Quick orient — first passages from judgment

The European Court of Human Rights (Third Section), sitting on 15 May 2012 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Egbert Myjer, Ján &Scaron;ikuta, Ineta Ziemele, Luis López Guerra, Kristina Pardalos, judges, and Marialena Tsirli, Deputy Section Registrar ,

The applicant, Mr Ionel Cristian Şerban, is a Romanian national who was born in 1975 and lives in Bucharest.

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

In January 2002 the applicant was a police officer working for the Criminal Investigation Department of Bucharest no. 12 Police Station.

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The European Court of Human Rights (Third Section), sitting on 15 May 2012 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Luis López Guerra,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 20 October 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ionel Cristian Şerban, is a Romanian national who was born in 1975 and lives in Bucharest.

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 January 2002 the applicant was a police officer working for the Criminal Investigation Department of Bucharest no. 12 Police Station.

On 23 January 2002, S.I., an individual against whom criminal proceedings had been initiated for fraud, submitted an accusation to the military prosecutor’s office of Bucharest County Court. He alleged that the applicant had “bought” from him a mobile phone, which he did not pay for, and had asked for 1,500 United States dollars (USD) in order to enable him to use the connections he allegedly had at the prosecutor’s office and obtain a favourable solution in S.I.’s case.

On the same day, a criminal investigation was opened in respect of the applicant on suspicion of passive corruption. The military prosecutor in charge of the case immediately issued an order for the interception and audio and video recording of all conversations between the applicant and his accuser.

2) Criminal investigation and trial

On 30 January 2002, at about 11 a.m., the applicant was arrested while he was having a discussion with his accuser in a restaurant in the centre of Bucharest. The arrest was carried out in sensational fashion. Two prosecutors and twenty police officers participated in the arrest. Television reporters, who seemed to have been previously informed that a corrupt police officer was to be arrested, were present and filming the scene.

The applicant was body-searched in the restaurant. His mobile phone, the keys to his parents’ apartment and USD 1,000 were seized.

From the restaurant the applicant was taken directly to his parents’ apartment, where a search of the apartment was carried out. The police officers opened it using the keys previously seized from him. The search was carried out between 3.05 and 3.55 p.m. In the report drafted by the prosecutor it was noted that the applicant had given oral consent to the search. However, the applicant alleges that he did not give consent and furthermore that the apartment belonged to his parents.

A search of his office at the police headquarters was carried out immediately afterwards. It was finished at about 5.20 a.m.

Afterwards, the applicant was taken to the arrest facility of the General Police Inspectorate, where he was invited to give a written statement of the facts.

On the same day he was suspended as a police officer by an order of the director of the Police General Inspectorate.

At about midnight the applicant was informed that he would be detained for thirty days on account of the seriousness of the charge and his position as a police officer. A complaint by the applicant against his arrest was dismissed on 4 February 2002. On 14 February 2002 an appeal by the applicant against the court decision was dismissed by the Bucharest Military Court of Appeal.

On 31 January 2002, during the first discussion between the applicant and the prosecutor in charge, the latter informed him that his personal visits and his contact with his lawyers were dependent on his confessing his guilt. The applicant then refused food and water until 4 February 2002.

On 1 February 2002 the applicant had the first contact with his lawyer. The meeting lasted only two or three minutes, as when he was heard instructing his lawyer to submit a criminal complaint against the prosecutor, it was immediately interrupted. Therefore his first real contact with his lawyer took place on 4 February 2002.

Following a request by the prosecutor on 11 February 2002, Mo S.A. (a private mobile and telephone operator) provided a list of all telephone conversations which the applicant had in December 2001 and January 2002. Furthermore, as stated in a report drafted by the prosecutor on 14 February 2002, the SIM card in the mobile phone which was confiscated when he was body-searched on 30 January 2002 was used to obtain information about the applicant’s conversations, namely phone numbers and names stored in it. All this information, as recorded by the prosecutor, remained in the file.

On 22 February 2002 the applicant’s remand in custody was extended for another thirty days.

On 12 March 2002, the investigation was completed and the applicant was allowed access to the case file. However, he could not see the order for the recording of his conversations and the transcripts of the recorded conversations. He could not play the recordings of the conversations.

On 21 March 2002 the applicant was charged with passive corruption and the case was referred to the Bucharest Military Tribunal.

