European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF ŞANDRU v. ROMANIA

 

(Application no. 33882/05)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

15 October 2013

 

 

 

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 Şandru v. Romania,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Josep Casadevall, President,
          Alvina Gyulumyan,
          Corneliu Bîrsan,
          Ján Šikuta,
          Luis López Guerra,
          Nona Tsotsoria,
          Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 24 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in an application (no. 33882/05) 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 Alexandru Şandru (“the applicant”), on 15 September 2005.




  The applicant was represented by Ms E. M. Grecu, a lawyer practising in Râmnicu Vâlcea. The Romanian Government (“the Government”) were represented by their Agent, Mr R.-H. Radu of the Ministry of Foreign Affairs.




  The applicant alleged in particular that the duration of his pre-trial detention had been excessive, and that the authorities had not reviewed the legality of his detention. He also complained that his right to adversarial proceedings had been breached, since he had not been confronted with the victim during the trial.




  On 8 September 2009 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




  The applicant was born in 1985 and lives in Râmnicu Vâlcea.

1.  The pre-trial detention




  On 8 April 2005 the applicant, then aged 19, was placed in pre-trial detention for twenty-four hours, following a criminal complaint made the previous day by D.A., a girl aged 17. She had complained that two girls, also minors, had brought her to an apartment where they had hit her and forced her to have oral sex or sexual intercourse with the applicant and three other boys, who were minors too.




  By an interlocutory judgment of the same day the Râmnicu Vâlcea District Court (“the District Court”) placed the applicant and the three other boys in pre-trial detention for twenty-nine days. The District Court considered that this measure was necessary, given the aggravated circumstances of the alleged offence and the serious risk it posed to society, the dangerous character of all the defendants, and their attitude during the investigation. By a decision of 11 April 2005 the Vâlcea County Court (“the County Court”) dismissed an appeal by the applicant against that judgment.




  Subsequently, the applicant’s pre-trial detention was regularly extended, by District Court interlocutory judgments on 25 April, 25 May, 29 June, 20 July, 24 August, 14 September, 19 October, 23 November and 21 December 2005, and 25 January 2006. The County Court dismissed appeals by the applicant against these judgments on 27 April, 27 May, 4 and 21 July, 9 and 25 August, 16 September, 21 October, 25 November and 23 December 2005, and 27 January 2006. The reasons given for continuing his detention remained the same throughout the proceedings, namely the seriousness of the offence, the sentence provided by the law, and the lack of any new circumstances justifying release pending trial.




  Several incidents occurred during the proceedings related to the pre-trial detention.




  On the one hand, the appeal against the judgment of 20 July 2005 was reviewed twice by mistake, on 21 July and 9 August 2005. By an interlocutory judgment of 28 November 2005 the County Court rectified this mistake.




  On the other hand, on 21 July and 9 and 25 August 2005, when the appeals on points of law were reviewed by the County Court, the applicant was not brought before the judges. On each occasion the registrar of the County Court had telephoned Colibaşi Prison, where the applicant was held at the time. According to the registrar’s transcript, prison staff replied that it was not possible for them to bring the applicant to court because no such service for detainees was available on the dates in question (“nu există planificare pentru data de ...”). At the hearings on 21 July and 9 August 2005 the applicant was represented by a lawyer appointed by the County Court. The applicant had himself appointed a lawyer for the whole duration of the proceedings, but he maintained that the authorities had failed to notify his lawyer of the hearings held on 21 July and 9 August 2005. His lawyer was only present at the hearing on 25 August 2005.




  According to documents adduced to the file by the Government, on 16 September, 21 October and 23 December 2005 as well as on 27 January and 24 February 2006 the applicant was absent from the hearings at which the County Court reviewed his appeals on points of law against the interlocutory judgments extending his pre-trial detention. According to the registrar’s transcript drafted on each occasion the reason for his absence was also given as the lack of such a service for detainees on the dates in question.

2.  The criminal investigation conducted by the prosecutor




  On 7 April 2005 the police heard D.A. in connection with her criminal complaint. The applicant’s lawyer was not present during that questioning.




  On 7 and 8 April 2005 the police also heard the applicant and his five co-defendants. The applicant declared that he knew both the victim and his co-defendants, whom he had met before. With regard to the victim’s allegations, he declared that he had gone to the apartment with the sole purpose of giving her and one of the other girls a lift home, and denied abusing the victim. He also declared that he had taken the victim home and had not noticed any signs of abuse on her.




