THIRD SECTION
CASE OF
HANU v. ROMANIA
(Application no.
10890/04)
JUDGMENT
STRASBOURG
4 June 2013
This judgment will become final
in the circumstances set out in Article 44 § 2 of the Convention. It
may be subject to editorial revision.
In the case of Hanu v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section
Registrar,
Having deliberated in private on 14 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
10890/04) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Marius Hanu (“the applicant”), on 6
January 2004.
The applicant was represented by Mrs A. Hanu, a
lawyer practising in Constanţa. The Romanian Government (“the Government”)
were represented by their Agents, Mr
Răzvan-Horaţiu Radu and Mrs Irina Cambrea of the Ministry of Foreign
Affairs.
The applicant alleged, in particular, that the
criminal proceedings against him had been unfair because the domestic appellate
courts had not examined the evidence directly and had reached completely
different decisions on the basis of the same evidence.
On 20 October 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1 of
the Convention).
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case
(Rule 28 of the Rules of Court), the President of the
Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1
of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1973 and lives in Constanţa.
On 22 March 2000 criminal proceedings were
instituted against the applicant, a bailiff by profession. He was charged with
bribery, abuse of power and forgery, on the basis of criminal complaints lodged
by M.M. and G.A (hereinafter “the complainants”), two individuals he had
assisted as a bailiff in enforcement proceedings. M.M. alleged that the
applicant had requested money from her in exchange for him asking a judge to
assist with the enforcement of a title deed, while G.A. stated that the
applicant had requested a certain amount of money from him to assist with the
enforcement of a judgment.
On 22 March 2000 an operation was set up in
respect of the applicant. The police gave M.M. a tape recorder and money which
was marked with a fluorescent substance. She and her cousin met the applicant
in a bar. According to the report of the operation, M.M. had wanted to hand the
money to the applicant, but he had made a signal to her to put it into his
briefcase. Her cousin had not been there when this had happened. After the
envelope containing the money had been placed in the applicant’s briefcase, the
police had appeared. The report of the operation stated that there had been no
fluorescent substance found on the applicant’s hands, but that money had been found
in the briefcase.
The applicant was held in pre-trial detention
from 30 November 2001 until 27 December 2001, when he was released
following a court order dismissing a request by a prosecutor to keep him in
custody.
On 3 December 2001 the prosecutor attached to
the Constanţa Court of Appeal (“the Court of Appeal”) issued an indictment
against the applicant for bribery and abuse of power. The charges against him
were based on statements of the complainants and other witnesses, and the
report of the operation.
On 24 September 2002 the Constanţa County
Court acquitted the applicant of all charges after hearing evidence from the
witnesses, the complainants and the applicant.
In reaching its decision,
the court noted that the only prosecution evidence available was the statements
of the complainants and other witnesses, some of whom were the complainants’ relatives,
who could only state what they had been told by them. Moreover, none of the
witnesses actually saw the money being given to the applicant. Secondly, the
court noted that no mention was made in any of the evidence submitted to it of
the tape recorder that had been used during the police operation. It held,
therefore, that none of the evidence was conclusive proof as to the applicant’s
guilt.
The prosecutor appealed. In a hearing held on 10
January 2003 before the Court of Appeal, the prosecutor sought conviction of
the applicant, while the applicant’s lawyer asked for the appeal to be
dismissed. The applicant did not give evidence before the court, but he was
given the opportunity to address the court at the end of the hearing and
declared that he was innocent. No witnesses were heard and no additional evidence
was adduced at that stage of the proceedings. Neither
the applicant nor his lawyer submitted written observations.
In a decision of 23
January 2003, the Court of Appeal overturned the acquittal and found the
applicant guilty of both charges, sentencing him to three years’ imprisonment
suspended. It concluded that the witness statements were proof that the
applicant had committed the offences alleged.
The applicant lodged an
appeal on points of law, claiming, inter alia, that the appellate court had
failed to hear the witnesses directly regarding the statements on which it had
relied and had failed to take into account other evidence in his defence; that the
prosecution had withheld the tape-recording of the operation from the
case file even though the applicant had asked for it to be assessed by the
courts and the prosecutor had authorised the recording himself; and that none
of the evidence adduced was conclusive proof that he had committed the offences
alleged.
A hearing was held on 27 June 2003 before the
Supreme Court of Justice (“the Supreme Court”).
The applicant did not attend the hearing, but his lawyer was present. No
witnesses were heard and no new evidence was adduced during the hearing. On
that day, the court concluded the proceedings and set a date for the public
delivery of its final decision.
