FOURTH SECTION
\nDECISION<\/p>\n
Application no. 37352\/12
\nDan NUNA
\nagainst Romania<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 3\u00a0July 2018 as a Committee composed of:<\/p>\n
Paulo Pinto de Albuquerque, President,
\nEgidijus K\u016bris,
\nIulia Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 22 May 2012,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Dan Nuna, is a Romanian national, who was born in 1973 and lives in Zal\u0103u. He was represented before the Court by Mr R. L. Chiri\u0163\u0103, a lawyer practising in Cluj-Napoca.<\/p>\n 2.\u00a0\u00a0The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, of the Romanian Ministry of Foreign Affairs.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 6 April 2007 the S\u0103laj Prosecutor\u2019s Office opened criminal proceedings against the applicant and a co-defendant, indicted them for negligent service and sent their case for trial.<\/p>\n 5.\u00a0\u00a0By a judgment of 25 January 2012 the Zal\u0103u District Court acquitted the applicant and his co-defendant on the ground that not all the elements of the offence were met. Relying mainly on expert and documentary evidence, but also on the statement of the applicant\u2019s co-defendant as confirmed by the testimony of the witness D.M., the court held that both the applicant and his co-defendant had fulfilled their professional duties negligently and that they have provoked some damage. However, by relying mainly on expert and documentary evidence, but also on statements by the applicant and his co-defendant as confirmed also by the testimonies of the witnesses N.B. and E.A., the court held that there were also a number of other factors, apart from the defendants\u2019 negligence, which might have contributed to cause the damage. Therefore there was no clear causal link between the defendants\u2019\u00a0actions and the damage in question.<\/p>\n 6.\u00a0\u00a0The S\u0103laj Prosecutor\u2019s Office lodged an appeal on points of fact and law (hereinafter referred to as \u201cthe appeal\u201d) against the judgment with the Cluj Court of Appeal. The prosecutor\u2019s office motioned the last instance court, amongst other things, to quash the judgment of the lower court, to retain the case for examination and to convict the applicant and his co\u2011defendant.<\/p>\n 7.\u00a0\u00a0During the hearing of 3 April 2012 the Cluj Court of Appeal proceeded to examine the appeal in the presence of the applicant, his co\u2011defendant and their chosen legal representatives. After having noted that they had been acquitted by the lower court, the court heard the applicant and his co-defendant and allowed the applicant\u2019s lawyer to put questions to the co-defendant. Subsequently, the court asked both defendants to state whether they wished for their case to be examined under the summary procedure in the event of a conviction. It further gave the parties the opportunity to submit any further requests and allowed them to present their appeal arguments orally. The applicant was eventually allowed to address the court last.<\/p>\n 8.\u00a0\u00a0The court noted that the applicant had maintained the statement he had given before the lower court, and that he declared that he did not have anything else to add. The applicant\u2019s lawyer did not have any questions to the applicant\u2019s co-defendant or any further requests to the court. In addition, the applicant refused to accept that his case be examined under a summary procedure. Furthermore, the applicant\u2019s lawyer had stated that he had rebutted all the appeal arguments of the prosecutor\u2019s office in the written submissions he had made to the court. Also, he had focused his oral submissions only on some of the points which he considered essential,\u00a0including the fact that there was no causal link between the defendants\u2019 negligent actions and the alleged damage.<\/p>\n 9.\u00a0\u00a0The court adjourned the proceedings until the deliberations on 10\u00a0April 2012 and in order to allow the parties to make written submissions.<\/p>\n 10.\u00a0\u00a0By a final judgment of 10 April 2012 the Cluj Court of Appeal allowed the appeal of the S\u0103laj Prosecutor\u2019s Office. It set aside the decision of the first instance court with respect to the acquittal of the applicant and his co-defendant, and retained the case for fresh consideration without setting a date for a new hearing. It found the applicant guilty as charged and sentenced him to two years\u2019 imprisonment, suspended. By relying mainly on expert and documentary evidence, but also on the statement of the applicant\u2019s co-defendant, the court held that it was proven that the applicant and his co-defendant had acted negligently, that they had caused some damage and that they had been aware of the damage they were causing. Consequently, all the elements of the offence were met in their case.<\/p>\n 11.\u00a0\u00a0The applicant lodged an extraordinary appeal, seeking annulment of the judgment of 10 April 2012. Relying also on the case-law of the European Court of Human Rights he argued, inter alia, that the last-instance court had failed to hear him after it decided to quash the judgment of the lower court, although according to Article 38516 of the former Code of Criminal Procedure (hereinafter referred to as \u201cthe CCP\u201d) it had a duty to do so. The domestic doctrine was unanimous in the opinion that, in circumstances such as those in his case, the examination of the appeal had two stages. The first stage concerned exclusively the examination of the lawfulness of the lower court\u2019s judgment in order to determine whether the said judgment had to be upheld or not. At this stage the last instance court had to hear a defendant pursuant to Article 38514 of the CCP. However, if the lower court\u2019s acquittal judgment was quashed and the last-instance court retained the case for re-examination, the latter court would be called to re\u2011consider the facts of the case. Consequently, it would have to comply with the procedural obligation set out in Article 38516 of the CCP. The two procedural obligations were distinct and in the applicant\u2019s case the last\u2011instance court had complied only with the obligation provided in Article 38514 of the CCP.