Communicated on 10 July 2014
THIRD SECTION
Application no. 26239/09
Dorin Mircea GIURGIU
against Romania
lodged on 8 May 2009
STATEMENT OF FACTS
The applicant, Mr Dorin Mircea Giurgiu, was a Romanian national, who was born in 1955 and lived in Urziceni. On 16 December 2009 the applicant died. His daughter, Ms Dora Samira Giurgiu, applied to pursue the application before the Court in his name. She is represented before the Court by Mr V. Gafiuc, a lawyer practising in Urziceni.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The pre-trial stage of the proceedings
On 18 December 2000 the Sibiu Police Department opened criminal proceedings against the applicant and two other co-accused for fraud and accessory to fraud.
On the same date the applicant was placed in police custody for twenty four hours. He was eventually released the following day.
On 7 December 2001 the Sibiu Prosecutor’s Office indicted the applicant in his absence and sent his case to trial on the basis of documentary and testimonial evidence and the applicant’s and his co-accused statements.
2. The first set of court proceedings
The applicant did not attend any of the hearings held before the first‑instance court. His publicly appointed legal representative did not ask the court to admit any evidence in the applicant’s favour. In addition, he submitted before the court that the facts had been proved and that one of the applicant’s co-accused, in particular V.M., had partly admitted to having committed the offence. Consequently, the applicant could have been convicted for being an accessory to fraud. However, he urged the court to establish the applicant’s sentence by taking into account the attenuating circumstances in his favour.
By a judgment of 13 November 2002 the Sibiu District Court convicted the applicant for accessory to fraud and sentenced him to four years imprisonment. The applicant’s co–accused appealed against the judgment.
The applicant did not attend any of the hearings before the second‑instance court. His publicly appointed legal representative did not submit any arguments before the court on his behalf and left the applicant’s conviction and punishment at the court’s discretion.
On the same date the Sibiu County Court allowed on procedural grounds the appeals lodge by the applicant’s co-accused, quashed the judgment of the first-instance court and ordered a re-trial.
3. The second set of court proceedings
On 16 December 2005 the Sibiu District Court re-examined the case and sentence the applicant to four years imprisonment. The applicant had been assisted by the same publicly appointed legal representative as V.M. The applicant did not attend any of the hearings held before the court. His legal representative had not motioned the court to administer any evidence on the applicant’s behalf, had not asked the court to clarify the factual circumstances of the case in so far as they concerned the applicant and had left the applicant’s conviction and punishment at the court’s discretion. The applicant’s co-accused appealed against the judgment.
On 18 September 2006 the Sibiu County Court dismissed the appeal lodged by the applicant’s co-accused and upheld the judgment of the first‑instance court. The applicant did not attend any of the hearings held before the court. His publicly appointed legal representative did not submit any arguments before the court and left the assessment of the circumstances of the applicant’s case to the court’s discretion. The applicant’s co-accused appealed on points of law (recurs) against the judgment.
The applicant, assisted by a chosen legal representative, lodged a belated appeal on points of law against the judgment and asked to be re-instated to the time-limit for an appeal on points of law. In addition, he asked the last‑instance court to order the re-opening of the appeal proceedings. He also indicated that his chosen legal representative’s address was the new address of correspondence with the courts. He further argued that although at the criminal investigation stage of the proceedings he had informed the authorities about his address of correspondence during the appeal stage of the proceedings he had been summoned and the judgement had been communicated at an incorrect address. He had found out about the judgment by chance after he had been detained in a separate set of proceedings.
On 4 January 2007 the Alba-Iulia Court of Appeal allowed the applicant’s belated appeal on points of law, quashed the judgment of 18 September 2006 and ordered a re-trial of the appeal on the ground that the applicant had not been summoned and notified of the judgment lawfully. It noted that at the criminal stage of the investigation the applicant had notified the authorities his address of correspondence. However, during the proceedings before the first and the second-instance courts, he had been summoned and the judgments had been communicated at an address that had been misspelled.
