FOURTH SECTION
DECISION
Application no. 63963/19
Alexandru Radu ORBULEȚU
against Romania
The European Court of Human Rights (Fourth Section), sitting on 3 October 2023 as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 63963/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 December 2019 by a Romanian national, Mr Alexandru Radu Orbulețu, who was born in 1991 and lives in Craiova (“the applicant”) and was represented by Mr D. Manolache, a lawyer practising in Bucharest.
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the applicant’s right to a fair trial under Article 6 of the Convention, having regard to the reclassification of the offence he was charged with, by the appeal court, without allegedly being given a proper opportunity to exercise his defence rights.
2. On 28 February 2018 the Prosecutor’s office attached to the Dolj County Court charged the applicant with attempted aggravated murder. According to the indictment, on 26 January 2018, at about 6 p.m., the applicant had hit O.F. with a sharp cutting object in the head area in the context of a spontaneous conflict in traffic. The prosecutor took oral evidence from the victim, his wife, who had been in the applicant’s car during the incident, and several eyewitnesses. All of them stated that the applicant had attacked O.F. with a sharp cutting object, which could had been a sword or a machete. In establishing the charge, the prosecutor considered the manner in which the offence had been committed, namely that the injuries had been caused by hitting the victim with a sharp cutting object aimed at the head, with such intensity that the blow had caused a deep fracture, thus putting the victim’s life into danger.
3. At the request of the applicant’s chosen lawyer, the Dolj County Court changed the legal classification of the offence from attempted aggravated murder into assault or other violence under Article 193 § 2 of the Criminal Code. The applicant contended that he had hit the victim with an umbrella and not with a sword or a machete and had not had the intention to take O.F.’s life.
4. On 18 December 2018 the Dolj County Court sentenced the applicant to one year’s imprisonment for assault or other violence offence. The court held that the applicant’s intention had not been to take the victim’s life but to apply a physical correction to him. It based its decision on the statements of the applicant, the victim and the victim’s wife. The court noted that the victim and his wife had changed their initial statements made before the prosecutor, and that after the victim’s release from the emergency hospital, they had stated that the attack weapon could have been an umbrella as claimed by the applicant. These statements were in contradiction with the conclusions of a forensic expert report on 2 February 2018, commissioned by the county court, which found that the injuries could not had been produced by an umbrella’s handle but by a sharp cutting object, like a sword or machete.
5. Both the applicant and the public prosecutor appealed against this judgment. While the applicant requested to be acquitted for the offence of assault or other types of violence, as the victim had not filed a criminal complaint (mandatory for this offence), the first ground of appeal of the public prosecutor concerned the change of the legal classification of the offence by the first instance court from attempted aggravated murder into assault.
6. In the grounds of appeal submitted in writing on 15 April 2019, the applicant’s lawyer put forward arguments for not changing the legal classification of the offence as requested by the prosecutor. He requested a new forensic expert report with the aim of clarifying the seriousness of the assault and its consequences on the victim’s health, as well as a new interrogation of the victim with the purpose of proving that the parties had reconciled.
7. The appeal court rejected the applicant’s request for a new forensic expert report, as it considered that the forensic expert report of 2 February 2018 and the existing medical documents in the file were sufficient. The court also pointed out to the fact that as some time had passed since the incident, the victim’s condition had improved, and therefore the conclusions of a new expert report might not be accurate.
8. The victim was heard again on 19 June 2019. He maintained the statement given before the first instance court, contending not to remember all the details of the attack because of the passage of time.
9. In their final conclusions before the appeal court, the prosecutor and the applicant’s lawyer referred extensively to the legal classification of the acts. Challenging the conclusions of the forensic expert report, the applicant’s lawyer contended that the applicant had not acted with the intent to kill the victim – there had been only one blow of low intensity by the handler of an umbrella.
