ECHR ruling of October 13, 2020 in the case "Frincu v. Romania"" (aplication No. 69356/13).
In 2013, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Romania.
In the case, an aplication was successfully considered against the refusal to hear the applicant's petition for his release from custody for health reasons in the framework of the consideration of the corruption case against the mayor in a closed order. The case involved a violation of the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant was taken into custody as a preventive measure in connection with an ongoing investigation into the distribution of public procurement contracts by him when he held the post of mayor. The applicant asked the Court of Appeal to consider his application for release from custody in private, as the court of first instance did, considering that (i) the presence of the public and representatives of the media in the courtroom could negatively affect his right to the presumption of innocence and (ii) since the grounds for the application for release from custody concerned his health, and the open nature of the court session and the disclosure of medical data about him would violate his right to respect for private life.
The Court of Appeal rejected the applicant's application, since his case did not correspond to any of the situations in which the law provided for a closed hearing of the case. In an open court hearing, the Court of Appeal decided to extend the applicant's detention, finding that the various health problems to which the applicant referred had not previously prevented him from performing his official duties. Relevant articles with ironic content were published in the mass media.
Regarding compliance with article 8 of the Convention. The failure of the Court of Appeal to ensure the confidentiality of the applicant's medical data on his health could be considered as an interference with his right to respect for private life. The refusal to consider in a closed session the applicant's complaint about the application of a preventive measure in the form of detention to him could be recognized as pursuing the goal of protecting "the rights and freedoms of other persons" in view of the public interest in considering applications for release from custody in an open court session.
The European Court has previously concluded that criminal proceedings should be conducted in such a way as not to detract from the rights of victims or witnesses of the crime provided for in Article 8 of the Convention. In these proceedings, certain measures can be taken to protect the victims, if an appropriate balance is observed in the effective exercise of the right to protection (see the Judgment of the European Court in the case "Y. v. Slovenia " (Y. v. Slovenia) of 28 May 2015, complaint No. 41107/10). See: Bulletin of the European Court of Human Rights. 2016. N 5.
The same principles apply, mutatis mutandis, in cases where, in the framework of a criminal case, when there was, as in this complaint, a clash of public interests to ensure the transparency of the judicial process and the defendant's interest in maintaining the confidentiality of medical data. Thus, the Court of Appeal had to ensure a balance of these competing interests.
The Romanian Code of Criminal Procedure allowed the Romanian courts to consider a case in private (which meant, according to the procedural rules, that third parties ' access to the case materials would be restricted) if an open court session could cause damage to a person's private life. This is exactly what the applicant claimed.
According to the European Court, the Court of Appeal, when it simply mentioned, without further explanation, that the present case did not correspond to "any of the situations" provided for by the applicable provisions of the Romanian Code of Criminal Procedure, did not provide relevant and sufficient grounds for making its decision.
With regard to the alleged public interest in the corruption case in relation to a person holding an elected position, the European Court found that, even assuming that the defendant's fame could have been a factor that should have been taken into account when analyzing the question of the proportionality of the request to hold a court session in private, in the present case it was obvious that the Court of Appeal did not separately consider the question of the proportionality of such a measure. In addition, the disclosed medical information had no relation to the substance of the charges against the applicant.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 5,000 euros in compensation for non-pecuniary damage.