients she had represented before the decision to
appoint her as an attorney was adopted, she was ordered to pay back
the amount she had charged them for her services, and to one person
who had been convicted on the basis of her false accusations she was
ordered to pay compensation for non-pecuniary damage.
- The
applicant, the prosecutor and the civil parties lodged an appeal. The
applicant made written submissions in support of her appeal, asking
leave, among other things, to give a statement before the appellate
court. In a hearing held before the Cluj County Court on 12 April
2010, the applicant was represented by court-appointed counsel. The
county court noted that the applicant had submitted a power of
attorney for a counsel of her choice, indicating that he could not be
present at the hearing in question and asking for its postponement.
The county court decided to proceed with the review of the case even
though the applicant and her chosen counsel were not present,
indicating that the applicant had been lawfully summoned at the
addresses she had given and that she could be represented by the
court-appointed counsel.
The
applicant’s representative asked that the criminal proceedings
against her be discontinued and, in the alternative, that a milder
sentence be applied.
The
Cluj County Court delivered its decision on 27 April 2010. In
reviewing the judgment on appeal, the county court found that the
sentence applied to the applicant was too mild taking into account
the crimes with which she was charged. It further held that the way
she had committed the crimes revealed that she was highly dangerous.
Taking into account her attitude after having committed the crimes,
and her constant denial of guilt, it held that finding her guilty was
not sufficient warning for her and that it was therefore fitting that
she should serve the prison sentence.
- It
accordingly sentenced the applicant to five years’
imprisonment.
- The
appellate court further found that for two of the crimes of which she
had been convicted by the first-instance court (forgery and use of
forged documents) her criminal liability was time-barred, and
discontinued the proceedings regarding those charges.
- The
applicant lodged an appeal on points of law, submitting written
observations. She raised the following arguments, inter alia:
– the case file was incomplete as, according to a
note of the
first-instance judge, the documents relating to the
fraud charge were missing from the file;
– two of the co-accused had stated in front of the
first-instance court that they were forced during the criminal
investigation to declare that she had incited them to make false
statements;
– the lower courts had breached her right not to be
tried twice for the same acts, taking into account the final decision
of 7 November 2002 by which the Iaşi County Court found
that the co-accused had not given false testimonies;
– one of the civil parties had never made a request
to join the proceedings as a civil party;
– her requests for evidence had not been approved;
– she had not been heard by the lower courts;
– numerous procedural errors had vitiated the entire
proceedings and her right to defence had not been respected during
the criminal investigation and before the courts.
- The
hearing was held on 20 October 2010. The applicant was represented by
court-appointed counsel different from the one representing her
in the appeal proceedings. She did not attend the hearing. The
court-appointed counsel indicated that the applicant had instructed
her to ask for a postponement of the hearing. The request was
dismissed. The applicant’s representative asked for her
acquittal or for a milder sentence. In a decision issued on 20
October 2010 the Cluj Court of Appeal dismissed the applicant’s
appeal on points of law as manifestly ill-founded. The court found
that the applicant’s right to defence had been respected
throughout the proceedings. The court further held that the lower
courts had reviewed extensive evidence and correctly determined the
facts of the case and established her guilt beyond any doubt. It also
held that the sentence given to her had been correctly determined.
6. Complaints lodged by the applicant against different
journalists
- At
the Registry’s request, the applicant submitted to the Court
copies of judicial decisions delivered by the domestic courts
concerning the complaints she lodged against the journalists who
published articles following the events of 28 May 2003, when she was
taken by force from the prosecutor’s office to the hospital.
- In
a first-instance decision of 19 November 2004, the Mediaş
District Court ended the criminal procedure against one journalist,
who had died, sentenced a second journalist to an administrative fine
of some 110 euros (EUR) and ordered him, jointly with the
newspaper company, to pay compensation to the applicant of some EUR
2,320 for non-pecuniary damage.
- In
a different set of proceedings, lodged by the applicant against a
third journalist and a photographer, the Năsăud District
Court delivered a first-instance judgment on 24 November 2004 by
virtue of which the journalist was sentenced to an administrative
fine and ordered to pay approximately EUR 2,320 to the applicant in
respect of non-pecuniary damage. Her complaint against the
photographer was dismissed because he had not taken photographs of
her and, in any event, taking a person’s photograph was not a
punishable offence.
- The
applicant did not provide any information as to whether these
judgments became final or were appealed against.
B. Relevant domestic law
- Under
Article 117 § 1 of the Romanian Code of Criminal Procedure
(CCP), as in force at the material time, a psychiatric evaluation of
the accused was mandatory in cases of murder and when the
investigating authorities or the competent court had doubts about the
mental state of the accused. Paragraph 2 of the same article
stipulated that this measure was to remain in place for as long as
necessary. The order was enforceable and, in the event of resistance,
was to be enforced by the police.
- Article
278 of the CCP provided for complaints against decisions taken by
prosecutors to be examined by a higher prosecutor.
COMPLAINTS
A. Complaints concerning the pre-trial detention
- Relying
on Articles 3 and 5 of the Convention, the applicant complained that
on 26 February 2003 she was unlawfully arrested by a prosecutor and
during the month she spent in pre-trial detention she was subjected
to ill-treatment and publicly taken away in handcuffs. She further
complained that during her pre-trial detention she went on hunger
strike and was not given the required medical assistance. She
submitted that she was assigned a court-appointed lawyer against her
will, when she wanted to represent herself, and that in any event
that lawyer had had insufficient time to review the file and defend
her properly.
