FOURTH SECTION
DECISION
Application no. 36066/12
Ștefania CASANDRA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 16 May 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Ştefania Casandra, is a Romanian national, who was born in 1971 and is currently detained in Târgşorul Nou Prison. She was represented before the Court by Ms N.T. Popescu, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 3 December 2007 the prosecutor’s office attached to the Târgu Secuiesc District Court ordered the initiation of a criminal investigation against the applicant on charges of fraud. The investigation took place in the absence of the applicant, who could not be found at the address registered on her identity card. The various reports drafted by the police officers responsible for executing the orders to bring the applicant before the investigatory body stated that an individual had been found at the applicant’s last place of residence as registered with the authorities (in Bucharest) who stated that he had bought the applicant’s house in 2003 and had no information about her whereabouts. Those reports were issued on 1 September 2007, and on 17 and 31 March and 31 December 2008.
5. On 12 July 2010 the prosecutor issued an indictment for fraud. The case was registered with the Târgu Secuiesc District Court. The first‑instance court sent the summons to the hearings to the applicant’s last known place of residence.
6. The proceedings before the first-instance court took place in the applicant’s absence. The court assigned a lawyer to represent her. This lawyer did not put forward any evidence in her favour.
7. At the last hearing, on 30 June 2011, the court-appointed lawyer submitted her final observations.
8. On 14 July 2011 the Târgu Secuiesc District Court found the applicant guilty of fraud and sentenced her to two years’ imprisonment.
9. The applicant was arrested on 8 August 2011 on the basis of a warrant for the execution of the prison sentence issued on 3 August 2011.
10. She lodged an appeal on points of law against the judgment. The applicant submitted that she had been unaware that criminal proceedings had been pending against her as she had not been notified of the accusations against her and had not been summoned in order to be heard by the investigatory body or the first-instance court. She asked the appeal court to quash the judgment and to send the case back to the district court for a fresh examination on the merits in her presence.
11. During the appeal proceedings the applicant was represented by a lawyer of her choice. Although present at the hearings, the applicant was not called to give evidence before the appeal court. She was given the opportunity to address the court at the end of the last hearing and declared that she was innocent. No evidence was directly examined in the applicant’s presence.
12. By a decision of 27 October 2011 the Braşov Court of Appeal dismissed the applicant’s appeal as unfounded. The appeal court acknowledged that the applicant had not been officially notified of the charges against her and had not been heard by the investigatory body and the first-instance court but concluded that this situation had been caused by the applicant, who had deliberately sought to escape trial.
B. Relevant domestic law
13. Articles 378 (11) and 38514 (11) of the former Code of Criminal Procedure (“the former CCP”), introduced by Law no. 356/2006, provided that the court examining an ordinary appeal or an appeal on both points of fact and points of law had to hear a defendant who was present if he or she had not been heard by the lower courts.
14. Article 386 of the former CCP provided that an extraordinary appeal for annulment (contestaţie în anulare) could be lodged against a final judgment if, when examining or re-examining an appeal on both points of fact and points of law, the court had not heard a defendant who had been present although such a hearing by the court was mandatory pursuant to Article 38514 (11) of the former CCP.
15. Under Article 388 (e) of the former CCP, an appeal for annulment could be lodged by the person against whom a final judgment had been executed within ten days of its execution.
COMPLAINT
16. The applicant complained that her right to a fair trial had been breached.
THE LAW
17. The applicant complained that she had been convicted by the first‑instance court in absentia and the appeal court had dismissed her appeal on points of law without hearing her or examining any evidence in her presence. The applicant also complained that she had not been effectively represented by the court-appointed lawyer during the proceedings conducted in her absence.
She relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
A. Complaint concerning the applicant’s trial in absentia
1. The parties’ submissions
18. The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the applicant had failed to lodge an appeal against the decision delivered on 27 October 2011 by the Brașov Court of Appeal (see paragraph 12 above). In this connection they pointed out that under Article 386 (e) of the former CCP, in force at the relevant time, an appeal for annulment could be lodged against a final judgment if, when examining or re-examining an appeal on points of fact and points of law, the last-instance court had not heard a defendant who had been present although such a hearing by the court was mandatory (see paragraph 14 above). They further submitted that the Court had already found in the cases Catană v. Romania ((dec.) no. 32072/06, 6 November 2012), Hogea v. Romania (no. 31912/04, 29 October 2013) and Flueraş v. Romania, (no. 17520/04, 9 April 2013) that such a remedy was effective.
