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DIACENCO v. ROMANIA - 124/04 [2012] ECHR 237 (7 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/237.html
Cite as:
[2012] ECHR 237
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THIRD
SECTION
CASE OF DIACENCO v. ROMANIA
(Application
no. 124/04)
JUDGMENT
STRASBOURG
7 February
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Diacenco v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Nona
Tsotsoria,
Mihai Poalelungi, judges,
and
Marialena Tsirli,
Deputy Section Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 124/04)
against Romania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Romanian
national, Mr Victor Diacenco (“the applicant”), on
4 November 2003.
2. The
applicant was represented by Ms Angela Simona Bosovici, a
lawyer practising in Botoşani. The Romanian Government
(“the Government”) were represented by their Agent,
Mr Răzvan Horaţiu Radu, from the Ministry of
Foreign Affairs.
As
Mr Corneliu Bîrsan, the judge elected in respect of
Romania, had withdrawn from the case (Rule 28 of the Rules
of Court), the President of the Chamber appointed Mr Mihai
Poalelungi to sit as ad hoc
judge (Article 26 § 4 of the Convention and
Rule 29 § 1 of the Rules of Court).
4. The
applicant alleged, in particular, that the Suceava Court of
Appeal’s judgment of 9 July 2003, holding him in the
reasoning part of the judgment criminally liable for the alleged
offence, and ordering him to pay civil damages to S.I., constituted a
violation of his right to be presumed innocent until proved guilty,
contrary to Article 6 § 2 of the Convention.
On
31 May 2010 the
President of the Third Section decided to give notice of the
application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1944 and lives in
Botoşani.
On
the evening of 5 November 1998 the applicant, an engineer,
accompanied by P.H., was driving a car owned by the limited company
C. on the national road connecting Iaşi to Botoşani and was
involved in a car accident. A car travelling in the opposite
direction blinded the applicant with its headlights and he was forced
to slow down and to steer the car towards the right side of the road.
Suddenly, a cart pulled by a horse (“the cart”)
travelling on the side of the road appeared in front of the applicant
and forced him to break abruptly. However, he was unable to avoid
collision. The driver of the cart, N.Z., escaped unharmed, but his
passenger, S.I., suffered some injuries that required medical
treatment.
The criminal investigation stage of the proceedings
On
9 November 1998 the Botoşani Forensic Laboratory
carried out a forensic examination of the injuries suffered by S.I.
and found that they could have been caused by a car accident on
5 November 1998, and required fifty eight to
fifty nine days of medical care.
A
second forensic examination of the injuries suffered by S.I. was
carried out by the Botoşani Forensic Laboratory on
3 February 1999. It concluded that S.I.’s injuries
could have been caused by a car accident on 5 November 1998,
and required 102 to 103 days of medical care.
On
24 February 1999 the Botoşani Prosecutor’s
Office ordered the opening of a criminal investigation against the
applicant for involuntary battery and other violent offences.
By a decision of the Botoşani Prosecutor’s Office of
15 June 1999 the criminal investigation against the
applicant was discontinued on the ground that he had not committed
any unlawful act. The decision concluded that the cart which the
applicant had collided with had not been equipped with the legally
required hazard warning lights, which prevented the applicant from
seeing the cart at the material time owing to the poor weather
conditions. Consequently, the applicant could not have anticipated
the danger and taken action in order to avoid it. S.I. appealed
against the decision.
By
a final decision of 10 June 2000 the Suceava Prosecutor’s
Office allowed S.I.’s appeal, quashed the decision of
15 June 1999 and ordered the reopening of the criminal
investigation against the applicant.
On
an unspecified date S.I. joined the criminal proceedings instituted
against the applicant as a civil party and claimed 50,000,000
Romanian lei (ROL) (approximately 2,100 euros (EUR)) in respect
of pecuniary and non pecuniary damage.
By
a final decision of 19 March 2001 the Botoşani
Prosecutor’s Office acknowledged that S.I. had joined as a
civil party the criminal proceedings instituted against the
applicant, indicted the applicant and referred the case to the
Botoşani District Court.
