FOURTH SECTION

DECISION

Application no. 68837/14 Florin Dumitru MOLDOVAN against Romania

The European Court of Human Rights (Fourth Section), sitting on 23 June 2020 as a Committee composed of:

Faris Vehabović, President, Iulia Antoanella Motoc, Carlo Ranzoni, judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to:

the above application lodged on 13 October 2014;

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 Florin Dumitru Moldovan, is a Romanian national who was born in 1977 and is detained in Arad Prison. He was represented before the Court by Mr A. Anastasescu, a lawyer practising in Timișoara.

The Romanian Government (“the Government”) were represented by their Agent, most recently Ms O. Ezer, of the Ministry of Foreign Affairs.

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

3 . The applicant was indicted on 13 February 2010 and, together with the co-accused, O.R., charged with the first-degree murder, aggravated first ‑ degree murder and unlawful deprivation of liberty of T.T. on the night of 22 May 2004.

4 . On 24 October 2011 the Sibiu County Court found O.R. guilty and acquitted the applicant of the offences with which they had been charged. Relying on several statements given by both undercover and regular witnesses, the court considered that the evidence adduced was not sufficiently decisive to rebut the presumption of innocence operating to the applicant ’ s benefit and to thus justify his criminal conviction.

5 . At the outset, the court noted that all the witnesses examined in the case, including the seven undercover witnesses (of which two agreed before the first instance to have their identities disclosed) were indirect witnesses, who had based their statements on what the defendants had allegedly disclosed to them at various points in time after May 2004.

The court also held that the complexity of the case, in particular the assessment of the evidence adduced, was due to the fact that the defendants, as well as a large number of the relevant witnesses, were members of different organised crime gangs, which had over time had common as well as conflictual interests in hiding or disclosing various crimes allegedly committed by the members of other gangs. The reliability of those witnesses was therefore hard to assess.

6 . In that vein, the County Court considered it necessary to set aside as unreliable and uncorroborated the statements given in the defendants ’ favour by their respective girlfriends at the relevant time.

7 . An important piece of evidence relied on by the court for establishing the factual basis of the case, as well as the reliability of the incriminating statements, was a note written and sent by the applicant while in prison sometime in the spring of 2010 to three of the prosecution witnesses, who had also been in prison at the time. Those witnesses and some other members of a rival gang had attempted to murder the applicant in late January 2009. In his note, the applicant asked the witnesses to declare that all the undercover witnesses in his case had given false statements against him at the request of the prosecutor, so as to obtain a more lenient sentence in the criminal cases against them. The applicant promised in exchange that he would declare before the criminal authorities that the witnesses had not been involved in the attempt to murder him.

8 . The court also noted the existence of the transcript of a phone call which took place on 9 January 2009 between the applicant and one of his future aggressors, in which the applicant had been threatened and informed that he had a lot of enemies.

9 . The court considered the two documents mentioned above (see paragraphs 7 - 8 ) and concluded that the few witness statements incriminating the applicant could not be relied on, in so far as those witnesses were probably in a conflictual relationship with the applicant, and their statements against him were in fact a means of getting revenge on him.

10 . On 30 October 2012 the Alba Iulia Court of Appeal allowed the prosecutor ’ s subsequent appeal and reversed the lower court ’ s findings in respect of the applicant. The court convicted him as charged and sentenced him to eighteen years ’ imprisonment.

11 . The appellate court had examined the applicant, the co-accused, O.R., as well as two expert witnesses, one of whom was a forensic doctor, who confirmed his medical conclusion that the victim had been murdered.

12 . The appellate court criticised the fact that the lower court had relied on the statement given by the undercover witness P.N. to convict O.R., while at the same time and without proper justification considering the same statement to be unreliable in relation to the applicant ’ s alleged participation in the crime. It held that his statements were entirely true and confirmed that both co-defendants were guilty; hence the witness had stated that the applicant and O.R. had told him what had happened on the night of the crime and took him with them to show him the exact trajectory of the car in which they held hostage the victim, on the night he was killed. The witness was able to indicate to the investigative authorities the exact trajectory of the car, which made his statement reliable in the appellate court ’ s view.

