CASE OF BUȘCU v. ROMANIA

FOURTH SECTION

CASE OF BUȘCU v. ROMANIA

(Application no. 73352/14)

JUDGMENT
 

STRASBOURG

20 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Bușcu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President,
Iulia Antoanella Motoc,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 73352/14) 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 Marin Bușcu (“the applicant”), on 10 November 2014;

the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning (i) the physical conditions of the applicant’s detention in Craiova, Colibaşi, Drobeta-Turnu Severin and Pelendava Prisons, (ii) his conviction by the last-instance court without him or most of the witnesses being heard by the said court following his acquittal by the lower courts, and (iii) the lack of legal representation during the applicant’s first statement before the prosecutor and the decision to declare inadmissible the remainder of the application;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 23 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The applicant complained under Article 3 of the Convention about the inhuman and degrading conditions of his detention in Craiova, Colibaşi, Drobeta-Turnu Severin and Pelendava Prisons. In addition, he complained under Article 6 of the Convention that he did not have a fair trial before the Court of Cassation in so far as the aforementioned court convicted him without hearing either his testimony or that of many of the witnesses after his acquittal by the lower courts. Moreover, on 29 March 2010 the National Anticorruption Department (Direcția Națională Anticorupție – “the DNA”) had interviewed him for the first time in respect of the circumstances of the case even though no legal representative had been appointed to assist him.

THE FACTS

2.  The applicant was born in 1945 and lives in Tătulești. The applicant was represented by Mr D.N. Bușcu, his son, and by Mr A. Georgescu, a lawyer practising in Bucharest.

3.  The Government were represented successively by their Agents, Ms C. Brumar and Mr V. Mocanu, of the Ministry of Foreign Affairs.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.Criminal proceedings against the applicant

5.  On 22 March 2010 the DNA instituted criminal proceedings against the applicant for abuse of office, being an accessory to tax evasion and forgery of documents. It also instituted criminal proceedings against four other co-accused for similar or other offences.

6.  On 29 March 2010 the DNA notified the applicant of the criminal proceedings instituted against him and informed him of his rights to legal assistance and to remain silent. On the same date, the applicant signed two written statements concerning the charges brought against him. In both statements he expressly waived his right to retain a lawyer and consented to giving the statements.

7.  The applicant retained a lawyer to assist him in the case on 26 April 2010 and on 6 May 2010 the DNA indicted him and his co-defendants and sent their cases for trial.

8.  On 30 June 2011 the Olt County Court acquitted the applicant and one co-defendant and convicted the others. It noted that evidence had been heard from thirty-five witnesses, that one witness, N.I., had been examined at the applicant’s request, and that the evidence of twenty of those witnesses was relevant for proving the unlawful acts of one of the applicant’s co‑defendants.

9.  As regards the applicant’s criminal liability, the court examined the wording of the domestic law setting out the applicant’s work duties. It held that the applicant had complied with his professional obligations and that his defence arguments on this point had been supported not only by the wording of the domestic law but also by N.I.’s testimony. Also, the evidence could not be interpreted differently even if some of the witnesses had testified that the applicant had occasionally been present at one of the locations where unlawful actions had taken place and had been involved in assessing relevant documents. In addition, the available documents did not disclose that the applicant’s actions had been unlawful.

10.  The DNA appealed against the judgment.

11.  On 5 December 2012 the Craiova Court of Appeal dismissed the DNA’s appeal and upheld the first-instance court’s judgment in so far as the applicant’s acquittal was concerned.

12.  The DNA lodged an appeal on points of fact and law against the judgment with the High Court of Cassation and Justice (“the Court of Cassation”).

13.  During a hearing of the appeal on points of fact and law on 22 January 2014 the Court of Cassation proceeded to hear evidence from the applicant. He waived his right to give a new statement and maintained his previous statements.

14.  On 31 January 2014 the Court of Cassation adjourned the proceedings to allow for additional evidence to be adduced. It held that it had been under a lawful duty to take measures in order to clarify the points raised by the DNA in their appeal on points of law and to give the co‑defendants the opportunity to defend themselves, given their right to a fair trial and the DNA’s request for a conviction. It therefore summoned witnesses N.I., I.C. and M.V. to be re-examined and ordered the applicant’s employer to submit the applicant’s job description. That document was added to the case file on 5 March 2014.

