IONESCU v. ROMANIA (European Court of Human Rights)

FOURTH SECTION
DECISION

Application no. 38134/10
Alin-Marius IONESCU
against Romania

The European Court of Human Rights (Fourth Section), sitting on 3 July 2018 as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 28 June 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Alin-Marius Ionescu, is a Romanian national, who was born in 1977 and lives in Giurgiu. He was represented before the Court by Ms C. Boghină, a lawyer practising in Bucharest.

2.  The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

A.  The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Criminal investigation

4.  On 2 November 2004, S.A. lodged a criminal complaint against the applicant and his girlfriend, M.A., with the Bologna police. She stated that the applicant had promised her help in finding a job in Italy. He had then helped her to obtain a passport, even paying the necessary fees to the issuing authority. However, once S.A. had arrived in Italy, on 5 October 2004, the applicant and M.A. had taken her passport and had forced her into prostitution so that she could pay the money owed to them for the passport and her journey from Romania to Italy. S.A. also submitted that the applicant had been violent and that when she had asked to be allowed to return to Romania he had beaten her. She also stated that she had been helped to escape by a non-profit organisation, which had offered her a safe place to stay until her return to Romania.

5.  An official report, dated 3 November 2004, noted that S.A. had visible bruises near her left eye.

6.  On 9 November 2004 S.A. showed Italian police officers the flat in which she had been held against her will. A search was carried out by the Italian police officers at the flat indicated by S.A. The flat belonged to M.A.’s parents and was used by the applicant and M.A. at the time of the events. A few other persons lived with them.

7.  Five other persons (A.C., C.A., P.A.L., A.C.F. and M.C.E), who were living in the flat at the time of the search, were taken to the police headquarters and invited to give statements. According to a report drafted by the Italian police, only A.C. gave a written statement.

8.  On 28 October 2005 R.P., a police officer of the Giurgiu Police Inspectorate, proposed that an investigation be opened against the applicant and M.A. for human trafficking. The prosecutor’s office of the Giurgiu Department for the Investigation of Organised Crime and Terrorism tasked the police officers of the Giurgiu Police Inspectorate with the identification of the applicant, the questioning of the victims and witnesses, and any other activities considered necessary by the investigators. The Italian authorities sent the evidence collected to the Romanian investigative body.

9.  On 29 March 2006 R.P. proposed the opening of another criminal investigation against the applicant and his girlfriend for trafficking in respect of two other girls, P.A.L. and M.C.E., who had been found in the flat occupied by the accused in Bologna (see paragraph 7 above).

10.  On 30 March 2006 the prosecutor decided to join the two files.

11.  I.I. was the police officer in charge of both files at the initial stage of the investigation. He questioned most of the witnesses and the victims at the pre‑trial stage of the investigation.

12.  On 6 April 2006 P.A.L. gave a written statement. She stated that the applicant had promised his help in finding her a job in Italy. He had paid for her passport and her transportation to Italy. After her arrival in Italy, the applicant had confiscated her passport and had informed her that he could not obtain the envisaged job for her. He had coerced her into prostitution in order for her to be able to pay him back the expenses incurred in bringing her to Italy. She had worked for the applicant, together with M.C.E. (see paragraph 12 and 14 above). After one month, when she had asked the applicant to give her back her passport, he had refused. She further stated that she had been in the flat when the Italian police had carried out the search on 9 November 2004 (see paragraph 6 above). She had been taken to the police station, but she had not given any statement. After the search, M.A.’s father had paid for return tickets for her and M.C.E. and had sent them back to Romania.

13.  At the end of the preliminary stage, on 9 June 2006, police officer I.I. sent the case file to the prosecutor’s office attached to the Giurgiu County Court. He noted that there was sufficient evidence for the institution of criminal proceedings against the applicant and his girlfriend, both of whom had recruited, ensured the transportation of, and harboured two girls, S.A. and P.A.L., for the purpose of their sexual exploitation.

14.  Most of the witnesses heard by I.I. were re-heard by the prosecutor.

15.  Three witnesses, I.P., N.C. and G.A., referred to the applicant’s attempts to intimidate S.A. into changing her statements after her return to Romania. They submitted that the applicant had threatened S.A. and her mother on several occasions.

