European Court of Human Rights

THIRD SECTION

Application no. 26504/06
Doru COLAC
against Romania
lodged on 6 June 2006

STATEMENT OF FACTS

1.  The applicant, Mr Doru Colac, is a Romanian national who was born in 1969 and lives in Iasi. He was represented before the Court by Ms M. Smau, a lawyer practising in Iasi.

A.  The circumstances of the case

2.  The facts of the case, as submitted by the applicant, may be summarised as follows.

3.  On 20 February 2003 the Iasi Prosecutor’s Office indicted the applicant and a third party for procuring and for unlawful deprivation of freedom and sent his case to trial.

1.  Proceedings before the first-instance court

4.  By final interlocutory judgments of 20 March, 17 April, 22 May, 12 June, 4 September, 2 and 30 October, 27 November 2003; 8 January, 5 February, 4 March, 1 April, 6 May, 3 and 17 June 2004 the Iasi District Court adjourned the proceedings mainly to allow the summoning of the witnesses who had testified against the applicant at the pre-trial stage of the proceedings. On 2 and 30 October 2003 the applicant’s lawyer had requested the court to hear the witnesses in the case.

5.  The bailiffs’ repeated attempts of 12 May, 5 June, 18 July, 16 September, 2 and 30 October, 22, 24 and 27 November 2003 and 8 January 2004 to enforce the warrants (mandate de aducere) issued by the court for some of the witnesses to appear before the court failed because according to the said reports the witnesses had either left the country (in particular K.M.M., F.P.D. and I.A.P.), had moved to unknown addresses (in particular E.T.P., R.R., Corneliu R. and Catalin R.) or were not found at home (in particular I.I.C.). According to the reports K.M.M. had left the country on an unspecified date and for an unknown destination, while F.P.D.’s and I.A.P.’s mothers declared that they had left the country for Italy and Austria on November 2002 and 18 March 2003, respectively.

6.  The Iasi District Court’s requested on several occasions the Neamt Population Records Office (Serviciul de Evidenta al Populatiei Neamt), the Romanian Passport Service and the Iasi Border Guard Police to provide information in respect of the whereabouts of the witnesses who failed to appear before the court. On 27 November 2003 the Iasi Border Guard Police informed the court that F.P.D. and I.A.P. did not leave the country. On 22 December 2003 the Cretesti Police Department informed the court that I.A.P. had left the country and was residing in Austria at an unknown address. Concerning the remaining missing witnesses the authorities stated repeatedly that they did not have records in respect of their valid addresses.

7.  By final interlocutory judgments of 4 September 2003, 8 January, 5 February and 3 June 2004 the Iasi District Court held that on the basis of the information provided by the enforcement reports produced by the bailiffs, by the Neamt Population Records Office, by the Romanian Passport Service and the Iasi Border Guard Police it was impossible to hear Corneliu R., Catalin R., F.P.D., I.A.P., E.T.P.. K.M.M. and I.I.C. (Article 327 of the Romanian Code of Criminal Procedure). It also held that the statements of Catalin R., F.P.D., I.A.P., E.T.P. and I.I.C. given at the pre-trail stage of the proceedings would be read out before the court at the end of the judicial investigation stage of the proceedings. On 3 June 2006 I.I.C.’s statement given at the pre-trial stage of the proceedings was red out before the court. There is no evidence in the file that the statements of the other witnesses were read out before the court as well.

8.  Some of the witnesses who testified against the applicant at the pre-trial stage of the proceedings were located by the authorities and brought before the court.

9.  On 2 and 30 October, 27 November 2003 and 1 April 2004 the Iasi District Court heard M.A, G.S.S., D.V.D., H.A.H.F. and A.L.J., respectively. M.A. stated inter alia that the applicant had forced her into prostitution, that except for R.R. she did not meet other girls and that she had been sold to the applicant by I.I.C. G.S.S. refuted her previous statement given at the pre-trial stage of the proceedings and declared that she had been forced by the authorities to accuse the applicant of procuring. D.V.D. confirmed his previous statements given at the pre-trial stage of the proceedings and contended that he knew the applicant, but that he had never introduced him to any girls. H.A.H.F. stated that he did not know the applicant and although he had relations with several girls he had met at the club allegedly run by the applicant, he did not pay for it. A.L.J refuted his statement given at the pre-trial stage of the proceedings, denied that he knew the applicant or that he had previously been asked by the authorities if he contacted prostitutes.

10.  By the final interlocutory judgment of 30 October 2003 the Iasi District Court inter alia also dismissed the applicant’s request for a new psychiatric evaluation to determine whether the applicant was legally sane at the time of his statements given at the pre-trial stage of the proceedings on the ground that such an evaluation was not relevant to the case. It held that a psychiatric evaluation from 2001 was already available to the file and the applicant’s statements would be examined in the light of all the evidence available to the file.

11.  By the final interlocutory judgment of 3 June 2004 the Iasi District Court inter alia also dismissed the applicant’s lawyer’s motion to allow him to find the location of the witness I.I.C. and to bring him before the court, as well as his motion to adjourn the proceedings to a different date because he had relied on the fact that I.I.C. would be heard by the court and thus he had not examined the file thoroughly in order to be able to submit observations on behalf of the applicant. The court held that it had already decided that it was impossible to have the witness I.I.C. heard. Moreover, the absence of the witness did not hinder the examination of the merits of the case. Furthermore, it allowed the parties to submit oral observations in respect of the merits of the case and allowed the applicant’s lawyer’s motion to adjourn the proceedings in order to allow the parties to submit written observations in respect of the merits of the case.