The trial stage of the proceedings
On
an unspecified date the applicant at his own request added to the
file a technical expert report dated 4 June 2001 regarding
the accident of 5 November 1998. The report concluded,
inter alia, that the applicant had been driving lawfully, had
been travelling at a speed of forty three kilometres per hour
(km/h), that he had hit the cart at a speed of thirty three km/h
and that the person responsible for the accident was N.Z.
On
29 October 2001 and 16 April 2002 the Botoşani
District Court ordered a technical expert report and a supplement to
the technical report, respectively, to be prepared regarding the
accident of 5 November 1998.
On
29 January and 16 September 2002 the Iaşi
Forensic Department attached to the Minister of the Interior carried
out the technical expert analysis and concluded that the applicant
had been travelling at a speed of between twenty eight and
thirty six km/h and could have avoided the accident if his speed
had been between eleven and twelve km/h. However, there had been no
reason for him to travel at such a low speed. The travelling speed
had been high enough to cause part of the cart to break. Moreover,
the accident could have been avoided by N.Z. if he had equipped his
cart with the legally required hazard warning lights. Consequently,
the absence of the legally required hazard warning lights on N.Z.’s
cart had been the cause of the accident.
On
15 March 2002, in his written submissions before the
first instance court, the applicant contested, inter alia,
the results of the medical expert reports of 9 November 1998
and 3 February 1999. He contended that S.I. had already
been suffering from some of the ailments which had been taken into
account in the reports in order to determine the number of days of
medical care she required as a result of the accident. Moreover, the
said reports had not established with certainty that her condition
had been caused by the car accident at issue.
By
a judgment of 16 December 2002 the Botoşani District
Court acquitted the applicant on the basis of the provisions of
Article 47 of the Romanian Criminal Code, and dismissed S.I.’s
civil claims for damages against him. Relying on the statements of
the witnesses, of the victim and of the accused, as well as on the
forensic and technical expert reports contained in the file, the
court held that in the absence of hazard warning lights, the
applicant could not have foreseen the presence of the cart on the
road and that therefore the accident could not have been avoided.
The
applicant appealed against that judgment and argued that the legal
basis for his acquittal should have been the fact that he had not
committed the alleged offence and that N.Z. had been the sole party
responsible for the accident. S.I. also appealed against the
judgment, requesting to be awarded civil damages.
By
a judgment of 8 May 2003 the Botoşani County Court, in
the presence of the applicant and his chosen legal representative,
dismissed both appeals and upheld the judgment of 16 December 2002.
In dismissing S.I.’s request for civil damages, the court held
that in the light of the applicant’s acquittal, the just
satisfaction claim submitted by the applicant did not have any basis
in law.
The
applicant and S.I. appealed (recurs) against that judgment.
S.I. modified her civil claims against the applicant to
ROL 100,000,000 in respect of pecuniary and non pecuniary
damage.
On
3 June 2003 the parties were summoned to appear before the
Suceava Court of Appeal on 9 July 2003. The summons
addressed to the applicant was displayed on the main entrance door of
his home because he was not at home when the bailiff had attempted to
deliver the summons.
On
9 July 2003, in the absence of the applicant and his legal
representative and prior to the delivery of its judgment, the Suceava
Court of Appeal heard the oral submissions of the parties present
with regard to the appeal.
By
a final judgment of 9 July 2003 the Suceava Court of Appeal
dismissed in the operative part of its judgment the applicant’s
appeal, and upheld the judgments of 16 December 2002 and
8 May 2003. In the reasoning part of the judgment it held
that the applicant had failed to provide the court with written or
oral reasons for his appeal (recurs), as required by the
applicable rules of criminal procedure and that the court could not
identify any reasons that would require the Court of Appeal to quash
the judgments of the lower courts. At the same time the court allowed
the appeal (recurs) lodged by S.I., and ordered the applicant
to pay ROL 100,000,000 (approximately EUR 2,600) to S.I.