- Relying
on Article 8 of the Convention, she complained that her right to
correspondence had been violated during the pre-trial detention and
that she was not given paper on which to file her complaints.
- In
a letter of 7 March 2010 she complained that when arrested in
February 2003 she had been subjected to an unlawful gynaecological
examination.
B. Complaints concerning the forced confinement
- Relying
on Articles 3 and 5 of the Convention, she complained that on 28 May
2003 she had been held at the prosecutor’s office from 9.30
a.m. to 5 p.m. and that later she had been committed against her will
to a psychiatric hospital, and subjected to ill-treatment during her
forced transfer from the prosecutor’s office to the hospital
and also during her stay in the hospital. She argued that the order
to place her in the hospital had been unlawful and that her complaint
against it had been reviewed only after she had been released from
hospital.
- In
connection with the events of 28 May 2003, she complained under
Article 8 that at the prosecutor’s instigation an aggressive
press campaign has been initiated against her, and that the press had
been alerted to be present when she was dragged from the stairs of
the prosecutor’s office to the van which took her to the
hospital. As a result of this humiliating photos of her were
published in various newspapers.
- She
complained that her criminal complaints concerning the ill treatment
to which she had been subjected had not been reviewed fairly and
speedily and were still pending.
C. Complaints concerning the criminal proceedings
against the applicant
- The
applicant raised the following complaints under Article 6 of the
Convention:
– that the proceedings against her were unfair, that
she had not been heard by the domestic courts, especially considering
that, on appeal, her sentence had been made much harsher;
– that the domestic courts had failed to respond to
the arguments raised in her defence and dismissed her requests to
adduce evidence;
– that she had been ordered to pay civil damages to
persons who had not actually lodged a civil claim;
– that her co-accused had been forced by the
prosecutors to give incriminating statements; that most of the time
they had been represented by the same court-appointed counsel, even
though they had conflicting interests; that their counsel had not
made requests in their defence and that the co-accused had not been
subjected to a psychiatric examination;
– that the domestic courts had lacked impartiality
and that one of the judges ruling in the first-instance proceedings
should have abstained from participating in the proceedings against
her;
– that the bill of indictment had not been valid;
that she had not been involved in the gathering of evidence at the
criminal investigation stage; that she had not had access to the full
criminal investigation file, and that there were various procedural
errors throughout the proceedings;
– that the court-appointed lawyer representing her
had not defended her properly and that she had not been presumed
innocent;
– that the proceedings had not been completed within
a reasonable time.
- Relying
on Article 7 of the Convention and on Article 4 of Protocol No. 7
to the Convention, the applicant complained that she had been
convicted even though criminal liability for the imputed acts was
time-barred and despite the fact that a previous judicial decision
had established that her co-accused had not given false testimonies
in the criminal proceedings initiated by her against her other
neighbours.
D. Other complaints
- Relying
on Article 2 of Protocol No. 4 to the Convention, the applicant
complained that the suspension of the right to use her passport had
prevented her from travelling.
- In
general terms she complained of violations of Articles 10, 13, 14 and
17 of the Convention, as well as Article 3 of Protocol No. 7 and
Article 1 of Protocol No. 12 to the Convention.
- She
further complained that the judgments by which she was awarded
damages against the journalists who had written about her had not
been enforced, as the bailiffs had not had the courage to proceed
with their enforcement.
THE LAW
A. Complaints under Article 3 of the Convention
- The
applicant complained that on 28 May 2003 she had been subjected to
ill-treatment while she was transferred to Socola Hospital and that
her complaints concerning the ill-treatment had not been properly
investigated.
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
B. Complaints under Article 5 of the Convention
- Relying
on Article 5 § 1 of the Convention, the applicant complained
that she had been unlawfully deprived of her liberty on 28 May 2003
for several hours, while at the prosecutor’s office, and from
28 May to 5 June 2003 when she was confined to a psychiatric hospital
by order of the prosecutor. She further alleged a violation of
Article 5 § 4 of the Convention on account of the fact that her
complaint against the prosecutor’s decision to order her
confinement had not been reviewed by a court.
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
C. Complaints under Article 6 of the Convention
- The
applicant complained that the domestic courts had failed to respond
to arguments that she had raised in her defence and which could have
been essential to the outcome of the case. She further alleged that
none of the courts reviewing the case had taken her testimony and
that the duration of the criminal proceedings had not been
reasonable.
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
D. Complaint under Article 8 of the Convention
- The
applicant complained that on 28 May 2003 the prosecutor had alerted
the press to be present in front of the prosecutor’s office
when she was transferred by force to Socola Hospital. As a
consequence, photos were taken of her in humiliating circumstances
and were later published in several local newspapers.
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
E. Remaining complaints
- In the light of all the material
in its possession, and in so far as the matters complained of are
within its competence, the Court finds that all the other complaints
raised by the applicant do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that these complaints must be rejected in accordance with
Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaints under Article 3 of the Convention concerning the alleged
ill-treatment on 28 May 2003, Article 5 § 1 concerning the
legality of the alleged deprivation of liberty on 28 May 2003
and from 28 May to 5 June 2003 when she was held in Socola Hospital,
Article 5 § 4 concerning the right to a judicial review of the
legality of her confinement in Socola Hospital, Article 6 § 1
concerning the alleged lack of reasoning of the domestic decisions
delivered in the criminal proceedings against her and the duration of
those proceedings, Article 6 § 1 taken together with Article 6 §
3 c) of the Convention concerning the right to be heard by the
domestic courts, and Article 8 of the Convention concerning the right
to protection of private life;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall Deputy Registrar President