<\/p>\n 12.\u00a0\u00a0The applicant argued further that because he was unaware of the last-instance court\u2019s intention to quash the lower court\u2019s judgment he had not asked that court to adduce evidence to the case-file. He considered that because he had been acquitted by the lower court it was neither necessary, nor the appropriate procedural moment, to ask for evidence to be included in the case-file.<\/p>\n 13.\u00a0\u00a0On 14 June 2012 the Cluj Court of Appeal dismissed the applicant\u2019s extraordinary appeal. It held that on 3 April 2012 the last instance court had complied with its lawful duty to hear the applicant as required by Article 38514 of the CCP (see paragraphs 7 and 8 above). The last instance court could not have pre-judged the case and expressly notified the applicant that it would start examining the merits of the appeal during the same hearing. The applicant could have anticipated such a possibility given that only the prosecutor\u2019s office had appealed against the lower court\u2019s judgment, seeking the applicant\u2019s conviction on the basis of the available evidence, without asking for additional evidence to be included in the case-file. The applicant\u2019s extraordinary appeal would have been well-founded only if he had also appealed against the lower court\u2019s judgment, and the last-instance court would have retained the case for re-examination and for adducing evidence. By hearing the applicant, the last-instance court had complied with the requirements set out in the European Court of Human Right\u2019s case\u2011law. Moreover, the last-instance court could not be held responsible for the way the applicant had chosen to defend himself in the light of the prosecutor\u2019s office\u2019s grounds for appeal.<\/p>\n 14.\u00a0\u00a0On 11 February 2013 the Cluj Court of Appeal dismissed the applicant\u2019s extraordinary appeal, seeking review of the final judgment of 10\u00a0April 2012. It held that the documents, considered by the applicant as being new and relevant evidence for the case, had been available to him and could have been adduced to the case-file during the ordinary stage of the proceedings.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 15.\u00a0\u00a0The relevant provisions of the CCP in respect of the last-instance court\u2019s duty to hear evidence from a person on trial when he or she had been acquitted by the lower court are set out in G\u0103it\u0103naruv. Romania, no.\u00a026082\/05, \u00a7\u00a7 17-18, 26 June 2012.<\/p>\n COMPLAINTS<\/strong><\/p>\n 16.\u00a0\u00a0Relying on Article 6 of the Convention, the applicant complained that he did not have a fair trial before the Cluj Court of Appeal in so far as the court convicted him without hearing him and without administering evidence after he was acquitted by the lower court. In addition, the last\u2011instance court assessed the evidence wrongfully, misinterpreted the applicable legal provisions and failed to provide reasons for its judgment.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Complaint concerning the alleged failure of the last-instance court to hear the applicant and to administer evidence<\/strong><\/p>\n 17.\u00a0\u00a0The applicant complained that he did not have a fair trial before the Cluj Court of Appeal in so far as the court convicted him without hearing him and without administering evidence after he was acquitted by the lower court. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The Government<\/p>\n 18.\u00a0\u00a0The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the applicant had failed to lodge an appeal against the judgment of the lower court in order to contest the facts of the case. Moreover, even if he was given the opportunity, he had failed to ask the last-instance court for new evidence or for a review of the available evidence.<\/p>\n 19.\u00a0\u00a0Furthermore, relying on three judgments delivered by the Cluj Court of Appeal in 2011, the Government contended that the applicant, who was assisted by a lawyer, should have been familiar with the practice of the court of examining at the same time both the grounds for appeal and the merits of the case where it considered that adducing new evidence was unnecessary.<\/p>\n 20.\u00a0\u00a0A last-instance court had a certain margin of appreciation in assessing the need for evidence. Therefore, it was not mandatory for the court to follow the procedure set out in Article 38516 of the CCP in all instances where it quashed a lower court\u2019s judgment and retained the case for examination. Such an obligation existed only when the court considered that review of evidence or new evidence was necessary.<\/p>\n 21.