Further extensions of the applicant’s detention for thirty days were ordered by the court on 27 March and 17 April 2002. The applicant appealed against each of these decisions.

On 29 April 2002, the applicant’s parents lodged an application for his release on bail. It was dismissed on 8 May 2002 on the ground it did not comply with formal legal requirements. By the same decision his detention was extended. The appeal against the decision was dismissed on 28 May 2002.

On 28 May 2002 the applicant asked again to be released on bail. His request was allowed by the Bucharest Military Tribunal on 4 June 2002.

On 19 June 2002 his accuser was heard for the first time. The applicant’s representative lodged a request for an expert opinion and for the recordings of the conversations to be played. The requests were dismissed by the court on the ground that they were not useful for the case. The hearing took place in the absence of the applicant’s lawyers, who refused to represent the applicant before the military judge, who, according to them, had an aggressive attitude towards the defence.

On the same day the Bucharest Military Tribunal gave judgment, finding the applicant guilty of passive corruption. It sentenced him to four years’ imprisonment.

The applicant appealed against the judgment of 19 June 2002, challenging, inter alia, the admissibility of the evidence obtained through interception and recording of his private conversations, the absence of an expert report concerning the recordings and the court’s interpretation of the evidence.

He asked again for the tapes to be heard and an expert report produced. This was again rejected as not of use. On 23 December 2002 the Bucharest Military Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision on the ground that his accuser’s statements were more than enough to convict him.

On 25 March 2003 the Supreme Court examined the applicant’s appeal on points of law. It allowed the applicant’s appeal on the ground that he had not been assisted by a lawyer at the court of first instance and consequently quashed the judgment of 19 June 2002 and the appeal decision of 23 December 2002. It referred the case to the Bucharest Military Tribunal, which was advised to ask for the original recordings of the conversations and the order from the prosecutor’s office to make the recordings.

By a judgment delivered on 23 April 2003, the Bucharest Military Tribunal relinquished jurisdiction in favour of the Bucharest Court of Appeal.

At a hearing on 15 May 2003 the Bucharest Court of Appeal ordered the prosecutor’s office to submit the original tapes containing the recordings of the telephone conversations and studied the applicant’s request for release on bail. It decided the value of the bail to be paid. On 5 June 2003 the court noted that the bail had been paid and ordered the release of the applicant. The appeal on points of law lodged by the prosecutor’s office against the decision to release the applicant on bail was dismissed by the Supreme Court of Justice on 12 June 2003.

Despite the fact that the final decision for the applicant’s release on bail was delivered on 12 June, he was released only on 13 June 2003, twenty four hours later.

At the hearing of 11 September 2003, the applicant’s lawyer asked again for the audio recordings to be played at the next public hearing and for the transcripts of the conversation which had taken place between the applicant and his accuser on 24 January 2002. The court dismissed the request for the tapes to be played, on the ground that the investigating body had made transcripts of only the fragments of conversations that were relevant to the case. The court also dismissed the request addressed to the prosecutor’s office to add to the file the order to make the recordings as well as the tape on which was recorded the conversation of 24 January 2002, without giving any reasons. The applicant’s lawyer also emphasised the fact that the applicant had been incited to accept USD 1,000 by his accuser, who had insisted on giving him the money (as a loan, according the applicant) despite the fact that the criminal proceedings against him had already been discontinued.

On 23 September 2003 the Bucharest Court of Appeal convicted the applicant of passive corruption, sentenced him to three years’ imprisonment, suspended, and placed him on probation.

A new appeal on points of law was lodged by the applicant and the prosecutor’s office with the High Court of Cassation and Justice.

On 22 April 2004 the applicant raised a constitutional question in respect of several provisions of the Romanian Code of Criminal Procedure. By an interlocutory judgment delivered on 20 May 2004, the court allowed the applicant’s request for the case to be referred to the Constitutional Court. The question was dismissed by the Constitutional Court on 7 December 2004, on the ground that the applicant’s objections mainly concerned the application of the law.

On 11 January 2005 the applicant lodged a request with the president of the High Court of Cassation and Justice for access to the entire file in order to make copies of certain documents. He also submitted that he had tried to see the entire file several times, but had been informed that for unknown reasons parts of it were missing. He maintained that the missing volumes were nos. 1 and 3 and the files of the Bucharest Military Tribunal and Military Court of Appeal. He lodged similar requests on 17 and 27 January, 25 February, 2 and 10 March, 7, 14 and 21 April, 26 May, 9 June, 5 July and 16 August 2005.