16.  For example, they stated that on 21 January 2005 the applicant had gone to S.A.’s home with his cousin, I.P., and asked her to sign a statement prepared by him.

17.  On 17 September 2007 S.A. gave a statement to the prosecutor. She stated that she had left Romania for Bologna with N.I. by bus. The applicant and his girlfriend, M.A., had forced both of them to work as prostitutes in order for them to pay back the money spent on their passport and transport. She also claimed that after her return to Romania she and her mother had been constantly threatened by the applicant. He had forced her to write a statement that she had not been sexually exploited by him and that in fact it had been she who had insisted on coming to live with him in Bologna.

18.  On 23 October 2007 the Giurgiu prosecutor’s office indicted the applicant and his girlfriend for human trafficking in respect of only one victim, S.A. (as the part of the case concerning the other victims had been disjoined in the meantime) and sent their case to trial.

2.  Proceedings before the first-instance court

19.  At a hearing held on 13 February 2008 the applicant and S.A. were heard by the court. The applicant denied that he had paid for S.A.’s passport and transport. Moreover, he stated that although he had offered her accommodation for one night only she had refused to leave afterwards.

20.  S.A. reiterated her initial version of the facts, as presented to the Italian authorities and to the Romanian prosecutor (see paragraphs 4 and 17 above). The applicant, assisted by a lawyer of his choice, was given the opportunity to cross-examine S.A.

21.  The applicant’s lawyer requested that a copy of the statement given by P.A.L. to the Italian police officers on the occasion of the search of the flat in Bologna be submitted to the file. The court refused this request on the grounds that P.A.L. had not given any statement to the Bologna Police (see paragraphs 7 and 12 above).

22.  On 25 March 2008 the Giurgiu County Court heard a witness, V.D.I. She stated that the applicant had asked her to come and work in Italy and had paid the fees for her passport. She had later changed her mind and had decided to go to Spain.

23.  At the same hearing, S.A.’s ex-boyfriend, G.A., gave a statement. He stated, inter alia, that in January 2005 the applicant had come to his home (where S.A. had lived until February 2005) and had asked him to convince S.A. to withdraw her complaint against him. Moreover, in February 2005 the applicant had come to S.A.’s home, where G.A. had happened to be present, and had asked her to write a statement. After S.A. had written the statement as requested, the applicant had asked G.A. to sign the statement, but he had refused. He had also noted that S.A. and her mother had looked very frightened and her mother had called the police.

24.  On 25 March 2008 the Giurgiu County Court also heard S.A’s mother. She stated that the applicant had repeatedly called her daughter after her return from Italy, asking her to withdraw her complaint. He had promised to give back her passport and belongings in exchange for her giving a statement that nothing had happened in Italy. As her daughter had refused to give such a statement he had continued to call and threaten her. In addition to telephoning he had several times come to their home by car, especially at night, and walked around it; this had prompted her to inform the local police and ask for protection. After her daughter had written a statement, as demanded by him, he had stopped making calls and threats.

25.  At the same hearing S.A’s lawyer submitted evidence that she had been admitted to a programme for the protection of victims of human trafficking.

26.  At a hearing held on 6 May 2008 the Giurgiu County Court heard another witness, N.G.C. He stated that in 2004 the applicant had called and had asked him to take a girl (N.I. – see paragraph 17 above) to Bucharest and help her to get a passport. He had refused, claiming that his girlfriend was jealous.

27.  Two witnesses, who shared the flat in Bologna with the applicant and his girlfriend, gave statements on 3 November and 15 December 2008 respectively. They did not agree with the version of events presented by S.A. They stated that S.A., an old acquaintance of the applicant, had been living in the flat until she had been able to find a job.

28.  The Giurgiu County Court subpoenaed P.A.L. to attend each hearing. As she did not attend any hearing the court ordered that she be brought before the court by a police officer. However, the orders could not be executed as she had not been found at the address indicated by her when she had given her first statement. According to a police report of 30 June 2008, she had left the country for Italy and her address abroad was unknown.

29.  At the last hearing held on 23 February 2009, the statement given by P.A.L. on 6 April 2006, at the investigation stage (see paragraph 12 above), was read out in court as it was noted that despite repeated summons at her domicile she could not be heard by the court.

