Last Updated on February 23, 2021 by LawEuro
Information Note on the Court’s case-law 248
February 2021
Iancu v. Romania – 62915/17
Judgment 23.2.2021 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Signing of judgment by court’s president on behalf of the judge, having in the meantime retired, who presided over the bench which deliberated on the case:no violation
Facts – Judge L.D.S., the president of a judicial formation of the High Court of Cassation and Justice (the “High Court”) which dismissed the applicant’s appeal against her conviction for aiding and abetting fraud, retired just after the deliberation on the case. As a result, the High Court’s judgment was signed on her behalf by Judge C.T., President of the High Court, and by the four judges of the formation who had taken part in the proceedings. The applicant criticised the fact that the judgment has been signed by C.T., who had not sat in the case.
Law – Article 6 § 1:
The Court did not find any breach of the principle of immediacy in the stages of the decision-making process which had led to the adoption of the High Court’s judgment for the following reasons.
The judgment had been delivered by the judicial formation to which the applicant’s appeal had been allocated; the same bench which had examined her statements and taken part in direct analysis of the evidence.
The judgment had been drafted by an assistant judge who had taken part in the hearings and deliberations and who had set out, on behalf of the bench, the grounds for the conviction, in accordance with domestic law. Thus neither the intervention of Judge L.D.S. or her possible replacement by another judge had been necessary at that stage; nor had Judge C.T. intervened at that time.
The High Court had found that the evidence in the file justified the applicant’s conviction and upheld the judgment handed down by the first-instance court after analysing the content of that judgment and making its own assessment of the facts and evidence. The reasoning of Facts – Judge L.D.S., the president of a judicial formation of the High Court of Cassation and Justice (the “High Court”) which dismissed the applicant’s appeal against her conviction for aiding and abetting fraud, retired just after the deliberation on the case. As a result, the High Court’s judgment was signed on her behalf by Judge C.T., President of the High Court, and by the four judges of the formation who had taken part in the proceedings. The applicant criticised the fact that the judgment has been signed by C.T., who had not sat in the case.
Law – Article 6 § 1:
The Court did not find any breach of the principle of immediacy in the stages of the decision-making process which had led to the adoption of the High Court’s judgment for the following reasons.
The judgment had been adopted by the judicial formation to which the applicant’s appeal had been allocated; the same bench which had examined her statements and engaged in direct analysis of the evidence.
The judgment had been drafted, in accordance with domestic law, by an assistant judge, who had taken part in the hearings and deliberations and who had set out, on behalf of the bench, the grounds for the conviction. Thus neither the intervention of Judge L.D.S. nor her possible replacement by another judge had been necessary at that stage. Besides, Judge C.T. had not intervened in the drafting.
The High Court had found that the evidence in the file justified the applicant’s conviction and it upheld the judgment handed down by the first-instance court after analysing the content of that judgment and making its own assessment of the facts and evidence. Its reasoning had therefore been accompanied by safeguards.
Judge L.D.S. had no longer been in office at the time when the text of the judgment’s reasoning was finalised and she had therefore objectively been unable to sign it. The judgment had thus been signed in her place by Judge C.T. in accordance with national legislation and the case-law of the High Court. A remedy was nevertheless available by which the applicant could have challenged the existence of such inability.
The rule that decisions must be signed by all members of a collegial formation was applied by the High Court, apart from where a judge was unable to sign. But the signing of a judgment by all members was not in fact a common standard in all Council of Europe member States. While in some States court decisions were signed by the president of the bench, alone or together with the clerk, in others the judge who signed the decision in the place of an absent judge did not necessarily have to be one of the judges who took part in the proceedings.
Furthermore, national legislation had limited the admissibility of the signing by the President of the High Court to only those cases where the judge hearing the case was unable to sign the decision, i.e., at a stage subsequent to the deliberations and to the drafting of the judgment. Judge C.T. had not taken part in the hearings or deliberations and her non-participation in the drafting had been confirmed by her handwritten note next to her signature stating that she was signing for Judge L.D.S. and not in her own name. Thus, the intervention of Judge C.T. had had no concrete consequences on the outcome of the case; and there had been no change in the composition of the High Court’s appellate formation.
Lastly, the applicant, assisted by the lawyer of her choosing, had previously been given the opportunity to obtain the re-examination of witnesses and the first-instance court had duly analysed the evidence in question. In those circumstances, and in view of the fact that a verdict of acquittal had not been overturned on the basis of a reassessment of the trustworthiness of witnesses (compare Dan v. the Republic of Moldova), the principles of a fair trial had not required a second hearing, on appeal, of those same witnesses.
Conclusion: no violation (unanimous).
(See also Dan v. Moldova, 8999/07, 5 July 2011; Cerovšek and Božičnik v. Slovenia, 68939/12 and 68949/12, 7 March 2017, Legal Summary; Svanidze v. Georgia, 37809/08, 25 July 2019, Legal Summary)
Leave a Reply