for pecuniary and non pecuniary damage, out of which
ROL 30,000,000 (approximately EUR 800) would be paid
jointly with the insurance company A., for the mental and physical
suffering which S.I. had endured and the medical expenses she had
incurred. It held that the lower courts had misapplied the law with
regard to the civil limb of the proceedings, and considered that they
had erred in acquitting the applicant on the ground that he could not
have anticipated the presence of the cart on the road. According to
the evidence in the file, the applicant had committed the unlawful
act in respect of which he had been indicted and could have foreseen
the danger in question. The applicant was guilty of the offence of
involuntary battery and other violent offences because he had failed
to control the speed of his car and to adjust it to the road
conditions so that he would have been able to stop in the event of a
foreseeable obstacle. Moreover, the court dismissed the conclusion
reached in the technical expert reports concerning the speed of the
applicant’s car, on the ground that the impact had caused part
of the cart to break. Furthermore, prudent driving should have
prompted the applicant to stop when he was blinded by the headlights
of the car travelling in the opposite direction. Consequently, the
court concluded that:
“For the above-mentioned reasons, [the court]
considers that the applicant is guilty of the offence for which he
was correctly indicted and his case sent for trial, the fact that the
[lower] courts have acquitted him on the basis of the provisions of
Article 47 of the [Romanian] Criminal Code (which is not applicable),
is irrelevant in respect of the civil limb.”
Extraordinary appeal proceedings lodged by the applicant
On
2 October 2003 the applicant initiated extraordinary
annulment (contestaţie în anulare) appeal
proceedings against the final judgment of 9 July 2003. He
argued that he had not been lawfully summoned for the hearing of
9 July 2003 before the Suceava Court of Appeal. Thus, he
had been unaware about the date of the hearing. Consequently, he had
been unable to submit written or oral reasons for his appeal, to
defend himself or to inform the court as regards his absence.
By
a final judgment of 28 September 2004 the Cluj Court of
Appeal dismissed the applicant’s annulment appeal on the ground
that during the applicant’s absence from his home the summons
had been displayed on the main entrance door, in accordance with the
applicable rules of criminal procedure. The applicant appealed
against that judgment.
On
2 December 2004 the applicant brought extraordinary review
(revizuire) appeal proceedings against the final judgment of
9 July 2003, submitting, inter alia, that he
had not been lawfully summoned for the hearing held on the
aforementioned date.
By
a final judgment of 14 December 2004 the Court of Cassation
dismissed the applicant’s appeal against the final judgment of
28 September 2004 as inadmissible, on the ground that the
said judgment was final and not subject to appeal.
By
a judgment of 5 October 2006 the Botoşani District
Court dismissed the applicant’s appeal to review the final
judgment of 9 July 2003, on the ground that he had been
lawfully summoned and that, in any event, his presence at the hearing
would not have changed the outcome of the proceedings, given that the
Suceava Court of Appeal had relied on the evidence available in the
file and not the parties’ arguments. The applicant appealed
against that judgment.
By
a judgment of 16 January 2007 the Botoşani County
Court dismissed the applicant’s appeal against the judgment of
5 October 2006 as ill founded. The applicant appealed
against that judgment.
By
a final judgment of 22 October 2007 the Suceava Court of
Appeal dismissed the applicant’s appeal against the judgment of
16 January 2007 as ill founded.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Romanian Constitution
as in force at the relevant time provided as follows:
Article 23
“ ...
A
person is considered innocent pending a final court conviction.”
The relevant provisions of the Romanian Code of
Criminal Procedure in force at the relevant time provided as follows:
Article 14
“(1) The aim of a civil action is to engage the
civil liability of the person accused of a criminal offence...
(2) A civil action can be joined to the criminal
proceedings, if the victim joins the criminal proceedings as a civil
party.
...”
Article 15
“...
(2) A victim can join criminal proceedings as a civil
party at the criminal investigation stage or before the court...
...”
Article 19
“(1) If a victim has not joined criminal
proceedings as a civil party, he or she can initiate separate
proceedings for damages caused as a result of the offence before the
civil courts.
(2) Civil proceedings are to be suspended pending a
final judgment of the criminal courts...
...”
Article 22
“(1) The final judgment of a criminal court is res
judicata in respect of the existence of an offence, the identity
of the offender and his guilt for the court examining the civil
action.
(2) The final judgment of the court examining the civil
action is not res judicata in respect of the existence of an
offence, the identity of the offender and his guilt for the authority
carrying out the criminal investigation or for the criminal courts.”