13 . The undercover witnesses P.M., D.L. and G.P. had also stated that O.R. had told them in detail and in the applicant ’ s presence, what he, together with the applicant, had done on the night when the victim eventually died, namely how they took the victim in the car and hit him several times. Furthermore, all witnesses in the file had confirmed that O.R. and the applicant were together most of the time, this fact being confirmed by the defendants themselves. The appellate court therefore concluded that the lower court had wrongfully held that the above-mentioned incriminating discussions were held in the applicant ’ s absence.

14 . The appellate court also noted that two of the undercover witnesses, who before the first-instance court had agreed to have their identities disclosed (see paragraph 5 above) and changed their incriminating statements given at the pre-trial stage of the investigation, had been convicted in 2011 of perjury; their statements before the first-instance court had therefore been excluded. The appellate court further confirmed the lower court ’ s decision to exclude the defence statements given by the defendants ’ girlfriends at the relevant time (see paragraph 6 above).

15 . The appellate court further considered the relevance of the written note signed by the applicant and sent to three of the prosecution witnesses (see paragraph 7 above), holding that the note served as proof of the defendants ’ attempts to undermine the efforts of the investigative authorities to establish the facts of the case and to identify those responsible for the crime. The court also noted that the defendants had already successfully used similar methods in attempts to escape criminal responsibility in connection with various other criminal cases against them.

The court concluded that, even if the undercover witnesses had referred more predominantly to the participation of O.R. in the criminal acts, they had nevertheless consistently indicated that the applicant had also been involved, together with O.R., in committing the crime. The court also mentioned that even if there was no direct witness in the case, who would have been present at the scene of the crime, all evidence corroborated and proved that both O.R. and the applicant were guilty for the crimes they had been charged with.

16 . The applicant appealed on points of law against the Court of Appeal ’ s judgment, relying on Article 385 9 § 1, points 9, 10, 17 and 18, of the Code of Criminal Procedure (see paragraph 20 below).

In particular, he argued that the appellate court had not provided reasons for its doubtful interpretation of the evidence; that it had not allowed a new forensic report to be adduced, with the aim of clarifying the circumstances of the death of the third party, which was the only direct evidence relevant to the case file; that he had been convicted of aggravated murder without any indication as to why such a serious legal classification had been given to the act; and that an essential factual error had occurred, as a result of which the conviction had been wrongfully pronounced, namely that the appellate court had erroneously relied on evidence given by the persons who had been convicted of attempting to murder him – their statements, which were in any event of an indirect nature, ought to be completely excluded and ignored. In the absence of any other evidence of a direct or scientific nature, his acquittal was imperative.

17 . On 23 May 2013 the High Court of Cassation and Justice dismissed the applicant ’ s appeal on points of law and confirmed the appellate court ’ s findings.

18 . The High Court considered that the appellate court had convincingly and extensively reasoned its decision, including in respect of its assessment of the evidence. Furthermore, the High Court held that the alleged errors committed by the appellate court referred to the manner in which it had assessed and interpreted the evidence, an aspect which was not subject to further review by the higher court.

In any event, the High Court held that all the factual circumstances established by the appellate court had been based on the evidence adduced in the case; it followed that the applicant ’ s appeal was manifestly ill ‑ founded.

19 . The relevant provisions of the Code of Criminal Procedure concerning the authority of the appellate courts and the courts ’ ruling on appeals on points of law, as in force at the material time, are set out in Găitănaru v. Romania (no. 26082/05, § § 17-18, 26 June 2012) and Cipleu v. Romania (no. 36470/08 , § 19, 14 January 2014 ).

20 . In particular, Article 385 9 § 1 provided that a decision could be subject to an appeal on points of law in the following circumstances: if the lower court ’ s decision did not include the reasons for the outcome or if the reasoning contradicted the operative part or the operative part was incomprehensible (point 9); if the court had not answered some of the requests which were essential for the parties, that is, they were meant to safeguard their rights and to influence the outcome of the case (point 10); if the legal classification of the criminal act was incorrect (point 17); and if an essential factual error had occurred, as a result of which an acquittal or conviction had been wrongfully pronounced (point 18).

If points 9 and 10 were found to be true, the lower court ’ s decision was quashed and the case sent for retrial; if points 17 and 18 were found to be true, the higher court held a retrial of the case, including by ruling on matters relating to the taking of evidence.

COMPLAINT

21 . The applicant complained under Article 6 of the Convention that the criminal proceedings initiated against him for murder had been unfair in view of the fact that his conviction had been based on indirect and unlawful evidence.

