FOURTH SECTION
DECISION
Application no. 23931/10
Florin LEONTE
against Romania
The European Court of Human Rights (Fourth Section), sitting on 10 November 2015 as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Krzysztof Wojtyczek,
Egidijus Kūris,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 16 April 2010,
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, Mr Florin Leonte, is a Romanian national, who was born in 1963 and lives in Podul Iloaiei. He was represented before the Court by Mr T.C. Baltag, a lawyer practising in Iaşi.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from 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 26 June 2007 the Iaşi County Court convicted the applicant of driving under influence of alcohol and without a licence, of leaving the place of an accident and of manslaughter. He was sentenced to fourteen years’ imprisonment. In application of Article 71 of the Criminal Code, his right to vote and to be elected was withdrawn during detention.
5. The applicant appealed against the decision, complaining mainly about the manner in which the evidence had been assessed and the prison sentence established.
6. On 6 March 2008 the Iaşi Court of Appeal upheld the decision, after re‑examination of the evidence in the file.
7. The applicant appealed on points of law reiterating the arguments advanced in the appeal proceedings. The applicant complained again about the prison sentence imposed on him. The first hearing took place on 18 September 2008. The applicant’s lawyer filed the reasons for appeal for that hearing. In its final decision adopted on 22 October 2009, the High Court of Cassation and Justice upheld the previous decisions.
B. Relevant domestic law
8. The relevant provisions of the Criminal Code providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows:
Article 64 – Additional penalties
“Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty:
(a) the right to vote and to be elected to bodies of a public authority or to public elective office; ...”
Article 71 – Secondary penalty
“The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64.
(2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...”
9. In its decision of 5 November 2007 (following an appeal in the interest of the law), the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention, and thus assess the necessity of the withdrawal of the right to vote in each case. This decision became mandatory on the date of its publication in the Official Monitor on 18 July 2008.
COMPLAINT
10. The applicant complained under Article 3 of Protocol No. 1 to the Convention about automatic disqualification from exercising his right to vote.
THE LAW
11. The applicant complained that he had been automatically banned from voting. He relied on Article 3 of Protocol No. 1 to the Convention which reads as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
A. The parties’ observations
12. The Government objected that the applicant had failed to exhaust the domestic remedies available. They contended that the applicant could have relied directly on the Convention and the Court’s case-law in the matter. Furthermore, he could have relied on the decision adopted by the High Court on 5 November 2007 which became mandatory during the domestic proceedings in this case.
13. The applicant argued that it should have been for the courts to apply on their own initiative the new High Court decision mentioned by the Government.
B. The Court’s assessment
1. General principles
14. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; Gherghina v. Romania (dec.) GC, no. 42219/07, § 83, 18 September 2015; Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 220, ECHR 2014 (extracts); and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, § 69, 25 March 2014).
15. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66; Gherghina, cited above, § 85; and Vučković and Others, cited above, § 71).
16. Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been discharged, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, for a more recent authority, ATV Privatfernseh-GMBH v. Austria (dec.), no. 58842/09, § 31, 6 October 2015).
However, the Court has accepted that a remedy could be effective even in the absence of long‑term practice of domestic authorities and courts applying new legislative provisions (see, in particular, Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, § 24, 23 September 2010; and Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, § 80, 18 June 2013). Moreover, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Nagovitsyn and Nalgiyev, cited above, § 30).
17. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see, for example, Akdivar and Others, cited above, § 66; Vučković and Others, cited above, § 72; Castells v. Spain, 23 April 1992, § 32, Series A no. 236; Gäfgen v. Germany [GC], no. 22978/05, §§ 144 and 146, ECHR 2010; Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I; Cardot v. France, 19 March 1991, § 34, Series A no. 200, and Thiermann and Others v. Norway (dec.), no. 18712/03, 8 March 2007).
2. Application of those principles to the case
18. Turning to the facts of the present case, the Court notes that the decision of the High Court of Cassation and Justice urging the domestic courts to assess individually the necessity of withdrawing the voting right became mandatory on 18 July 2008, when it was published in the Official Monitor. The applicant’s lawyer filed the reasons for the appeal on points of law on 18 September 2008, thus after the decision became mandatory. However, he did not complain before the High Court about the automatic ban on his client’s voting rights.
19. It is to be noted that, based on the provisions of the Criminal Code as they read before the High Court decision in question, the lower courts applied automatically the ban on the right to vote. The Court accepts that, at that date, that is, before publication of the High Court decision, the applicant had no means to complain about this ban (see Calmanovici v. Romania, no. 42250/02, §§ 150-151, 1 July 2008; and Cucu v. Romania, no. 22362/06, § 109, 13 November 2012).
20. The Court does not disregard the fact that the new interpretation by the High Court became mandatory only a few months before the date on which the applicant filed the reasons for the appeal on points of law. However, it notes that the applicant was assisted by legal counsel who should have been aware of such a significant amendment to the applicable law.
21. While the domestic court could have aligned itself on its own initiative to the new interpretation of the relevant provision, the fact remains that the applicant could and should have invited the court to do so by raising the argument before it in his appeal on points of law which was an ordinary appeal in the criminal procedure against him (see, in contrast, ATV Privatfernseh-GMBH, cited above, § 32).
22. Without speculating on what the outcome of such a complaint would have been, the Court considers that, should the applicant have raised it with the court, that would have entailed examination of the necessity of the voting ban for his individual case. There is no indication that such a remedy would not have been effective in the circumstances of the case (see, mutatis mutandis, Nagovitsyn and Nalgiyev, § 30, and Balakchiev and Others, §§ 79-80, decisions cited above).
23. Therefore the applicant, by his own inaction, prevented the domestic court from addressing the matter. He thus failed to exhaust an effective domestic remedy.
24. It follows that this complaint must be rejected under 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 3 December 2015.
Françoise Elens-PassosAndrás Sajó
RegistrarPresident
Full & Egal Universal Law Academy