At the following hearing
on 4 July 2003, the Supreme Court dismissed the applicant’s appeal on points of
law with final effect. It concluded that the Court of Appeal had assessed the
evidence correctly and that the applicant’s submissions were not corroborated
by any of the other evidence adduced. It emphasised that besides the statements
of the complainants, the Court of Appeal had also relied on statements of
witnesses who knew that G.A. had attempted to secure money to pay the
applicant. It also considered the fact that no fluorescent substance had been
found on the applicant’s hands to be irrelevant, given that he had requested
the money which was found in his briefcase. No reference was made to the
applicant’s submissions regarding the tape recorder or to the appellate court’s
failure to hear the complainants and the witnesses directly.
II. RELEVANT DOMESTIC LAW
The relevant provisions
of the Romanian Code of Criminal Procedure concerning the authority of the appellate
courts, as in force at the material time, read as follows:
Article 378
“(1) The court deciding the appeal shall examine the contested
decision on the basis of the case file and any new written documents adduced to
it.
(2) In deciding the appeal, the court may make a new assessment
of the evidence in the case file and may order any new evidence that it deems
to be necessary ...”
Article 379
“In deciding the appeal, the court shall decide to:
...
(2) uphold the appeal and:
(a) quash the decision of the first-instance court, deliver a
new decision and proceed in accordance with Article 345 et seq. to its judgment
on the merits ... ”
The relevant
provisions of the Code of Criminal Procedure concerning the authority of courts
ruling on appeals on points of law, as in force at the material time, as well
as amendments introduced in September 2006, are described in the case of Găitănaru
v. Romania (no. 26082/05, §§ 17-18, 26 June 2012). In particular, article 38515
of the Code, as in force at the material time, provided for the Supreme
Court of Justice, when allowing an appeal on points of law, to refer the case
to a lower court if it was necessary to hear evidence in the case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that the criminal
proceedings against him had been unfair because the domestic courts had not
examined the evidence directly and had reached completely different decisions
on the basis of the same evidence. 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 fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Government raised the preliminary objection
of non-compliance with the six-month rule. They argued that the applicant had not
complained of any unfairness in the criminal proceedings against him in his
initial letter to the Court, and that the first time he had mentioned this
aspect of his complaint had been in his letter to the Court of 24 February
2010.
The applicant contested this argument. He
referred to his initial letter and application form, contending that he had complained
repeatedly that the proceedings had been unfair on account of the fact that the
domestic courts had not assessed any of the evidence in his defence.
The Court reiterates that it is master of the characterisation to be given in law to the
facts of the case and that it is not bound by the characterisation given by an
applicant or a Government (see Guerra and Others v. Italy,
19 February 1998, § 44, Reports of Judgments and Decisions 1998-I). Moreover, a complaint is characterised by the facts alleged
in it and not merely by the legal grounds or arguments relied on (see Powell
and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no.
172).
Turning to the facts of the instant case, the
Court notes that in one part of his application form, the applicant relied
on Article 6 § 1 to argue that the proceedings against him had been unfair and unreasonably
lengthy. In another part of his application he outlined the exact nature of his
complaint, requesting, inter alia, that the proceedings against him be
declared unfair on the grounds that all the evidence in his defence had been
ignored and the domestic courts had delivered different decisions on the basis
of the same evidence. Therefore, the Court is satisfied that the applicant did
raise this complaint in substance in his application form.
It follows that the Government’s objection must
be dismissed.
The Court notes that this
complaint is not manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention. It further notes it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant argued that the criminal
proceedings against him had not met the requirements of a fair trial. Referring
to the cases of Constantinescu v. Romania (no. 28871/95, ECHR 2000-VIII)
and Dănilă v. Romania (no. 53897/00, 8 March 2007), he complained
that the Court of Appeal had not heard him or the witnesses and that his
conviction had been based on the same evidence that had led to his being
acquitted by the court of first instance. He argued that, as the court of final
appeal, the Supreme Court should have dealt more carefully with his case, and ordered
that he himself and the other witnesses be heard once more.
Furthermore, relying on the principle that the
judicial bodies must play an active role (rolul activ al instanţei),
the applicant argued that the courts had been under an obligation to hear all the
evidence necessary to the case, even if the parties had not expressly asked for
specific evidence to be examined. In conclusion, he claimed that his right to a
fair trial had been violated.
The Government argued that the
present case differed from the case of Constantinescu (cited above, §
55) in that the applicant had been duly heard by the Constanţa County
Court, acting as the court of first instance, and that the transcript of his evidence
had been attached to the case file. The applicant had not asked before the
Court of Appeal that the evidence be heard directly. In addition, since the Supreme
Court had ruled on the applicant’s appeal on points of law, its authority had
been limited to matters of law and it could not have examined the facts of the
case.
