Information Note on the Court’s case-law 248
Negulescu v. Romania – 11230/12
Judgment 16.2.2021 [Section IV]
Examination of witnesses
Applicants’ conviction for minor offences based on decisive evidence of absent witnesses and lack of counterbalancing factors: violation
Reopening of domestic proceedings most appropriate form of redress for inability to hear witnesses of decisive weight for the conviction, save for non-pecuniary damage sought for distress
[This summary also covers the judgment Buliga v. Romania, no. 22003/12, 16 February 2021]
Facts – Criminal proceedings were brought against the applicants for minor offences but were discontinued. Although the prosecutor’s office considered that the applicants were guilty, their acts had not been serious enough to constitute a criminal offence. A fine was imposed. The applicants’ challenges before the domestic courts were unsuccessful.
The applicants complained that the proceedings had been unfair, the courts having relied on the statements of witnesses whom they had not been able to question.
Law – Article 6 § 1 in conjunction with Article 6 § 3 (d): Having established that the proceedings fell within the criminal limb of Article 6, the Court reiterated that the general requirements of fairness contained in that provision applied to all criminal proceedings, irrespective of the offence in issue. Consequently, they applied in these cases.
The Court then, applying the general principles set out in its judgments of Al-Khawaja and Tahery v. the United Kingdom [GC] and Schatschaschwili v. Germany [GC], found as follows:
Firstly, it emerged from the decisions in question that the domestic courts had made an assessment of the applicants’ guilt referring to the statements of the witnesses who had not appeared before them.
Secondly, under the applicable domestic law, the courts had been bound to examine the criminal complaints against the applicants based on the evidence in the file and any other additional documents. They had not been allowed to hear witness testimony. This, however, did not constitute a good reason justifying the non-attendance of the relevant witnesses for the purposes of Article 6. Furthermore, there had been no indication that the witnesses had been unavailable or that it had been difficult to summon them to appear in court.
Thirdly, the domestic courts had reached their decisions by relying on the witnesses’ statements. In Negulescu, the statement of the witness had also corroborated the medical evidence. It could therefore be inferred that the statements had been decisive for the courts’ conclusions in the cases.
Finally, there had not been sufficient counterbalancing factors to compensate for the handicap created for the defence as a result of the admission of the decisive evidence of the absent witnesses. Although, an important safeguard would have been to have given the applicants or their defence counsel an opportunity to question the witnesses during the investigation stage, the defence had not been informed of the date of the witnesses’ interviews or invited to participate. Nor had the applicants been present or represented during police questioning. In Buliga, there had been no response to the applicant’s claims regarding witness intimidation by the police. Moreover, despite the applicants’ challenges to the evidence and, in Buliga, a request for additional evidence, the domestic courts had based their decisions solely on the evidence in the case files. Further, they had not availed themselves of other means at their disposal to ensure, at least in theory, better protection of the defence’s rights. More specifically, it had been open to them under domestic law to set aside the decisions taken by the prosecutor’s office, refer the cases back to that office or examine them further in proper criminal proceedings, as a first instance court. Instead, the courts had upheld the decisions without hearing evidence, thus frustrating the applicants’ opportunity to cross-examine the witnesses whose testimony had been of decisive importance.
In sum, the domestic courts had deprived the applicants of the possibility of having their case examined in compliance with Convention requirements.
Conclusion: violation (unanimously).
Article 41: Reopening of the domestic proceedings most appropriate form of redress given the nature of the applicants’ complaints; EUR 1,000 in Negulescu and EUR 4,000 in Buliga in respect of non-pecuniary damage for the distress suffered by the applicants not compensated solely by reopening or the finding of a violation; no award in respect of pecuniary damage in both cases.
(See also Jalloh v. Germany [GC], 54810/00, 11 July 2006, Legal Summary; Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Legal Summary; Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Legal Summary; Blokhin v. Russia [GC], 47152/06, 23 March 2016, Legal Summary)