FOURTH SECTION

DECISION

Application no. 44231/10 Ciprian PETROVAI against Romania

The European Court of Human Rights (Fourth Section), sitting on 15 May 2018 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Egidijus KÅ«ris , Iulia Motoc , judges, and Andrea Tamietti , Deputy Section Registrar ,

Having regard to the above application lodged on 14 July 2010,

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 Ciprian Petrovai , is a Romanian national who was born in 1977 and lives in Sighetu Marma ţ iei . He was represented before the Court by Mr S. Bogdan, a lawyer practising in Cluj-Napoca.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms 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. A warrant for the applicant ’ s arrest was issued on 15 December 2008, the applicant being suspected of having committed, inter alia , migrant trafficking. At the time, the applicant, who had absconded, appointed a lawyer, D.C., to represent him.

5. The applicant and four other people were indicted on 16 March 2009. The indictment was read out before the Maramure È™ County Court on 20 October 2009; at the same hearing the applicant, assisted by D.C, as well as his co-defendants, were heard by the court.

6 . At a hearing on 17 November 2009, in the presence of the applicant and his lawyer, the court heard several witnesses. At the next hearing, on 22 December 2009, D.C. asked that three witnesses for the applicant be heard. The court allowed the application.

7. On 18 January 2010 D.C. informed the court in writing that he no longer represented the applicant, asking it to take the necessary measures to ensure appropriate representation for the applicant in respect of the next hearing, which was set for the following day.

8 . On 19 January 2010 the applicant ’ s newly chosen lawyer, T. G.-H., asked for an adjournment of the hearing, so as to be able to consider the documents on file. Her application was granted by the court.

9. On the same day, she filed with the Maramure È™ County Court an application to consult the case file. The application was granted.

10. On 27 January 2010 T. G.-H. filed an application with the Maramure È™ County Court, asking it to allow her to make copies of several dozen pages from the file. The proof of payment in respect of the corresponding stamp duty was appended to the application. T.G.-H. mentioned in her application that she had paid the stamp duty, as it had transpired from a previous discussion that she had had with the President of the County Court that she could not otherwise obtain any copies from the file, and nor could she photograph the file. In accordance with Law no. 146/1997 (see paragraph 27 below) on stamp duty, as in force at the time, each page copied from a file and certified as valid by a court needed to be stamped in exchange for a corresponding fee established by the law.

11 . The application was granted. Hence, in order to copy approximately 200 pages from the case file, the applicant ’ s lawyer needed to pay a stamp duty of 274 Romanian lei (RON) plus RON 63.70, the total amount representing the equivalent of approximately 80 euros (EUR).

12. On the same date the applicant ’ s lawyer filed an application with the President of the Maramureș County Court, asking for permission to take photographs of the case file or, alternatively, to obtain copies of it while being exempted from payment of the corresponding stamp duty. The application made reference to decision 387/22 of September 2005 taken by the High Council of the Judiciary approving the Internal Regulations of the Courts (see paragraph 27 below), stating that all through proceedings the courts needed to take all necessary measures to enable a person in pre-trial detention to both examine all the documents in the file opened in respect of him or her and contact his or her lawyer about those documents.

13 . Relying on Article 6 § 3 (b) and (c) of the Convention, as well as on Article 294 § 2 of the Code of Criminal Procedure (hereinafter, the “CCP” – see paragraph 26 below), T.G.-H. further referred to the importance of being able to consider all the documents in the file, so as to be able to put forward an appropriate defence for the applicant. She mentioned that the case file was very large (consisting of nine volumes), which therefore made it difficult for her and the applicant to properly consider all the documents by only consulting the file at the court ’ s archives. T.G.-H. concluded by saying that the obligation to pay stamp duty in relation to each copy lacked any legal and logical justification, and prevented the applicant from mounting an effective defence.