  The applicant’s co-defendants made different statements: one of the two girls denied all the accusations and claimed that she had not seen the victim being abused; the other admitted that she had seen the victim being abused by the other girl and some of the boys, but denied being responsible herself. She declared that after the incident “she had heard” that the applicant had had oral sex with the victim. The boys either denied the accusations or claimed that they had had protected sexual intercourse or oral sex with the victim, who had acted willingly. Two of the boys declared that the applicant had been in the same room as the victim and that on coming out of the room he had said that he had had oral sex with her and that she was not looking good (“arăta rău”).




  In addition, two witnesses were heard. They confirmed that the applicant had been present at the apartment but claimed that they did not see or hear the victim being abused.




  On 21 April 2005 the applicant applied to the prosecutor attached to the District Court and requested a confrontation with D.A. He claimed that during the investigations the victim had made inconsistent statements and implied that such inconsistencies made it necessary for her to be confronted with the defendants.




  On 22 April 2005 the prosecutor attached to the District Court dismissed the applicant’s request with the reasoning that the factual situation had been clearly established and a confrontation would not have been useful to the investigation.




  On 25 April 2005 the prosecutor attached to the District Court issued a bill of indictment against the applicant on a charge of rape. The prosecution held that the applicant had forced D.A. to have oral sex with him while being aware that she was a minor, and that she had been abused by the others before he had arrived at the apartment where the events took place.

3.  The criminal trial




  The case was registered with the District Court. The applicant, through his lawyer, repeated several times his request for a confrontation with the victim for the contradictory aspects of her statements to be clarified.




  On 15 June 2005 D.A. was present before the District Court, with her mother and her lawyer. She was not heard by the court with regard to her criminal complaint. She only declared that she had civil claims to make.




  On 7 December 2005 the District Court heard all the defendants and the two witnesses. The applicant again denied the charges against him. The girl who had previously declared that she heard that he had abused the victim changed her statement, and declared that she had not seen the applicant abuse D.A. (see paragraph 15 above). At the same hearing the District Court agreed to the defendants’ request to cross-examine the victim. On 22 December 2005 and 16 January 2006 the District Court ordered D.A. to attend the trial by virtue of a warrant to appear.




  On 15 March 2006 D.A. was present at the hearing of the District Court. However, in application of the rules of procedure, she was not heard by the court because one of the defendants, a minor, was in hospital and therefore absent (see paragraph 31 below).




  By a judgment of 31 March 2006, the District Court sentenced the applicant to two years and six months’ imprisonment. The court relied on the statements made by the victim before the prosecutor and those made by the applicant’s co-defendants and the two witnesses. It dismissed the applicant’s statements, judging that they did not corroborate the other evidence or that they were inconsistent.




  All the parties lodged appeals. The applicant relied mainly on the fact that he had not had a confrontation with D.A., who had purposely refused to appear before the courts. He claimed that her statements had not been supported by any other evidence, and that he should not be sentenced solely on the basis of the victim’s complaint.




  On 21 June 2006 the County Court dismissed the applicant’s appeal but allowed the prosecutor’s and victim’s appeals. The applicant was sentenced to a heavier sentence, of five years’ imprisonment. The court did not address the applicant’s arguments related to the absence of a confrontation with the victim.




  Following appeals on points of law lodged by all the parties, on 18 September 2006 the Piteşti Court of Appeal allowed the prosecutor’s and the victim’s appeals. The Court of Appeal found that the lower courts had correctly assessed the evidence but that the clemency of the sentences did not match the gravity of the defendants’ acts. It therefore increased the applicant’s sentence to seven years’ imprisonment.




  By a judgment of 6 December 2006 the District Court dismissed an extraordinary appeal by the applicant (“revizuire”) on the ground that the legal requirements for a reopening of the proceedings had not been met.

II.  RELEVANT DOMESTIC LAW




  Article 77¹ of the Romanian Code of Criminal Procedure (CCP) provides the following:

“(1)  When a victim’s life, physical integrity and freedom ... are at risk ... the court can allow for him or her to be heard without being present ... on the site where the hearing takes place, by means of technical devices provided for in the following paragraphs ...

(3)  The victim ... can be heard by video or audio link.”