30.  In his last pleadings submitted before the court, the applicant stated that he was innocent and that the whole trial had been set up by I.I., the police officer, who he alleged was in an intimate relationship with S.A.

31.  The Giurgiu County Court delivered its judgment on 14 April 2008. It held that the applicant and M.A. had forced S.A. into prostitution. Accordingly, it convicted them of human trafficking and sentenced them to six years’ imprisonment.

32.  The court relied on statements given by S.A. (see paragraph 20 above), P.A.L. (see paragraph 12 above) and V.D.I. (see paragraph 22 above), as well as on the file sent by the Italian authorities containing S.A’s complaint and records of the procedural acts carried out by them. The court noted that in spite of the efforts made to hear P.A.L., she could not be found at the address indicated by her at the investigation stage and by the applicant’s lawyer (see paragraphs 28 and 29 above).

33.  The court also noted that the applicant himself had recognised in one of his statements that he had covered the passport and transport expenses for S.A., N.I. and P.A.L. Moreover, the applicant’s modus operandi had been confirmed by another girl, V.D.I. She had stated that the applicant would promise to find young girls jobs as housekeepers in Italy, pay their expenses and after their arrival in Italy confiscate their passport and coerce them into prostitution. She had received the same promises and although she had initially intended to go she had then changed her mind because she had not trusted the applicant (see paragraph 22 above).

34.  The fact that the applicant had organised the departure of N.I., who had left Romania with S.A., was confirmed by N.G.C. (see paragraph 26 above).

35.  The court further noted all the applicant’s attempts to intimidate S.A., as confirmed by her mother and witness G.A., and that eventually he had managed to coerce S.A. into signing a statement exonerating him of any wrongdoing (see paragraphs 23 and 24 above).

3.  Proceedings before the appellate courts

36.  The applicant and M.A. appealed. They complained about the way in which the court of first instance had assessed the evidence. In this connection they also complained that the court had not taken into account the statement written and signed by S.A. (see paragraph 35 above), which had been submitted by them for inclusion in the file.

37.  On 16 November 2009 the applicant asked the court to hear P.A.L. and indicated a new address in Romania where she could be reached and summoned. He also asked whether among the documents sent by the Italian authorities there had been a statement given by P.A.L. The court noted that according to the report prepared by the Italian authorities (contained in the case file), P.A.L. had not given any statement when taken to Bologna police station in November 2004 (see paragraphs 7, 12 and 21 above). The court noted that although the court of first instance had summoned P.A.L. (and had even issued orders to have her brought to the hearings by police officers) she could not be found at her domicile as she had left for Italy (see paragraphs 28, 29 and 32 above).

38.  At the last hearing before the Bucharest Court of Appeal, on 14 December 2009, the applicant’s lawyer requested the re-hearing of S.A. without indicating why he needed her to be re-heard. The appeal court dismissed the request on the grounds that S.A. had already been heard (see paragraph 20 above) and there were no new elements to justify re‑hearing her.

39.  As P.A.L. could not be found, the applicant, assisted by his lawyer, expressly waived his right for P.A.L. to be heard.

40.  The applicant was heard by the appeal court at the same hearing. He stated that he did not know P.A.L.

41.  In his final submissions the applicant’s lawyer maintained that the evidence against the applicant was insufficient to rebut the presumption of innocence. He also referred to the alleged intimate relationship between S.A. and police officer I.I. (see paragraph 30 above).

42.  The appeal court dismissed the applicant’s appeal, upholding the decision of the first-instance court. It noted that the applicant and M.A. had only sought a re-assessment of the evidence adduced before the court of first instance, without proposing new evidence or new elements of fact. The appeal court considered that the lower court had thoroughly examined all the evidence adduced by the parties, paying special attention to the documents sent by the Italian authorities and the statements given by S.A.

43.  The applicant lodged an appeal on points of law with the High Court of Cassation and Justice. He challenged the evidence on which the courts at the first two levels had based their decisions. He contended that he had been convicted on the basis of the contradictory statements of S.A, the statement given by P.A.L. at the pre-trial stage of the investigation in his absence, the statements given by close family members of S.A. (which had been based on hearsay information), and statements given under pressure to the police by several witnesses. He also claimed that the report drafted on the occasion of the search of the flat by Italian police officers on 9 November 2004 (see paragraphs 6 and 7 above) had not revealed his alleged involvement in human trafficking.