15.  On 16 April 2014 the Court of Cassation examined N.I., I.C. and M.V. It noted that it had invited the applicant to give a statement before the court in respect of the circumstances of the case and had informed him of his right to remain silent. It also noted that the applicant had waived his right to give further statements in the case and wished to remain silent (see paragraph 13 above).

16.  By a final judgment of 14 May 2014 the Court of Cassation allowed the DNA’s appeal on points of fact and law, quashed the judgments of the lower courts, convicted the applicant of abuse of office, being an accessory to tax evasion and forgery of documents, and sentenced him to five years’ imprisonment. It held that the applicant’s acquittal had been ill-founded because it had been based on a misinterpretation of the relevant laws and on the testimony of a single witness, N.I., which had been inconclusive and had been contradicted by the other evidence, in particular documents and other witness statements.

17.  The court held further that the applicant’s co-defendants would not have been able to commit the unlawful acts in question if the applicant had fulfilled his professional duties. N.I.’s testimony had been ambiguous, had omitted relevant information about the importance of the documents certified by the applicant and was contradicted by the applicant’s job description. Moreover, I.C. and M.V. had confirmed that the applicant had occasionally been present at one of the locations where the unlawful actions had taken place and both witnesses had noticed several irregularities in that location. The applicant had failed to comply with his duty to flag those irregularities even though they had been noticed by I.C. and M.V., and also by other witnesses examined in the case. Furthermore, the applicant had composed documents aimed at helping his co-defendants, in blatant breach of his duties. In addition, he had validated documents misrepresenting the actual chain of events which had been described differently by the witnesses examined, including I.C. and M.V.Conditions of detention

18.  The applicant was detained in Craiova, Colibaşi, Drobeta-Turnu Severin and Pelendava Prisons from 16 May 2014 to 7 March 2016. On the latter date he was released on probation.

19.  From 15 to 27 January 2015 the applicant was hospitalised in the Colibaşi Prison Hospital. He was diagnosed with and treated for, amongst other things, hypertension. Upon his discharge he received a recommendation for treatment for his condition, along with advice that he avoid the cold.The applicant’s version

20.  In describing the conditions of detention in all of the above‑mentioned prisons the applicant referred to overcrowding and to an absence of facilities for the storage of luggage or clothes. He also referred to (i) the presence of insects, unsuitable drinking water, and the short duration of daily exercise (Craiova and Colibaşi); (ii) the presence of permanent light in the cells, developing lung and throat problems because of poor ventilation and cigarette smoke, and having to share an undersized sanitary facility with numerous other detainees (Craiova); (iii) the absence of a disinfection regime (Craiova, Colibaşi and Pelendava), of facilities for eating (Craiova, Colibaşi and Drobeta-Turnu Severin), of heating (Colibaşi), of warm water for more than one or two hours and more than twice a week (Craiova, Colibaşi and Drobeta-Turnu Severin) or four times a week (Pelendava); (iv) the small number of showers available for a large number of detainees (Drobeta‑Turnu Severin and Pelendava); and (v) being detained with smokers (Craiova and Drobeta‑Turnu Severin).The Government’s version

21.  Referring to information provided by the National Prisons Agency and relying on some documents, the Government stated that the applicant had been detained in Craiova Prison from 16 May to 10 July 2014 in two cells where the living space per prisoner was between 1.19 and 1.48 square metres (sq. m). They also challenged, in full or in part, the applicant’s allegations concerning the drinking water, that his lung and throat problems were because of poor ventilation and cigarette smoke, that there were issues with disinfection, inadequate sanitary facilities, a lack of warm water, that the duration of daily exercise was short, that there was the presence of permanent light, an absence of storage and eating facilities, and that he was detained with smokers.

