THIRD SECTION

DECISION

Application no . 42315/04 Felix GrigoraÈ™ BURCÄ‚ against Romania

The European Court of Human Rights ( Third Section ), sitting on 17 December 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Luis López Guerra, Nona Tsotsoria, Johannes Silvis, Valeriu Griţco, judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 19 November 2004 ,

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 Felix Grigora ş Burc ă , is a Romanian national, who was born in 1975 and lives in R ă mnicu Vâlcea . He is represented before the Court by Mr F. Cladoveanu , a lawyer practising in Bucharest .

2. The Romanian Government (“the Government”) were represented by their Agent s , Mr R.-H. Radu and Ms C. Ciut ă , of the Ministry of Foreign Affairs .

The circumstances of the case

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

4. On 29 November 2003, based on a body of evidence presented by the prosecutors and reviewed by the court, the applicant was convicted together with fifty-one co-defendants to a sentence of four years imprisonment for theft of petrol from pipelines belonging to petrol companies and conspiracy to commit crimes.

5. The lawyer who represented the applicant throughout the proceedings before the first instance court, T.V., filed an appeal on points of law ( recurs ) against this decision on behalf of the applicant, mentioning that the reasons for appeal would be presented in more detail before the appeal court. However, he did not submit a power of attorney for the appeal proceedings.

6. On 16 February 2004, at the first hearing on the appeal on points of law before the High Court of Cassation and Justice, the applicant as well as another co-defendant, were represented by T.V. who orally presented the reasons for appeal only on behalf of the latter. Following this hearing, the court noted that the applicant was represented by a lawyer of his own choice and informed the Bar Association that the previous designation of D.G. as ex officio lawyer for the applicant on 12 February 2004 had therefore ceased. The court further mentioned that Ms D.G. should continue to represent other four co-defendants.

7. At an unspecified date following the first hearing on the appeal, the applicant hired two lawyers, N.C and F.C., to represent him in the proceedings. They submitted to the case file detailed reasons for appeal and powers of attorney for the applicant ’ s representation before the High Court of Cassation and Justice. In their submission they requested a lower sentence and the suspension of the applicant ’ s prison term having in mind that he had not committed any crime since he only accompanied by accident the persons who committed the crimes.

8 . At the hearing of 29 March 2004, the court took note of the fact that the applicant was present but that the lawyers he chose to represent him were absent without justification. The court also noted that no power of attorney had been submitted for T.V. who represented the applicant at the first hearing and drew the applicant ’ s attention requesting him to remedy these failures. The court further postponed the case on 17 May 2004 and noted that the defendants present before it should not be summoned for the next hearing since they were thereby given notice of the date of the next hearing.

9. On 14 May 2004 N.C. submitted at the registry of the High Court of Cassation and Justice a request for the postponement of the hearing of 17 May as he would not be able to appear before the court due to medical reasons. He mentioned that he would submit medical proof in this respect at the next hearing. The request reached the file on 17 May 2004 at 12:30 once the hearing had already finished.

10. On 17 May 2004 neither the applicant nor his lawyers were present at the hearing. Therefore, the court appointed D.G. to represent the applicant ex officio . Further on, rejecting several requests for a new postponement submitted by some of the defendants with the reasoning that any further delays in the proceedings would prejudice the defendants who were in detention, the court opened the debates on the merits of the appeals. On behalf of the applicant and two other co-defendants, D.G. requested that their appeals be allowed, their sentences be reduced and their execution be conditionally suspended. The court postponed the delivery of its decision for 26 May 2004.

11 . On 20 May 2004 N.C. submitted written comments on behalf of the applicant reiterating the reasons for his appeal.

12 . On 26 May 2004 the High Court of Cassation and Justice after analysing the applicant ’ s reasons for appeal, as submitted in writing by his lawyers, rejected the applicant ’ s appeal as ill-founded.

13 . The applicant filed an extraordinary appeal ( contesta ţ ie î n anulare ) against this judgment complaining that he was not summoned for the hearing of 17 May 2004. This appeal was rejected by the High Court of Cassation and Justice on 22 June 2005 with the reasoning that the law provided that defendants who were present at a hearing, such as the applicant, were considered to know the date of the next hearing and therefore no summons was necessary in their cases.

14 . The applicant also filed a request for the revision of the final judgment in his case. He claimed that there were facts that proved he was innocent. These facts were known to the court deciding on his appeal but he did not have the chance to present them before that court therefore a re-trial was necessary in his case. On 28 October 2005 the High Court of Cassation and Justice rejected the applicant ’ s request as ill-founded holding that the courts analysed an extensive and pertinent body of evidence in his case and no new facts were brought up by the applicant to justify a re-opening of the proceedings.