Article 66
“(1) A person accused of or charged with a
criminal offence does not have to prove his innocence.
(2) Where evidence is adduced proving a person’s
guilt, the accused or the person charged with a criminal offence has
the right to rebut the evidence.”
Articles 998
and 999 of the Romanian Civil Code provide that any person who has
suffered damage can seek redress by bringing a civil action against
the person who has intentionally or negligently caused such damage.
36. Article 47
of the Romanian Criminal Code provides that an act covered by the
criminal law, which leads to results owing to unforseeable
circumstances, shall not be an offence.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 AND 7 OF THE
CONVENTION
Relying
on Articles 6 and 7 of the Convention the applicant complained
that the Suceava Court of Appeal’s judgment of 9 July 2003,
holding him in the reasoning part of the judgment criminally liable
for the alleged offence, and ordering him to pay civil compensation
to S.I., constituted a violation of his right to be presumed innocent
until proved guilty. He also complained of the outcome of the
proceedings, the alleged unlawfulness of the order to pay S.I. civil
damages and the unfairness of the proceedings, in so far as he had
been unlawfully summoned before the Suceava Court of Appeal for the
hearing of 9 July 2003, and that as a result of his absence
from the hearing he had been unable to prepare and present his
defence before the domestic court or to argue the reasons for his
appeal (recurs).
The
relevant Convention provisions read as follows:
Article 6
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. ...
2. Everyone charged with a criminal offence
shall be presumed innocent until proven guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
Article 7
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This Article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
A. Admissibility
1. No significant disadvantage
The
Government first submitted that the operative part of the Court of
Appeal’s judgment, the only enforceable part of the judgment,
had expressly upheld the decision of the lower courts to acquit the
applicant. Consequently, the applicant could not be said to have
suffered a substantial disadvantage within the meaning of the
Convention concerning his acquittal in respect of the criminal limb
of the proceedings, taking into account also the small amount of
civil compensation he had been ordered to pay.
The
applicant disagreed.
The
Court notes that the main element of the criterion set by
Article 35 § 3 (b) of the Convention is
whether the applicant has suffered any significant disadvantage (see
Adrian Mihai Ionescu v. Romania (dec.),
no. 36659/04, 1 June 2010, and Korolev
v. Russia (dec.), no. 25551/05, 1 July 2010).
Inspired
by the general principle of de
minimis non curat praetor, this
admissibility criterion hinges on the idea that a violation of a
right, however real from a purely legal point of view, should attain
a minimum level of severity to warrant consideration by an
international court. The assessment of this minimum level is, in
the nature of things, relative, and depends on all the circumstances
of the case. The severity of a violation should be assessed taking
into account both the applicant’s subjective perceptions and
what is objectively at stake in a particular case (see Korolev,
cited above). In other words, the absence of any significant
disadvantage can be based on criteria such as the financial impact of
the matter in dispute or the importance of the case for the applicant
(see Adrian Mihai Ionescu,
cited above).
The
Court reiterates in this respect that it has previously considered
insignificant the pecuniary loss of EUR 90, allegedly sustained
by the applicant in the case of Adrian Mihai Ionescu
(cited above), and it found negligible the
pecuniary loss of EUR 0.5, allegedly sustained by the applicant
in the case of Korolev (cited above).
In
the present case, the Court notes that the applicant had been
involved in criminal proceedings, with civil claims brought against
him following a car accident. In the criminal proceedings, by a final
decision, the Suceava Court of Appeal upheld in the operative part of
its judgment the acquittal of the applicant by the lower courts, but
at the same time casted doubt in respect of the correctness of his
acquittal in the reasoning part of the same judgment. At the same
time it ordered the applicant to pay S.I. EUR 1,800 alone, and
EUR 800 jointly with the insurance company A. for pecuniary and
non pecuniary damage.
The
Court notes that none of the parties submitted clear information
concerning the financial status of the applicant. Nevertheless, it
observes that the applicant was employed as an engineer at the time,
and that according to the Romanian National Institute for Statistics,
the average gross salary level in Romania in 2003, when the applicant
was ordered to pay S.I. pecuniary and non pecuniary damages, was
ROL 8,183,317 (approximately EUR 220).
