Extra credit in the remedial ECHR Law Class (the extra credit is so that I can understand these legal ideas better).
CASE OF HANU v. ROMANIA 10890/04 04/06/2013 {excerpts, but more detail}
7. On 22 March 2000 criminal proceedings were instituted against the applicant, a bailiff by profession. He was charged with bribery, abuse of power and forgery, on the basis of criminal complaints lodged by M.M. and G.A (hereinafter “the complainants”), two individuals he had assisted as a bailiff in enforcement proceedings. M.M. alleged that the applicant had requested money from her in exchange for him asking a judge to assist with the enforcement of a title deed, while G.A. stated that the applicant had requested a certain amount of money from him to assist with the enforcement of a judgment.
8. On 22 March 2000 an operation was set up in respect of the applicant. The police gave M.M. a tape recorder and money which was marked with a fluorescent substance. She and her cousin met the applicant in a bar. According to the report of the operation, M.M. had wanted to hand the money to the applicant, but he had made a signal to her to put it into his briefcase. Her cousin had not been there when this had happened. After the envelope containing the money had been placed in the applicant’s briefcase, the police had appeared. The report of the operation stated that there had been no fluorescent substance found on the applicant’s hands, but that money had been found in the briefcase.
10. On 3 December 2001 the prosecutor attached to the Constanţa Court of Appeal (“the Court of Appeal”) issued an indictment against the applicant for bribery and abuse of power. The charges against him were based on statements of the complainants and other witnesses, and the report of the operation.
11. On 24 September 2002 the Constanţa County Court acquitted the applicant of all charges after hearing evidence from the witnesses, the complainants and the applicant.
12. In reaching its decision, the court noted that the only prosecution evidence available was the statements of the complainants and other witnesses, some of whom were the complainants’ relatives, who could only state what they had been told by them. Moreover, none of the witnesses actually saw the money being given to the applicant. Secondly, the court noted that no mention was made in any of the evidence submitted to it of the tape recorder that had been used during the police operation. It held, therefore, that none of the evidence was conclusive proof as to the applicant’s guilt. {Note the suppressed evidence....}
13. The prosecutor appealed. In a hearing held on 10 January 2003 before the Court of Appeal, the prosecutor sought conviction of the applicant, while the applicant’s lawyer asked for the appeal to be dismissed. The applicant did not give evidence before the court, but he was given the opportunity to address the court at the end of the hearing and declared that he was innocent. No witnesses were heard and no additional evidence was adduced at that stage of the proceedings. Neither the applicant nor his lawyer submitted written observations.
14. In a decision of 23 January 2003, the Court of Appeal overturned the acquittal and found the applicant guilty of both charges, sentencing him to three years’ imprisonment suspended. It concluded that the witness statements were proof that the applicant had committed the offences alleged.
15. The applicant lodged an appeal on points of law, claiming, inter alia, that the appellate court had failed to hear the witnesses directly regarding the statements on which it had relied and had failed to take into account other evidence in his defence; that the prosecution had withheld the tape‑recording of the operation from the case file even though the applicant had asked for it to be assessed by the courts and the prosecutor had authorised the recording himself; and that none of the evidence adduced was conclusive proof that he had committed the offences alleged.
16. A hearing was held on 27 June 2003 before the Supreme Court of Justice (“the Supreme Court”). The applicant did not attend the hearing, but his lawyer was present. No witnesses were heard and no new evidence was adduced during the hearing. On that day, the court concluded the proceedings and set a date for the public delivery of its final decision.
17. At the following hearing on 4 July 2003, the Supreme Court dismissed the applicant’s appeal on points of law with final effect. It concluded that the Court of Appeal had assessed the evidence correctly and that the applicant’s submissions were not corroborated by any of the other evidence adduced. It emphasised that besides the statements of the complainants, the Court of Appeal had also relied on statements of witnesses who knew that G.A. had attempted to secure money to pay the applicant. It also considered the fact that no fluorescent substance had been found on the applicant’s hands to be irrelevant, given that he had requested the money which was found in his briefcase. No reference was made to the applicant’s submissions regarding the tape recorder or to the appellate court’s failure to hear the complainants and the witnesses directly. {Keeping the unwelcome evidence suppressed.}
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20. The applicant complained that the criminal proceedings against him had been unfair because the domestic courts had not examined the evidence directly and had reached completely different decisions on the basis of the same evidence. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
21. The Government raised the preliminary objection of non-compliance with the six-month rule. They argued that the applicant had not complained of any unfairness in the criminal proceedings against him in his initial letter to the Court, and that the first time he had mentioned this aspect of his complaint had been in his letter to the Court of 24 February 2010.