  Article 140³ §§ 1 and 3 of the CCP provides the following:

“(1)  An accused or defendant or a prosecutor may lodge an appeal with the higher court against an interlocutory judgment ... ordering ... the extension of pre-trial detention ... The time-limit is twenty-four hours from delivery of the decision for those present, and twenty-four hours from its communication for those who are absent.

(3)  An accused or defendant held in pre-trial detention shall be brought before the court and heard in the presence of his or her counsel. If the defendant is in hospital or his or her state of health does not allow him or her to appear in court, or if there are other circumstances in which he or she cannot appear, the complaint shall be examined in his or her absence, but only in the presence of his or her counsel, who shall be allowed to make submissions.”




  Article 484 of the CCP provides the following:

“(1)  Proceedings related to a crime perpetrated by a person who is a minor must take place in his or her presence, unless the minor has eluded trial.”




  The CCP also provides for hearings to be held in private when the dignity of a person may be damaged or their private life exposed (Article 290). Only the parties, their representatives and counsel and persons who have an interest in the case are allowed to attend such hearings.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION




  The applicant complained that he was held in pre-trial detention for an excessively long period of time. He relied in substance on Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

Admissibility




  The Government argued that the domestic courts had decided on the applicant’s pre-trial detention and its continuation on the basis of the particular circumstances of the case. They referred to the seriousness of the offence, the danger posed to society by all the defendants, the material conditions in which the crime took place, and the age of the victim, and maintained that the decisions of the domestic court were adequately reasoned. The Government further argued that the total duration of the applicant’s pre-trial detention was less than a year, and that such a duration did not fall foul of the principles derived from the Court’s relevant case-law. They insisted that the case at hand was a very complex one and that there had not been periods of inactivity throughout the proceedings.




  The applicant disputed these arguments. He claimed that the domestic courts had extended his pre-trial detention without taking his personal circumstances into consideration. He also argued that the courts had not considered any of the alternatives to pre-trial detention available in law.




  The Court will examine the applicant’s complaint in the light of the general principles emerging from its case-law concerning the reasonableness of detention within the meaning of Article 5 § 3 of the Convention (see Calmanovici v. Romania, no. 42250/02, §§ 90-94, 1 July 2008, and Tiron v. Romania, no. 17689/03, § 36, 7 April 2009).




  In the instant case, the Court notes that the applicant was placed in pre-trial detention on 8 April 2005 and that his pre-trial detention ended on 31 March 2006, when the District Court convicted him. Therefore the duration of his pre-trial detention was eleven months and twenty-three days. Such a delay does not appear to be excessive (see Ciogescu v. Romania (dec.), no 14608/11, § 27, 29 May 2012).




  The Court also notes that the domestic courts reviewed, of their own motion and periodically, the legality and necessity of extending the applicant’s pre-trial detention. In their decisions they relied on the domestic legal provisions and the factual circumstances that justified, according to them, the necessity of extending this measure. Given the short periods of time between their decisions and the relatively short period of detention on remand, it is reasonable to assume that the domestic courts used similar reasoning in their decisions and relied on the same arguments in order to justify the extension of the applicant’s pre-trial detention (see Ciogescu, cited above, § 28, and Ardelean v. Romania, no. 28766/04, § 69, 30 October 2012).




.   It follows that this complaint is manifestly ill-founded and should be dismissed as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION




  The applicant complained that on 21 July and 9 and 25 August 2005 he was not brought before the domestic court that reviewed his appeals against the interlocutory judgments extending his pre-trial detention, and that his lawyer was not properly summoned to appear at two of these hearings. He relied in substance on Article 5 § 4 of the Convention, which reads as follows:

“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A.  Admissibility




  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits




  The applicant reiterated that his presence at the hearings in question as well as the presence of the lawyer that he himself had appointed was required even by the domestic law.




  The Government indicated that the applicant’s absence from the hearings could be explained by objective reasons, since the authorities had had no transport available to take detainees to court on those dates. They accepted that the procedural rules had not been properly observed on those occasions, but indicated that the applicant was offered proper remedies, since he was represented by a lawyer on each occasion. They insisted that the lawyer appointed by the court represented the applicant adequately during two of these hearings, since he submitted to the courts the same conclusions as had the lawyer that the applicant had appointed himself.