The
Court also takes note of the fact that the domestic proceedings which
are the subject of the complaint before it were aimed at clearing the
applicant’s name in respect of the offence he had allegedly
committed. Therefore, in addition to the pecuniary nature of the
damages he was forced to pay, it is also necessary to take into
account the fact that the proceedings concerned a question of
principle for the applicant, namely his right to be presumed innocent
until proved guilty.
Under
these circumstances, in the Court’s view, the applicant cannot
be deemed not to have suffered a significant disadvantage, and it
accordingly dismisses the Government’s objection.
2. Incompatibility ratione materiae
Relying
on the case of Ringvold v. Norway (no. 34964/97,
ECHR 2003 II), the Government also argued that Article 6
§ 2 was not applicable in the present case, as nothing in
the Court’s case law suggested that the right to be
presumed innocent applied to the field of civil liability, even if
the domestic courts had relied in their judgments concerning civil
compensation on the same facts which constituted the basis of the
criminal charge brought against the applicant. The applicant had been
ordered to pay civil compensation to a civil party after he had been
acquitted in respect of the criminal limb of the proceedings, and the
civil part of the proceedings was not incompatible with and had not
set aside that acquittal.
The
applicant argued that Article 6 § 2 was applicable in
the present case on account of the criminal proceedings brought
against him.
The
Court considers that the question about the applicability of
Article 6 § 2 of the Convention is inextricably linked
to the merits of the applicant’s complaint about the breach of
his right to the presumption of innocence, and therefore, joins this
objection to the merits of the above complaint.
The
Court further notes that this and the remaining complaints are not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. No other grounds for declaring them inadmissible
have been established. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
a) The applicant
The
applicant argued that the judgment of the Suceava Court of Appeal had
breached his right to the presumption of innocence, placing him in a
substantially disadvantaged position both pecuniarily and morally.
b) The Government
The
Government submitted that the Court of Appeal’s judgment had
been delivered as part of the criminal investigation instituted
against the applicant by professionally trained judges, and that
therefore the Court of Appeal’s reasoning, followed by the
applicant’s acquittal in the operative part of the judgment,
could not have influenced public opinion or have had an impact on his
right to be presumed innocent. The domestic courts had examined all
the evidence submitted by the parties over the course of the
adversarial proceedings and had repeatedly adjourned the proceedings
in order to take the evidence requested by the parties and to assess
the culpability of the applicant. The applicant’s failure to
attend the hearing of 9 July 2003 was exclusively imputable
to him as he had been lawfully summoned.
Lastly,
they argued that the fact that the domestic courts had ordered the
applicant to pay civil damages, even after he had been acquitted
under the criminal limb of the proceedings, had not breached his
right to the presumption of innocence, given the applicable
procedural rules concerning civil liability.
2. The Court’s assessment
The
Court reiterates that the concept of a “criminal charge”
in Article 6 is an autonomous one. According to its established
case law there are three criteria to be taken into account when
deciding whether a person was “charged with a criminal offence”
for the purposes of Article 6, namely the classification of the
proceedings under national law, their essential nature and the type
and severity of the penalty that the applicant risked incurring (see
Phillips v. the United Kingdom, no. 41087/98,
§ 31, ECHR 2001 VII and A.P., M.P. and T.P.
v. Switzerland, 29 August 1997, Reports of
Judgments and Decisions 1997 V, § 39). Moreover,
the scope of Article 6 § 2 is not limited to
criminal proceedings that are pending (see Allenet de Ribemont
v. France, judgment of 10 February 1995, Series A
no. 308, § 35). In certain instances, the Court has
also found the provision applicable to judicial decisions taken after
the discontinuation of such proceedings (see, in particular, Minelli
v. Switzerland, 25 March 1983, Series A no. 62,
and Lutz, Englert and Nölkenbockhoff v. Germany,
25 August 1987, Series A no. 123), or following
an acquittal (see Sekanina v. Austria,
25 August 1993, Series A no. 266 A; Rushiti
v. Austria, no. 28389/95, 21 March 2000;
and Lamanna v. Austria, no. 28923/95, 10 July 2001).