On 22 August 2005 the applicant requested an official report on the whereabouts of the missing documents in order to speed up locating them. In this connection he also lodged complaints with the Council of Magistrates and the Ministry of Justice.

The High Court of Cassation and Justice repeatedly adjourned its hearings on the missing documents until 8 September 2005.

On 8 September 2005 the court ordered by an interlocutory judgment the reconstitution of the missing documents. In this connection it requested copies of the documents from the prosecutor’s offices.

Although not all the missing documents were reconstituted, the High Court of Cassation and Justice delivered its decision on 2 March 2006. It allowed the applicant’s appeal on points of law and quashed the judgment of the Bucharest Court of Appeal on the ground that it had not observed the recommendations of the Supreme Court to obtain and analyse all the original tapes containing the recordings of the conversations. The file was referred a second time to the Bucharest Court of Appeal for a new judgment on the merits.

At the hearing of 26 May 2006 the Bucharest Court of Appeal ordered an expert report on the contents and authenticity of the recordings. An order for the report was addressed to the National Forensic Assessment Institute (INEC), an institution governed by the Ministry of Justice. In a letter dated 6 June 2006, INEC had requested the original devices used for recording the conversations and the originals of the transcripts of the recordings.

At the hearings before the Bucharest Court of Appeal the applicant was not represented by a lawyer. He informed the court that he had dismissed his previous lawyers on the ground that the proceedings were too long and he could not afford to pay the lawyers’ fees. Thus, his accuser was heard again, in the presence of the applicant, who was not assisted by a lawyer.

On 16 November 2006, two of the six tapes were played in court. According to the applicant, the sound was not clear and there were three voices on the recording, while only he and his accuser had taken part in the conversations.

He also disputed that the voice on the tapes was his.

After repeated adjournments because of the absence of the expert report, the court ruled that the report would not be required.

INEC had informed the court that in the absence of the original devices used for the recordings and the original transcripts which had disappeared, an expert opinion on the recordings would be impossible. Therefore, on 30 March 2007 the Bucharest Court of Appeal decided to conclude the hearings and delivered a judgment on the merits without giving the applicant the opportunity to be heard in summing up. It maintained the conviction for passive corruption and sentenced the applicant to two years’ imprisonment, suspended, and placed him on probation.

On 30 November 2007 the appeal on points of law lodged by the applicant with the High Court of Cassation and Justice was allowed and the file remitted to the Bucharest Court of Appeal for the third time. The court based its decision on the ground that the defendant had not been given the opportunity to speak in summing up in the proceedings, without reference to the other reasons cited by the applicant.

On 22 September 2008 the Bucharest Court of Appeal acquitted the applicant on the ground that one of the elements of the passive corruption, namely the mens rea, was missing. It held that the investigating bodies were unreservedly convinced by the allegations of the accuser, and that they had determined that the applicant had taken the mobile phone and the money from the accuser in order to obtain evidence against him.

An appeal on points of law lodged by the prosecutor’s office was allowed by the High Court of Cassation and Justice on 19 February 2009, on the ground that the Bucharest Court of Appeal had acquitted the applicant without giving reasons for the acquittal. It held that the decision had been drafted in such a general way that it made analysis of its lawfulness difficult. It remitted the case to the Bucharest Court of Appeal.

On 28 May 2010 the Bucharest Court of Appeal acquitted the applicant on the ground that one of the elements of the offence of passive corruption was missing, namely the intent to commit it. The court also held that the domicile search carried out on 30 January 2002 was unlawful, as it had been carried out without a warrant. It stated that the report drafted on that occasion by the prosecutor had disappeared, together with other documents from the file.

The appeal on points of law lodged by the prosecutor’s office was dismissed by the High Court of Cassation and Justice on 22 November 2010 as unfounded.

3) The civil action concerning the benefit for exposure to radio and electromagnetic radiation

On 30 January 2002 by an order of the General Director of the Police General Department, the applicant was suspended from his position as an active police officer pending a final decision in the criminal proceedings against him.

Following the applicant’s release on bail he was allowed to continue working at Police Section no. 12 on the basis of a decision delivered on 6 December 2004. He was entitled to a salary according to his professional status with a permanent employee supplement of 25%.

