CASE OF POROJAN v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

CASE OF POROJAN v. THE REPUBLIC OF MOLDOVA

(Application no. 49546/14)

JUDGMENT
 

STRASBOURG

25 September 2025

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

In the case of Porojan v. the Republic of Moldova,

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

 Georgios A. Serghides, President,
 Gilberto Felici,
 Diana Sârcu, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 49546/14) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 June 2014 by a Moldovan and Romanian national, Mr Ruslan Porojan (“the applicant”), who was born in 1978, lives in Chișinău and was represented by Mr V. Rusu, a lawyer practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agents at the time, Mr O. Rotari and Mr D. Obadă;

the parties’ observations;

Having deliberated in private on 4 September 2025,

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

SUBJECT MATTER OF THE CASE

1.  This case concerns the refusal of the superior courts to examine the applicant’s appeal against his conviction in absentia, expressing doubt as to the authenticity of his legal representation. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention.

2.  On 13 February 2010 the applicant was charged with fraud and his case was subsequently sent for trial.

3.  Before the first instance court the applicant was initially represented by T.K., M.P. and M.B., attorneys of his own choosing. After the applicant had failed to pay for their legal services, these attorneys refused to represent him. The court appointed a pro bono defence lawyer, S.M., of its own motion.

4.  After the applicant had failed to attend several court hearings, on 31 January 2012 the Chișinău District Court issued a search and arrest order for the applicant.

5.  On 17 October 2012 the Chișinău District Court convicted the applicant in absentia and sentenced him to nine years’ imprisonment, finding him guilty of fraud which resulted in the misappropriation of 79,540 Moldovan lei (MDL) (equivalent at the time to 4,930 euros (EUR)).

6.  In 2013 the applicant was apprehended in the Czech Republic by Czech authorities under an international arrest warrant but was released from custody soon after in the absence of a request for his extradition to Moldova.

7.  According to the applicant, on 22 May 2013 he signed a legal assistance contract with C.B., a lawyer practising in Chișinău, authorising her to appeal against the judgment of 17 October 2012.

8.  On 3 June 2013 C.B. lodged an appeal on the applicant’s behalf including a standard authority form used by lawyers (mandat) to confirm her representation of the applicant. The form was signed by C.B. only. It did not bear the applicant’s signature and did not list any further details as to the scope of her representation powers.

9.  According to the applicant, he sent the Chișinău Court of Appeal a handwritten and signed letter, which clearly stated its author, the criminal case number it referred to, the fact that the applicant and C.B. had signed a legal assistance contract on 22 May 2013 and that C.B. was empowered to represent the applicant and to lodge an appeal on his behalf. The court received that letter on 4 July 2013. However, the court doubted the authenticity of the applicant’s legal representation. C.B. argued that her powers had been confirmed by the applicant’s letter and by the legal assistance contract of 22 May 2013; she did not submit the contract to the court, invoking the confidentiality of the information included in the contract.

10.  On 17 September 2013 the Chișinău Court of Appeal declared the appeal introduced by C.B. on the applicant’s behalf inadmissible, upholding his conviction by the first-instance court. The court noted as follows:

“The [applicant] is absconding for serving the sentence of 17.10.2012. ... The prosecutor requested the court to reject the appeal because the defendant is absconding and therefore it must have been impossible to sign a legal assistance contract with him, which makes us assume that the lawyer C.B. lacks due authorisation to submit an appeal on his behalf. ...

Under Article 67 (3) of the Code of Criminal Procedure ... one becomes the defence lawyer when one has undertaken the commitment to represent the defendant with his/her consent. The request through which the [applicant] seeks to be represented by the lawyer C.B. cannot be accepted by the court because it arrived by post and the defendant is not present in person to confirm that he had written it ....

C.B. was not authorised according to the criminal procedure law to submit an appeal in the [applicant’s] case.”

11.  C.B. filed an appeal on points of law against the appellate decision. She argued that her powers to represent the applicant had been confirmed procedurally by the authority form (mandat) issued based on the legal assistance contract, such a form had been submitted to the file and the applicant had confirmed his consent again by the handwritten letter addressed to the court. Relying on Article 6 of the Convention, she also noted that the applicant should not be deprived of his procedural defence rights simply because he had not been present before the court. The prosecutor endorsed her appeal and asked the Supreme Court to uphold the appeal and order a rehearing of the case.

12.  On 11 March 2014 the Supreme Court of Justice upheld the decision of the Chișinău Court of Appeal, noting as follows:

“The appeal was lodged by the lawyer C.B. who submitted the authority form (mandat) of 3.06.2013 issued under the legal assistance contract No. 003 of 22.05.2013, but in the appellate hearing she was unable to confirm that she had due powers from the defendant to represent his interests and to submit an appeal on his behalf.

The defendant’s letter, addressed to the court of appeal, ..., is not certified by the competent bodies, nor confirmed by the lawyer C.B. by applying her seal [on the letter].