  The Court reiterates that under Article 5 § 4 of the Convention arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the Convention sense, of their deprivation of liberty. Although such a review does not always have to afford the same guarantees as those provided for in Article 6 § 1 of the Convention, a person deprived of liberty under Article 5 § 1 (c) must be heard either in person or, where necessary, through some form of representation (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B, and Tarău v. Romania, no. 3584/02, § 58, 24 February 2009). Proceedings related to review or extension of pre-trial detention must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II, and Włoch v. Poland, no. 27785/95, § 126, ECHR 2000-XI).




  Turning to the facts in the instant case, the Court notes that it is not disputed between the parties that the applicant was absent from the hearings on 21 July, 9 and 25 August 2005 before the County Court which reviewed his appeals against the interlocutory judgements extending his pre-trial detention.




  In this respect, the Court reiterates that when a State allows an appeal against decisions related to pre-trial detention it must afford to all interested parties the same guarantees as were available before the first-instance courts. If the applicants and their representatives had been present at the hearings before the first-instance courts, the State would not thereby have been released from its obligation to ensure that the applicants or their representatives are heard in person by the appellate courts, in order to guarantee equality of arms with the prosecution (see, mutatis mutandis, Samoilă and Cionca v. Romania, no. 33065/03, §§ 73-74, 4 March 2008, and Catană v. Romania, no. 10473/05, § 45, 29 January 2013).




  In the instant case the Court notes that the domestic rules of procedure require the presence of the defendant during hearings in which his or her appeal against an interlocutory judgement extending pre-trial detention is reviewed (see paragraph 30 above). Exceptions to this rule are allowed for medical reasons and in other cases, which remain, in all probability, to be determined by the domestic courts.




  The Government claims that such was the case, since the authorities had no transport available to take detainees to courts on those dates. The Court has doubts that such an explanation can be accepted as valid, especially as it seems that the situation indicated by the Government was common practice, at least as regards the County Court (see paragraph 12 above).




  For these reasons, the Court must examine whether the presence of a lawyer during the three hearings compensated for the applicant’s absence in a sufficient and effective manner.




  The Court notes at first hand that the applicant was represented during the 25 August 2005 hearing by the lawyer he himself had appointed. While it is not clear from the information provided by the parties whether the lawyer had been notified by the authorities on that occasion or whether he was notified by the applicant himself or became aware of the date of the hearing by his own means, it is nonetheless true that he was well acquainted with the applicant and his case and could therefore provide adequate representation for his client (contrast Tarău, cited above, § 61).




  This is not the case as regards the hearings on 21 July and 9 August 2005, at which the applicant was represented by a lawyer appointed by the court. It is not the Court’s task to examine the manner in which this lawyer performed his duties. Nonetheless, the Court notes that the County Court appointed this lawyer in all likelihood during the hearing, that the lawyer was not acquainted with the applicant or his case and that, in contrast with the prosecution, he was only afforded the time of the hearing to prepare the applicant’s defence (see Tarău cited above, § 61, and Catană, cited above, § 48).




  In the light of the above, the Court finds that the authorities did not fulfil their obligation to ensure that the applicant had an adequate and effective defence during the hearings on 21 July and 9 August 2005 before the County Court. It follows that there was a violation of Article 5 § 4 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION




  The applicant further complained that his right to adversarial proceedings had been breached, as he had had no confrontation with the victim throughout the entire duration of the proceedings. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3.  Everyone charged with a criminal offence has the following minimum rights...

(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...”

A.  Admissibility




  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits




  The applicant maintained that the domestic courts had not provided him with the opportunity to cross-examine the victim during a public hearing.




  The Government argued that the domestic courts took steps to ensure the applicant’s defence rights by delivering a summons to appear to the victim. However, the authorities could not be held responsible for her absence from the public hearings. The Government further argued that the victim’s statement was not the sole or the decisive ground for the applicant’s conviction, since the courts had relied on other evidence when they convicted him; they also argued that the applicant, who had been represented by a lawyer throughout the proceedings, had not persisted in his demand to be confronted with the victim.




  The Court will examine the complaint under the provisions of Article 6 §§ 1 and 3 (d) taken together (see, amongst other authorities, Asch v. Austria, 26 April 1991, § 25, Series A no. 203, and S.N. v. Sweden, no. 34209/96, § 43, ECHR 2002-V).




  The Court also notes that the principles applicable in the matter have recently been summarised in the case of Gani v. Spain (no. 61800/08, §§ 36-42, 19 February 2013), which deals with similar issues to those raised in the present case.




