Can a fair trial be based on an unlawful means of proof?
JUDGMENT
Dragoş Ioan Rusu v. Romania 31-10-2017 (no. 22767/08)
SUMMARY
Trafficking of a prohibited drug through local post. Seizure of correspondence with the urgent procedure without a court decision. Although in contrast with Article 8 regarding the applicant’s correspondence, the criminal proceedings for drug trafficking were fair after the trial and allegations of the accused were examined by the court and numerous evidence was taken into account. Violation of privacy with regard to illegal mail tracking. No explanation was given as to why the prosecutor could not use the normal procedure and the national courts had not apparently considered whether or to what extent urgent or unsecured confiscation of correspondence was urgent.
Consequently, the use of the urgent procedure with regard to the confiscation of Mr Rusu’s correspondence was not adequately protected against possible abuse and was therefore not ‘lawful’ in breach of Article 8.
PROVISIONS
Article 8
Article 6 § 1
PRINCIPAL FACTS
The applicant, Dragoș Ioan Rusu, is a Romanian national who was born in 1974 and lives in Bacău
(Romania).
In January 2005 a post office in Bacău informed the police about envelopes containing suspicious
items. The police examined the envelopes and found that they contained Diazepam, a prohibited
drug. The prosecuting authorities subsequently issued orders authorising the seizure of the
envelopes under an urgent procedure provided for under domestic law, namely Article 98 § 1 of the
Code of Criminal Procedure. The urgent order was sent to the Bacău County Court for information.
A criminal investigation was then launched and a surveillance operation set up in the Bacău post
offices. Mr Rusu was thus identified in March 2005 in two different post offices depositing suspect
envelopes to be sent abroad. The envelopes were seized under the same urgent procedure provided
for by Article 98 § 1 and the County Court informed. Two pharmacists also identified Mr Rusu as the
person to whom they had sold the medicine without prescription. The prosecutor concluded that
Mr Rusu had been trying to sell abroad medicine classified as drugs and committed him to trial for
drug dealing.
During the ensuing proceedings against him Mr Rusu, a university researcher, denied any
involvement in drug trafficking, arguing that he had been sending scientific papers and samples abroad in relation to his research work. Mr Rusu was however convicted by the Bacău County Court
in February 2009 of drug trafficking and given a three-year suspended sentence. The County Court
relied on the evidence in the file, namely: the seized envelopes, including the expert evaluation of
their content and of the writing on the envelopes (found to be Mr Rusu’s); transcripts of the audio
and video-surveillance; statements by witnesses (notably pharmacists, doctors, post office workers
and Mr Rusu’s fellow researchers); results of checks on the recipients of the envelopes and on the
money transfers received by Mr Rusu from abroad; and police reports about checks on the
pharmacies used by Mr Rusu and on his alleged scientific work abroad via Internet. Mr Rusu’s
complaints about the unlawfulness of the interception of his correspondence were dismissed. The
court notably found that the prosecutor had been allowed by law to intercept the envelopes without
court authorisation, given that the situation had been urgent and provided that the courts had been
informed afterwards (which they had).
Mr Rusu’s appeal on points of law was ultimately dismissed in June 2010.
THE DECISION OF THE COURT
Article 8 (interception of correspondence)
Even assuming that the urgent procedure used in Mr Rusu’s case – allowing prosecutors to
circumvent judicial control – could pass as legitimate, the Court recalled that it should under no
circumstances be abused. Recourse to such a procedure should be justified and such justification
should be examined by the domestic courts which provide the best guarantees of independence and
impartiality.
However, although the courts had been informed of the surveillance measures in Mr Rusu’s case, it
was not possible to determine whether they had actually examined the prosecutor’s orders. Nor
indeed was there anything to indicate that urgency had been required in the case. There was no
explanation why the prosecutor could not have used the normal procedure for secret surveillance in
a case where the police had already been aware of the suspect envelopes being sent abroad a
month before the surveillance operation had actually started. Moreover, the domestic courts had
not apparently examined whether or to what extent it had been urgent to have recourse to such a
procedure over a period of two months, from January to March 2005.
Consequently, the use of the urgent procedure for confiscating Mr Rusu’s correspondence had not
been adequately safeguarded from possible abuse and it had not therefore been “in accordance
with the law”, in breach of Article 8.
Article 6 § 1 (fairness of the criminal proceedings)
Even though the evidence against Mr Rusu had been found unlawful under Article 8 because of a
lack of adequate safeguards as concerned the procedure for confiscating his correspondence, the
Court nonetheless found that the ensuing criminal proceedings brought against him for drug
trafficking had been fair.
In particular, he had had the possibility to question the validity of the seized envelopes and the
courts had addressed his objections. Nor was there anything in the case file which cast doubt on the
envelope’s reliability or accuracy. Even Mr Rusu himself had not contested the results of the expert
evaluation of the envelopes or the assertion that he had sent the correspondence abroad. He had
only argued that the purpose of his correspondence had been to send scientific papers and samples
abroad in connection with his research work. Lastly, while the envelopes were decisive for the
outcome of the case, they were not the sole evidence against Mr Rusu. The seized envelopes were
no more than one part of a complex body of evidence assessed by the court.
Bearing in mind those safeguards surrounding the assessment of the admissibility and reliability of
the envelopes and their use, the Court found that the proceedings in his case, considered as a
whole, had not been contrary to the requirements of a fair trial. There had therefore been no
violation of Article 6 § 1.
Article 41 (just satisfaction)
The Court held that the finding of a violation constituted in itself sufficient just satisfaction for any
non-pecuniary damage sustained by Mr Rusu.
Separate opinions
Judge De Gaetano expressed a concurring opinion and Judges Pinto de Albuquerque and Bošnjak
expressed a joint partly concurring opinion. These opinions are annexed to the judgment(echrcaselaw.com editing).
