FOURTH SECTION
DECISION
Application no. 47863/19
Nelu LUPAȘCU
against Romania
The European Court of Human Rights (Fourth Section), sitting on 9 May 2023 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 47863/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 August 2019 by a Romanian national, Mr Nelu Lupașcu, who was born in 1967 and lives in Baia Mare (“the applicant”) and was represented by Mr O.M. Chindriș, a lawyer practising in Baia Mare;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial was violated as, after being acquitted by the first instance court, he was sentenced by an appellate court on the basis of the same evidence which had determined the first instance court to acquit him and without re-hearing all the witnesses in person.
2. The applicant is the sole administrator and owner of a commercial company which in 2007 concluded a contract with another company to carry out renovation works on a farm of goats. The applicant’s company subcontracted the renovation works to three companies.
3. On 21 July 2016 the prosecutor’s office attached to the Maramureș County Court (hereinafter “the prosecutor’s office”) indicted the applicant for determination in bad faith of taxes, duties and contributions of his company which resulted in the unlawful obtaining of amounts by way of refunds from the state budget (Article 8 § 1 of Law no. 241/2005) and tax evasion (Article 9 § 1 (c) of the same law). The prosecutor’s office asserted that the applicant, in his capacity as an administrator of a commercial company, in the period between July 2007 and March 2010 had recorded in the accounting books invoices issued by the three subcontractor companies, which reflected fictitious operations for the provision of services and purchase of materials, to evade tax obligations or to obtain VAT refunds.
4. By a judgment of 23 March 2018, the Maramureș County Court (the first-instance court) acquitted the applicant concluding that the evidence available in the file was not sufficient to prove that the provision of services and purchase of materials concerning the renovation works were fictitious. The first-instance court relied on oral evidence, namely statements given by the applicant, who was assisted by a lawyer, and five other witnesses (two of them being the administrators of two of the three subcontractor companies), a notarised statement given by the administrator of the third subcontractor company, as well as on documentary evidence which included an expert report, accounting documents issued by the three companies involved in the renovation project and a tax assessment report issued on 5 February 2016 by the anti-fraud experts of the prosecutor’s office. The five witnesses were heard by the first-instance court in the presence of the applicant and his lawyer.
5. The prosecutor and the competent fiscal authority appealed against the first-instance court’s judgment, considering that it had wrongfully acquitted the applicant. They argued that the report issued by the anti-fraud experts of the prosecutor’s office stated that the applicant’s company had not been able to submit any receipt notes for the materials purchased and/or minutes of reception for the services rendered by the subcontracting companies. They further contended that the three companies to which the applicant’s company subcontracted the works were in fact buffer companies which issued invoices for materials and services not actually provided. Thus, according to the documentary evidence in the file, one of the companies ceased its activity in 2009, although according to the documents provided by the applicant it appeared to have provided services concerning the renovation project at that time; in addition, although that company never had any employees there was no evidence that it subcontracted the construction works to other commercial partners. The second company that issued invoices to the applicant’s company purchased the materials from a company that had been inactive since 2005, while the third company went bankrupt in 2008.
6. During the appeal proceedings, the Cluj Court of Appeal (the final‑instance court) heard evidence from the applicant, who was assisted by a lawyer. He stated that he maintained all his previous statements and that he had nothing further to add. The final-instance court re-examined only one of the witnesses heard by the first-instance court. The other witnesses did not give any further statements as most of them were abroad or refused to be heard. After five adjournments of the hearings due to the witnesses’ absence, the final-instance court allowed the applicant and his lawyer to make their final submissions. In his oral submissions, the applicant’s lawyer did not ask for more evidence to be adduced in the case. At the last hearing the court heard arguments from the applicant.
7. In a final judgment of 21 March 2019, the final-instance court allowed the prosecutor’s office’s appeal on points of fact and law, quashed the judgment of the lower court and re-examined the merits of the case. Subsequently, the court sentenced the applicant to two years’ imprisonment, stayed conditionally. The court considered that, having regard to the nature of the offences against the applicant, more relevance should have been given by the first-instance court to evidence of an objective nature, namely on expert evidence such as the tax assessment report issued by the experts of the prosecutor’s office and all the accounting and other documents in the file. All these elements reflected the activities carried out by the three subcontractor companies and proved that the applicant’s activity was part of a set of disguised operations designed to evade tax obligations.
THE COURT’S ASSESSMENT
8. The principles concerning the conviction of a defendant by a final‑instance court after he or she was acquitted by a lower court, without the final-instance court hearing evidence from him or her and from witnesses directly have been summarised in the case of Júlíus Þór Sigurþórsson v. Iceland, (no. 38797/17, §§ 30-38, 16 July 2019).
9. The Court notes that the applicant, assisted by a lawyer, took part in the hearings at first instance as well as before the final-instance court. Evidence was heard from him at the first-instance court hearing, at which the witnesses were also examined (see paragraph 4 above). The applicant was also heard by the final-instance court, which overturned the acquittal (see paragraph 6 above). Moreover, the applicant’s lawyer was able to orally present to the appellate court all the defence arguments on behalf of the applicant. The Court considers, therefore, that in compliance with the requirements of fairness, the applicant was given the opportunity and was able to provide his own version of the events (contrast, Júlíus Þór Sigurþórsson, cited above, § 43).
10. As regards the question whether the final-instance court was required to re-examine all five witnesses, who had already been examined at the lower court’s hearing in person, the Court points out that the applicant, who was assisted by a lawyer, was able to directly ask questions to the witnesses before the first-instance court. Moreover, he was aware of the content of the prosecutor’s appeal and of the powers of the final-instance court to convict him under the relevant domestic law. However, he had neither insisted in the re-hearing of the witnesses when after five adjournments of the hearings due to the absence of the witnesses, the final-instance court had decided to close the proceedings nor argued that the defence had been prevented from putting questions to the witnesses before the first-instance court. 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 final-instance court (see paragraph 6 above).
11. The Court further notes that the final-instance court took a fresh position on facts which were decisive for the determination of the applicant’s guilt, based on evidence which it was able to assess directly, by examining the expert evidence and the documents in the file which contradicted the applicant’s statements ( (see, mutatis mutandis, Lamatic v. Romania, no. 55859/15, § 60, 1 December 2020, and Ignat v. Romania, no. 17325/16, § 55, 9 November 2021). The final-instance court had not put into question the credibility of the witnesses or the reliability of their statements. The applicant’s conviction was based primarily on the documentary and expert evidence which, in the final instance court’s view, were capable on their own to dispel any doubts that might exist in the case with regard to the applicant’s guilt (see paragraph 7 above).
12. In conclusion, the fact that the final-instance court did not consider it necessary to re‑examine all the witnesses does not appear either arbitrary or unreasonable. The Court has no reason to question the facts as established and interpreted by the domestic last-instance court, which is ultimately better placed to assess the matter (see Dergachenko v. Ukraine (dec.), no. 18060/13, § 37, 18 February 2021).
13. The application is accordingly manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 June 2023.
Crina Kaufman Faris Vehabović
Acting Deputy Registrar President