Moreover, the Government insisted that neither
the applicant nor his lawyer had specifically requested further evidence to be
heard by the appellate courts. In this connection, they pointed out that the
applicant’s case did not reveal special circumstances that would have required
further evidence to be examined ex officio. In conclusion, the
Government argued that there had been no violation of Article 6 § 1 of the
Convention in the present case.
2. The Court’s assessment
The Court reiterates that the manner of
application of Article 6 to proceedings before appellate courts depends on the
special features of the proceedings involved; account must be taken of the
entirety of the proceedings in the domestic legal order and of the role of the
appellate court therein.
The Court has held that where an appellate court
is called upon to examine a case as to the facts and the law and to make a full
assessment of the question of the applicant’s
guilt or innocence, it cannot, as a matter of fair trial, properly determine
those issues without a direct assessment of the evidence given in person by the
accused who claims that he has not committed the act
alleged to constitute a criminal offence (see Ekbatani v. Sweden,
26 May 1988, § 32, Series A no. 134, Constantinescu, cited above, § 55, and
Lacadena Calero v. Spain, no. 23002/07, § 36, 22 November 2011).
Article 6 of the
Convention does not lay down any rules on the admissibility of evidence or the
way it should be assessed, which are therefore primarily matters for regulation
by national law and the national courts, and the Court’s task is to
verify the fairness of the domestic proceedings, taken as a whole, including
the manner in which the evidence was assessed (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Moreover, although it is normally for the national courts to decide whether it is
necessary or advisable to call a witness, exceptional circumstances could
prompt the Court to conclude that the failure to hear a person as a witness was
incompatible with Article 6 (Bricmont v. Belgium, 7 July
1989, § 89, Series A no. 158).
Turning to the present case, the Court finds
that it is not disputed that the applicant was first acquitted by the County
Court but was afterwards convicted by the Court of Appeal and the Supreme Court
despite the fact that neither court had actively heard him or any other
evidence directly. Although the Court of Appeal allowed the applicant to make a
statement at the end the hearing, it should be noted that the Court has already
found that the use made of such an opportunity is not sufficient to the purpose
of Article 6 of the Convention (Constantinescu, cited above, § 58). Accordingly, in order to
determine whether there was a violation of Article 6, an examination must be made of the role of these two levels of jurisdiction
and the nature of the issues which they were called upon to try (see Popa
and Tănăsescu v. Romania, no. 19946/04, § 47, 10 April 2012).
. Firstly, the Court notes that the
provisions of the Code of Criminal Procedure in force at the material time did
not require the appellate court to rule on the merits of the case, but that it
nonetheless had the possibility to do so (see paragraph 18 above). In the instant case, the Court of Appeal availed itself
of this possibility and, relying solely on the evidence the applicant and the
witnesses had given in the County Court, quashed the applicant’s acquittal. The
matters that the Court of Appeal examined in order to decide whether the applicant
was guilty were of a factual nature which would have justified a new
examination of the evidence, especially since it was the first court to convict
him.
. Secondly, the procedure in force at
the material time permitted the Supreme Court to give a new judgment on the
merits even when examining an appeal on points of law. In the cases of Popa and Tănăsescu (cited above, §
48) and Găitănaru (cited above, § 30), the Court has already
had the
opportunity to examine the scope of the Supreme Court’s powers, and found that
proceedings before it were full proceedings governed by the same rules as a trial
on the merits, with the court being required to examine both the facts of the
case and questions of law. The Supreme Court could decide either to uphold the
applicants’ acquittal or convict them, after making
a thorough assessment of the question of their guilt or innocence. If the necessity to hear evidence directly arose from the
circumstances of the case, the Supreme Court could
refer the case to a lower court in accordance with the provisions of the Code
of Criminal Procedure in force at the material time (see paragraph 19 above).
In the instant case, the Supreme Court did not
avail itself of these possibilities but judged the case on the basis of the evidence
given before the prosecutor and the County Court. Moreover, the matters that
the Supreme Court examined in order to declare the applicant guilty were of a
factual nature: the Supreme Court had to establish if the applicant had requested
money from the complainants in order to assist them with their enforcement
proceedings (see paragraph 17 above). Contrary to the Government’s arguments
(see paragraph 29 above), the Court notes that the Supreme Court gave its own
interpretation of the factual situation in the case. Its decision was not
therefore limited to matters of law.