THE LAW

22 . The applicant complains about the alleged unfairness of the criminal proceedings against him. He relies on Article 6 of the Convention which, in so far as relevant, provides as follows:

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

23 . The Government indicated that in his complaints, the applicant had not argued that a rehearing of all or some of the witnesses had been necessary in the case; neither had he challenged the fact that the domestic courts that had convicted him had not reassessed the evidence, in particular by examining the witnesses again. What the applicant was contesting was the manner in which the courts had decided to rely on a particular piece of evidence rather than on another. In that respect, his claims appeared to focus on the courts ’ assessment of the evidence.

24 . The applicant argued that the domestic courts had committed a serious error in relying mainly on statements given by persons who had been convicted for attempting to murder him. He contended that the courts should have ignored those statements and relied on the remaining evidence adduced in the case, which was sufficient to justify an acquittal.

25 . The applicant also mentioned that the appellate court had refused to allow any additional evidence, in particular of a forensic nature, which would have clarified the factual background of the case.

26 . The Court reiterates that the scope of a case “referred to” it in the exercise of the right of individual application is determined by the applicant ’ s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle, the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied on by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint. To do so would be tantamount to deciding beyond the scope of a case; in other words, to deciding on matters that have not been “referred to” it, within the meaning of Article 32 of the Convention (see, for instance, Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , § 126, 20 March 2018).

27 . Turning to the present case, the Court notes that the applicant has explicitly complained before it that the appellate court had convicted him by wrongfully relying on unlawful evidence, namely on statements given by witnesses who had been convicted of attempting to murder him (see paragraphs 21 and 24 above) and that the High Court of Cassation and Justice had subsequently confirmed this incorrect assessment. Furthermore, the applicant never contended before the domestic authorities that the impugned statements should be reassessed; on the contrary, he consistently claimed that they should be set aside as unlawful (see paragraph 16 above).

28 . Against this background, the Court considers that to recharacterise in law the facts complained of by the applicant, and apply to these facts the principles set out in Găitănaru v. Romania (no. 26082/05, 26 June 2012), which refer essentially to safeguarding the immediacy principle by the court which overturns an acquittal, would imply that the Court would be deciding beyond or outside the scope of the case that has been referred to it (see, mutatis mutandis , Radomilja , cited above, § 125). As already stressed above, the system of protection established by the Convention does not enable it to seize on facts that have not been adduced by the applicant and to examine those facts for compatibility with the Convention (ibid., § 121).

29 . In view of the above and having regard to the applicant ’ s submissions before it, the Court finds it established that the core of his complaint relates to an alleged infringement of the general right to a fair hearing in Article 6 § 1 of the Convention caused by the manner in which the evidence against him was evaluated by the appellate court, which overturned the acquittal by the lower court; furthermore, the wrongful conviction was subsequently confirmed by the High Court of Cassation and Justice (see paragraph 17 above), in breach of the same right to a fair hearing.

30 . The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any specific rules on the admissibility of evidence or the way evidence should be assessed, which are therefore primarily matters for regulation by national legislation and the domestic courts (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 - I). It is not the function of the Court to deal with errors of fact or of law allegedly committed by a domestic court unless and in so far as they may have infringed rights and freedoms protected by the Convention. In the determination of whether the proceedings were fair the Court does not act as a court of fourth instance deciding on whether evidence has been obtained unlawfully in terms of domestic law, its admissibility or on the guilt of an applicant. These matters, in line with the principle of subsidiarity, are the province of the domestic courts. It is not appropriate for the Court to rule on whether the available evidence was sufficient for an applicant ’ s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts. The Court ’ s only concern is to examine whether the proceedings have been conducted fairly and that in a given case they were compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case (see, for instance, Murtazaliyeva v. Russia [GC] , no. 36658/05, § 149, 18 December 2018).

31 . The Court also reiterates that the manner of application of Article 6 § 1 to proceedings after appeal, including to supreme courts, depends on the special features of the proceedings involved; account must be taken of the entirety of the procedural system in the domestic legal order and of the role of the particular court therein (see, inter alia , Botten v. Norway , 19 February 1996, § 39, Reports of Judgments and Decisions 1996 ‑ I, and Lazu v. the Republic of Moldova , no. 46182/08 , § 33, 5 July 2016 ). Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 § 1, even if the appellant was not given an opportunity to be examined in person by the appeal court.

