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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
5450/02
by Mihai-Bogdan ANTONESCU
against Romania
The
European Court of Human Rights (Third Section), sitting on 8 February
2011 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago Quesada,
Registrar,
Having
regard to the above application lodged on 11 April 2001,
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
- The
applicant, Mihai-Bogdan Antonescu, is a Romanian national who was
born on 1 July 1965 and lives in Bucharest. He was represented before
the Court by Ms Iasmina Simona Pîrvulescu, a lawyer practising
in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr
Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
- At
the date of the events, the applicant was working in the city of Cluj
as a supervisor (“supervizor”) at the local weekly
newspaper “ATAC DE CLUJ”.
- One
issue of that newspaper (29 July – 5 August 1999)
included an anonymous article signed under the pseudonym “Măcelaru’s
cell phone” (Celularu’ lu’ Măcelaru)
which described certain scandalous and alleged illegal acts of D.M.,
the chief police officer in the town of Cehu Silvaniei, Sălaj
county. D.M. tried to find out who the author of the article was from
the newspaper, but as he could not obtain this information he filed a
criminal defamation complaint against the applicant and against I.G.,
the regional coordinator at the same Cluj newspaper. D.M. considered
that both accused had violated journalistic ethics by allowing the
publication of such a defamatory article.
- By
the time the criminal proceedings were initiated, the applicant had
left his job in Cluj and was living and working in Bucharest. His
official residential address registered with the police was at that
time an address in the city of Câmpina, even though he was not
in fact living there. He had not registered his new address with the
police.
- The
applicant submits that he had not been aware of the trial against him
during the time that the first-instance proceedings were underway,
as: (i) all of the the procedural documents had been sent by way of
notification to his registered address in Câmpina and; (ii)
later summonses had been displayed at
the Cluj local council.
- During
the first-instance proceedings, the applicant and I.G. were
represented by the same defence lawyer. The transcript of the hearing
held on 16 March 2000 mentions that the defence lawyer had stated
that the applicant had been aware of the trial and that the lawyer
had not been hired by the applicant or by I.G., but by a third party,
namely the new coordinator of the newspaper. He had also mentioned
that he had not been instructed to make any requests on behalf of the
defence and that he would make written submissions.
- The
written submissions filed by the lawyer in the defence of the
applicant consisted of the following text:
“The only explanation for the drafting of the
article complained of is the total lack of judgment [on the part] of
A. (the applicant). The material presented before the court is highly
trivial and abnormal. If the accused had presented himself in front
of the court or at least contacted me, I would have asked for an
expert psychiatric opinion to be ordered [in order] to establish his
degree of judgment. In my opinion, it is impossible that as at the
date of [the] publication [of] the material he was not crazy.
On the other hand, it is also impossible that any of the
readers believed a single bit of the article. [...]
The only circumstance which I can raise in his defence
is that [this] is the first time he is being tried before a court for
the commission of such an offence.
He does not have criminal record.”
- On
23 March 2000, the Cluj Napoca Court of First Instance delivered its
judgment, sentencing the applicant to the payment of a criminal fine
of 1,500,000 Romanian lei (ROL) and the payment of civil damages of
ROL 5,000,000 jointly with the other co-defendant. The court of first
instance found the applicant guilty of aiding and abetting the
offence of defamation, considering that by the nature of his function
as supervisor he could have prevented the publication of the article.
- The
applicant became aware of the proceedings on an unspecified date and
he filed an appeal on points of law against the judgment of 23 March
2000, requesting that the judgment be quashed and that a
re-examination of the case be ordered. During the appeal proceedings
he was represented by a lawyer of his choice.
- He
presented two grounds of appeal: firstly, the lack of proper summons
procedure and lack of diligence on the part of the authorities in
seeking to find out his real address; secondly, a breach of his right
to mount a defence on account of the fact that the lawyer who had
represented him in front of the first-instance court had not defended
him properly, but on the contrary had acted against his interests, as
could be seen from the written submissions put forward. The applicant
further submitted that he had not tried to avoid attending the
proceedings, as the court of first instance had held, but that he had
not been aware of them due to the irregularities in summoning him. He
concluded that these irregularities had prevented him from taking
part in the first-instance proceedings and therefore that the
judgment had to be quashed and referred back for fresh consideration.
