THIRD SECTION

DECISION

Application no . 26850/11 Mohamed Majdi KATTAN against Romania

The European Court of Human Rights ( Third Section ), sitting on 21 January 2014 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Nona Tsotsoria, Kristina Pardalos, Johannes Silvis, Valeriu Griţco , Iulia Antoanella Motoc , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 26 April 2011 ,

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. T he applicant, Mr Mohamed Majdi Kattan , is a Syrian national, born in 1973 and liv ing in Ţăndărei . He was represented before the Court by Mr I. Dan , a lawyer practising in Bucharest .

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

A. The circumstances of the case

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

4. On an unspecified date a third party brought criminal proceedings and joined civil claims against the applicant for attempted fraud and forgery.

5. On 11 October 2007 the Ialomiţa Prosecutor ’ s Office indicted the applicant for attempted fraud and forgery and sent his case for trial.

6. By a judgment of 9 June 2008 the Ialomiţa County Court acquitted the applicant in respect of both charges on the basis of statements he had given to the prosecutor ’ s office and the court, and testimonial and document ary evidence. The p rosecutor ’ s o ffice and the third party appealed against the judgment.

7. By a judgment of 7 October 2009 the Bucharest Court of Appeal dismissed their appeals as un founded on the merits . The p rosecutor ’ s o ffice and the third party lodged an appeal on points of law ( recurs ) against the judgment before the High Court of Cassation and Justice (“the Court of Cassation”) .

8. On 5 February 2010 the Court of Cassation summoned the applicant to its first hearing of the case, listed for 23 February 2010. On the same date, a bailiff posted the summons on the applicant ’ s front door and on the Ţăndărei local council noticeboard because no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts.

9. By an interlocutory judgment of 23 February 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. In addition, it allowed a request by the applicant ’ s chosen legal representative seeking an adjournment of the hearing in order to familiarise himself with the case and the reasons for the prosecutor ’ s office ’ s and third party ’ s appeals on points of law. It also ordered that the applicant be summoned to the next hearing, listed for 20 April 2010.

10. On 17 March 2010 the bailiff posted the summons for a second time on the applicant ’ s front door and on Ţăndărei local council noticeboard because again no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts.

11. By an interlocutory judgment of 20 April 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. It also noted that the applicant ’ s chosen legal representative had submitted before it that the applicant had not left the country, and that he would contact his client and ask him to appear before the court. In addition, it ordered that the applicant be summoned to the next hearing, listed for 1 June 2010, with a specific direction on the summons which stated “mandatory attendance before the court in order to be heard” ( prezen ț a obligatorie la instan ță pentru a fi audiat ).

12. By an interlocutory judgment of 1 June 2010 the Court of Cassation noted that the applicant had not been lawfully summoned to the hearing and adjourned the proceedings until 14 September 2010. It ordered that the applicant be summoned in accordance with its directions of 20 April 2010.

13. On 22 June 2010 the bailiff posted the summons for a third time on the applicant ’ s front door and Ţăndărei local council noticeboard because again no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts. The summons included the specific direction given by the Court of Cassation on 20 April 2010.

14. By an interlocutory judgment of 14 September 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. In addition, it allowed the applicant ’ s chosen legal representative and the other parties to submit observations on the merits of the case, and afterwards adjourned the proceedings pending deliberation.

15. By a final judgment of 3 November 2010 the Court of Cassation allowed the Ialomiţa Prosecutor ’ s Office ’ s and third party ’ s appeal s on points of law on the basis of the evidence available to it , quashed the judgments of the lower courts, convicted the applicant of attempted fraud and forgery and sentenced him to three years and four months ’ imprisonment.

16. The applicant lodged an extraordinary appeal ( contestaţie în anulare ) against the final judgment of 3 November 2010. He argued , inter alia , that the final-instance court had breached the applicable rules of criminal procedure and Article 6 of the European Convention on Human Rights because it had convicted him without hearing evidence from him after he had been acquitted by the lower courts .

