Information Note on the Court’s case-law 247
Mihail Mihăilescu v. Romania – 3795/15
Judgment 12.1.2021 [Section IV]
Pre-trial judge proceedings not weakening applicants’ positions so as to render subsequent proceedings for civil claims unfair ab initio: no violation
[This summary also covers the judgment Victor Laurențiu Marin v. Romania, no. 75614/14, 12 January 2020]
Facts – The applicant’s father in Laurențiu Marin died in a car accident which was the subject of a criminal investigation. The applicant in Mihail Mihăilescu made a criminal complaint against his former mother-in-law for perjury, in the wake of his divorce proceedings. Both applicants joined the respective criminal proceedings as civil parties and in respect of civil claims. These cases were subsequently the subject of proceedings before a pre-trial judge, who upheld the prosecutor’s office’s decision to discontinue them. The applicants appealed unsuccessfully. The relevant domestic provisions for pre-trial judge proceedings have since been amended, following a Constitutional Court finding that they were unconstitutional.
Law – Article 6 § 1: Both cases concerned the applicants’ civil claims, the applicants having complained of the unfairness of the criminal proceedings comprising these civil claims.
It was not for the Court to seek to impose any particular model on the Contracting Parties concerning the procedures, competences and role of investigating or pre-trial judges. These issues might involve important and sensitive questions about fairness and how to strike an appropriate balance between the parties to the proceedings, and the solutions to be adopted were linked with complex procedural matters specific to each constitutional order. Rather, the Court’s task was to conduct a review of the specific circumstances of the case, on the basis of the complaints brought before it.
In the instant cases, the proceedings before a pre-trial judge had concerned the preliminary stage of criminal proceedings, taken alone or jointly with claims by a civil party. Their main purpose had been to decide whether to commence a criminal trial in a case or to end a criminal-law dispute. Amongst other things, the pre-trial judge had been called upon to examine the lawfulness of an act of indictment or a decision not to indict, or decisions by the prosecutor’s office to discontinue or close the criminal proceedings in a case. The judge’s activities had not concerned the merits of the case, and their decisions had neither aimed at determining the essential elements of the alleged criminal offence, namely the act in question, the person who had committed it, and that person’s guilt, nor any civil claim lodged by a civil party within criminal proceedings. These points could have been determined by the criminal court only at the trial stage of the proceedings.
Nevertheless, Article 6 § 1 under its civil head was applicable from the moment that the victim, or their next of kin, joined the criminal proceedings as a civil party, even during the preliminary criminal investigation stage taken on its own. This preliminary investigation stage or pre-trial stage of criminal proceedings might be of importance for civil proceedings, both because of the decisive impact the outcome of the criminal proceedings might have, in certain circumstances, on civil proceedings, and because the evidence collected by the authorities could be used by the applicant in the civil proceedings and could prove essential for the determination of the claim. Given that under the national legal framework the applicants could have had the merits of their civil rights and obligations determined either within the context of a criminal trial, or within the context of separate civil proceedings, the Court had regard to all the proceedings open to them, including the handling of the case by the pre-trial judge, when determining whether their rights had been prejudiced.
In line with the relevant legal framework in place at the time, the proceedings before the pre-trial judge had been conducted in chambers and in the absence of the parties. The parties could only make written submissions before the pre-trial judge concerning the admissibility and merits of the complaint against the prosecutor’s office’s decision not to prosecute, could not rely on any legal provision expressly giving them the opportunity to ask for a public and oral hearing to be held by the pre-trial judge, and could not ask the pre-trial judge to administer again the available evidence or add new evidence to the case file, nor had the decisions been amenable to appeal. In Mihail Mihăilescu, the other participants had not been notified of all the submissions made by one of the participants to the proceedings.
Admittedly, depending on the circumstances, such decisions by the pre-trial judge could have had a more or less extensive effect on the examination of the civil limb of proceedings. However, the decisions affected rather the manner in which a criminal trial court that had been called upon to determine the merits of both criminal and civil limbs of proceedings following an indictment could examine a case and review evidence which had been deemed lawful or unlawful by the pre-trial judge. It did not seem that such decisions similarly affected the manner in which the civil court could examine a case and the necessary evidence, where it was called upon to determine civil proceedings separately, especially where the criminal proceedings had been discontinued at the pre-trial judge stage of the proceedings.
In Mihail Mihăilescu, the applicant had brought separate civil proceedings; however, there was no evidence as to the outcome of those proceedings. In Laurentiu Marin, the applicant had not brought separate civil proceedings. In both cases, the Court could not speculate as to what the precise outcome of those proceedings might have been. However, a final judgment of a criminal court was res judicata for civil courts, which had been called upon to examine a civil action, only with regard to the existence or lack of an act and the existence of evidence that a person had committed it. Those conditions did not seem to have been met with respect to the pre-trial judge’s decision in both cases. Even assuming that the decisions could be viewed as the final judgment of a criminal court, at no stage of the proceedings brought by the applicants had the investigations been discontinued or closed on the substantive grounds that the alleged perpetrators’ acts had not taken place or that they had not been the persons who had committed the acts. In both cases, the Court was not convinced that a separate civil action had been rendered obviously futile by any res judicata effect of the pre-trial judge’s decision. Nor had the applicants presented any other argument suggesting that a separate civil action against the alleged perpetrators would have been unfair ab initio, or would not have been compliant with the Article 6 § 1 guarantees.
The Court’s power to review compliance with domestic law was limited and it was in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention “incorporated” the rules of that law. It was therefore incumbent on aggrieved individuals to test the extent of the protection to fundamental rights offered by any legal system and to allow the domestic courts to apply those rights and, where appropriate, develop them in their power of interpretation.
In Laurențiu Marin, the applicant had also argued that he had been unable to have his case, including his civil claims, reviewed by an independent and impartial tribunal established by law because the pre-trial judge had lacked the competences and functions of a proper court. The guarantees set out in Article 6 under its criminal limb had not been applicable in the circumstances; moreover, the applicant could have brought separate civil proceedings against the alleged perpetrator which, in turn could have led to the merits of his civil action being determined in circumstances that complied with the guarantees set out under the civil limb of Article 6. Even assuming that the concept of a “tribunal” covered a pre-trial judge, the proceedings had not breached the requirements of lawfulness, independence and impartiality merely because the judge had been called upon to perform certain tasks without having the same powers as a court called upon to examine the merits of the case. The general competences and role of the pre-trial judge had been prescribed by the national legal framework in place at the relevant time. None of the available information suggested that the relevant judge had not complied with the requirements of independence and impartiality. In that connection, the pre-trial judge was a professional judge who had had to follow the same training programme and appointment procedure and observe the same rules concerning independence and impartiality as any other judge in the country.
Overall, the measures and decisions taken during the pre-trial judge proceedings in the circumstances of the applicants’ cases had not weakened their positions to such an extent that subsequent proceedings aimed at determining the merits of their civil claims would have been rendered unfair from the outset. These findings were without prejudice to the domestic authorities’ actions to set up a domestic legal framework in order to ensure a heightened level of protection compared with the Convention, as regards proceedings before a pre-trial judge.
Conclusion: no violation (unanimously).
In Laurențiu Marin, the Court also held, unanimously, that there had been no violation of Article 2 (procedural) in relation to the effectiveness of the investigation, and no violation of Article 13 (in conjunction with Articles 2 and 6), in respect of effective remedies.
(See also Nicolae Virgiliu Tănase v. Romania [GC], 41720/13, 25 June 2019, Information Note 230)