By a letter dated 25 February 2005 the applicant asked the general director to inform him why he did not benefit from the benefit awarded on the ground of exposure to radio-frequency radiation (sporul de antenă) to all other work colleagues.

On 13 April 2005 he was informed that until his acquittal or discontinuance of the criminal investigation against him he was not entitled to any other benefit than the benefit for permanent activity.

On 10 May 2005 the applicant asked the Ministry of Administration and Home Affairs to change the order which provided that those with criminal proceedings pending against them could not receive any other benefit than permanent employee benefit. He claimed that the order was discriminatory and thus contrary to Article 16 of the Constitution and Article 14 of the Convention.

On 22 June 2005 the applicant lodged an action against the Ministry of Administration and Home Affairs seeking the revocation of the order and the payment of the benefit for exposure to electromagnetic and radio radiation with effect from 6 December 2004. He maintained, inter alia, that he had been exposed to the same level of radiation as his colleagues and that while they received the benefit he was not entitled to it.

By a judgment delivered on 5 October 2005 the Bucharest Court of Appeal dismissed his action on the ground that the order was in accordance with the legal provisions in force.

The appeal on points of law lodged by the applicant was dismissed by the High Court of Cassation and Justice on 15 March 2006 on the ground that the applicant was in a special situation, namely that criminal proceedings had been initiated against him. It held that the refusal of payment of benefits other than the basic salary and permanent employee benefit to police officers against whom criminal proceedings had been initiated was based on the intent of the legislator to punish, without ignoring the presumption of innocence. It also stated that the applicant could have complained against said provisions as unconstitutional during the proceedings, an opportunity he did not take.

4) The civil action on compensation for unlawful detention

On 10 June 2004 the applicant lodged an action with the Bucharest County Court under Article 5 § 1 of the Convention, seeking compensation from the State for damage caused by illegally detaining him for twenty four hours, between 4 p.m. on 12 June 2002 and 4 p.m. on 13 June 2002. He claimed ROL 1,000,000,000.

At an unspecified hearing the applicant also indicated as a legal ground for his action Article 504 of the Code of Criminal Procedure. At a hearing on 20 October 2004, the applicant cited as unconstitutional Article 504 § 3 of the Code of Criminal Procedure, which, the applicant stated, was in contravention of Article 5 § 1 of the Convention. He claimed that the said article did not envisage all possible situations of unlawful detention and therefore access to a court in order to obtain damages for unlawful detention was restricted. The court suspended the case and remitted the file to the Constitutional Court.

By a decision of 21 April 2005 the Constitutional Court dismissed the complaint, on the ground that any person in a situation not envisaged by Article 504 § 3 had the opportunity to bring an action on another legal ground, without indicating which one. Subsequently, the applicant cited as the legal basis for his action Articles 998-99 of the Civil Code.

On 22 June 2005 the court relinquished its jurisdiction in favour of the Bucharest District Court (5) as a direct consequence of the change of the legal ground of the action.

By a judgment delivered on 18 October 2005, the Bucharest District Court relinquished its jurisdiction in favour of the Bucharest County Court, holding that the legal basis for the applicant’s action for compensation could not be other than Article 504 of the CPP.

On 26 January 2006 the Bucharest Court of Appeal resolved the conflict of jurisdiction in favour of the Bucharest County Court.

By a judgment of 23 June 2006, the Bucharest County Court dismissed the applicant’s action as inadmissible. It held that Article 504 of the CPP did not apply to his situation, and therefore he should have brought an action on the basis of Articles 998-99 of the Civil Code.

On 12 December 2006 the Bucharest Court of Appeal allowed the appeal lodged by the applicant and quashed the judgment of 23 June 2006 remitting the file to the Bucharest County Court for a judgment on the merits. It held, inter alia, that Articles 5 §§ 1 and 5 of the Convention were directly applicable to the applicant.

By a judgment delivered on 11 May 2007, the Bucharest County Court allowed the applicant’s action in part, awarding him ROL 5,000 in non pecuniary damages for unlawful detention.

On 7 December 2007 the Bucharest Court of Appeal dismissed appeals lodged by the applicant and the Romanian State represented by the Ministry of Finance. The applicant’s appeal, which mainly sought an increase in the amount of the damages award, was dismissed on the ground that the sum granted was sufficient.