12.  By a judgment of 22 June 2004 the Iasi District Court acquitted the applicant for unlawful deprivation of freedom, convicted him for procuring and sentenced him to nine years imprisonment on the basis of telephone transcripts, documentary and testimonial evidence, in particular the testimonies of Corneliu and Catalin R., R.R., G.S.S., M.A., F.P.D., I.I.C., D.V.D., E.T.P., K.M.M., H.A.H.F. and A.L.J. It acknowledged that only M.A. and D.V.D. confirmed their own statements given at the pre-trail stage of the proceedings, while the other witnesses could either not be heard by the court, or they changed their statements in the applicant’s favour. Moreover, having regard to the conflicting witness statements, it decided to rely on those testimonies which were confirmed by the other evidence available to the file. Consequently, it considered that the testimonies given by the witnesses at the pre-trail stage of the proceedings were accurate as they were made closer to the date of the unlawful acts and were also confirmed by the remaining available evidence. Furthermore, it discarded G.S.S.’s statement given before the court because it contained several inaccuracies. The applicant appealed against the judgment and argued inter alia that the court had unlawfully summoned the alleged victims of his unlawful act as witnesses in the case and had ignored their alleged victim status.

2.  Proceedings before the second instance court

13.  By a judgment of 17 October 2005 the Iasi County Court dismissed the applicant’s appeal. It held that given the nature of the unlawful act the applicant was charged with, it would not be justified to summon the girls forced by him into prostitution. Moreover, the applicant could not rely on the court’s failure to do so as long as his interest was not affected. In respect of the facts established by the first-instance court, the appeal court held that it was confirmed by the evidence administered in the file, particularly the testimonies of R.R., M.A., I.A.P., F.P.D. and G.S.S. taken together with the testimonies of E.T.P., Y.F., N.K., K.S., S.S., I.I.C. and G.C. Consequently, it considered that the first-instance court had correctly convicted the applicant for procuring. The applicant appealed on points of law (recurs) against the judgment.

3.  Proceedings before the last instance court

14.  At the hearing of 9 February 2006 before the Iasi Court of Appeal the applicant’s lawyer reiterated his argument raised before the second instance court. Moreover, he contended that most witnesses, including A.P., G.C., O.P., I.I.C. and C.Z., had not been heard directly by the first-instance court and some of them had not even been summoned by the court. Consequently, he asked the court to quash the judgments of the lower courts and to order the administration of all the evidence in the file.

15.  By a final judgment of 21 February 2006 the Iasi Court of Appeal dismissed the applicant’s appeal on points of law. It held that the lower courts had correctly established the facts of the case and convicted the applicant on the basis of the evidence administered at the pre-trial stage of the proceedings and confirmed at the trial stage. In respect of the facts of the case the court of appeal held that they were established on the basis of the available evidence, particularly the testimonies of R.R., M.A., I.A.P., F.P.D. and G.S.S. taken together with the testimonies of E.T.P., Y.F., N.K., K.S., S.S., I.I.C. and G.C. Moreover, the applicant’s argument that the courts failed to administer directly all the available evidence and breached his rights of defence were unsubstantiated. A court can rely either on the testimonies given at the pre-trial stage of the proceedings or on the ones given before the court as long as it is convinced that only some of them reflect the truth and are confirmed by the evidence in the file. A court can rely on the testimonies given at the pre-trial stage of the proceedings if it was impossible to hear the witness directly. A judgment could not be considered null if the witness was not heard directly by the court, unless the party was prejudiced. Or in the present case the lower courts allowed the applicant’s requests to hear the witnesses who testified at the pre-trial stage of the proceedings and took measures to secure their attendance at the trial. The judgments of the lower courts could not be quashed as long as they provided reasons for their inability to hear some of the witnesses and the testimonies were read at a public hearing. Consequently, the lower courts had correctly established the applicant’s guilt. However, it changed the applicant’s sentence to eight years imprisonment.

B.  Relevant domestic law

16.  Article 327 § 3 of the Romanian Code of Criminal Procedure provides that when it is impossible for a court to hear a witness it will read out his or her testimony given at the pre-trial stage of the proceedings and will take it into consideration when examining the case.

COMPLAINTS

1.  The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention that his trial was unfair in that the domestic courts wrongfully assessed the evidence and that his legal representative was not allowed the time for the preparation of his defence following the dismissal by the domestic courts of his request to adjourn the proceedings on 3 June 2004.

2.  The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that his trial was unfair in that he was unable to cross-examine all the witnesses whose statements served as the main basis for his conviction.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was he able to examine all the witnesses against him, as required by Article 6 § 3 (d) of the Convention? Did he have the opportunity to examine them during the preliminary investigation? Were any efforts made to establish the whereabouts of the witnesses whose statements made during the preliminary investigation were used at the trial stage of the proceedings? Was the applicant’s conviction based to a decisive extent on the statements of those witnesses?

The Government are requested to submit copies of all documents contained in the case file of the criminal case against the applicant.