- On
5 July 2000, a first hearing of the appeal took place. The applicant
lodged a request for postponement, in order to hire a lawyer. During
the next hearing, held on 9 August, the applicant appeared before the
court, assisted by a lawyer of his choice. As no representative of
the newspaper was present, the parties, including the applicant,
asked for a postponement. A new hearing date was set for 27 September
2000. The parties present took note of the new hearing date. On 27
September 2000, the applicant did not attend the hearing. His lawyer
was present and argued that the appeal on points of law should be
allowed, given the irregularities in summoning the applicant that had
occurred during the first-instance proceedings. No requests for
further evidence were lodged. The Cluj County Court postponed the
delivery of the decision to a later date.
- By
a final decision of 11 October 2000 the Cluj County Court dismissed
the applicant’s appeal, finding that he had been legally served
the summons to appear in front of the first-instance court. The
county court considered that the applicant had been legally summoned
at his home address. The police had confirmed that the address noted
in the summons was his official address and that he had not
registered any new address with them. They had also indicated that
his parents lived at his official address, but that his parents had
declared that they did not know his new address. Taking these facts
into account, the first-instance court had tried to summon him at his
work place in Cluj, but a letter from the newspaper by way of
response had indicated that he did not work there anymore and that
they were not aware of his new address. Thus, it had been decided, in
accordance with the provisions of the Code of Civil Procedure, to
display the summons at the local council’s office. Taking into
account these elements, the County Court concluded that the summons
procedure had been in compliance with the law.
The
County Court then reviewed the legality of the first-instance
judgment and concluded that the lower court had correctly assessed
the facts and applied the law, and thus upheld the first-instance
judgment.
B. Relevant domestic law
- Article
171 of the Romanian Code of Criminal Procedure (“the CCP”)
lists the cases where assistance by a lawyer is compulsory in the
framework of criminal proceedings, namely if the accused is under
aged, is doing his military service, is held in a re-education
centre, when he has been arrested, when the prosecutor or the courts
consider that he needs to be represented, as well as in other cases
provided for by law. During the trial, the assistance of a lawyer is
also required when the possible penalty for the crime committed is
imprisonment for more than 5 years or lifelong detention.
- Article
177 of the CCP, as in force at the material time, provided the
following with regards to summonses:
“(1) The accused shall be summoned at the address
where he lives and, in the event that this address is unknown, at the
address of his workplace, through the human resources department of
the unit in which he works (...)
(4) In the event that the address where the accused
lives or works is unknown, the summons shall be posted at the
headquarters of the local council having territorial jurisdiction
over the place where the crime was committed (...)”
- Article
385 § 3 of the CCP provides that where an appeal on points of
law is lodged against a judgment which had not been subject to an
appeal, the appellate court has the duty to analyse all aspects of
the case and not to limit its examination to the grounds for appeal
on points of law listed by the CCP.
- Article
385 of the CCP lists the grounds for appeal, amongst which is that a
lower court has proceeded to judge a case in the absence of an
accused when his presence is compulsory according to the law, or in
the absence of a civil defendant when his presence is compulsory.
Another reason for an appeal on points of law listed under this
provision is that the lower court judged the case without properly
summoning one of the parties, or when, even if lawfully summoned, it
was impossible for that party to present herself before the court or
to inform the court about the impossibility of doing so.
- The
Romanian Criminal Code provides that defamation is punishable by
criminal fine. No imprisonment sentence is foreseen for this crime.
- Articles
70-74 of the Law no. 51/1995 on the organisation and the exercise of
the lawyers’ profession regulate the procedure for imposing
disciplinary sanctions on members of the bar association.
COMPLAINTS
- Relying
on Article 6 § 1 of the Convention, the applicant complains of
the unfairness of the criminal proceedings against him due to their
lack of adversarial character, the lack of opportunity to put forward
evidence in his defence, as well as the fact that he was not heard by
the domestic courts before his conviction.
- The
applicant complains under Article 6 § 2 of the Convention that
his punishment had been based on simple presumptions. The basis for
those assumptions could have been very easily checked by the domestic
courts through asking his employer to provide a description of his
responsibilities at the newspaper.
