The ECHR Ruling of February 16, 2021 in the case "Buliga v. Romania" (aplications No. 22003/12), "Negulescu v. Romania" (complaint No. 11230/12).
In 2012, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to Romania.
In the case, aplications about the applicants' conviction for crimes of minor gravity on the basis of decisive testimony of failed witnesses and the absence of balancing factors were successfully considered. The case involved a violation of the requirements of subparagraph "d" of paragraph 3 of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
Criminal proceedings were initiated against the applicants on charges of minor crimes, but the proceedings were discontinued. Although the Prosecutor's office believed that the applicants were guilty, their actions were not serious enough to qualify as a criminal offense. The applicants were punished with a fine. The applicants' complaints to the Romanian courts were unsuccessful.
The applicants complained that the proceedings in their cases were unfair, that the courts referred to the testimony of witnesses whom the judges could not interrogate in the courtroom.
Regarding compliance with paragraph 1 and subparagraph "d" of paragraph 3 of article 6 of the Convention. Having established that the proceedings against the applicants fell within the scope of Article 6 of the Convention, the European Court reiterated that the general requirements of fairness from the said provision of the Convention applied to all criminal cases, regardless of what crime they related to. Consequently, the provisions of article 6 of the Convention were also applicable to the present complaints.
Then the European Court, applying the general principles set out in the Rulings on the complaints "Al-Khawaja and Taheri v. United Kingdom" (Al-Khawaja and Taheri v. United Kingdom) (See: The Ruling of the Grand Chamber of the European Court in the case "Al-Khawaja and Taheri v. United Kingdom" (Al-Khawaja and Taheri v. United Kingdom) of December 15, 2011, complaints N 26766/05 and 22228/06//Precedents of the European Court of Human Rights. Special issue. 2020. N 14.) and "Shachashvili v. Germany" (Schatschaschwili v. Germany) (See: The Ruling of the Grand Chamber of the European Court of Justice in the case "Shachashvili v. Germany" (Schatschaschwili v. Germany) of December 15, 2015, complaint No. 9154/10//Precedents of the European Court of Human Rights. Special Issue. 2017. N 3.), established the following.
Firstly, from the decisions of the Romanian courts under consideration, it followed that these courts concluded that the applicants were guilty, referring to the testimony of witnesses who did not appear in court.
Secondly, according to the applicable Romanian legislation, the Romanian courts were obliged to consider the criminal charges brought against the applicants, based on the evidence from the case file and any other additional documents. They were not allowed to listen to the testimony of witnesses (According to paragraph 51 of the text of the Ruling in the case "Buliga v. Romania" (Buliga v. Romania), it is only about one special judicial procedure provided for in article 278.1 of the Criminal Procedure Code of Romania.). However, this circumstance was not a proper reason justifying the absence of relevant witnesses in court for the purposes of article 6 of the Convention. In addition, there was no indication that witnesses would be unavailable or that there were difficulties in ensuring their appearance in court.
Thirdly, the Romanian courts made their decisions, referring to the testimony of witnesses. In the case "Negulescu v. Romania" (Negulescu v. Romania), the testimony of a witness confirmed the medical evidence. Consequently, it could be concluded that these statements were decisive for the courts in the applicants' cases.
In conclusion, there were not enough balancing factors that would compensate for the unfavorable position in which the defense found itself after using the testimony of witnesses who were absent in court in cases. While an important guarantee would have been to give the applicants or their lawyers the opportunity to interrogate witnesses at the stage of the preliminary investigation, the defense was not notified of the dates of meetings with witnesses, nor was it invited to participate in the interrogations. Also, the applicants were not present in person or through their representatives during the police interrogations. In Buliga v. Romania, there was no reaction by the Romanian authorities to the applicant's allegations regarding the intimidation of witnesses by police officers. Moreover, despite the applicants' objections to the evidence in the case, and in Buliga v. Romania, despite the request for additional evidence, the Romanian courts based their decisions solely on evidence from the case materials. In addition, the Romanian courts did not use other means at their disposal to ensure, at least in theory, a better protection of the rights of the defense. More precisely, the Romanian courts had the opportunity, according to Romanian law, to cancel the decisions of the prosecutor's office, return the cases to the prosecutor's office or consider cases within the framework of due criminal procedure in the court of first instance. Instead, the Romanian courts left the decisions of the Prosecutor's Office unchanged without hearing the evidence in the case, thus depriving the applicants of the opportunity to cross-examine witnesses whose testimony was crucial to the applicants' cases.
As a result, the Romanian courts deprived the applicants of the opportunity to consider their cases in accordance with the requirements of the Convention.
In the case, the requirements of subparagraph "d" of paragraph 3 of Article 6 of the Convention were violated (adopted unanimously).
In applying article 41 of the Convention, the European Court indicated that the resumption of proceedings in the applicants' cases in the Romanian courts would be the most appropriate form of compensation in cases, given the nature of the applicants' complaints. The European Court also awarded 1,000 euros in Negulescu v. Romania and 4,000 euros in Buliga v. Romania as compensation for non-pecuniary damage caused to the applicants, which could not be compensated by the mere fact of reconsideration of the cases or finding a violation of the Convention.; compensation for material damage was not awarded in both cases.