In accordance with the Article 70 (1) 1) of the Code of Criminal Procedure, the lawyer can participate in a criminal procedure as a defender at the defendant’s request as well as at the request of other persons, but with the observance of a mandatory condition - consent of the defendant, which must be clearly determined.

Therefore, after signing a legal assistance contract, the defendant expresses his/her consent, in writing, by the means of a request to admit his/her chosen lawyer [to the proceedings]. The defendant’s signature, on that request, must be certified in accordance with the applicable law. There is nothing in the file to confirm the defendant’s consent to be represented by C.B.”

13.  One of the five judges of the Supreme Court of Justice on this case dissented and noted as follows:

“In the casefile there is the authority form (mandat) of the attorney C.B. from 3.06.2013 issued based on the legal assistance contract no. 003 of 22.05.2013, which confirms her powers.

Additionally, a written request signed by the [applicant] [reached] the Court of Appeal on 5.07.2013, which confirms C.B.’s power of attorney.

This request was sent by the defendant from the Czech Republic (Karlovy Vary) through the post office, the envelope being attached to the casefile, bearing the stamps of departure from the respective country and the registration on 4.07.2013 in the Republic of Moldova, which is before the appellate hearing.

Comparing this request with other documents from the casefile, such as the defendant’s personal file, other documents signed by the defendant, it can be seen that it is one and the same handwriting, belonging to the [applicant]. In my view there is sufficient evidence to confirm C.B. authority to represent the [applicant]. The decisions of the [superior] courts breach [the applicant’s] right to defence and to access to court.”

14.  The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention about an excessive formalism in the domestic courts, limiting his rights to have access to a court of appeal and to be represented by a lawyer of his own choosing.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

15.  Under Article 6 §§ 1 and 3 (c) of the Convention the applicant complained that his rights to have access to a court of appeal and to be represented by a lawyer of his own choosing had been infringed by an overly formalistic approach of the domestic courts in applying the relevant provisions of the Criminal Code of Procedure on representation.

16.  In particular, the applicant argued that C.B.’s powers were certified in compliance with the domestic law, which did not require a specific form for the expression of the defendant’s consent to be represented by a lawyer in addition to the authority form (mandat). Even so, he reconfirmed his consent by his letter to the appellate court; no evidence had been presented to rebut the presumption that the letter had been handwritten by him. While the courts doubted the authenticity of the letter, no doubt had been expressed in respect of C.B.’s authority form (mandat). The courts never asked C.B. to certify her powers with the contract of legal assistance. He submitted that he had not sought the certification of his signature on the letter in any way because he had been absconding and had avoided any notary, diplomatic or consular services. He emphasised the prosecutor’s position before the Supreme Court of Justice and the dissenting opinion to argue that his request for a retrial had been the only adequate remedy in case the courts questioned the authenticity of his representative’s powers. In his view, at the time of the events there was no established domestic case-law to impose such requirements on the representation of defendants in absentia and, therefore, the courts had been excessively formalistic, this limited the very essence of his rights under Article 6 §§ 1 and 3 (c) of the Convention.

17.  The Government disputed C.B.’s powers under the authority form, referring to requirements under Government Decree 158/2013 for that form to explicitly state the scope of the powers and to be signed by the applicant too. They submitted that C.B. had refused to submit the legal assistance contract with the applicant and that the handwritten letter was an implicit acknowledgement that the authority form had been invalid. In the absence of any certification of the signature on that letter, the applicant had no reason to believe that the courts would have accepted a simple letter, which could have been signed by anyone for that matter, as a confirmation of representation powers. The Government argued that C.B. had lodged the appeal on 3 June 2013, whereas she had been authorised to represent the applicant only after his letter of 3 July 2013. They submitted cases from 2014, 2016, 2017 and 2020 as evidence of an established case-law to reject appeals in similar situations. They also referred to an advisory opinion of the Supreme Court of Justice of 28 November 2016 which required that in criminal cases the authority form (mandat) contain a description of the scope of granted powers and bear the signature of the represented person. The signature could be replaced by a letter, handwritten, and signed by the represented person or by a formal power of attorney. The signature on the letter could be certified either by the lawyer him/herself, by a notary or, for detainees, by the head of the prison.

18.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

19.  The Court observes that the applicant in the present case complained that the domestic courts had declined to examine the appeal lodged by his lawyer because she could not prove the validity of her powers to represent the applicant in his absence. It considers that the complaint essentially raises an issue in respect of the applicant’s right to defend himself through a lawyer. As a consequence of the domestic courts’ refusal to allow the applicant’s lawyer to defend the applicant in his absence, the case further raises an issue in respect of the applicant’s right of access to court. The Court shall therefore examine the complaint under Article 6 §§ 1 and 3 (c) taken together (see Frolovs v. Latvia, no. 13289/06, § 42, 15 June 2017, and Neziraj v. Germany, no. 30804/07, § 52, 8 November 2012).