- He
complains under Article 6 § 3 (a), (c) and (d) of the Convention
that, because the notice of trial had not been duly served on him, he
had been unable to defend himself during the first-instance
proceedings and that the lawyer who allegedly represented him had
actually acted against his interests. Under the same provisions, he
submits that he had not been given the opportunity to put forward
witnesses and other evidence in his defence and to be confronted with
the person filing the complaint against him. According to the
applicant, the final decision did not cover the procedural failures
of the first-instance proceedings.
THE LAW
- The
applicant complains that the proceedings against him had been unfair
on several accounts: they had not been adversarial; he had not been
able to propose evidence in his defence; he had not been heard by the
domestic courts; they had had an unfair outcome; his right to be
presumed innocent had been breached; he had not been able to benefit
from the first level of jurisdiction because of the failure to summon
him lawfully to the first-instance proceedings; the lawyer
representing him during the
first-instance proceedings had not
defended him properly; and that he had been deprived of the
opportunity to have a fair hearing of his case due to the fact the
appellate court had failed to quash the first-instance decision.
- The
Court notes at the outset that the applicant relies upon more aspects
of unfairness in his complaint to the Court than he did in his appeal
on points of law where he relied on only two grounds, namely the
allegedly unlawful summons and improper representation by his lawyer.
It also notes that the Romanian Code of Criminal Procedure provides
that when an appellate court reviews an appeal on points of law
against a decision which had not been subjected to an appeal, as in
the instant case, it does not limit its analysis to question of law,
but rather it is required to re-examine the entire case. Therefore,
the Court considers that the applicant could have cited all the
aspects of unfairness that he presently complains of in front of the
county court. Likewise, he could have asked to adduce evidence in his
defence or could have sought a postponement of the appeal hearing in
order to testify himself. Nevertheless, although represented by a
lawyer of his choice and aware of the date of the hearing for the
judgment of the appeal on points of law, he only raised two grounds
of appeal and neither he nor his lawyer asked to produce more
evidence in his defence, or to be given the opportunity to address
questions to the plaintiff or to be heard in person.
- The
Court reiterates that the purpose of Article 35 § 1 of the
Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them
before those allegations are submitted to the Court. Consequently,
States are dispensed from answering for their acts before an
international body before they have had the opportunity to put
matters right through their own legal systems (see, for example,
Remli v. France, 23 April 1996, § 33, Reports of
Judgments and Decisions 1996-II; and Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-V). Under Article 35 §
1 of the Convention, normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged.
- Taking
into account the above, the Court considers that the applicant should
have raised all his grievances in respect of the first-instance
proceedings in his appeal on points of law. It follows that this part
of the complaint, in as far it refers to aspects of unfairness which
he did not raise before the appellate court, must be rejected, under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
- The
Court needs to analyse further whether the proceedings were unfair in
the light of the points raised by the applicant before the appellate
court.
- The
Government argued that the proceedings as a whole had been fair, in
that the summons procedure concerning the applicant during the
first-instance proceedings had been in line with procedural law and
as the domestic courts had acted diligently in trying to identify his
new address. They further contented that the lawyer representing the
applicant during the first-instance proceedings had asked for his
acquittal and therefore that it could not be held that he had acted
against the applicant’s interests. As to the written
submissions made by that lawyer, the Government indicated that they
had not appeared to have been relied upon by the first-instance court
when delivering its judgment. They further stressed the fact that
neither the applicant nor his lawyer had made requests to adduce new
evidence during the appeal proceedings.
- The
applicant argued in reply that the summons procedure had been
unlawful and that the first-instance judgment had therefore had to be
quashed. He further held that the appeal proceedings had provided him
with only partial redress, as the appeal had only concerned questions
of law.
- As
to the first ground of appeal, namely the alleged irregularities in
his being summoned, the Court takes note of the fact that the
appellate court provided detailed reasoning as to why the summons
procedure had been in compliance with the law. The reasoning provided
by the county court does not reveal any arbitrariness, in the light
of the existing procedural law (see paragraph 14 above). The Court
also notes that the first-instance court undertook steps to try to
identify the current address of the applicant, and it was only after
receiving replies from the police authorities and his former employer
to the effect that no information was available as to his new address
that the first-instance court made recourse to the procedure of
summons by public notice at the local council’s office.