44.  On 26 February 2010 the applicant’s lawyer submitted several documents, including a copy of a statement given by S.A. before a public notary in which she had described her relationship with police officer I.I. and a copy of a criminal complaint lodged by the applicant against police officer I.I. for abusive investigation.

45.  On 19 March 2010 the High Court of Cassation and Justice dismissed the applicant’s appeal on points of law, upholding the decisions of the lower courts. The court did not make any reference to the statement given by S.A. before a public notary on 23 February 2010 or to the criminal complaint lodged by the applicant against I.I. (see paragraph 44 above).

4. Criminal proceedings against police officer I.I.

46.  On 9 February 2010 the applicant lodged a criminal complaint against I.I., claiming that the latter had committed the offence of abusive investigation (cercetare abuzivă– see paragraph 44 above). The applicant argued that police officer I.I. had initiated a criminal investigation against him while he had been living with S.A.

47.  The prosecutor’s decision not to institute criminal proceedings against I.I. was upheld by a decision delivered on 26 April 2011 by the Giurgiu County Court. The court noted that S.A. and police officer I.I. had lived together between August 2006 and April 2009. It noted, however, that their relationship had started after I.I. had referred S.A.’s case to the prosecutor on 9 June 2006 (see paragraph 13 above). Moreover, the criminal investigation against the applicant for human trafficking had been prompted by the Italian authorities, who had informed the Romanian authorities of S.A.’s complaint. The investigation had been instituted by police officer R.P. (not by I.I. – see paragraph 8 above) and the prosecutor had delegated I.I. to perform only certain activities at the pre-trial stage of the investigation.

48.  The court further pointed out that in its view, the only motivation that had prompted the applicant to lodge a criminal complaint against I.I. had been the need to obtain evidence to overturn his conviction. It also noted that the applicant and M.A. had been convicted on the basis of ample evidence and that the evidence heard by I.I. at the investigation stage had not played a significant role in their conviction. The court concluded by noting that there was no evidence in the case file that I.I. had tried to influence witnesses with threats or violence.

B.  Relevant domestic law

49.  Article 327 § 3 of the Romanian Code of Criminal Procedure (“the CCP”), as in force at the relevant time, provided that when it was impossible for a court to hear a witness it would read out the testimony given by him or her at the pre-trial stage of the proceedings and would take it into consideration when examining the case.

50.  Pursuant to Article 385 (14) of the CCP, as in force at the material time, the High Court of Cassation did not have the power to hear witnesses.

51.  Under Article 21 of Law no. 678/2001 on the fight against human trafficking (the article was repealed on 1 February 2014), only a prosecutor could conduct a criminal investigation concerning offences related to human trafficking.

COMPLAINT

52.  The applicant complained that the criminal proceedings conducted against him on charges of human trafficking had violated his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention.

THE LAW

53.  The applicant complained that the fairness of the criminal proceedings against him had been undermined because he had been unable to cross‑examine P.A.L., a witness heard by police officer I.I. in his absence at the pre-trial stage of the investigation (see paragraphs 11 and 12 above). He also claimed that the appellate courts had rejected his request to have S.A. re-heard (see paragraph 38 above). He complained that the domestic courts had not addressed the argument put forward in his defence (see paragraphs 30, 41 and 44 above) that police officer I.I., who had heard most of the witnesses at the investigation stage, had been involved in an intimate relationship with S.A.

He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:

“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”

3.  Everyone charged with a criminal offence has the following minimum rights:

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …”

54.  As the Court has held many times, the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 (see, among many other authorities, Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010, and Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015). The latter is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case. The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 250, ECHR 2016, with further references). In the present case, the Court will proceed with a separate examination of the different aspects of the applicant’s complaint that his trial had not been fair.

A.  The absence of witness P.A.L. at the applicant’s trial

1.  The parties’ submissions

(a)   The applicant

55.  The applicant submitted that the domestic authorities should have made more efforts to locate P.A.L., whose address remained unknown.