.  In particular, when a conviction is based solely or to a decisive degree on statements made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011). The “sole or decisive rule” should be applied with serious scrutiny, but allowing a certain flexibility (ibid., § 146). The Court has held that admission of hearsay evidence is not per se in breach of Article 6 of the Convention, but that it would require sufficient counterbalancing factors, including measures permitting a fair and proper assessment of the reliability of that evidence. This would allow a conviction to be based on such evidence only if it was sufficiently reliable, given its importance in the case (ibid., § 147).




  Paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him (see Sadak and Others v. Turkey (no. 1), nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001-VIII). That measure forms part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see, amongst other authorities, Colozza v. Italy, 12 February 1985, § 28, Series A no. 89). This rule must also be interpreted with a certain flexibility; provided that the authorities cannot be accused of a lack of diligence in their efforts to award the defendant an opportunity to examine the witnesses in question, the witnesses’ unavailability as such does not make it necessary to discontinue the prosecution (see Mayali v. France, no. 69116/01, § 32, 14 June 2005, and Ž. v. Latvia, no. 14755/03, § 94, 24 January 2008).




  In cases of sexual offences, where the victim is vulnerable, the Court allowed for special protection measures for the victim on condition that such measures could be reconciled with an adequate and effective use of defence rights. It took into consideration the trying character of such proceedings, particularly when the victim is confronted against his or her will with the presumed aggressor (see S.N. v. Sweden, cited above, § 47, and V.D. v. Romania, no. 7078/02, § 112, 16 February 2010).




  Turning to the facts in the instant case, the Court notes that, when they convicted the applicant, the domestic courts relied mainly on the victim’s statement and on those of some of his co-defendants. However, there was no unanimity amongst the applicant’s co-defendants and the domestic courts did not explain why they gave preference to the statements of some to the detriment of the others. Therefore, the Court finds that the victim’s statement was the main element that the domestic courts relied on when they convicted the applicant.




  The Court also notes that, with regard to her criminal complaint, the victim was not heard in person by the domestic courts during a public hearing. She was present during two public hearings before the District Court, but she did not testify in connection with the accusations she had made against the applicant and his co-defendants on either of those occasions. In fact, during the first of those hearings she testified on the civil aspects of the case, and during the second she could not be heard because of a procedural impediment (see paragraphs 21 and 23 above).




  The Court is aware that the victim was a minor, and that her young age and the nature of the alleged crimes would have justified special protection measures. The Court also takes note of the fact that the domestic law offered special protection to the victim of a crime, by allowing her to testify either in a different room from her alleged aggressor or during a hearing to which there was no public access (see paragraphs 29 and 32 above). Having in mind the emotional and psychological impact that a public hearing can have on a victim of sexual offences (see Gani, cited above, § 47, and, mutatis mutandis, Tyagunova v. Russia, no. 19433/07, § 68, 31 July 2012), the Court deems that such legal provisions can be of use, by preventing the alleged aggressor and his family or the media and the public in general from being present during the hearings when the victim is called to testify.




  However, in contrast with the case of Gani (cited above, § 45) in which a victim of rape was questioned at a public hearing but could not continue giving statements because of post-traumatic stress symptoms which had been medically documented, and despite the court’s efforts to provide her with psychological support, in the instant case the domestic courts did not examine nor explain the reasons for the victim’s absence, and no medical or psychological reports were produced suggesting that she was unable to testify at a public trial. Neither does it appear from the file that the courts considered taking any of the special protection measures for the victim that the domestic law provided for.




  The District Court ordered D.A. to attend the trial by virtue of a warrant to appear on two occasions (see paragraph 22 above). However, it is not clear from the file whether on 15 March 2006, when she attended a hearing, the victim did so by virtue of the warrant to appear or of her own will. In any event, the Court notes that after the hearing on 15 March 2006, when the victim was not heard because of a procedural impediment, the District Court did not take any measures to secure her presence at a subsequent hearing in order to hear her and give the applicant the possibility to examine her, but that rather, shortly after, on 31 March 2006, it delivered a judgement against the applicant (see paragraph 24 above).