22.  The applicant was detained in Colibaşi Prison from 10 July 2014 to 15 January 2015 and from 27 January to 2 June 2015. He was detained in cell E4.7 from 10 to 15 July 2014; cell E3.10 from 15 July 2014 to 15 January 2015 and from 27 January to 12 February 2015; cell E3.11 from 12 February to 21 April 2015 and from 22 April to 21 May 2015; cell E3.1 from 21 to 22 April 2015; and cell E1.14 from 21 May to 2 June 2015. The living space per prisoner in those cells was 2.17, 3.31, 3.08, 2.14, and 4.18 sq. m respectively. The cells had storage facilities for food and were disinfected each trimester and when necessary. Warm water was available according to the regulations in force and the quality of drinking water was tested regularly and was good.

23.  The applicant was detained in Drobeta-Turnu Severin Prison from 2 to 22 June 2015 in cell E3.1. The living space per prisoner was 2.16 sq. m. The cell had proper sanitary facilities and adequate storage and eating facilities. Warm water was available twice a week for two hours. Smoking was allowed only in the cell’s bathroom.

24.  The applicant was detained in Pelendava Prison from 22 June 2015 to 7 March 2016. He was detained in cell E4.5 from 22 June to 17 July 2015; cell E1.2 from 17 July to 18 November 2015; and cell E3.4 from 18 November 2015 to 7 March 2016. The living space per prisoner was 2.32, 2.35, and 4.03 sq. m respectively. In cell E4.5 detainees had storage facilities for personal items and warm water twice a week. In cells E1.2 and E3.4 warm water was available four times a week and daily respectively.

RELEVANT LEGAL FRAMEWORK

25.  Article 171 of the former Code of Criminal Procedure (“the CCP”) provided, inter alia, that an official suspect had the right to be assisted by a legal representative during criminal proceedings instituted against him or her. Moreover, the judicial bodies were obliged to inform him or her of that right.

26.  The relevant provisions of the former CCP concerning the duties and the powers of a court examining an appeal on points of fact and law are set out in the case of Găitănaru v. Romania (no. 26082/05, §§ 17-18, 26 June 2012).

27.  Relevant excerpts from Law no. 254/2013 on the rights of detainees and Ministry of Justice Order no. 433/2010 on mandatory rules for serving of prison sentences are set out in the cases of Rezmiveș and Others v. Romania, (nos. 61467/12 and 3 others, §§ 27 and 34, 25 April 2017).

RELEVANT COUNCIL OF EUROPE MATERIALS

28.  Excerpts from the relevant Council of Europe materials concerning conditions of detention are set out in the case of Rezmiveș and Others (cited above, §§ 42-57).

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

29.  The applicant complained of the inhuman and degrading conditions of his detention, including a failure to separate smokers and non-smokers, in Craiova, Colibaşi, Drobeta-Turnu Severin and Pelendava Prisons. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility

30.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

31.  The Court reiterates the principles set out in its case-law concerning physical conditions of detention (see, amongst other authorities, Muršić v. Croatia [GC], no. 7334/13, §§ 96-101, 20 October 2016).

32.  In the instant case, the Court notes at the outset that the applicant was hospitalised in Colibaşi Prison Hospital from 15 to 27 January 2015 (see paragraph 19 above). He did not complain about the conditions of detention in the prison hospital. However, having regard to the overall length of his detention, the short length of his hospitalisation, and the fact that he returned to the same prison afterwards, the Court cannot conclude that his hospitalisation brought about significant changes to his detention conditions so that there was therefore no continuous situation (see, mutatis mutandis, Toma Barbu v. Romania, no. 19730/10, § 62, 3 July 2013).

33.  The Court observes that the Government acknowledged that the living space available to the applicant during his detention in Craiova, Colibaşi, Drobeta-Turnu Severin and Pelendava Prisons for the periods from 16 May to 15 July 2014, 21 to 22 April 2015, and 2 June to 18 November 2015 was between 1.19 and 2.35 sq. m (see paragraphs 21-24 above). The Court reiterates that when the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prison, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see Muršić, cited above, § 137).