(b)   The Government

56.  The Government submitted that the domestic authorities had subpoenaed P.A.L. and had undertaken reasonable efforts to locate her. They had not been able to find her as she had left for Italy and her address in Italy had been unknown.

57.  The Government acknowledged that although P.A.L.’s testimony had been important in securing the applicant’s conviction it could not be considered as constituting either the sole or decisive evidence supporting his conviction. Her identity had been well-known by the applicant as she had been living in his flat at the time that the Italian police had searched it. Moreover, on 14 December 2009, before the final oral submissions, the applicant’s lawyer had stated that he had withdrawn his request for P.A.L. to be heard (see paragraph 39 above).

2.  The Court’s assessment

58.  The principles to be applied when a witness does not attend a public trial were set out in the case of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-147, ECHR 2011), and further clarified in Schatschaschwili (cited above, § 107 and §§ 111‑131). These principles were recently summarised in the case of Seton v. the UnitedKingdom (no. 55287/10, §§ 58-59, 31 March 2016), as follows:

“58.  In Al-Khawaja and Tahery v. the United Kingdom, cited above, §§ 119‑147 the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows:

(i)  the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;

(ii)  typical reasons for non-attendance are, like in the case of Al‑Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial;

(iii)  when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;

(iv)  the admission as evidence of statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;

(v)  according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;

(vi)  in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;

(vii)  however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;

(viii)  in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.

59.  Those principles have been further clarified in Schatschaschwili v. Germany, cited above, §§ 111 – 131, in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair.”

(a)  Whether there was a good reason for the non-attendance of P.A.L. at the trial

59.  With regard to the first question as to whether there was a good reason for the non-attendance of P.A.L. at the trial, the Court observes that the domestic courts made efforts to enquire about the reasons for the P.A.L.’s absence and to secure her attendance. The first-instance court had repeatedly summoned the witness unsuccessfully and subsequently resorted to the help of police in order to force her to appear. In addition, it repeatedly asked the relevant domestic authorities to provide information on her potential whereabouts. The domestic authorities appear to have made efforts to find her location and to enquire about the reasons for her absence. In particular, the authorities established that P.A.L. had left the country for Italy (see paragraph 28 above).

60.  However, the authorities appear to have made no further efforts to establish the whereabouts of P.A.L. They accepted the reply they received – that P.A.L. was living in Italy, at an unknown address – without making any further enquiries, and it does not appear from the available evidence that they made any attempts to establish her exact location by resorting to international legal assistance mechanisms (see, mutatis mutandis, Ben Moumen v. Italy, no. 3977/13, §§ 45-51, 23 June 2016).

61.  Being required to have regard to the specific situation of each case, the Court notes that before discontinuing the efforts to compel P.A.L. to attend the hearings, the appellate court consulted the applicant’s counsel, who explicitly withdrew the request that P.A.L. be summoned to be heard (see paragraph 39 above).

62.  Therefore, even though the domestic courts could have exerted greater efforts to summon P.A.L. to attend the trial, this should be weighed against the applicant’s waiver of his right to summon this witness. The Court therefore concludes that in these circumstances the absence of P.A.L. should not weigh heavily in the assessment of the overall fairness of the proceedings.

63.  At the same time, observing the applicant’s objections against admitting P.A.L.’s pre-trial statement as evidence, the Court will continue assessing whether the reading out of that statement by the domestic courts at the first two levels of jurisdiction had a negative impact on the overall fairness in the criminal case.

(b) Whether the evidence of the absent witness, P.A.L., constituted the sole or decisive basis for the applicant’s conviction

64.  As to the weight of the evidence of the absent witness, P.A.L., the Court does not find it clearly established that it had a sole and decisive role. The Court observes that the applicant’s guilt was established on the basis of a large body of evidence, including the statements given by the applicant and several witnesses other than P.A.L., as well as documentary evidence sent by the Italian authorities (see paragraphs 32 and 33 above). Nevertheless, as it cannot be excluded that P.A.L.’s statement had carried a significant weight, and given the need under Article 6 to assess the fairness of the proceedings taken as a whole, the Court still has to determine whether there were sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence (see Seton, cited above, §§ 59 and 64).