The applicant lodged an appeal on points of law, arguing that the amount granted for what had happened was not enough. The Ministry of Finance also lodged an appeal on points of law, submitting that the damages award was contrary to existing legal provisions. On 30 September 2008 the High Court of Cassation and Justice dismissed the appeals on points of law as ungrounded.

5) The criminal complaints lodged by the applicant against prosecutors and judges

On 17 December 2003 and on 19 January 2004 respectively, the applicant lodged criminal complaints against the two military judges who had presided at the Bucharest Court of Appeal and the military prosecutor who had conducted the criminal investigation against him, for abusive behaviour.

On 11 March 2004 the prosecutor’s office attached to the High Court of Cassation and Justice informed the applicant that the grounds given by him for the two criminal complaints were not enough for a criminal investigation to be initiated.

The applicant lodged a complaint against the prosecutor’s decision with the High Court of Cassation and Justice. On 22 September 2004 the complaint was sent back to the prosecutor’s office on the ground that before addressing the court the applicant had to lodge his complaint with the chief prosecutor.

On 18 November 2005 the chief prosecutor upheld the challenged decision not to conduct an investigation.

On 22 May 2006, the High Court of Cassation and Justice dismissed the applicant’s complaint against the prosecutor’s decision as unfounded. Its decision was upheld by a panel of nine judges of the High Court of Cassation and Justice, which delivered its final decision on 4 December 2006.

The applicant also lodged a criminal complaint against his accuser for false accusation. The complaint was dismissed as unfounded by a final decision rendered by the Bucharest County Court on 12 October 2007.

B. Relevant domestic law and practice

The relevant provisions of Law 23/1969 concerning the execution of prison sentences are described in Petra v. Romania, 23 September 1998, § 25, Reports of Judgments and Decisions 1998 VII, and Vitan v. Romania (no. 42084/02, § 46, 25 March 2008). They refer mainly to the correspondence of the detainees.

The legal provisions concerning the interception and recording of phone conversations and their use as evidence in a criminal trial, in force at the time of the events, as well as the subsequent modifications, are detailed in Dumitru Popescu v. Romania (no. 2), no. 71525/01, §§ 39-46, 26 April 2007).

The relevant provisions of the Code of Criminal Procedure and of the provisions governing the police and military prosecutor are set out in Dumitru Popescu, cited above, §§ 43-46, 26 April 2007), and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004).

At the material time the benefit for exposure to radiation was granted on the basis of a regulation regarding the benefits granted for difficult and dangerous conditions of work and for activities creating a high level of psychological stress, as approved by Annex 10 to Order 132/2004 of the Ministry of Administration and Home Affairs concerning police officers’ salary rights. According to Article 8 of the regulation, the said benefit was awarded when the maximum concentrations permitted by the national standards for the protection of health in the workplace were exceeded.

COMPLAINTS

The applicant raises several complaints under Article 5 §§ 1, 2 and 3 regarding his arrest and pre-trial detention. He complains about his arrest by a military prosecutor, the lack of reasons for his detention, the length of his pre trial detention, the arbitrary dismissal of his first request for release on bail, and that the trial of 26 February 2002 took place in his absence.

Making reference to Article 5 § 1, he claims that he was held in detention unlawfully for twenty-four hours between 4 p.m. on 12 June 2003 and 4 p.m. on 13 June 2003, when the decision to release him on bail was rendered.

Making reference to Article 6 § 1, he complains that the criminal proceedings against him were not concluded within a reasonable period of time. He raises the same complaint in respect of the civil proceedings in the action for compensation for unlawful detention.

He also complains under Article 6 §§ 1 and 3 about certain matters which he maintains rendered the proceedings unfair. He raises, in particular, the lack of impartiality of the military prosecutors and judges, the violation of his right to remain silent, the infringement of the principle of equality of arms in the administration of evidence, the dismissal by the domestic courts of his request to defend himself, and the unlawfulness of pieces of evidence adduced against him by the prosecution. He adds that the offence of passive corruption had been set up by a police agent provocateur and would never have been committed by him without that intervention.

Under Article 6 § 2 of the Convention, he claims that the domestic courts failed to respect the presumption of innocence when indicating in their decisions as a reason for the extension of his pre-trial detention that he had committed the offence of passive corruption. In this respect, he also refers to statements made by the judges pending criminal proceedings regarding his guilt.