19. The applicant contested the Government’s objection of non‑exhaustion of domestic remedies. She submitted that under Article 38514 (11) of the former CCP (see paragraph 13 above) it was mandatory for the court of last resort, which had examined her appeal on points of law, to hear her in so far as she had been judged and convicted in absentia.
20. In the applicant’s opinion, it was excessive to ask an applicant to make use of a remedy, which, in accordance with the former CCP, was considered to be an extraordinary appeal only to be used after she had made use of other remedies, which should have been effective. She also pointed out that the time-limit for lodging the appeal indicated by the Government was ten days, which had started to run from the date on which the execution of her sentence commenced (see paragraph 15 above), namely from the date on which the Braşov Court of Appeal delivered its decision, on 27 October 2011 (see paragraph 12 above). In this connection she maintained that the Braşov Court of Appeal had issued its decision on 18 November 2011, which was twenty-one days after its delivery. Accordingly, she had been unable to observe the time-limit of ten days for lodging the appeal for reasons independent of her will.
2. The Court’s assessment
(a) General principles
21. The Court reiterates that Article 35 § 1 sets out the rule on exhaustion of domestic remedies, the purpose of which is to afford Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. That rule is based on the assumption, reflected in Article 13 – with which it has a close affinity – that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Brincat and Others v. Malta, nos. 60908/11 and 4 others, § 55, 24 July 2014).
22. The Court also notes that a request for the reopening of a case concluded by means of a final court decision cannot usually be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention (see, among many others, Josseline Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002), but that the situation may be different if it can be established that under domestic law such a request can genuinely be deemed effective (see Šorgić v. Serbia, no. 34973/06, § 54, 3 November 2011).
23. Moreover, the Court has held that extraordinary remedies may be regarded as effective, for example, where the quashing of a judgment that has acquired legal force is the only means by which the respondent State can put matters right through its own legal system (see Kiiskinen v. Finland (dec.), no. 26323/95, 1 June 1999, where the complaint before the Court concerned the impartiality of a judge and it could not have been made before the end of the domestic proceedings). Similarly, under specific circumstances, the Court has held that a request for the reopening of proceedings could be the only means whereby the specific complaint could be raised before the domestic courts and under such circumstances it would constitute an effective remedy (see Sobczyk v. Poland (dec.), no. 73446/10, §§ 40 and 48, 25 August 2015).
24. The Court also reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile does not constitute a valid reason for failing to pursue it (see, among many other authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 86, 9 July 2015).
(b) Application of these principles to the present case
25. In the light of the above principles the Court has first to examine whether in the circumstances of the present case it can be established that a request to reopen the proceedings by lodging an appeal for annulment was an available and effective remedy under domestic law for the alleged breach of Article 6 of the Convention.
26. The Court notes that the applicant’s complaint is about the fact that, after being convicted in absentia by a first-instance court, the appeal court which examined her appeal on points of law in her presence dismissed it without hearing evidence from her and without hearing any other evidence in her presence (see paragraph 11 above).
27. The Court observes that in cases like this, where the issue is lack of fairness of the proceedings at the final judicial stage, a request to reopen the case by lodging an extraordinary appeal for annulment is the only avenue through which to raise the matter before the domestic courts.
28. As to whether this remedy was sufficiently well established under domestic law, the Court observes that the former CCP, in force at the relevant time, expressly provided for such reopening. Under Article 386 (e) of the former CCP, a defendant who was not heard by the court of last resort, even though it was mandatory to hear him or her, could lodge an appeal for annulment (see paragraph 14 above).
29. Under Article 388 of the former CCP, an appeal for annulment could be lodged within ten days of the date on which the judgment of the court of last instance took effect, that is, from 27 October 2011 (see paragraphs 12 and 15 above).