32 . Turning to the present case, the Court considers that the issue to be examined in the present case is whether the proceedings against the applicant, taken as a whole, were fair in the light of the specific features of these proceedings (see for instance Kashlev v. Estonia , no. 22574/08, § 43, 26 April 2016), having regard in particular to the applicant ’ s complaint that in convicting him, the domestic courts had relied on evidence which should have been set aside (see also paragraph 24 above).

33 . In that connection, the Court notes, firstly, that the applicant was heard both by the first-instance court, which acquitted him, and by the appellate court, which overturned the acquittal. In that respect, the procedural safeguard established in the Court ’ s case-law to the effect that in the determination of a criminal charge, the defendant should, as a general rule, be heard by the tribunal convicting him was fully complied with (see, inter alia , Júlíus Þór Sigurþórsson v. Iceland , no. 38797/17, § 33, 16 July 2019 and the references cited therein).

34 . Secondly, the Court notes that the appellate court based its decision to convict the applicant on a fresh evaluation of the evidence as a whole, without directly reassessing the evidence given orally by the witnesses before the first-instance court. Nevertheless, the Court reiterates that the applicant has not complained that the witnesses were not re-examined; he complained about the appellate court ’ s reasoning, referring to the radically different assessment of the witness statements by the domestic courts. The Court reiterates in this connection that the domestic courts are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, among many other authorities, Vidal v. Belgium , 22 April 1992, § 32, Series A no. 235 - B; Melnychuk v. Ukraine ( dec.), no. 28743/03, ECHR 2005-IX; and Karpenko v. Russia , no. 5605/04, § 80, 13 March 2012).

35 . In the instant case, the Court notes that there is nothing in the case file which might lead to the conclusion that the domestic courts acted in an arbitrary or unreasonable manner in assessing the evidence, establishing the facts or interpreting the domestic law. On the contrary, the Court considers that adequate safeguards against arbitrariness were in place in the proceedings against the applicant. The Court notes that the difference in the first instance ’ s and the appellate court ’ s assessment of the evidence mainly resulted from the courts ’ different approach to the coherence or discrepancies within and between the testimonies of individual witnesses and their interpretation of the circumstances of the offence as a whole (see, mutatis mutandis , Kashlev , cited above, § 48 ). The Court observes, in particular, that the Court of Appeal disagreed with the fact that the County Court had rejected certain parts of some of the witness statements as evidence against the applicant, yet had considered the same statements sufficient to convict the co-accused (see paragraph 12 above); having taken that evidence into account, the Court of Appeal arrived at a different conclusion from that of the County Court (see, mutatis mutandis , Chiper v. Romania , no. 22036/10, § § 67-68, 27 June 2017).

36 . The Court also takes note of the particularly thorough reasoning provided by the appellate court for departing from the assessment of the evidence by the first-instance court, including the indication of mistakes made by it (see paragraphs 12 - 15 above).

37 . Furthermore, the Court notes that the applicant ’ s appeal against the appellate court ’ s judgment to the country ’ s highest court allowed the latter to verify whether the requirements of domestic law, including those of a fair trial, had been met. The aspects which the High Court of Cassation and Justice was called upon to analyse in the present case in order to confirm or quash the conviction had a predominantly legal character, and its judgment expressly stated that it was not for it to carry out a fresh evaluation of the evidence, in so far as that did not represent a valid reason for an appeal on points of law. Even so, the High Court considered that the appellate court had correctly established all the factual circumstances, on the basis of the evidence adduced in the case (see paragraph 18 above). In this context, the Court considers it significant that, as already mentioned, the applicant did not request in any manner the examination of witnesses before the highest court, but rather requested that the court set aside the particular statements as unlawful (see paragraph 16 above, and Kashlev , cited above, § 46).

38 . Having regard to the foregoing and to the issues adjudicated before the cassation court (see, mutatis mutandis , Júlíus Þór Sigurþórsson , cited above, § 37), as well as to its limited function in assessing whether the evidence in the case was admissible or indeed sufficient to justify the applicant ’ s conviction (see paragraph 30 above), the Court finds that in the circumstances of the present case, and in view of the fact that the applicant had the benefit of adversarial proceedings and at the various stages of those proceedings was able to submit the arguments he considered relevant to his case, his complaints as to the unfairness of his criminal trial are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 July 2020 .

Ilse Freiwirth Faris Vehabović Deputy Registrar President