(c)  Whether there were sufficient counterbalancing factors

65.  On the existence of counterbalancing factors, the Court observes that, taking note of the actual weight of P.A.L.’s statements (see paragraph 64 above), the possibility for the applicant to give his own account of the facts and to point out any incoherence in the statements of P.A.L. could have counterbalanced potential difficulties imposed on the defence (see, mutatis mutandis, Aigner v. Austria, no. 28328/03, § 43, 10 May 2012). The Court notes that instead of taking advantage of this opportunity to provide the domestic courts with his comments on P.A.L.’s statement the applicant preferred to state that he did not know P.A.L. (see paragraph 40 above) – even though she had been found in the flat occupied by him in Bologna when the Italian police had conducted a search of that flat (see paragraph 7 above).

66.  The Court also observes that the applicant was at all times represented by counsel, who effectively conducted his defence.

67.  Another significant safeguard was the availability at the trial of corroborative evidence supporting P.A.L.’s untested witness statement. In the present case the domestic courts’ judgments show that they had recourse to a broad range of evidence. As can be seen from the reasoning of those judgments, P.A.L.’s statements were used to support the other evidence.

68.  Therefore, noting the domestic courts’ rigorous assessment of all the evidence, which showed no sign of arbitrariness, the Court finds that the absence of P.A.L. at trial and the use of the statement given by her at the investigation stage do not disclose any appearance of violation of the applicant’s Article 6 rights.

69.  It follows that this part of the application is manifestly ill‑founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B.  S.A.’s testimony

1.  The parties’ submissions

70.  The applicant claimed that the criminal proceedings had been conducted in breach of his defence rights. He referred in this regard to the refusal of the appellate courts to re-hear S.A. (see paragraph 38 above). He contended that while it was true that he and his counsel had been able to question her before the court of first instance, they had not been able to confront her later.

71.  The Government argued that an adversarial hearing of S.A. had taken place before the first-instance court in the presence of the applicant and his counsel (see paragraph 20 above).

72.  In addition, the court of last resort had not taken into account the statement given by S.A. before a public notary because, as could be seen from the witnesses’ testimony, it had been given under duress. Referring to the case of Tyagunova v. Russia (no. 19433/07, § 68, 31 July 2012), the Government submitted that S.A. had been clearly affected by the actions undertaken by the applicant. Specifically, the applicant had tried to take advantage of the vulnerable state of the victim, who – after he had repeatedly exerted pressure on her – had been coerced into writing a statement, which the court of last resort had rightfully disregarded.

2.  The Court’s assessment

73.  The Court notes that S.A. gave evidence before the court of first instance (see paragraph 20 above).The applicant and his lawyer, who cross-examined her, had ample opportunity to challenge the reliability and credibility of her statements in open court (see, mutatis mutandis, Previti v. Italy (Dec.), no. 45291/06, § 222, 8 December 2009).

74.  Moreover, the appellate court which refused the applicant’s request to re-hear S.A. held that there were no new elements that would justify obtaining a fresh statement from her. The Court considers this conclusion not to be arbitrary and notes that the applicant did not indicate in his request the reasons why he needed S.A. to be re-heard (see paragraph 38 above). Moreover, the present case can be distinguished from those where a verdict of acquittal is reversed by the second or third instance court on the basis of a new assessment of the credibility of a key witness (see, amongst many other authorities, Găitănaru v. Romania, no. 26082/05, § 35, 26 June 2012, and Hogea v. Romania, no. 31912/04, § 54, 29 October 2013).

75.  In the light of the above-mentioned considerations, the Court holds that the refusal of the appellate court to re-hear S.A. does not disclose any appearance of violation of the principles of fair trial according to Article 6.

76.  It follows that this part of the application is manifestly ill‑founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C.  The role played by police officer I.I. in the investigation

1.  The parties’ submissions

(a)  The applicant

77.  The applicant submitted that the domestic courts had not addressed the argument put forward in his defence (see paragraphs 30, 41 and 44 above) that police officer I.I., who had heard most of the witnesses at the investigation stage, lacked objectivity in dealing with the case because he had been involved in an intimate relationship with S.A.