34.  In this connection, the Court notes that the Government have not presented sufficient factors capable of rebutting the strong presumption of a violation of Article 3 in so far as the conditions of the applicant’s detention in Craiova, Colibaşi, Drobeta-Turnu Severin and Pelendava Prisons for the periods from 16 May to 15 July 2014 and from 2 June to 18 November 2015 are concerned (ibid., §§ 138 and 152).

35.  The Court considers that the above-mentioned finding is also valid for the applicant’s detention in Colibaşi Prison from 21 to 22 April 2015 (see paragraph 22 above). It is true that the reduction in the required minimum personal space of 3 sq. m for this single non-consecutive period of time is very short. However, the Government has not rebutted the applicant’s allegations concerning the short duration of daily exercise or the absence of heating or the lack of facilities for eating or storing luggage in this prison (see paragraph 20 above). Moreover, the Government have failed to submit evidence showing that the material conditions of the applicant’s detention were in conformity with the requirements of Article 3 of the Convention in so far as the existence of a disinfection regime and the presence of insects in the cells occupied by him during the time he was detained in this prison were concerned (see Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, § 83, 25 April 2017).

36.  As regards the conditions of the applicant’s detention in Colibaşi Prison for the periods from 15 July 2014 to 15 January 2015, 27 January to 21 April 2015 and 22 April to 21 May 2015, the Court notes that the living space available to the applicant was between 3.08 and 3.31 sq. m. Moreover, from 21 May to 2 June 2015 his living space was 4.18 sq. m (see paragraph 22 above).

37.  The Court reiterates that in cases where a detainee disposed of between 3 and 4 sq. m of personal space in his cell, the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention, particularly in relation to access to outdoor exercise, access to natural light or air, the availability of ventilation, the adequacy of the room temperatures, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Muršić, cited above, § 139). Moreover, in cases where a detainee disposed of more than 4 sq. m of personal space and where therefore no issue with regard to the question of personal space arises, other aspects of the physical conditions of detention, as referred to above, remain relevant for the Court’s assessment of adequacy of the conditions of that applicant’s detention under Article 3 of the Convention (ibid., § 140).

38.  Having regard to its finding above concerning the conditions of the applicant’s detention in Colibaşi Prison (see paragraph 35 above), the Court takes the view that the cumulative conditions of the applicant’s detention in this prison from 15 July 2014 to 15 January 2015, 27 January to 21 April 2015, and 22 April to 2 June 2015 reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention.

39.  Lastly, as regards the conditions of the applicant’s detention in Pelendava Prison from 18 November 2015 to 7 March 2016, the Court notes that the living space available to the applicant was 4.03 sq. m. (see paragraph 24 above). The Court notes further, however, that the Government have not submitted any documents in support of their submissions which would be able to refute the applicant’s allegations about the other aspects of the physical conditions of his detention in this prison, namely the absence of a disinfection regime, of warm water for more than one or two hours and more than four times a week, and the small number of showers available for a large number of detainees. In these circumstances, the Court takes the view that the cumulative conditions of the applicant’s detention from 18 November 2015 to 7 March 2016 also reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention (compare Necula v. Romania (no. 33003/11, §§ 12 and 57, 18 February 2014, where the Court found a violation of Article 3 because of the cumulative effect of the applicant’s conditions of detention, which included unsatisfactory hygiene conditions and a lack of appropriate sanitary facilities and running water, even though no issue of overcrowding had been raised).

40.  There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in Craiova, Colibaşi, Drobeta-Turnu Severin and Pelendava Prisons.

41.  Taking this finding into account, the Court does not consider it necessary to examine the remaining issues of the applicant’s complaint concerning the conditions of his detention.ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

42.  The applicant complained that he did not have a fair trial before the Court of Cassation because the aforementioned court had convicted him without hearing either his testimony or that of many of the other witnesses in the case after his acquittal by the lower courts. Moreover, on 29 March 2010 the DNA had interviewed him for the first time in respect of the circumstances of the case even though he did not have a legal representative to assist him. He 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 and public 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; ...”The parties’ submissions

43.  The Government argued that the applicant’s complaints that he did not have a legal representative to assist him during his first interview by the DNA and that he was not examined by the last-instance court were, respectively, ill-founded and unsubstantiated.