Alleging a violation of Article 8 of the Convention, he complains that the domicile search carried out on 30 January 2002 involved an unlawful intrusion into his parents’ home and that the interception and recording of his conversations with his accuser for the period between 23 January and 30 January 2002 interfered with his private life.

Relying on the same Article, he alleges that the authorities systematically opened and checked all his correspondence in prison, causing delays. He claims that the opening of his letters received from or sent to his fiancée embarrassed him, especially when the guards made jokes when relaying passages from his letters.

He also alleges that his right to respect for his private life and correspondence guaranteed by Article 8 was infringed. In this respect he complains about the fact that a private mobile and telephone operator provided a list of all the telephone conversations he had in December 2001 and January 2002 to the military prosecutor in charge of his criminal file. Also, the same military prosecutor seized his mobile telephone and used the SIM card to obtain data about all the phone numbers and names stored on it and registered them in a report.

Making reference to Article 6, he complains about the outcome of the criminal proceedings initiated by him against the military magistrates who decided his case and his accuser.

He claims that the distinction made by the Romanian authorities between the police officers against whom criminal proceedings were pending when awarding the benefit for exposure to radiation amounted to discrimination prohibited by Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention.

In his letter of 2 March 2011 the applicant complains of a violation of Article 3 of the Convention due to the inhuman conditions in which he was detained in the detention facility of the Police General Inspectorate.

THE LAW

A. Complaint under Article 6 § 1 of the Convention (length of the criminal proceedings)

The applicant claimed that the criminal proceedings initiated against him were not concluded within a reasonable period of time. He contended that it took almost eight years at four levels of jurisdiction for the domestic courts to render a final decision. He relied on Article 6 § 1 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 ... hearing within a reasonable time by [a] ... tribunal ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant’s complaint under Article 6 § 1 of the Convention and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaints under Article 8 of the Convention

The applicant complained that the interception and recording of his conversations with his accuser for the period between 23 January and 30 January 2002 interfered with his private life. He also claimed that his right to respect for his private life and correspondence had been infringed, on account of the fact that a private mobile and telephone operator had provided a list of all the telephone conversations he had had in December 2001 and January 2002 to the military prosecutor in charge of his criminal file. Also, the same military prosecutor had seized his mobile telephone and had used the SIM card to obtain data about all the phone numbers and names stored on it, and had registered them in a report. He also alleged that the right to privacy of his correspondence had been infringed while he was detained in the detention facility of the General Police Inspectorate. He relied on Article 8 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the applicant’s complaints under Article 8 of the Convention and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

C. Complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention

The applicant complained about the distinction made by his superiors, between the police officers against whom criminal proceedings were pending but were allowed to do their regular work at the police headquarters and the rest of the police officers, when dismissing his request for the benefit awarded to police officers for exposure to radio and electromagnetic radiation. He relied on Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, read as follows:

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant’s complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

D. Remainder of the applicant’s complaints

The applicant complained under Article 3 of the Convention of ill treatment with respect to the conditions under which he was detained in the detention facility of the Police General Inspectorate. Relying on Article 5 §§ 1, 2 and 3 the applicant raised several complaints concerning his arrest and pre-trial detention. He complained under Article 6 § 1 of the Convention about the length of the civil proceedings in the action for compensation for unlawful detention. Relying on Article 6 §§ 1 and 3 he complained that the criminal proceedings were unfair. Under Article 6 § 2 of the Convention, he claimed that the domestic courts failed to respect the presumption of innocence. Lastly, he complained under Article 8 that there had been an unlawful intrusion by the prosecutor and police officers into his parents’ apartment on 30 January 2002.

The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of part of the applicant’s complaints under Articles 6 § 1, 8 and 14 of the Convention, the latter read in conjunction with Article 1 of Protocol No. 1 concerning, in particular, the length of the criminal proceedings brought against him, the alleged infringement of his right to private life and correspondence (in connection with the recording of his private conversations, disclosure of private data concerning his phone conversations and the monitoring of his correspondence while in prison) and the alleged discrimination against him concerning the award of the benefit to police officers for exposure to radio and electromagnetic radiation;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall
Deputy Registrar President

Ionel Cristian SERBAN v Romania - 37243/03

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Ionel Cristian SERBAN v Romania - 37243/03

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