  Consequently, the Court must examine whether the use of D.A.’s statements before the prosecutor was accompanied by sufficient counterbalancing factors, including measures allowing a fair and proper assessment of the reliability of the victims’ statements. In this respect, the Court reiterates that, in the case of Gani (cited above, § 48), the applicant’s representative was given the opportunity to ask the victim questions during the investigative stage of proceedings, and that the victim’s statements were read aloud at a public hearing during which the applicant was allowed to challenge their veracity. In contrast with that case, in the present case the applicant did not benefit from any such procedural safeguards, since neither he nor his lawyer was present when the victim was questioned by the prosecution. Neither was the applicant allowed to examine or have the victim examined during a public hearing before the domestic courts.




  Moreover, the Court notes that the applicant appealed against his conviction, claiming in particular that he was not given a proper opportunity to confront the victim during a public hearing (see paragraph 25 above). However, the domestic courts did not examine his arguments, and dismissed his appeal (see paragraph 26 above).




  The Court, after examining the fairness of the proceedings as a whole, considers that the impossibility for the applicant to examine the victim during a public and adversarial hearing resulted in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.




  Accordingly, the Court considers that in the present case there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention of the Convention.

IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION




  Lastly, the applicant alleged under Article 6 of the Convention that his appeal against the interlocutory judgement of 20 July 2005 was heard twice by the Vâlcea County Court, that the domestic courts were not impartial, that the sentence imposed on him was significantly more severe than in other similar cases, and that the various extraordinary appeal proceedings that he initiated did not have a fair hearing. In a letter of 1 May 2007 he complained of several other procedural irregularities.




  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V.  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 50,000 euros (EUR) in compensation for non-pecuniary damage.




  The Government argued that there was no causal link between the alleged violations and the non-pecuniary damage claimed by the applicant, and that the requested amount was not in line with the Court’s case-law.




  On the basis of its case-law in the matter, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage incurred.

B.  Costs and expenses




  The applicant did not submit a claim for costs and expenses.

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

1.  Declares, unanimously, the complaints concerning the lack of judicial review of the pre-trial detention and the fairness of the criminal proceedings admissible and the remainder of the application inadmissible;

 

2.  Holds, unanimously, that there has been a violation of Article 5 § 4 of the Convention with respect to the hearings on 21 July and 9 August 2005 before the Vâlcea County Court;

 

3.  Holds, by six votes to one, that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the impossibility for the applicant to confront the victim;

 

4.  Holds, unanimously,

(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, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada                                                                Josep Casadevall
       Registrar                                                                              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge López Guerra is annexed to this judgment.

J.C.M.
S.Q




PARTLY DISSENTING OPINION OF JUDGE LÓPEZ GUERRA

While agreeing with the Chamber’s finding of a violation with respect to Convention Article 5, I must express my dissent concerning its finding of a violation of Article 6. In my opinion, the Romanian Courts cannot be censured for their conduct in the case, given the characteristics of the crime and the personal circumstances of the victim. The applicant was one of six co-defendants in a trial for the gang rape of a minor, and the nature of the offence is certainly relevant in this case. It is commonly accepted, and the Chamber admits (paragraph 64), that public hearings have a deep emotional impact on the victims of sexual assault, resulting in a double victimisation, first as a result of the crime itself and afterwards by forcing the victim to re-live the aggression at the trial in the presence of her attacker. Moreover, this consideration is compounded in the present case by the fact that the gang-rape victim was a minor.

 

Given the existence of abundant evidence taken at trial (the testimony of no fewer than six co-defendants and two witnesses), there is no ground for maintaining that the Romanian courts’ decisions were based solely on the rape victim’s pre-trial statements. And in view of the circumstances of the crime, it is totally understandable that the Romanian courts did not consider it necessary to force the victim to publicly confront her attacker at trial (as the applicant requested), in view of the more than sufficient testimony of witnesses and other co-defendants. Therefore, there was no need for “countervailing measures”, in the absence of a direct confrontation between the applicant and the rape victim at trial. The Romanian courts had ample opportunity to hear the direct testimony of co-defendants and witnesses and to evaluate them and assess their credibility, taking into account contradictions among defendants and comparing their testimony to statements given during the pre-trial stage of the proceedings. Under such conditions the task of assessing evidence and finding the applicant guilty or not guilty falls exclusively to the national courts, and this Court certainly cannot substitute its own assessment for theirs. In view of the above, I do not consider that the Romanian courts breached in any way the requirements of Article 6 §§ 1 and 3 (d) when rendering the judgments which resulted in the applicant’s conviction.