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Cite as: [2011] ECHR 341

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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