. Furthermore,
with regard to the Government’s argument that neither the applicant nor his
lawyer had specifically asked the domestic courts to hear him or the witnesses,
the Court notes that the applicant based his appeal on points of law on the
appellate court’s failure to hear the witnesses directly and on the prosecution’s
refusal to admit the tape-recording of the operation to the case file
(see paragraph 15 above). The Court takes the view that the applicant gave the
domestic courts sufficient information to justify a new examination of the evidence,
especially since he had been acquitted by the County Court. In any event, the
Court reiterates that the domestic courts are under an obligation to take
positive measures to such an end, even if the applicant has not requested it (see Dănilă v. Romania,
no. 53897/00, § 41, 8 March 2007, and Găitănaru, cited
above, § 34).
It therefore appears that when they convicted
the applicant neither the Court of Appeal nor the Supreme Court relied on any
new evidence. Instead, they based their decisions
on the evidence given by the applicant and the
witnesses before the prosecutor and the County Court. However, the latter,
after having heard the witnesses in person, had held that none of the evidence
was conclusive proof as to the applicant’s guilt, and
acquitted him (see paragraph 12 above). Even if the appellate courts could,
in principle, have given their own interpretation
of the evidence adduced before them, in the
instant case the applicant was found guilty on the basis of witness testimony that had been found insufficient by the County
Court and had justified his acquittal.
In these circumstances, the omission of the
Court of Appeal to hear the witnesses in person,
and the failure of the Supreme Court to redress the situation
by referring the case back to the Court of Appeal for a fresh examination of
the evidence, substantially reduced the applicant’s defence rights (Destrehem v. France, no. 56651/00, § 45,
18 May 2004 and Găitănaru, cited above,
§ 32). The Court reiterates that its case-law underlines that one of the
requirements of a fair trial is the possibility for the accused to confront the
witnesses in the presence of a judge who must ultimately decide the case, because
the judge’s observations on the demeanour and credibility of a certain witness may
have consequences for the accused (see P.K. v. Finland (dec.), no.
37442/97, 9 July 2002; mutatis mutandis, Pitkänen v. Finland, no. 30508/96, §§ 62-65, 9 March 2004; and Milan v. Italy (dec.),
no. 32219/02, 4 December 2003).
The foregoing considerations are sufficient to
enable the Court to conclude that in the instant case, the domestic courts
failed to comply in the applicant’s case with the requirements of a fair trial.
Since that requirement was not satisfied, the
Court considers that there has been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article 5
of the Convention that he had been unlawfully arrested on 30 November 2001 and
kept in pre-trial detention until 27 December 2001. Furthermore, relying
on Article 6 § 1, he claimed that the proceedings against him had been
unreasonably lengthy.
However, 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 they 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 are manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 150,000 Euros (EUR) in
respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage.
With regard to the claim for pecuniary damage, the applicant argued that his criminal
conviction had led to him losing a very lucrative job and that because his
professional reputation had been tarnished he could only obtain poorly paid
temporary work. Concerning the claim for non-pecuniary damage, he alleged that
he had been suffering from depression and health problems, had been experiencing
family difficulties, and had lost all confidence in the legal system.
The Government argued that there was no causal
link between the alleged pecuniary damage and the alleged breach of the
Convention. With regard to the claim for non-pecuniary damage, they asked the
Court to rule that the acknowledgment of the violation of the applicant’s right
to a fair trial represented in itself just satisfaction. In any event, they
argued that the amount claimed by the applicant was speculative, excessive and
not proven.
The Court notes that in the present case an
award of just satisfaction can only be based on the fact that the applicant did
not have the benefit of the guarantees of Article 6.
. Therefore, ruling on an
equitable basis, in accordance with Article 41, it awards him EUR 3,000 in
respect of non-pecuniary damage.
Moreover, the Court reiterates that when a person, as in
the instant case, was convicted in domestic proceedings which failed to comply
with the requirements of a fair trial, a new trial or the reopening of the
domestic proceedings at the request of the interested person represents an
appropriate way to redress the inflicted violation (see Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, no. 40997/98, § 23, 29 January 2004). In this
connection, it notes that Article 4081 of the Romanian Code of
Criminal Procedure provides for the possibility of a retrial or the reopening of
domestic proceedings where the Court has found a violation of an applicant’s
fundamental rights and freedoms (see Mircea v. Romania, no. 41250/02, § 98, 29 March 2007).
B. Costs and expenses
The applicant also claimed EUR 180 for postage costs
and expenses incurred before the Court. He submitted copies of three invoices
issued by DHL Romania, one of which was dated 23 February 2010 and the other
two of which were dated 7 April 2011.
The Government admitted that some of the
applicant’s allegations had been proven but claimed that the date of one of the
invoices, supposedly dated 7 April 2011, had been written illegibly.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Regard being had to the documents in its possession
and the above criteria, the Court considers it reasonable to award the
applicant the sum of EUR 180 for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the fairness of the proceedings under Article 6 § 1 of the
Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 180 (one hundred and eighty euros), plus
any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
