Published on 17 June 2024
FOURTH SECTION
Application no. 38200/22
Marian NICHITA
against Romania
lodged on 28 July 2022
communicated on 28 May 2024
SUBJECT MATTER OF THE CASE
The application concerns the alleged lack of public hearings because of the Covid-19 pandemic and the failure to summon the applicant to the audience of 8 September 2021.
After an initial sentencing to prison for attempted murder, by the Bucharest Court of Appeal, on 6 April 2021, the applicant, a registered lawyer in the Giurgiu Barr Association, appealed against that decision because of lack of publicity of the hearings during the Covid-19 pandemic.
By a final decision of 30 March 2022 of the High Court of Cassation and Justice (the “HCCJ”), uphold the applicant’s sentencing and conviction to 7 years and 10 months’ imprisonment for attempted murder, threats, and disturbance of public order, without explicitly examining his grounds for appeal concerning the lack of publicity of the hearings because of the Covid‑19 pandemic. The applicant lodged a request to annul this decision (contestaţie în anulare). He reiterated his argument about the lack of public hearings and alleged that he had not been summoned to the hearing of 8 September 2021 (the applicant has been on house arrest since April 2020). His request to annul was dismissed by a final decision from 19 May 2022 of the HCCJ, on the ground that, having regard to the possibility to access some information on Internet about the proceedings, “the limitation of the public access to the courtroom was not equivalent to a lack of publicity of the hearing and that was done in accordance with the rules in force at the material time”.
Under Article 6 of the Convention the applicant complains about:
(a) the lack of public hearings during his trial, since the access of public in the courtroom was denied because of the Covid-19 pandemic and
(b) the HCCJ’s failure to summon him for the hearing of 8 September 2021, when it allowed and dismissed evidence in his absence.
QUESTIONS TO THE PARTIES
1. Has there been a public hearing in the present case, as required by Article 6 § 1 of the Convention? How was the public able to obtain information about the date and place of the hearing? Was this information easily accessible to the public (see Riepan v. Austria, no. 35115/97, §§ 29 et seq., ECHR 2000-XII)? Was it “strictly necessary” to limit the public’s right to participate in the hearing to a mere virtual attendance for one of the purposes authorised by Article 6 § 1 of the Convention? Were there any possible alternatives taken into consideration and was the least strict measure given preference and the respective decision reasoned, considering the specific circumstances at the time? In particular, would it have been feasible to hold the hearing in presence by respecting particular safety precautions to prevent the spread of COVID-19, such as distance rules and hygienical measures?
2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular:
(a) Did the HCCJ’s alleged failure (in its decision of 30 March 2022 on the applicant’s appeal on points of law) to render a reasoned decision, in particular by providing explanations in response to the applicant’s allegations concerning the lack of public hearings because of the Covid-19 pandemic, prejudice the fairness of the proceedings?
(b) Was the principle of equality of arms respected as regards the alleged HCCJ’s failure to summon the applicant for the hearing of 8 September 2021 when it allowed and dismissed evidence in his absence?