Those judgments concerned proceedings related to such matters as an
accused’s obligation to bear court costs and prosecution
expenses, a claim for reimbursement of his (or his heirs’)
necessary costs, or compensation for pre trial detention, and
which were found to constitute a consequence of, and to be
concomitant to criminal proceedings. Accordingly, the Court will
examine whether the compensation proceedings in the present case gave
rise to a “criminal charge” against the applicant and, in
the event that this was not the case, whether the compensation
proceedings were, nevertheless, linked to the criminal trial in such
a way as to fall within the scope of Article 6 § 2.
Turning
to the first of the above mentioned criteria, the classification
of the proceedings under national law, the Court notes that the
applicant remained “charged”, formally speaking, until
his acquittal gained legal force. However, this concerned only the
initial criminal charge of which he was acquitted; it was of no
relevance to the compensation claim. The Court notes that the latter
had its legal basis in the general principles of the national law on
torts applicable to personal injuries. According to the
aforementioned principles, criminal liability is not a prerequisite
for liability to pay compensation. Even where, as in the present
case, the victim had opted to join a compensation claim to the
criminal trial, the claim would still be considered a “civil”
one. This is also apparent from the domestic courts’ judgments
in the applicant’s case, which described the claim as “civil”.
Thus, the Court finds that the compensation claim at issue was not
considered to be a “criminal charge” under the relevant
national law.
As
regards the second and third criteria, the nature of the proceedings
and the type and severity of the “penalty” (namely, in
the instant case, the allegedly punitive award of compensation), the
Court observes that, while the conditions for civil liability could
in certain respects overlap, depending on the circumstances, with
those for criminal liability, the civil claim was nevertheless to be
determined on the basis of the principles that were applicable to the
civil law of tort. The outcome of the criminal proceedings was not
decisive for the compensation case. The victim had a right to claim
compensation regardless of whether the defendant had been convicted
or, as in the present case, acquitted, and the compensation issue was
to be the subject of a separate legal assessment, based on criteria
and evidentiary standards which differed in several important
respects from those applicable to criminal liability.
In
the Court’s view, the fact that an act which may give rise to a
civil compensation claim under the law of tort is also covered by the
objective constitutive elements of a criminal offence cannot,
notwithstanding its gravity, provide sufficient grounds for regarding
the person allegedly responsible for the act in the context of a tort
case as being “charged with a criminal offence”. Nor can
the fact that evidence from the criminal trial has been used to
determine the civil law consequences of that act warrant such a
characterisation. Otherwise, Article 6 § 2 would give
a criminal acquittal the undesirable effect of pre empting the
victim’s possibilities for claiming compensation under the
civil law of tort, thereby constituting an arbitrary and
disproportionate limitation on his or her right of access to court
under Article 6 § 1 of the Convention. This again
could give an acquitted defendant, who is deemed responsible
according to the civil burden of proof, the undue advantage of
avoiding any responsibility for his or her actions. Such an extensive
interpretation would not be supported either by the wording of
Article 6 § 2, or by any common ground in the national
legal systems within the Convention community. On the contrary, in a
significant number of Contracting States, an acquittal does not
preclude the establishment of civil liability in relation to the same
facts (see Y. v. Norway, no. 56568/00, § 41,
11 February 2003).
Thus,
the Court considers that, while the acquittal from criminal liability
ought to be maintained in the compensation proceedings, it should not
preclude the establishment of civil liability to pay compensation
arising out of the same facts on the basis of a less strict burden of
proof (see, mutatis mutandis, X v. Austria,
no. 9295/81, Commission decision of 6 October 1992,
Decisions and Reports (D.R.) 30, and M.C.
v. the United Kingdom, no. 11882/85, decision
of 7 October 1987, D.R. 54).
However,
if the national decision on compensation contains a statement
imputing criminal liability to the respondent party, this could raise
an issue falling within the ambit of Article 6 § 2 of
the Convention (see Y. v. Norway, § 42, cited
above).
The
Court will therefore examine the question whether the domestic courts
acted in such a way or used such language in their reasoning as to
create a clear link between the criminal case and the ensuing
compensation proceedings and to justify extending the scope of the
application of Article 6 § 2 to the latter.