44.  The mere fact that the last-instance court had not examined all the witnesses in the case could not amount to a breach of Article 6 of the Convention. The court’s decision had been based exclusively on a different interpretation of a point of law, on documents and on the evidence adduced from the file directly before it.

45.  The applicant argued that the last-instance court’s decision to retain the case for examination and to examine witnesses directly without remitting the case for a full re-examination by the second-instance court had breached, inter alia, Article 38515 of the former CCP and his right to a fair trial. In addition, it had deprived him of his right to adduce evidence in his defence and had breached Article 2 of Protocol No. 7 to the Convention.The Court’s assessmentThe absence of a legal representative during the first hearing by the DNA

46.  The Court reiterates the principles set out in its case-law concerning an applicant’s right of access to a lawyer (see, among other authorities, Beuze v. Belgium [GC], no. 71409/10, §§ 123-50, 9 November 2018).

47.  In the instant case, the Court notes that the DNA interviewed the applicant with regard to the circumstances of the case for the first time on 29 March 2010. Before it took his statements, the DNA notified him that criminal proceedings had been instituted against him for several offences and informed him of his rights to legal assistance and to remain silent (see paragraph 6 above).

48.  The Court further notes that on the same date the applicant signed two written statements concerning the charges brought against him. In both statements he expressly waived his right to retain a lawyer and consented to making the statements. He did not allege that this waiver had not been voluntary, knowing and intelligent (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 128, 12 May 2017).

49.  The applicant has never claimed before the domestic authorities or the Court that at the time of his first interview with the DNA he was in a vulnerable position or that he had been pressured by the authorities into writing the statements without a lawyer present. Moreover, the applicant has never claimed before the Court or the domestic authorities that he did not have sufficient financial means to retain a lawyer of his own choosing. Indeed, it seems that on 26 April 2010 the applicant was able to retain the services of a lawyer to represent him in the case (see paragraph 7 above). Furthermore, there is no evidence in the file that the applicant retracted his initial statements of 29 March 2010 in his subsequent statements before the courts or that he asked the domestic courts to remove them from the case file on the grounds that they had either been obtained unlawfully or in breach of the relevant criminal procedure rules.

50.  In the circumstances, the Court is of the opinion that the fact that the applicant did not have a legal representative on 29 March 2010 when he produced his first two statements in the course of the DNA’s investigation does, as such, not indicate that his trial had been overall unfair (see Beuze, cited above, § 150). It does therefore not disclose any appearance of a violation of Article 6 § 1 of the Convention.

51.  It follows that this part of the applicant’s complaints under Article 6 of the Convention is inadmissible under Article 35 § 3 as manifestly ill‑founded and must be rejected pursuant to Article 35 § 4 of the Convention.Failure of the last-instance court to examine the applicant and a large number of the witnesses

52.  The Court reiterates the principles set out in its case-law where there has been a conviction of a defendant by a last-instance court after he or she was acquitted by a lower court, without the last-instance court hearing the testimony of the defendant or the other witnesses in the case (see, amongst other authorities, Marilena-Carmen Popa v. Romania, no. 1814/11, § 35, 18 February 2020, with further references, and Dan v. the Republic of Moldova (no. 2), 57575/14, § 52, 10 November 2020). It reiterates further that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, amongst many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Consequently, in the present case the Court will assess whether the proceedings against the applicant were fair, without considering the question of the correct interpretation to be given, under Romanian law, to Article 38515 of the former CCP.

53.  The Court notes that, having quashed the lower courts’ decisions of acquittal, the Court of Cassation retained the case for examination, determined the criminal charges brought against the applicant and convicted him. It is undisputed by the parties that the defence was able to put questions to the witness before the lower courts, or that the last-instance court had a duty to hear evidence from the applicant, as the lower courts had acquitted him.

54.  The Court observes that on 31 January 2014 the Court of Cassation adjourned the proceedings for additional evidence to be added to the case file in an expressly stated attempt to give the co-defendants the opportunity to defend themselves in the light of the DNA’s request for a conviction. The court summoned three witnesses to be examined, including the witness N.I., and asked for an additional document to be added to the case file (see paragraph 14 above).