- The
Court reiterates that it has held that proceedings as a whole can be
said to have been fair if a defendant has been allowed to appeal
against a conviction in absentia and has been entitled to
attend any hearing of the court of appeal entailing the possibility
of a fresh factual and legal determination of the criminal charge
(see Jones v. the United Kingdom (dec.), no. 30900/02, 9
September 2003).
- In
the instant case, the Court notes that, it was only the
first-instance proceedings which were held in the absence of the
applicant. The applicant became aware of the proceedings in time to
lodge an appeal, an appeal which, according to procedural law, was
not limited to questions of law but also entailed a review of entire
case on questions of fact and law.
The
applicant appeared twice before the appellate court but, although
aware of the date set for the next hearing and although he was
represented by a lawyer of his choice, did not attend the hearing on
the merits. He did not lodge a request for a further postponement of
the hearing and neither did his lawyer, who was present at the
hearing.
In
the light of these elements, the Court considers that the applicant
was allowed to appeal against his conviction by the first-instance
court and was also entitled to attend the hearing in front of the
appellate court, which entailed a fresh factual and legal
determination of the criminal charge. Therefore, the proceedings as a
whole can be held to be fair from this point of view.
- As
to the second ground of appeal relied upon by the applicant, the
Court notes that the appellate court did not provide any reasoning
regarding the allegedly improper representation by the applicant’s
lawyer during the first-instance proceedings.
- The
Court reiterates that the extent to which a court’s duty to
give reasons applies may vary according to the nature of the
decision. That is why the question of whether a court has failed to
fulfil the obligation to state reasons, deriving from Article 6 of
the Convention, can only be determined in the light of the
circumstances of the case (see Gheorghe v. Romania, no.
19215/04, § 43, ECHR 2007 III (extracts)). Without
requiring a detailed answer to every argument put forward by a
complainant, this obligation nevertheless presupposes that the
injured party can expect a specific and express reply to those
submissions which are decisive for the outcome of the proceedings in
question (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).
The
Court has also held that a failure to deal with a serious argument,
or a manifestly arbitrary manner of dealing with such an argument, is
incompatible with the notion of a fair trial (see Vetrenko v.
Moldova, no. 36552/02, § 55, 18 May 2010).
- In
the instant case, it should therefore be determined whether the
applicant’s argument regarding the allegedly improper defence
conducted by the lawyer representing him during the first-instance
proceedings could have been decisive for the outcome of the appeal
proceedings.
In
this respect, it should be noted that given the fact that the
applicant’s representation by a lawyer was not compulsory in
the instant case according to domestic law, the conduct of such
representation could not have amounted to a reason for the quashing
of the first-instance judgment.
Moreover,
the quashing of the first-instance judgment was not the only means of
redress for the alleged procedural failure in front of the
first-instance court, taking into account that the appeal on points
of law provided the applicant with the opportunity to have a full
review of the case by the appellate court.
The
Court therefore considers that, in the particular circumstances of
the case, the failure of the appellate court to provide a specific
response as to the applicant’s complaint regarding the
allegedly improper representation by his lawyer during the
first-instance proceedings was not decisive for the outcome of the
case. Moreover, the Court takes into account that in the appeal
proceedings the applicant was represented by a lawyer of his choice
and that he had the opportunity at this stage of the proceedings to
submit evidence in his defence and to make oral and written
submissions. As required by law, the appellate court, even though
failing to deal with this specific ground of appeal, proceeded to a
full review of the factual and legal aspects of the case and
confirmed the first-instance judgment.
- Furthermore, the Court reiterates that, as it has held
on numerous occasions, it follows from the independence of the legal
profession that the conduct of the defence is essentially a matter
between the defendant and his counsel, whether counsel be appointed
under a legal-aid scheme or privately financed (see, among others
Ebanks v. the United Kingdom, no. 36822/06, § 72, 26
January 2010). Moreover, the domestic law provides for the right to
lodge a complaint against a member of the bar association which may
result in disciplinary sanctions.
- In
the light of the above, the Court concludes that the proceedings in
the instant case, taken as a whole, were not unfair and therefore
dismisses this part of the complaint as manifestly ill-founded,
within the meaning of Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Santiago Quesada Josep Casadevall Registrar President