The
Court notes that the Suceava Court of Appeal concluded its judgment
with the following finding:
“For the above-mentioned reasons, [the court]
considers that the applicant is guilty of the offence for which he
was correctly indicted and his case sent for trial, the fact that the
[lower] courts have acquitted him on the basis of the provisions of
Article 47 of the [Romanian] Criminal Code (which is not applicable),
is irrelevant in respect of the civil limb.”
That
judgment was final, was delivered in the applicant’s absence
and was not subject to appeal. Although the operative part of the
judgment upheld the decisions of the lower courts in acquitting the
applicant in respect of the criminal limb of the proceedings, the
Court reiterates that, the reasoning in a judgment has the same
binding effect as the operative part, if like in the present case, it
forms its essential underpinning (see Perez v. France [GC],
no. 47287/99, § 25, in fine, ECHR 2004 I).
Consequently, the operative part of the judgment did not rectify the
issue, which in the Court’s opinion, thereby remained.
The
Court observes that the Court of Appeal took note of the fact that
the applicant had been acquitted of the criminal charges by the lower
courts, and that it upheld their judgments. However, in seeking to
protect the legitimate interests of the purported victim, the Court
of Appeal expressly declared the applicant “guilty of the
offence for which he was correctly indicted”. Consequently, the
Court considers that the language employed by the Suceava Court of
Appeal, overstepped the bounds of the civil forum, thereby casting
doubt on the correctness of that acquittal. Accordingly, there was a
sufficient link to the criminal proceedings which was incompatible
with the presumption of innocence.
In
the light of all the above considerations, the Court finds that
Article 6 § 2 of the Convention was applicable to the
proceedings relating to the compensation claim. Therefore, it
dismisses the Government’s objection and concludes that that
there has been a violation of Article 6 § 2 of
the Convention.
Having regard to its finding in respect of the
applicant’s complaint under Article 6 § 2 of the
Convention (above), the Court considers that it has examined the
outstanding legal issue raised by the present application. Therefore,
it does not consider it necessary to give a separate ruling on the
remaining allegations of violations of Articles 6 and 7 of the
Convention (see, mutatis mutandis, Uzun v. Turkey,
no. 37410/97, § 64, 10 May 2007;
Amanalachioai v. Romania, no. 4023/04, § 63,
26 May 2009; Fikret Çetin v. Turkey,
no. 24829/03, § 44, 13 October 2009; and
Efendioğlu v. Turkey, no. 3869/04, § 35,
27 October 2009).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 2,618 euros (EUR) in
respect of pecuniary damage and EUR 75,000 in respect of
non pecuniary damage.
The
Government contested the existence of a causal link between the
alleged violation and the pecuniary damage claimed by the applicant.
Moreover, they submitted that the damage claimed by the applicant in
respect of non pecuniary damage was excessive and argued that
the conclusion of a violation of the Convention would suffice as
compensation for the non pecuniary damage he had incurred.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it accepts that the applicant suffered some
non pecuniary damage as a result of the infringement of his
right to the presumption of innocence in the present case. Making an
assessment on an equitable basis, the Court awards the applicant
EUR 2,000 under this head, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant also claimed EUR 5,075 in respect
of lawyer and court fees and submitted receipts totalling
ROL 72,150,000 (EUR 1,700).
The
Government contested the amount and argued that the applicant’s
claims were excessive.
According
to the Court’s case law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
also reasonable as to quantum (see, for example, Iatridis
v. Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000 XI).
Regard
being had to the documents in its possession and to the above
criteria, the Court considers it reasonable to award the applicant
EUR 1,700, plus any tax that may be chargeable to him.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government’s objection that
the applicant did not suffer a significant disadvantage;
Joins to the merits the Government’s
objection as to the applicability of Article 6 § 2 of
the Convention and dismisses it;
3. Declares
the application admissible;
Holds that there has been a violation of
Article 6 § 2 of the Convention;
Holds that there is no need to examine
separately the remaining complaints under Articles 6 and 7 of
the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement:
(i) EUR 2,000
(two thousand euros), plus any tax that may be chargeable, in respect
of non pecuniary damage;
(ii) EUR 1,700
(one thousand seven hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