55.  The Court notes that the applicant, who was assisted by a lawyer of his own choosing, was aware of the DNA’s appeal on points of law seeking his conviction and of the last-instance court’s power and ability to quash the lower courts’ judgments, to retain the case and to overturn his acquittal (see, mutatis mutandis, Kashlev v. Estonia, no. 22574/08, § 45, 26 April 2016, and Chiper v. Romania, no. 22036/10, § 61, 27 June 2017). Moreover, at the hearing of 16 April 2012 the last-instance court heard the above-mentioned three witnesses and proceeded to examine the applicant in relation to the merits of the case and the charges brought against him, but he expressly chose to remain silent (see paragraphs 13 and 15 above). Furthermore, the applicant and his lawyer were free to ask for evidence to be added to the case file and to question the witnesses examined before the last-instance court.

56.  The Court further notes that, when convicting the applicant of the offences with which he was charged, the last-instance court relied mainly on its own interpretation of a point of law and of documents and of the three witness statements, including N.I.’s testimony, which it assessed directly (see paragraphs 16-17 above). Furthermore, the aforementioned court subsequently delivered a judgment, providing reasons which do not appear arbitrary or manifestly unreasonable, as to why it decided to depart from the findings of the lower courts and to overturn their judgments and, more importantly, as to why it had decided to disregard N.I.’s testimony which had weighed heavily in the decision of the lower courts to acquit the applicant (see paragraph 16-17 above).

57.  It is true that the last-instance court did not directly examine all the witnesses on whose testimony it seems to have relied to convict the applicant, even though they seem to have been examined and their testimonies taken into account by the lower courts (see paragraphs 8 and 17 above).

58.  The question before the Court, therefore, is whether, under the circumstances, the Court of Cassation could, as a matter of fair trial, properly examine the issues to be determined without a direct assessment of the evidence given by the other witnesses on whose testimony it seems to have relied to convict the applicant (see Marilena-Carmen Popa v. Romania, cited above, § 42).

59.  The Court observes in this connection that, apart from N.I., the first‑instance court seems to have heard thirty-four other witnesses in the case. Also, out of the thirty-four witnesses it appears that the evidence of twenty of them was relevant rather for proving the unlawful acts of one of the applicant’s co-defendants. In any event, the Court notes that it appears from the available evidence that the last-instance court did not as such reinterpret or give a different connotation to those witnesses’ testimonies or significantly curtail or enhance the evidentiary value of the latter’s testimonies (compare and contrast Mischie v. Romania, no. 50224/07, §§ 35‑38, 16 September 2014; Júlíus Þór Sigurþórsson v. Iceland, no. 38797/17, §§ 39 and 42, 16 July 2019; and Marilena-Carmen Popa, cited above, § 43). Moreover, nothing in the judgments of the last-instance or the lower courts seem to suggest that the testimonies of the witnesses not re‑heard by the last-instance court were conducive to an acquittal when assessed in isolation from the point of law and documents in dispute and N.I.’s testimony (see paragraphs 9 and 17 above). Therefore, it would appear that the only points on which the last-instance court seems to have disagreed with the reasoning of the lower courts were the interpretation of national law, of some of the relevant documents and of N.I.’s testimony, a witness that the last-instance court had assessed directly. As indicated above, the last-instance court also explained its departure from the lower courts’ position by providing pertinent reasons (see paragraph 56 above).

60.  In these circumstances, the Court is not convinced that in the applicant’s case the requirements of a fair trial necessitated the rehearing of all the other remaining witnesses and that therefore the Court of Cassation was under an obligation to take positive measures to such an end, even if the applicant did not ask for the witnesses to be reheard (contrast Lazu v. the Republic of Moldova, no. 46182/08, § 42, 5 July 2016). In this context, the Court considers it relevant that the reliability and credibility of the witnesses not re-heard by the last-instance court was not in issue between the courts and that the transcripts of their testimonies had been made available to the last-instance judges (see, mutatis mutandis and in relation to a change in the composition of a court during the course of a trial, Famulyak v. Ukraine (dec.), no. 30180/11, §§ 35 and 40‑47, 2 May 2019). Moreover, the applicant did not ask for additional evidence to be added to the case file, even though he was given that opportunity by the last-instance court. Had he done so, pursuant to the relevant domestic law the Court of Cassation would have been obliged to provide reasons in the event of a possible decision to dismiss such a request (see Chiper, cited above, § 66, and with similar reasoning, Marilena-Carmen Popa v. Romania, cited above, §§ 43 and 45).