17. By a final judgment of 4 April 2011 the Court of Cassation dismissed the applicant ’ s extraordinary appeal . It held that after the applicant had been acquitted by the lower courts, the Court of Cassation sitting as court of final appeal had had a duty to hear evidence from him in accordance with the applicable rules of criminal procedure. However, although the applicant had been summoned at the correspondence address he had chosen himself, he had failed to attend the hearings. Also, he had not indicated, either through his chosen legal representative or by way of written submissions, his wish for the court to hear evidence from him directly or the objective reasons preventing him from attending the hearings. The final-instance court had summoned the applicant in exactly the same way the lower courts had done. Furthermore, during the proceedings before the first-instance court the summoning of the applicant through the procedure he was contest ing had not prevented him from appearing before the court, from being heard by it or from submitting arguments in his defen c e , either directly or through the same chosen legal representative who had represented hi m during the entire course of the proceedings. At no stage of the proceedings had the applicant or his legal representative asked the court to summon him at a different address. Consequently, it could not be held that the final-instance court had lacked diligence in determining if the applicant was living at the address indicated by him. The court had assumed that as long as the applicant had been lawfully summoned, he had been familiar with the proceedings and had opted not to appear before the court. In fact, his conduct had been similar to the conduct he had displayed before the second-instance court, in that he had failed to attend the hearings despite having been lawfully summoned to do so, and had chosen to be defended exclusively through his chosen legal representative. It further dismissed the applicant ’ s argument that he had not been familiar with the proceedings because he had not been in contact with his chosen legal representative, on the grounds that they had signed separate legal representation contracts for each stage of the proceedings, and that on 20 April 2010 the applicant ’ s legal representative had informed the court about his whereabouts and had pledged to ensure his client ’ s attendance before it.

B. Relevant domestic law

Romanian Code of Criminal Procedure

18. Articles 385 14 § 2 and 385 16 provide that it is mandatory for the final ‑ instance court to hear direct evidence from an accused when the lower courts have ac quitted him or her. Where an appellate court quashes a judgment delivered by a lower court, it has to decide on the evidence to be adduced and set a date on which to take statements fr om the accused directly if the latter has no t been heard or if he or she has been acquitted by the lower court.

19. Articles 183 § 1 and 184 §§ 1 and 4 provide that if a summoned person fails to appear before the court, and her attendance or direct evidence is required, he or she can be taken before the court on the basis of an order to appear ( mandat de aducere ). The order to appear is enforceable by the national police, the gendarmes or the local police. If the person responsible for enforcing the order to appear is unable to find the intended recipient of the order at the address indicated, he or she must open an investigation. If the investigation remains fruitless , he or she must draft a report outlining the investigative steps that have been carried out.

20. Article 385 15 § 2 (d) provides that the court examining the appeal on points of law can allow the appeal on points of law and re-examine the case.

COMPLAINT

21. Relying on Article 6 of the Con vention, the applicant complained that he had not ha d a fair trial before the Court of Cassation in so far as the final- instance court had convicted him without hearing evidence from him after he had been acquitted by the lower courts , and had failed to take any positive steps to ensure his attendance before the court.

THE LAW

22. The applicant complained that the criminal proceedings brought against him had been unfair because the final -instance court had convicted him without hearing evidence from him after he had been acquitted by the lower courts. He relied on Article 6 of the Convention , the relevant parts of which rea d 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:

... (c) to defend himself in person or through legal assistance of his own choosing ...”

A. The parties ’ submissions

23. The Government contended that the present case was different from the case of Spînu v. Romania ( no . 32030/02 , 29 April 2008 ). They pointed out that in spite of his complaint, the applicant had been fully aware of the proceedings before the final-instance court. Also, he had been lawfully summoned at the address he had chosen for correspondence with the courts, and on the noticeboard of the local council. In addition, on 20 April 2010 not only had the applicant ’ s representative pledged to ensure his client ’ s attendance before the court, but the court had also summoned the applicant, with a specific direction stating that his attendance was mandatory in order to be heard . However, he chose not to attend the hearings and to submit his arguments and evidence through his chosen legal representative, who had also failed to provide any objective reasons for the applicant ’ s absence.

24. In that context the Government submitted that the applicant had failed to diligently take part in the proceedings opened against him and therefore it could be reasonably inferred that he had tacitly and unequivocally waived his right to be personally involved.

25. They also submitted that the domestic courts had taken all the necessary positive steps in order to ensure the applicant ’ s procedural rights. They had lawfully summoned the applicant and adjourned the proceedings repeatedly to allow him to appear before them. During the proceedings the applicant had only attended a few hearings before the first-instance court and had thereafter relied on his chosen lawyer to represent him. The domestic courts had had no information available to suggest that the applicant had not been aware of the summonses.