(b)  The Government

78.  The Government pointed out that under Article 21 of Law no. 678/2001 only the prosecutor had been able to conduct the criminal investigation; the police officers had been delegated particular tasks by the prosecutor (see paragraph 51 above). Therefore, they insisted that the role played by I.I. – even at the initial stage of the investigation – had not been as important as the applicant claimed. He had had no authority to institute criminal proceedings against the applicant; after all the preliminary investigative measures delegated by the prosecutor had been completed he had simply referred the case to the prosecutor with a proposal in this respect.

79.  They acknowledged that I.I.’s conduct had in fact been highly unprofessional; however, according to the evidence in the case none of the witnesses had complained that they had been coerced by him into giving evidence against the applicant and/or had lodged any complaint against I.I. (the Government relied, in this respect, on Andrei Iulian Roşca v. Romania, no. 37433/03, § 38, 3 May 2011)

80.  While the Government agreed that I.I. had questioned most of the witnesses, they pointed out that the prosecutor had questioned again all the witnesses on whose testimony the prosecution had relied on during the trial (see paragraph 14 above).

81.  Moreover, the domestic courts had examined the credibility of the victim and of the other witnesses heard by I.I. and by corroborating their testimony with other pieces of evidence in the case file had concluded that the applicant was guilty of human trafficking.

2.  The Court’s assessment

82.  The Court reiterates that Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288, and Perez v. France [GC], no. 47287/99, § 81, ECHR 2004‑I). The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is, moreover, necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. Accordingly the question whether a court has failed to fulfill the obligation to state reasons, deriving from Article 6, can only be determined in the light of the circumstances of the case. If a submission would, if accepted, be decisive for the outcome of the case, it may require a specific and express reply by the court in its judgment (see Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303‑A, and Hiro Balani v. Spain, 9 December 1994, §§ 27-28, Series A no. 303‑B).

83.  Turning to the present case, the Court notes that the domestic courts which convicted the applicant of human trafficking did not address his submissions that police officer I.I. had a personal interest in the case in view of his relationship with the victim (see paragraph 45 above).

84.  Taking into account the fact that the courts are not obliged to give a detailed answer to any argument raised, the Court will examine whether the applicant’s submissions could have been decisive for the outcome of the proceedings.

85.  In this respect the Court notes that the role played by I.I. in the criminal proceedings was limited to the performance of particular tasks (delegated to him by the prosecutor) at the initial stage of the investigation. As he had no authority to institute criminal proceedings, after all the preliminary investigative measures delegated by the prosecutor had been completed, he had merely referred the case to the prosecutor with a recommendation that criminal proceedings be instituted against the applicant (see paragraph 13 above). Most of the witnesses heard by I.I. again gave evidence before the prosecutor and the courts (see paragraph 14 above).

86.  These arguments could justify, in the Court’s view, why the domestic courts did not consider it necessary to examine the relevance of the intimate relationship between the victim and I.I.

87.  The Court therefore considers that, in the particular circumstances of the case, the failure of the domestic courts to provide a specific response as to the applicant’s complaint regarding the alleged lack of objectivity on the part of police officer I.I. was not decisive for the outcome of the case.

88.  Making a general assessment, the Court notes that the domestic courts delivered reasoned judgments that touched on the main points raised by the applicant.

89.  Moreover, the Court takes into account the fact that the Giurgiu County Court had the opportunity to examine the applicant’s submissions concerning the alleged lack of objectivity of police officer I.I. when it examined the applicant’s criminal complaint against I.I. for abusive investigation (see paragraph 46 above). It also examined the possible impact of the intimate relationship between S.A. and police officer I.I. on the result of the criminal proceedings and concluded that the only motivation that had prompted the applicant to lodge a criminal complaint against I.I. had been the need to obtain evidence to overturn his conviction (see paragraphs 47 and 48 above).

90.  Given the circumstances, the Court finds no appearance of violation of the requirements of Article 6 § 1 of the Convention as to the obligation to give reasoning in a judicial decision.

91.  It follows that this part of the application is manifestly ill‑founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 July 2018.

Andrea Tamietti                                               Paulo Pinto de Albuquerque
Deputy Registrar                                                             President

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