61.  In the light of the above, the Court takes the view that the applicant’s case may be distinguished from other cases where final-instance courts convicted defendants, who had been acquitted by lower courts, without directly hearing evidence from them or reviewing testimony considered relevant for the defendants’ convictions (compare and contrast with, among other authorities, Constantinescu v. Romania, no. 28871/95, § 58, 27 June 2000; Popa and Tănăsescu v. Romania, no. 19946/04, § 49, 10 April 2012; Găitănaru v. Romania, no. 26082/05, § 32, 26 June 2012; Mischie, cited above, §§ 35‑38; and Júlíus Þór Sigurþórsson, cited above, § 42).

62.  In these circumstances, the Court is of the opinion that the facts of the case do not disclose any appearance of a violation of Article 6 § 1 of the Convention.

63.  Finally, in so far as the applicant complained that the last-instance court’s judgment amounted to a breach of his right of appeal in criminal matters (see paragraph 45 above), the Court notes that, even assuming that his complaint could be considered to have been lodged within the six-month time-limit, the applicant’s situation fell within one of the exceptions provided for by Article 2 § 2 of Protocol No. 7 – namely his conviction followed an appeal against acquittal. Therefore the Court takes the view that there was no breach of the applicant’s right of appeal in criminal matters.

64.  It follows that this part of the applicant’s complaints is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

65.  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.”Damage

66.  The applicant claimed 9,424 euros (EUR) in respect of pecuniary damage for loss of present and future income following his conviction. He also claimed EUR 32,016 in respect of non-pecuniary damage for the conditions of his detention, the psychological discomfort experienced during his detention, lack of contact with his family, loss of property, medical problems developed as a result of the conditions of detention, and the damage to his reputation following his conviction. He asked for the amounts granted to him under this head to be paid directly to a bank account opened in his son’s name.

67.  The Government argued that the applicant’s claim for pecuniary damage was speculative. Moreover, his claim for non-pecuniary damage was excessive. They also contended that the mere finding of a violation would amount to sufficient just satisfaction for his complaints under Article 6.

68.  The Court considers that the applicant has not demonstrated the existence of a causal link between the violation found and the pecuniary damage alleged and it therefore rejects this claim. However, having regard to the nature of the violation found, it awards the applicant EUR 3,000 in respect of non-pecuniary damage, to be paid directly into the bank account nominated by the applicant’s son.Costs and expenses

69.  The applicant claimed EUR 9,975 for the costs and expenses incurred before the domestic authorities and before the Court. He submitted two legal assistance contracts totalling EUR 4,500 for his representation before the domestic authorities and before the Court, twenty-eight invoices for postal expenses concerning his correspondence with the Court and with domestic judicial authorities totalling 406 Romanian lei (RON – EUR 90), one invoice for translation services totalling RON 500 (EUR 111), and a receipt for the payment of RON 6,000 (EUR 1,327) in judicial expenses ordered by the domestic courts. He asked for the amount granted to him under this head to be paid directly to a bank account opened in his son’s name.

70.  The Government argued that the applicant’s claim was excessive and not fully substantiated. Moreover, he was not entitled to the reimbursement of the judicial expenses incurred as a result of the domestic proceedings.

71.  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. In the present case, regard being had to the documents in its possession, the violation found and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 2,156, covering costs incurred in the proceedings before the Court to be paid directly into the bank account nominated by the applicant’s son.Default interest

72.  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,Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be paid directly into the bank account nominated by the applicant’s son:

(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,156 (two thousand one hundred and fifty-six 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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Ilse Freiwirth Gabriele Kucsko-Stadlmayer
Deputy RegistrarPresident

 

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