FOURTH SECTION
DECISION
Application no. 31560/19
Dan-Traian LUPOU
against Romania
The European Court of Human Rights (Fourth Section), sitting on 21 November 2023 as a Committee composed of:
Faris Vehabović, President,
Anja Seibert-Fohr,
Sebastian Răduleţu, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 31560/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 June 2019 by a Romanian national, Mr Dan-Traian Lupou (“the applicant”), who was born in 1980 and lives in Zalău, and who was represented by Mr R.L. Chiriţă, a lawyer practising in Cluj-Napoca;
the decision to give notice of the complaint under Article 6 § 1 of the Convention concerning the alleged breach of the applicant’s right to a fair hearing to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaint under Article 6 § 1 of the Convention about the infringement of the principle of immediacy in the criminal proceedings against him.
2. On 3 August 2017 a criminal investigation was initiated in respect of the applicant by the Slovenian authorities on charges of circulating counterfeit currency. Following a check by the customs authorities, twenty‑nine counterfeit banknotes of 20 euros were found in his car.
3. The Slovenian investigation authorities sent the case file to the Romanian authorities for further examination.
4. On 13 April 2018 the Zalău District Court (“the first-instance court”), sitting as a single judge, heard oral evidence from the applicant. On 11 May 2018 the first-instance court heard M.A.I., the applicant’s partner, who stated that the banknotes had been found by the applicant in the car that he had bought the previous year. She added that as the banknotes had resembled coloured pieces of paper, she and the applicant had given them to her younger sister, M.C., to play with. M.C., who gave a statement at the same hearing, confirmed that version of events.
5. Another witness, T.V.G., who had been present during the check of the applicant’s car by the Slovenian authorities, also gave a statement before the court on 11 May 2018. He stated that the banknotes found in the applicant’s car had resembled real euro currency.
6. On 8 June 2018 the court heard evidence from the liquidator of the company which had sold the car to the applicant. He explained that the company had inspected and cleaned the car before handing it over to the applicant.
7. An expert report dated 11 May 2017, ordered by the Slovenian authorities, indicated that the twenty-nine banknotes of 20 euros which had been found in the applicant’s car were counterfeit notes and belonged to a European type of counterfeit currency called offset.
8. On 14 September 2018 the first-instance court, sitting with a different judge, asked the applicant’s lawyer whether the witnesses who had already given evidence before the change in composition should be heard again. The lawyer considered that the rehearing of the witnesses was not necessary.
9. At the same hearing, the court heard the parties’ oral submissions in respect of the merits of the case. It also allowed the applicant to give a final statement.
10. By a judgment of 10 October 2018, the first-instance court convicted the applicant under Article 313 of the Criminal Code of circulating counterfeit currency and sentenced him to two and a half years’ imprisonment. The court noted that the applicant, aware of the fact that the banknotes were counterfeit, had been unable to explain why he had kept them in the glove compartment of his car while travelling from Romania to Italy, and why he had not informed the authorities about finding them in the car when he had bought it the previous year. The court further noted that the applicant had acknowledged his possession of the counterfeit notes but had denied his intent to circulate them. Of particular relevance to the applicant’s conviction was the fact that the counterfeit money had been directly examined by the single judge, who had noted their resemblance to authentic banknotes rather than to coloured paper as M.C. and M.A.I. had contended, and that the expert report had indicated that the counterfeit banknotes belonged to a European type of counterfeit currency called offset (see paragraph 7 above).
11. The applicant lodged an appeal, complaining, among other things, that the witnesses heard before the change in the composition of the first-instance court had not been reheard by the newly appointed judge. He requested a rehearing of witnesses M.A.I., M.C. and T.V.G. to prove that he had not had any intention of using the counterfeit currency.
12. On 8 January 2019 the Cluj Court of Appeal heard the applicant and rejected his request for a rehearing of the witnesses, noting that the transcripts of the statements were available in the case file. The court pointed out that the statements of M.A.I. and M.C. were not considered relevant because of their close relationship with the applicant and, in the case of M.C., her young age (11 years old at the time), which could have made her more susceptible to being influenced.
13. On 15 January 2019, having examined the applicant’s submissions and arguments, the appeal court dismissed his appeal as ill-founded, upholding the judgment of the first-instance court. It based its findings on the fact that the applicant had not submitted the banknotes to the competent authorities but had kept them in his car while travelling through Europe, which in its view proved his intent to use them or to put them into circulation.
14. The applicant was present and assisted by a lawyer of his choice throughout the criminal proceedings against him.
THE COURT’S ASSESSMENT
15. Relying on Article 6 § 1 of the Convention, the applicant alleged that the domestic courts that had convicted him at first and last instance had failed to hear the evidence against him directly, and, in particular, had failed to hear oral evidence from witnesses M.C. and M.A.I.
16. The general principles concerning circumstances where judges who have failed to hear witnesses and a defendant directly deliver a verdict convicting the defendant are set out in Beraru v. Romania, (no. 40107/04, § 64, 18 March 2014), Cutean v. Romania (no. 53150/12, §§ 60-61, 2 December 2014) and Svanidze v. Georgia, (no. 37809/08, §§ 32-33, 25 July 2019).
17. In the present case, the first-instance judgment was given by a single judge who had not heard evidence from the witnesses directly: the single judge who had initially considered the case had heard the applicant and the witnesses and, after his replacement, those witnesses were not reheard. However, the Court notes that the applicant’s lawyer renounced, when asked, the possibility given to him to rehear the witnesses when the initial composition of the first-instance court was changed (see paragraph 8 above). Moreover, the newly appointed single judge had access to the file and had been able to obtain precise knowledge of the statements of each witness. In addition, the same judge heard the applicant’s submissions during oral argument in respect of the merits of the case and considered the applicant’s submissions prior to giving judgment (see paragraph 9 above).
18. The applicant also complained that the appeal court which had upheld the judgment of the first‑instance court had based its decision on the evidence adduced before the first-instance court without hearing it directly despite his request to have several witnesses reheard.
19. The Court notes in this connection that the panel of judges of the appeal court which ultimately upheld the applicant’s conviction heard him directly in respect of the merits of the case before proceeding to examine his appeal (see paragraph 12 above).
20. As regards the rehearing of witnesses by the appeal court, it is to be recalled that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).
21. In this connection, it appears that all the witnesses, including M.A.I. and M.C., had been heard by the first-instance court in its initial composition. The applicant and his defence lawyer had been present and had been able to put questions to them in order to clarify the circumstances of the case (see paragraph 14 above).
22. Moreover, the reasons given by the applicant as to why he needed to have the witnesses proposed by him re-examined by the appeal court (see paragraph 11 above) are not convincing.
23. Furthermore, the applicant’s conviction was based not only on testimonial evidence but also on expert and documentary evidence (contrast Beraru v. Romania, cited above, § 66). According to the reasoning of the domestic courts, it was the statement given by the applicant, the counterfeit banknotes attached to the file and the expert report that had been decisive in the applicant’s conviction rather than the witness statements (see paragraphs 10 and 13 above). The appeal court found that the statements of M.C. and M.A.I. had not been of sufficient relevance given their close relationship with the applicant and M.C.’s young age (see paragraph 12 above, and contrast Škaro v. Croatia (no. 6962/13, § 28, 6 December 2016).
24. In view of the above, the applicant failed to demonstrate that his defence rights were restricted to such an extent as to prejudice the overall fairness of the criminal proceedings against him. The applicant’s complaint must therefore be dismissed as manifestly ill-founded in accordance with 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 14 December 2023.
Crina Kaufman Faris Vehabović
Acting Deputy Registrar President
Full & Egal Universal Law Academy