20.  In the present case it is undisputed that the applicant wished to appeal the first instance judgment of 17 October 2012, which had sentenced him to a custodial sentence. He sought the examination of his appeal in his absence, as he had been absconding from serving the custodial sentence. For this purpose, he had instructed C.B., a lawyer to carry out his representation. Therefore, it cannot be said that he had waived his right to appeal or to be represented by a lawyer of his choosing.

21.  Despite the submission of an authority form by C.B., issued under a legal representation contract with the applicant, the domestic courts advanced two reasons for doubting the authenticity of the applicant’s consent as to C.B.’s representation powers. One reason concerned the absence of the applicant in appellate proceedings and the implicit impossibility to orally confirm C.B.’s powers and veracity of the handwritten letter (see paragraph 10 above). The other reason concerned the failure to certify the applicant’s signature in the handwritten letter (see paragraph 12 above).

22.  The Court is unable to retain the additional reasons for C.B.’s alleged invalid powers advanced for the first time by the Government in their submissions (see paragraph 17 above concerning the absence of the applicant’s signature and a description of the scope of the granted powers on the authority form; the alleged discrepancy between the date of the letter and the authority form) because those had never been raised before in domestic proceedings (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008). Moreover, such requirements in the 2013 Government Decree referred explicitly to powers of representation in civil proceedings and not in criminal proceedings as in the present case. The letter sent by the applicant on 3 July 2013 was clearly only to reconfirm the authority granted to C.B. under the contract of 22 May 2013 and was not intended to be a separate authority form. The Government have not substantiated their submission as to C.B.’s refusal to present her contract with the applicant. Finally, the case‑law examples submitted by the Government are also irrelevant as all but one case refer to more than two years after the events in the present case.

23.  The Court notes that neither the domestic courts, nor the Government have provided any legal basis at the time of the events for requiring any specific form for a defendant to express his consent to be represented in his or her absence by a lawyer other than the authority form itself.

24.  The Court previously held in Van Geyseghem v. Belgium that the right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the basic features of a fair trial. An accused person does not lose this right merely on account of not attending a court hearing. Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by creating exceptions to the right to legal assistance. The legitimate requirement that defendants must attend court hearings can be satisfied by means other than deprivation of the right to be defended (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 34, ECHR 1999-I).The Court therefore cannot accept the conclusion of the Chișinău Court of Appeal that the applicant had to be personally present at the hearing to confirm the powers of the lawyer.

25.  As for the conclusion of the Supreme Court of Justice on the need to certify the applicant’s letter, as noted above, such a requirement had no legal basis. Moreover, C.B. had certified orally that the letter had been sent by the applicant and there had been no opportunity for her to certify the letter because it had been sent directly to the court. In the absence of any accessible and foreseeable legal basis for such a requirement of certification, the Court finds this approach excessively formalistic.

26.  Lastly, the domestic courts never allowed the applicant additional time to comply with the newly set requirements and had not advanced any reasons for questioning the authenticity of his signature on the said letter. This is particularly striking considering that by doing so the superior courts had effectively deprived the applicant of any opportunity to appeal against a conviction and a heavy custodial sentence.

27.  The Court reiterates that, although the right of appeal may of course be subject to statutory requirements, when applying procedural rules, the courts must avoid excessive formalism that would infringe the fairness of the proceedings (see Walchli v. France, no. 35787/03, § 29, 26 July 2007). The particularly strict application of a procedural rule may sometimes impair the very essence of the right of access to a court, particularly in view of the importance of the appeal and what is at stake in the proceedings for an applicant who has been sentenced to a long term of imprisonment (see Labergère v. France, no. 16846/02, § 20, 26 September 2006).

28.  In the light of the above, the Court considers that the domestic courts’ refusal to examine the appeal lodged by the applicant’s lawyer against the first-instance judgment, based on an alleged deficient authority to represent him, was overly formalistic and not compatible with the applicant’s right to a fair hearing under Article 6 of the Convention.

29.  There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicant claimed 30,000 Moldovan lei (MDL) (equivalent to 1,535 euros (EUR)) in respect of pecuniary damage, suffered as the result of inability to work during the period of his detention pending extradition. Additionally, the applicant claimed MDL 150,000 (equivalent to EUR 7,675) in respect of non-pecuniary damage and MDL 30,000 (equivalent to EUR 1,535) in respect of costs and expenses. The applicant submitted the invoice for the lawyer’s services, to confirm the incurred costs and expenses.

31.  The Government disagreed with the claim for pecuniary damage, arguing that there is no causal link between the claimed pecuniary damage and the alleged violation of the Convention. They argued that the claim for non-pecuniary damage was unsubstantiated and excessive, while the claim of costs and expenses was both unsubstantiated and disproportionate to the complexity of the present case.

32.  The Court does not discern any causal link between the violation found and the alleged pecuniary damage; it therefore rejects the claim under this head. However, it awards the applicant EUR 3,600 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

33.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,535 covering costs under all heads for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(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:

(i)  EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,535 (one thousand five hundred and thirty-five 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;

Done in English, and notified in writing on 25 September 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Georgios A. Serghides
 Deputy Registrar President