COMPLAINT S

15. The applicant complained under Article 6 § 3 (c) of the Convention that his rights of defence were breached and he was deprived of legal assistance in order to support his appeal due to the domestic court ’ s failure to take into account his lawyer ’ s request for a postponement of the hearing .

16. In his letter of 27 September 2005 the applicant also complained in general terms of the ineffectiveness of the defence by the ex officio lawyer designated on the spot during the hearing of 17 May 2004.

THE LAW

17. The applicant complained of a breach of his rights of defence as provided by Article 6 § 3 (c) of the Convention which reads as follows:

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

(...)

(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; (...) .”

18. The applicant alleged that the domestic court deprived him of the possibility to be represented by the lawyer of his choice due to the failure to take into account N.C. ’ s request for a postponement of the hearing of 17 May 2004. Subsequently, in a letter of 27 September 2005, the applicant also complained in general terms of the ineffectiveness of the defence by the ex officio lawyer appointed by the High Court of Cassation and Justice. In his observations before the Court, the applicant detailed this last complaint.

19. The Government contended that the applicant and his lawyers were absent without justification at the hearing of 17 may 2004. Moreover, the applicant ’ s lawyers, even if they were not present at the final hearing, had the chance to present written comments on their appeal. However, in their submission they failed to complain about the non-observance of their request for a postponement or about the appointment of an ex officio lawyer to represent the applicant. The Government further submitted that the ex officio lawyer was familiar with the file and effectively supported the applicant ’ s appeal before the court.

20. The Court notes that at the hearing of 29 March 2004 the applicant was informed about the date of the next hearing. In the same time the domestic court noted the unjustified absence of the applicant ’ s lawyers and asked him to remedy this situation. However, he was absent from the hearing of 17 May 2004 without justification and likewise his lawyer F.C. His second lawyer, N.C. submitted a request for a postponement of this hearing for health reasons but did not join any supporting documents. Nevertheless, the request did not reach the file on time to be discussed during the hearing. However, the Court considers that the applicant could have shown more diligence and present himself at the hearing of 17 May 2004 in order to make sure that the domestic court took into consideration his lawyer ’ s request, having in mind that it was filed with the registry only two days before the hearing. In addition, if the applicant would have been present at the hearing he could have presented his reasons for appeal and avoid that the court examined his case without hearing his position. Such diligence would have been even more necessary since the Romanian law does not provide for an automatic postponement of a hearing in the applicant ’ s actual situation (see Cristian v. Romania (dec.), no. 36646/02, 3 February 2009).

21. Therefore, in deciding not to present himself at the hearing of 17 May 2004, the applicant took the risk to see his case decided upon in the absence of his lawyer ’ s request for a postponement or even the risk of a possible rejection of the said request. However, he did not provide the domestic court or this Court with any explanation concerning any possible reasons preventing him from being present at the hearing in question.

22. The Court observes in addition that the domestic court postponed the delivery of the judgment so that the persons who were not present at the final hearing could submit written comments. In this respect the Court notes that the applicant ’ s lawyer used this opportunity to reiterate the reasons for the applicant ’ s appeal. However, in his written comments he did not complain whatsoever about the court ’ s failure to analyse or to allow his request for postponement or about an eventual ineffectiveness of the defence ensured by D.G. The applicant also did not raise any of these issues neither during the time before the adoption of the final judgment of 26 May 2004, nor subsequently in his extraordinary appeals (see paragraphs 11, 13 and 14 above).

23. The Court further notes that the High Court of Cassation and Justice analysed the applicant ’ s reasons for appeal as described in the submission filed by his lawyers and decided to reject the appeal as being ill-founded (see paragraph 12 above).

24. In view of the above and having in mind that the manner in which Article 6 is to be applied in relation to courts of appeal or of cassation depends on the special features of the proceedings in question (see KudÅ‚a v. Poland [GC], no. 30210/96, § 122, CEDH 2000 ‑ XI) , the Court considers that there was no failure in the manner in which the domestic court examined the applicant ’ s appeal, considering also his lack of diligence in being present at the hearing of 17 May 2004.

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

25. With respect to the applicant ’ s allegations concerning the lack of effectiveness of the defence provided by the ex officio lawyer, the Court notes that this complaint was firstly raised by the applicant in general terms in a letter addressed to the Court on 27 September 2005 and further detailed in his observations on the admissibility and the merits of the application, hence more than six months following the final decision of 26 May 2004 of the High Court of Cassation and Justice.

It follows that this complaint must be rejected as having been introduced outside the six month time-limit pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President