THIRD SECTION

DECISION

Application no . 37702/06 Dănuț Augustin MUREŞAN against Romania

The European Court of Human Rights ( Third Section ), sitting on 16 December 2014 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Dragoljub Popović , Kristina Pardalos , Johannes Silvis , Iulia Antoanella Motoc , judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 13 September 2006 ,

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

1 . The applicant, Mr D ă nuț Augustin Mureşan , is a Romanian national, who was born in 1964 and lives in Oradea . He was represented before the Court by Mr R. Doseanu , a lawyer practising in Oradea .

2 . The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar , of the Ministry of Foreign Affairs .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . A t the relevant time t he applicant, a career military officer ( a major), was the liaison person in charge of supervising and approving works being undertaken for the renovation and modernisation of his military base .

5 . On 28 April 2004 the military branch of the Anti -C orruption Prosecutor ’ s Office committed the applicant for trial on several counts of corruption concerning public tenders. B.V., a civilian, was also indicted by the prosecutor for bribing the applicant. The prosecutors in charge of the indictment were career officers: a colonel-magistrate and a captain ‑ magistrate. B.V. failed to appear in court throughout the proceedings. The summons had been sent to an address in Romania of which his counsel had informed the courts. However, according to information received by the courts from the authorities, B.V. was living in the United States of America (“the USA”) at that time.

6 . The Bucharest Regional Military Tribunal, sitting in a panel composed of two colonel-magistrates, examined the case as a first ‑ instance court. It heard testimony from witnesses for the prosecution and allowed two witnesses for the defence to be called. However, those two witnesses failed to appear. The applicant gave statements before the court.

7 . On 10 September 2004 the Military Tribunal found the applicant guilty as charged and imposed a suspended sentence of three years and six months.

8 . The parties appealed. The applicant maintained his innocence and argued that the first-instance court had made an incorrect interpretation of the evidence in the file.

9 . The Bucharest Military Court of Appeal, sitting in a panel composed of two colonel-magistrates, gave judgment on 3 May 2005. In an extensively reasoned decision it dismissed the appeals and upheld the first ‑ instance judgment.

10 . The parties appealed on points of law. The applicant reiterated the representations he had made in the appeal proceedings, and in addition argued that B.V. should be summoned at his address in the USA and questioned by the court, as his statements could have an influence on the applicant ’ s situation.

11 . In a final decision of 15 March 2006 the criminal section of the High Court of Cassation and Justice dismissed the appeal lodged by the applicant, as it considered that the lower courts had correctly established the facts of the case and classified the crimes in law. It reiterated the arguments advanced by the Military Court of Appeal concerning the claims raised by the applicant in his previous appeal. It also considered that the evidence in the file was sufficient to secure the applicant ’ s conviction and that there were no doubts that could have been clarified by statements from B.V. The High Court allowed the appeal lodged by the prosecutor ’ s office and ordered that the applicant serve his sentence in detention.

COMPLAINTS

12 . The applicant complained under Article 6 § 1 of the Convention that the military courts and prosecutors had not been independent and impartial.

13 . Under Article 6 § 3 (d) of the Convention the applicant complained that he had been unable effectively to exercise his right to have witnesses examined by the courts. He reiterated that he had not been able to confront B.V., as the courts had refused to summons him at his real address in the USA.

THE LAW

A. On the independence and impartiality of the military courts

14 . The applicant complained that the military courts and prosecutors had not been independent and impartial, as required by Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

1. The parties ’ position

15 . The Government averred that the military courts system was provided with sufficient guarantees for independence and impartiality, as well as safeguards against outside pressure. In the case at hand, the military judges were senior officers; moreover, the case had been tried in the last resort by a civilian court. As for the applicant himself, he was a career military officer who had been charged with crimes linked to his professional activity.

16 . The applicant pointed out that the military judges were career officers who had been in uniform at the trial; they were part of the militar y hierarchy and thus subordinate to the executive authority of the State and observing military discipline. He further argued that the military courts were dependent on the executive for their budget. During the investigations some witnesses had been coerced into making statements against him and he had felt the same coercion because of the presence of a military prosecutor at the investigations.

2. The Court ’ s assessment

17 . I n order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia , to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence (see Cooper v. the United Kingdom [GC], no. 48843/99, § 104 , ECHR 2003 ‑ XII ) .

18 . On the facts of the present case, it is to be noted that the applicant was a career military officer who was on trial for charges of corruption in the exercise of his military functions.

20 . In Maszni v. Romania (no. 59892/00, 21 September 2006 ), the Court found that the Romanian military courts system offered certain guarantees of independence. In particular the military judges concerned underwent the same professional training as their civilian counterparts, and when sitting they enjoyed constitutional safeguards identical to those of civilian judges : they were nominated by the President of the Republic on the proposal of the Superior Council of Magistrates and could not be dismissed from their functions (see Maszni , cited above, § 55, and Morris v. the United Kingdom , no. 38784/97, § 65 , ECHR 2002 ‑ I ). Moreover, military judges could not be reported on in relation to their judicial decision making and had no obligations towards the executive in relation to their judicial work ( see Cooper , cited above, § 1 25 and, mutatis mutandis , Bucur and Tom a v. Romania , no. 40238/02, § 140 , 8 January 2013 ).

21 . The legislation applicable to the facts in Maszni (Law no. 54/1993 on the organisation of military prosecutors and courts) and that applicable to the case under examination (Law no. 304/2004 on the organisation of justice) regulate in the same manner the statute of military judges and the financing of the military courts.

22 . Moreover, the military judges and prosecutors had a higher military rank than the applicant, as required by law in order to avoid any pressure on the magistrates. The applicant could have requested the judges to step down if he had had any doubt as to their impartiality and independence. Lastly, the Court notes that the highest instance that heard the applicant ’ s case was the High Court of Cassation and Justice, an entirely civilian bench ( Bucur and Toma , cited above, § 140).

23 . In all of the above circumstances, the Cou rt concludes that the applicant ’ s misgivings about the independence and impartiality of the military courts were not objectively justified and that the criminal proceedings against him cannot consequently be said to have been unfair.

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

B. On the right to examine witnesses

24 . Under Article 6 § 3 (d) the applicant complained that he had been unable effectively to exercise his right to have witnesses examined by the courts , in particular as he had not been able to confront B.V.

25 . However, the Court takes note of the arguments put forward by the domestic courts on this point. In line with the principle of subsidiarity, the Court has no reason to contradict the interpretation given by those courts to the facts and evidence, in particular where, as in the case at hand, there is no indication of arbitrariness in the manner in which they applied the law to the facts under examination.

Therefore, 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 complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Stephen Phillips Josep Casadevall Registrar President