22. The applicant contested this argument. He referred to his initial letter and application form, contending that he had complained repeatedly that the proceedings had been unfair on account of the fact that the domestic courts had not assessed any of the evidence in his defence.
23. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and that it is not bound by the characterisation given by an applicant or a Government (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). Moreover, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172).
24. Turning to the facts of the instant case, the Court notes that in one part of his application form, the applicant relied on Article 6 § 1 to argue that the proceedings against him had been unfair and unreasonably lengthy. In another part of his application he outlined the exact nature of his complaint, requesting, inter alia, that the proceedings against him be declared unfair on the grounds that all the evidence in his defence had been ignored and the domestic courts had delivered different decisions on the basis of the same evidence. Therefore, the Court is satisfied that the applicant did raise this complaint in substance in his application form.
25. It follows that the Government’s objection must be dismissed.
26. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
27. The applicant argued that the criminal proceedings against him had not met the requirements of a fair trial. Referring to the cases of Constantinescu v. Romania (no. 28871/95, ECHR 2000‑VIII) and Dănilă v. Romania (no. 53897/00, 8 March 2007), he complained that the Court of Appeal had not heard him or the witnesses and that his conviction had been based on the same evidence that had led to his being acquitted by the court of first instance. He argued that, as the court of final appeal, the Supreme Court should have dealt more carefully with his case, and ordered that he himself and the other witnesses be heard once more.
28. Furthermore, relying on the principle that the judicial bodies must play an active role (rolul activ al instanţei), the applicant argued that the courts had been under an obligation to hear all the evidence necessary to the case, even if the parties had not expressly asked for specific evidence to be examined. In conclusion, he claimed that his right to a fair trial had been violated.
29. The Government argued that the present case differed from the case of Constantinescu (cited above, § 55) in that the applicant had been duly heard by the Constanţa County Court, acting as the court of first instance, and that the transcript of his evidence had been attached to the case file. The applicant had not asked before the Court of Appeal that the evidence be heard directly. In addition, since the Supreme Court had ruled on the applicant’s appeal on points of law, its authority had been limited to matters of law and it could not have examined the facts of the case.
30. Moreover, the Government insisted that neither the applicant nor his lawyer had specifically requested further evidence to be heard by the appellate courts. In this connection, they pointed out that the applicant’s case did not reveal special circumstances that would have required further evidence to be examined ex officio. In conclusion, the Government argued that there had been no violation of Article 6 § 1 of the Convention in the present case.
2. The Court’s assessment
31. The Court reiterates that the manner of application of Article 6 to proceedings before appellate courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein.
32. The Court has held that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by the accused who claims that he has not committed the act alleged to constitute a criminal offence (see Ekbatani v. Sweden, 26 May 1988, § 32, Series A no. 134, Constantinescu, cited above, § 55, and Lacadena Calero v. Spain, no. 23002/07, § 36, 22 November 2011).
33. Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts, and the Court’s task is to verify the fairness of the domestic proceedings, taken as a whole, including the manner in which the evidence was assessed (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). Moreover, although it is normally for the national courts to decide whether it is necessary or advisable to call a witness, exceptional circumstances could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158).
34. Turning to the present case, the Court finds that it is not disputed that the applicant was first acquitted by the County Court but was afterwards convicted by the Court of Appeal and the Supreme Court despite the fact that neither court had actively heard him or any other evidence directly. Although the Court of Appeal allowed the applicant to make a statement at the end the hearing, it should be noted that the Court has already found that the use made of such an opportunity is not sufficient to the purpose of Article 6 of the Convention (Constantinescu, cited above, § 58). Accordingly, in order to determine whether there was a violation of Article 6, an examination must be made of the role of these two levels of jurisdiction and the nature of the issues which they were called upon to try (see Popa and Tănăsescu v. Romania, no. 19946/04, § 47, 10 April 2012).
35. Firstly, the Court notes that the provisions of the Code of Criminal Procedure in force at the material time did not require the appellate court to rule on the merits of the case, but that it nonetheless had the possibility to do so (see paragraph 18 above). In the instant case, the Court of Appeal availed itself of this possibility and, relying solely on the evidence the applicant and the witnesses had given in the County Court, quashed the applicant’s acquittal. The matters that the Court of Appeal examined in order to decide whether the applicant was guilty were of a factual nature which would have justified a new examination of the evidence, especially since it was the first court to convict him.