26. The applicant submitted that the final-instance court had failed to take all the necessary positive steps in order to ensure his attendance before it. He contended that an order to appear would have enabled the police to search him and to take him before the court. The police would have easily found him, given that he had been living in the same town as where he conducted his business and that they had found him within two days of deliver y of the final sentencing judgment .

B . The Court ’ s assessment

27. The Court reiterates that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant ’ s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by an accused who claims that he has not committed the act alleged to constitute a criminal offence (see Ekbatani v. Sweden , 26 May 1988, § 32, Series A no. 134; Andreescu v. Romania , no. 19452/02 , § 64, 8 June 2010; and Marcos Barrios v. Spain , no. 17122/07 , § 32, 21 September 2010 ) .

28. The Court also reiterates that a lthough pr oceedings that take place in the accused ’ s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is subsequently unable to obtain from a court which has heard evidence from him directly a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to ap pear and to defend himself (see Colozza v. Italy , 12 February 1985 , Series A no. 89 , § 29; Einhorn v. France ( dec. ), no. 71555/01, § 33, ECHR 2001-XI; Krombach v. France , no. 29731/96, § 85, ECHR 2001-II; and Somogyi v. Italy , no. 67972/ 01, § 66, ECHR 2004-IV) or that he intended to escape trial (see Medenica v. Switzerland , no. 20491/92, § 55 , ECHR 2001-VI ).

29. The Court notes that in th e instant case the scope of the Court of Cassation ’ s powers, when sitting as an appellate court, is set out in Articles 385 15 and 385 16 of the Code of Criminal Procedure. In accordance with Article 385 15 , the Court of Cassation had jurisdiction to give a fresh judgment on the merits . On 3 November 2010 the court quashed the judgment of the lower courts and gave such judgment. Under the above ‑ mentioned legal provisions, the effect of this was that the proceedings before the Court of Cassation were full proceedings governed by the same rules as a trial on the merits, with the court being required to examine both the facts of the case and questions of law. The final -instance court could decide either to uphold the applicant ’ s acquittal or convict him, after making a thorough assessment of the issue of his guilt or innocence.

30. As to the Government ’ s argument that the applicant had refused to attend hearings before the domestic courts generally , and before the final ‑ instance court in particular, although he had been lawfully summoned to do so, t he Co urt reiterates that the domestic authorities had a positive obligation to take steps in thi s regard (see, mutatis mutandis, Dănilă v. Romania , no. 53897/00 , § 41, 8 March 2007 , and Spînu , cited above, § 58 ).

31. In this context the Court notes that the applicant ’ s complaint was examined by the Court of Cassation on 4 April 2011. That court carried out an in-depth examination of the applicant ’ s arguments and dismissed his complaint by providing extensive reasons which do not appear arbitrary or questionable.

32. Like the domestic courts, the Court notes that during the course of the criminal proceedings brought against him the applicant was repeatedly summoned at the correspondence address indicated by him and that he was assisted by the same chosen legal representative. Although he attended hearings before the first-instance court, the applicant did not appear before the second-instance court and made his submissions before it exclusively through his chosen lawyer. In addition, the final-instance court lawfully summoned him on three occasions and expressly indicated prior to the hearing of 14 September 2010 (when it heard the parties ’ submissions with regard to the merits of the case) that the applicant had to appear before it in order to be heard. Even if, contrary to his allegations, it appears that the applicant was aware of how his case was progressing and that he had continuous contact with his chosen legal representative, he did not attend any hearing before the final-instance court. Moreover, neither he nor his legal representative informed the domestic courts, particularly the final ‑ instance court, about a change of correspondence address or provided a reason preventing him from appearing before them. In these circumstances, notwithstanding the applicant ’ s arguments, the Court considers that the final-instance court had fulfilled its positive obligation to take steps in order to ensure the applicant ’ s attendance before it.

33. Consequently, the Court considers that the applicant had largely contributed to the creation of a situation preventing him from appearing before the final-instance court (see, mutatis mutandis , Medenica , cited above, § 58) and that he could have reasonably foreseen the consequences of his conduct (see, mutatis mutandis , Jones v. the United Kingdom ( dec. ), no. 30900/ 02 , 9 September 2003 ).

34. It follows t hat the application is 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.

Santiago Quesada Josep Casadevall Registrar President