4. The third set of court proceedings
After the re-opening of the appeal proceedings, the applicant’s chosen legal representative motioned the Sibiu County Court to quash the judgment of the Sibiu District Court and to order a re-trial. He argued inter alia that the applicant had been summoned and the judgment had been communicated at an incorrect address although he had notified the investigating authorities his address of correspondence. In addition, the applicant had not had effective legal representation because he had been assisted by a publicly appointed legal representative and had had the same appointed legal representative as V.M., although they had conflicting interests in the case.
The Sibiu Prosecutor’s Office asked the court to assess if the fact that the applicant had been summoned at a misspelled address amounted to a failure to summons him before the court. If so the applicant’s appeal had to be allowed and the proceedings before the first instance court had to be re‑opened.
By a judgment of 11 February 2008 the Sibiu County Court dismissed the applicant’s appeal against the judgment of 16 December 2005 without carrying out the assessment demanded by the Sibiu Prosecutor’s Office. It held that the applicant’s right to defence had not been breached. Even if he and V.M. had to share the same publicly appointed legal representative it could not be argued that they had conflicting interests in the case and that therefore the applicant had been deprived of his right to defence. In addition, the court dismissed the applicant’s requests to admit evidence on the ground that it was unnecessary for the case. All the parties, including the applicant appealed on points of law against the judgment. He argued that his right of defence had been breached on account of the superficial defence mounted during the proceedings by the publicly appointed legal representatives. In addition, although he had conflicting interests in the case with V.M. they had been assisted by the same publicly appointed legal representative before the first-instance court and no other submissions had been made before the appellate courts. Consequently, the applicant’s defence had been ineffective and the proceedings before the first-instance court had to be re-opened.
By a final judgment of 12 November 2008 the Alba-Iulia Court of Appeal dismissed the applicant’s appeal on points of law. According to the applicant he had been constantly summoned at a different address than the one expressly indicated by him as a correspondence address after the judgment of 18 September 2006. Consequently, although the Alba-Iulia Court of Appeal had summoned him in order for him to be heard he had been unaware of the summonses.
The Alba-Iulia Court of Appeal held that there was no evidence that the applicant’s right to defence had been breached. He had been lawfully assisted by a publicly appointed legal representative and his interests had been protected appropriately. The applicant lodged an extraordinary appeal of annulment (contestație ȋn anulare) against the judgement on account of the procedural flaws that had occurred during the examination of his appeal on points of law.
On 16 December 2008 the Alba-Iulia Court of Appeal dismissed the applicant’s extraordinary appeal of annulment as inadmissible. It held that on 4 November 2008 when the debates had been held before the Alba-Iulia Court of Appeal he had been lawfully summoned and he had been assisted by a chosen legal representative. In addition, the court had answered all the points of his appeal on points of law.
B. Relevant domestic law
Article 44 (1) of Law no. 51/1995 on the legal profession provides that a lawyer may not assist or represent parties with conflicting interests in the same case.
Articles 378 (11) and 38514 (11) of the former Romanian Code of Criminal Procedure provide that the court examining an appeal or an appeal on points of law must hear the defendant if he had not been heard by the lower courts.
COMPLAINTS
Relying on Article 6 of the Convention the applicant complains that his right to a fair trial has been infringed because he had not been effectively represented by the publicly-appointed legal representatives during the initial stage of the trial proceedings. In addition, he had been assisted by the same publicly appointed legal representative as one of his co-accused although they had a conflict of interests in respect of the case. Furthermore, the domestic courts had failed to hear him and to summon him correctly during the trial proceedings.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?
In particular, did the domestic courts hear him and correctly summon him during the criminal proceedings opened against him?
2. Was the applicant defended through effective legal assistance during the proceedings as required by Article 6 § 3 (c) of the Convention, taking into account that he had been assigned publicly appointed legal representatives and that he had shared the same publicly appointed legal representative with V.M.?
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