10. On 25 October 2019 the Craiova Court of Appeal allowed the appeal by the public prosecutor. It held that the lower court had wrongfully changed the legal classification of the offence, as established in the indictment, from attempted aggravated murder into assault or other violence. It found the applicant guilty of attempted aggravated murder and sentenced him to 5 years of imprisonment
11. The Court of Appeal based its decision on the statements of the parties, the forensic expert report of 2 February 2018 and medical certificates. The witnesses were not heard in the appeal proceedings as neither the applicant nor the prosecutor had requested the rehearing of witnesses. An important piece of evidence relied on by the court for establishing the factual basis of the case, as well as the reliability of the incriminating statements, was the forensic expert report of 2 February 2018. The court decided to set aside as unreliable the statements given by the victim and his wife after the victim’s release from hospital, and relied on their statements given before the investigating authorities, immediately after the incident.
THE COURT’S ASSESSMENT
12. The applicant complained under Article 6 §§ 1 and 3 (a), (b) of the Convention that the criminal proceedings initiated against him for attempted aggravated murder had been unfair. He contended that he had not been informed in time of the change of legal classification of the offence by the appeal court. Moreover, the change had been made only by the final decision, based on the statements of witnesses not heard on appeal.
13. The general principles concerning the accused’ defence rights in case of the reclassification of the facts during the course of the proceedings were summarised by the Court in the cases Pélissier and Sassi v. France ([GC], no. 25444/94, §§ 51-53, ECHR 1999-II) and Pereira Cruz and Others v. Portugal (nos. 56396/12 and 3 others, §§196-199, 26 June 2018).
14. In the present case the applicant had been indicted for attempted aggravated murder, but the Dolj County Court changed the legal classification of the offence and found him guilty of assault or other violence (see paragraphs 3 and 4 above). It appears that the applicant, in the presence of a lawyer of his choice, made statements in relation to the charges and the events referred to in the indictment, and that all the applicant’s defences before the Dolj County Court were aimed at changing the legal classification of the offence of attempted aggravated murder into assault or other violence (see paragraph 3 above).
15. The Craiova Court of Appeal set aside the first instance judgment as requested in the prosecution’s appeal and convicted the applicant of attempted aggravated murder (see paragraph 10 above).
16. The Court observes that according to the material and evidence in the case file, the applicant was aware that the Craiova Court of Appeal might reclassify the offence of assault or other violence into attempted aggravated murder, and that he had not been taken by surprise by the reclassification of the offence.
17. In this connection, the Court reiterates that Article 6 § 3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him (see, mutatis mutandis, Pélissier and Sassi v. France [GC], cited above, § 53, ECHR 1999-II) and Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001-II).
18. The prosecutor’s first ground of appeal was the change of the legal classification of the offence as established in the indictment (see paragraph 5 above).
19. In this respect, the Court notes that the applicant took advantage of his defence rights and his lawyer, who assisted him throughout the criminal proceedings, submitted written comments and objections before the Craiova Court of Appeal concerning the legal reclassification of the offence. In his grounds of appeal filed on 15 April 2019, in response to the prosecutor’s grounds of appeal, he challenged the arguments put forward by the prosecutor in favour of the legal reclassification of the offence and put forward all his arguments why the appellate court should not change the legal classification of the offence (see paragraph 6 above).
20. Furthermore, the applicant, through his lawyer, was able to reiterate all his arguments concerning the legal classification of the offence in his final oral conclusions before the Craiova Court of Appeal (see paragraph 9 above).
21. As regards the applicant’s allegation that the Craiova Court of Appeal changed the legal classification of the offence without hearing evidence from witnesses, the Court points out that the applicant, who was assisted by a lawyer, had not requested the hearing of the witnesses (see paragraph 11 above).
22. In addition, the Craiova Court of Appeal relied extensively on medical and expert evidence, which contradicted the statements given by the victim before both domestic courts and by the applicant (see paragraph 11 above).
23. Having regard to the foregoing, the Court finds that the applicant had been able to contest the charge of attempted aggravated murder before the Craiova Court of Appeal and that he had had adequate time and facilities for the preparation of his defence.
24. The Court is therefore satisfied that the applicant’s defence rights, as enshrined in Article 6 § 3 (a) and (b), read in conjunction with Article 6 § 1, have been respected. There is no indication that the trial conducted against him, taken as a whole, was not fair. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 October 2023.
Crina Kaufman Tim Eicke
Acting Deputy Registrar President
Full & Egal Universal Law Academy