\u00a0\u00a0The applicant\u2019s case was essentially different from other cases where last-instance domestic courts had convicted defendants, who had been acquitted by the lower courts, without directly reviewing the evidence considered decisive for their convictions. In the applicant\u2019s case, by relying on documentary evidence, both domestic courts reached the same conclusion in connection to the existence of two of the three elements of an offence (the negligent conduct of the defendants and the damage). The last-instance court departed from the reasoning of the lower court only in so far as the third element of the offence (the casual link between the defendants\u2019 actions and the damage) was concerned. In so doing the aforementioned court gave weight to the applicant\u2019s co-defendant\u2019s statements made during the proceedings, including his statement of 3 April 2012 (see paragraph 7 above), given in the presence of the applicant and of his lawyer.<\/p>\n 22.\u00a0\u00a0Also, unlike in the cases of Constantinescu v. Romania (no.\u00a028871\/95, 27 June 2000) and Popa and T\u0103n\u0103sescu v. Romania (no.\u00a019946\/04, 10 April 2012), the last-instance court had provided the applicant with sufficient insight into its intention of examining simultaneously the admissibility of the appeal and the merits of the case. Moreover, both the applicant and his co-defendant were heard first in relation to the charges brought against them pursuant to Article 38514 of the CCP. They were also allowed to address the court last. Furthermore, the applicant\u2019s lawyer failed to question the applicant\u2019s co-defendant (see paragraph 8 above), even though the latter had made some statements to the applicant\u2019s detriment and the lawyer was aware of the scope and arguments of the prosecutor office\u2019s appeal.<\/p>\n 23.\u00a0\u00a0The applicant had not indicated the concrete evidence he would have requested to be included to the case-file if the appeal court had set a new hearing in the case. Also, the court had reviewed directly the available documents, including the new ones submitted by the applicant during the appeal proceedings.<\/p>\n (b)\u00a0\u00a0The applicant<\/p>\n 24.\u00a0\u00a0The applicant contested the Government\u2019s objection of non-exhaustion of domestic remedies (see paragraph 18 above). He argued that he had had no interest in contesting his acquittal, even if he had disagreed with the established facts. Moreover, the appeal court had the power to examine all aspects of the case, including the facts. Therefore, he should have been given the opportunity to present his own version of the facts before the appeal court, regardless of whether he agreed or not with the facts established by the lower court.<\/p>\n 25.\u00a0\u00a0In circumstances such as the ones in his case, a defendant was called to indicate the evidence he wished to have included in the case-file or reviewed by the last-instance court only after the court applied the procedure set out in Article 38516 of the CCP. This procedure was mandatory, and a court\u2019s margin of appreciation in determining whether a review of the evidence or the inclusion of new evidence to the file was necessary did not exempt it from its duties. Likewise, a court was not dispensed from following the procedure in question because the parties had failed to ask it to do so.<\/p>\n 26.\u00a0\u00a0The fact that the appeal court heard the applicant\u2019s opinion on his willingness to be tried under a summary procedure, and that he was allowed to address the court last, could not be equated with a hearing by the court in relation to the merits of the case. As the last instance court never signalled its intention to quash the judgment of the lower court, it could not be inferred from the applicant\u2019s conduct that he had renounced to his rights of being heard and of adducing evidence.<\/p>\n 27.\u00a0\u00a0The applicant contested the Government\u2019s submissions that he should have been aware that the last-instance court was going to re-examine the merits of the case. He argued that the merits of the case were examined by an appeal court only when it decided to quash the judgment of the lower court. Consequently, the court had a duty to inform him of its intentions.<\/p>\n 28.\u00a0\u00a0The applicant further contested the Government\u2019s submissions that he should have been aware of the Cluj Court of Appeal\u2019s practice (see paragraph 19 above). The Romanian legal system did not accept national case-law as a valid source of law. Moreover, this practice was in clear contradiction with the express provisions of the CPP.<\/p>\n 29.\u00a0\u00a0The applicant submitted that had prepared a vast amount of new documents, including technical documents, which were relevant for the case and which he was ready to produce before the court. Given the complex nature of the case and the technical nature of the information available to the court, it would have been important for the applicant to have the opportunity to present his point of view on the merits of the case. The last\u2011instance court relied on the same evidence as the lower court in reaching its conclusion, apart from hearing the statements of the applicant and of the witnesses directly. Consequently, it was reasonable to assume that those statements could have influenced the outcome of the case. Moreover, in convicting him, the appeal court relied on some new arguments which were decisive for the outcome of the trial and which had not been considered by the lower court. In such circumstances, the need for a direct assessment of the evidence by the last-instance court was even more apparent.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 30.\u00a0\u00a0In the circumstances of the present case, the Court finds it unnecessary to examine the Government\u2019s preliminary objection of non\u2011exhaustion of domestic remedies (see paragraph 18 above), as this complaints is in any event inadmissible for the following reasons.