36. Secondly, the procedure in force at the material time permitted the Supreme Court to give a new judgment on the merits even when examining an appeal on points of law. In the cases of Popa and Tănăsescu (cited above, § 48) and Găitănaru (cited above, § 30), the Court has already had the opportunity to examine the scope of the Supreme Court’s powers, and found that proceedings before it were full proceedings governed by the same rules as a trial on the merits, with the court being required to examine both the facts of the case and questions of law. The Supreme Court could decide either to uphold the applicants’ acquittal or convict them, after making a thorough assessment of the question of their guilt or innocence. If the necessity to hear evidence directly arose from the circumstances of the case, the Supreme Court could refer the case to a lower court in accordance with the provisions of the Code of Criminal Procedure in force at the material time (see paragraph 19 above).
37. In the instant case, the Supreme Court did not avail itself of these possibilities but judged the case on the basis of the evidence given before the prosecutor and the County Court. Moreover, the matters that the Supreme Court examined in order to declare the applicant guilty were of a factual nature: the Supreme Court had to establish if the applicant had requested money from the complainants in order to assist them with their enforcement proceedings (see paragraph 17 above). Contrary to the Government’s arguments (see paragraph 29 above), the Court notes that the Supreme Court gave its own interpretation of the factual situation in the case. Its decision was not therefore limited to matters of law.
38. Furthermore, with regard to the Government’s argument that neither the applicant nor his lawyer had specifically asked the domestic courts to hear him or the witnesses, the Court notes that the applicant based his appeal on points of law on the appellate court’s failure to hear the witnesses directly and on the prosecution’s refusal to admit the tape‑recording of the operation to the case file (see paragraph 15 above). The Court takes the view that the applicant gave the domestic courts sufficient information to justify a new examination of the evidence, especially since he had been acquitted by the County Court. In any event, the Court reiterates that the domestic courts are under an obligation to take positive measures to such an end, even if the applicant has not requested it (see Dănilă v. Romania, no. 53897/00, § 41, 8 March 2007, and Găitănaru, cited above, § 34).
39. It therefore appears that when they convicted the applicant neither the Court of Appeal nor the Supreme Court relied on any new evidence. Instead, they based their decisions on the evidence given by the applicant and the witnesses before the prosecutor and the County Court. However, the latter, after having heard the witnesses in person, had held that none of the evidence was conclusive proof as to the applicant’s guilt, and acquitted him (see paragraph 12 above). Even if the appellate courts could, in principle, have given their own interpretation of the evidence adduced before them, in the instant case the applicant was found guilty on the basis of witness testimony that had been found insufficient by the County Court and had justified his acquittal.
40. In these circumstances, the omission of the Court of Appeal to hear the witnesses in person, and the failure of the Supreme Court to redress the situation by referring the case back to the Court of Appeal for a fresh examination of the evidence, substantially reduced the applicant’s defence rights (Destrehem v. France, no. 56651/00, § 45, 18 May 2004 and Găitănaru, cited above, § 32). The Court reiterates that its case-law underlines that one of the requirements of a fair trial is the possibility for the accused to confront the witnesses in the presence of a judge who must ultimately decide the case, because the judge’s observations on the demeanour and credibility of a certain witness may have consequences for the accused (see P.K. v. Finland (dec.), no. 37442/97, 9 July 2002; mutatis mutandis, Pitkänen v. Finland, no. 30508/96, §§ 62-65, 9 March 2004; and Milan v. Italy (dec.), no. 32219/02, 4 December 2003).
41. The foregoing considerations are sufficient to enable the Court to conclude that in the instant case, the domestic courts failed to comply in the applicant’s case with the requirements of a fair trial.
42. Since that requirement was not satisfied, the Court considers that there has been a violation of Article 6 § 1 of the Convention.
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To me, this case seems applicable to AK & RS .... Hellmann heard witnesses and obtained new evidence (in particular, the court received expert opinion testimony from expert witnesses it appointed (the DNA experts C & V).
The CSC in annulling the Hellmann acquittal did not do so on the basis of any new evidence. Nencini's conviction did not rely on any new evidence, and that court did not rehear witnesses; the only new evidence, AK's DNA on the knife blade, was not inculpatory.
So, anglo and other legal people, what say ye?