30. In this connection the Court cannot consider the applicant’s argument, namely that she had been unable to observe the time-limit of ten days because the court of last instance had issued its decision twenty‑one days after its delivery, as justification for failing to exhaust this remedy (see paragraph 20 above). The Court notes that the grounds for lodging the appeal for annulment were known to the applicant and to the lawyer of her choice from the date of the last hearing before the appeal court, which they attended (see paragraph 11 above). Even in the absence of a reasoned decision her lawyer should have been aware that she could lodge an appeal for annulment on the ground that the applicant was not called to give evidence before the appeal court. The Court is therefore satisfied that the remedy relied on by the Government was available to her.
31. As regards the effectiveness of this remedy, the Court notes that this extraordinary appeal was specially devised in order to satisfy the Romanian State’s obligations under Article 6 of the Convention following the Court’s judgments in cases such as Constantinescu v. Romania (no. 28871/95, ECHR 2000‑VIII) and Spînu v. Romania (no. 32030/02, 29 April 2008). In those cases the Court found a violation of Article 6 of the Convention on the ground that the domestic courts of last resort had not heard the defendants notwithstanding that the applicable law provided that they should have been heard.
32. As regards the Government’s argument that the Court had already found that an appeal for annulment under Article 386 (e) of the former CCP was an effective remedy (see paragraph 18 above), the Court notes that in the cases of Flueraş (cited above, §§ 20-21) and Hogea (cited above, §§ 26‑30) the applicants successfully obtained the reopening of the criminal proceedings and a hearing by the court of last resort after lodging an appeal for annulment.
33. Moreover, in the case of Catană (cited above, § 33), after the reopening of the criminal proceedings, the applicant had not only obtained a hearing before the court but had also been able to adduce evidence not previously directly heard by the court of last resort.
34. In conclusion, the Court notes that: (i) the appeal for annulment was directly accessible to the applicant as a party to the completed proceedings and she did not depend on the discretion of any public authority to make the request (contrast Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010); (ii) that remedy was specifically provided for in law and the ability to use it was circumscribed to a relatively short period in time (contrast Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999-VII, where applications for review of final judgments were not subject to any time-limit, so that judgments were liable to challenge indefinitely); (iii) the grounds for reopening the proceedings were exhaustively enumerated and included the situation in which the present applicant found herself; (iv) it was the only legal avenue through which the State could have put matters right in its own legal system and thus reinforced in practice the subsidiary role of the Court (see Guzzardi v. Italy, 6 November 1980, § 72, Series A no. 39, and Cardot v. France, 19 March 1991, § 36, Series A no. 200); and (v) there is no reason to believe that it would not have afforded the applicant the opportunity to obtain redress for her grievance or that it would have no reasonable prospect of success.
35. In view of the above, the Court considers that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Complaint concerning the alleged lack of an effective defence during trial in absentia
1. The parties’ submissions
36. The Government pointed out that the applicant had failed to exhaust the relevant domestic remedies as she had not raised any complaint about the way in which she had been represented by the court-appointed lawyer during the proceedings held in her absence in her appeal on points of law (see paragraph 10 above). Accordingly, the Court of Appeal was not offered the possibility to remedy this deficiency.
37. The applicant did not submit any specific contentions in this respect.
2. The Court’s assessment
38. The Court reiterates that in so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, it is that remedy which should be exhausted. It is not sufficient that the applicant may have unsuccessfully exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of a violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014).
39. Turning to the present case the Court notes that in her appeal, the applicant complained generally of the unfairness of the proceedings held in her absence, but failed to specify that the defence provided by the court‑appointed lawyer before the court of first instance was ineffective (see paragraph 10 above). Moreover, the applicant, assisted by a lawyer of her choice, did not raise such a complaint in her final submissions before the Braşov Court of Appeal.
40. In these circumstances the Court is not satisfied that the applicant has sufficiently raised, in her appeal before the Braşov Court of Appeal, her complaint concerning the lack of effective defence before the court of first instance (see, mutatis mutandis, Begu v. Romania, no. 20448/02, § 98, 15 March 2011). Consequently, this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 December 2018.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Full & Egal Universal Law Academy