<\/p>\n 31.\u00a0\u00a0The Court reiterates the principles set out in its case-law in circumstances relating to the conviction of a defendant by a last-instance court after he or she was acquitted by a lower court without the last-instance court hearing evidence from him or her (see, amongst other authorities, Chiper v. Romania, no. 22036\/10, \u00a7\u00a7 50-56, 27 June 2017). It also reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, amongst many other authorities, Garc\u00eda Ruiz v. Spain [GC], no. 30544\/96, \u00a7 28, ECHR 1999-I). Consequently, in the present case the Court will assess whether the proceedings against the applicant were fair, without entering into the question of the correct interpretation to be given, under Romanian law, to Article 385 of the CPP.<\/p>\n 32.\u00a0\u00a0In the instant case, the Court notes that, having quashed the first instance court\u2019s decision of acquittal, the Cluj Court of Appeal determined the criminal charge brought against the applicant and convicted him. It is undisputed by the partiers that it was the duty of the Cluj Court of Appeal to hear evidence form the applicant and to assess both the available evidence and the evidence adduced before it, as the lower court had acquitted the defendant.<\/p>\n 33.\u00a0\u00a0The Court also notes that it is also undisputed by the parties that the appeal court did not inform the applicant expressly of its intention to quash the decisions delivered by the lower court and to re\u2011examine the merits of the charges brought against him. Also, after the hearing of 3 April 2012, the domestic court did not set a date for a new hearing in the case (see paragraph 9 above).<\/p>\n 34.\u00a0\u00a0The Court observes, however, that the applicant, who was assisted by a lawyer of his own choosing, was aware of the appeal by the prosecutor\u2019s office against the lower court\u2019s judgment, seeking his conviction, as well as of the appeal court\u2019s power to quash the lower court\u2019s judgment and to re-examine the merits of the case. Moreover, it appears that at the hearing of 3 April 2012 the appeal court heard the applicant in relation to the merits of the case and the charges brought against him. The court also gave the applicant the opportunity to adduce evidence to the case\u2011file and his lawyer was allowed to put questions to the co-defendant (see paragraphs 7 and 8 above).<\/p>\n 35.\u00a0\u00a0In these circumstances, the Court considers that the applicant\u2019s case may be distinguished from other cases where last-instance domestic courts convicted defendants, who had been acquitted by the lower courts, without directly hearing evidence from them or reviewing evidence considered decisive for the defendants\u2019 convictions (contrast and compare, among other authorities, Constantinescu, cited above, \u00a7 58; Popa and T\u0103n\u0103sescu, cited above, \u00a7 49; and G\u0103it\u0103naru v. Romania,no.\u00a026082\/05, \u00a7 32, 26 June 2012).<\/p>\n 36.\u00a0\u00a0The Court further notes that, when convicting the applicant of negligent service, the appeal court relied mainly on the available expert and documentary evidence, which it could assess directly, and on the statements of the applicant\u2019s co-defendant, who was heard in person by the last-instance court at the hearing of 3 April 2012 (see paragraphs 7, 8 and 10 above). Furthermore, the aforementioned court subsequently delivered a judgment by providing reasons which do not appear arbitrary.<\/p>\n 37.\u00a0\u00a0It is true that the appeal court did not hear directly any of the witnesses on whose testimonies the first instance court had relied when delivering its judgment. However, this evidence seemed to be of a collateral nature and simply reinforced the applicant\u2019s and his co-defendant\u2019s statements. Finally, in so far as the applicant argued that the appeal court\u2019s failure to set a date for a new hearing had deprived him of the opportunity of submitting other written documents which could have had a decisive influence on the outcome of the trial (see paragraph 29 above), the Court notes that the applicant could have submitted the said documents at any stage of the trial proceedings, including the proceedings which took place before the court of appeal. In connection with this, it is worth noting that when adjourning the proceedings until the deliberations on 10 April 2012, the court of appeal allowed the parties to make written submissions (see paragraph 9 above).<\/p>\n 38.\u00a0\u00a0In these circumstances, the Court is of the opinion that the facts of the case do not disclose any appearance of a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n 39.\u00a0\u00a0It follows that the applicant\u2019s complaints is inadmissible under Article 35 \u00a7 3 as manifestly ill-founded and must be rejected pursuant to Article 35 \u00a7 4 of the Convention.<\/p>\n B.\u00a0\u00a0Other complaints<\/strong><\/p>\n 40.\u00a0\u00a0Relying on Article 6 of the Convention the applicant complained that the criminal proceedings opened against him were unfair in so far as the last-instance court assessed the evidence wrongfully, misinterpreted the applicable legal provisions and failed to provide reasons for its judgment.<\/p>\n 41.\u00a0\u00a0The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 26 July 2018.<\/p>\n Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paulo Pinto de Albuquerque
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n