14. That application was refused by a letter of 10 February 2010 issued by the Maramure ș County Court ’ s Information and Public Relations Office. The letter stated that the legal framework in force at the time did not provide for the possibility to take photos of documents from a court file; however, the rights of the defence were ensured in several other ways. Furthermore, the application for an exemption did not have any legal basis, the only exemption from paying stamp duty in respect of criminal cases being when a person lodged a criminal complaint and claimed compensation for pecuniary and/or non-pecuniary damage in respect of that complaint.

15. At a hearing on 16 February 2010 T.G.-H. made the application she had previously filed in writing once again, asking to be allowed to obtain a copy of the whole file without having to pay the relevant stamp duty.

16. The court informed the applicant ’ s lawyer that she could consult the case file at the court ’ s archives and make copies of it as provided for by Law no. 146/1997 (see paragraph 27 below) and decision no. 387/2005 of the High Council of the Judiciary, namely after having paid the corresponding stamp duty.

17 . At the same hearing, T.G.-H. requested that several documents be submitted to the case file as evidence in the applicant ’ s defence. The court granted the application.

18 . In the presence of the applicant and his appointed lawyer, the Maramure È™ County Court heard witnesses for the prosecution and the defence at the hearings of 17 November 2009, 16 February, 16 March, 11 May and 19 November 2010. Wiretap recordings of phone conversations of the accused were played in court on 13 April, 11 May, 21 September and 16 November 2010.

19. The applicant ’ s detention ended on 22 April 2010, when he was released by a decision of the Cluj Court of Appeal.

20. On 14 July 2010 he filed the present application with the Court.

21 . Based on the evidence on file, and taking note of the parties ’ extensive written submissions, on 29 November 2010 the Maramure ș County Court convicted the applicant and sentenced him to four years ’ imprisonment.

22 . The applicant lodged an appeal, but did not make any reference, either expressly or in substance, to an alleged breach of Article 6 § 3 (b) in relation to not having had access to the criminal case file. His appeal essentially referred to the merits of the conviction.

23 . Examining the case in relation to the parties ’ appeals, and reviewing it from both a procedural and substantive-law point of view, on 2 May 2011 the Cluj Court of Appeal dismissed the applicant ’ s appeal and upheld his sentence.

24 . The applicant appealed against that latter judgment. However, at a hearing of 27 September 2011 before the High Court of Cassation and Justice, he withdrew his appeal.

25 . The High Court gave its judgment on 8 November 2011; it dismissed appeals lodged by two of the co-defendants and took note of the applicant ’ s decision to withdraw his appeal.

B. Relevant domestic law and practice

26 . Article 294 of the Code of Civil Procedure as in force at the material time and entitled “ Ensuring [the rights of] the Defence ”, provided in its relevant parts that:

“...

(2) The accused, the other parties and the defence are entitled to consider the case file throughout the trial.

(3) When the accused is detained, the court takes measures so as to allow him or her to exercise the right set out in the previous paragraph and to be able to contact his or her defender.”

27 . Article 3 ( ţ ) of Law no. 146/1997 on stamp duty, as in force at the relevant time, read together with Article 128 of the Internal Regulations of the Courts, as approved by decision 387/22 of September 2005 of the High Council of the Judiciary, stated that copies of documents from case files needed to be certified and therefore taxed at RON 1 per page.

28. The High Council of the Judiciary gave a number of interpretative decisions regarding the relevant legal provisions mentioned above. A decision of 25 June 2009 stated that, for conformity, all copies needed to be certified, and were thus to be subjected to the tax of RON 1. That decision was reversed on 25 March 2010, the High Council of the Judiciary holding that the stamp duty would apply to certified copies only, and not to simple copies from the case file.

29 . Law no. 146/1997 was repealed by Emergency Government Ordinance no. 80/2013, in force as of 29 June 2013. The new relevant text, namely Article 29 § 5 and Article 9 (i) of that ordinance, state that copies of case files need not necessarily be certified and no stamp duty needs to be paid; if the copies are made by the court, a fee of RON 0.20 per page is required. However, an interested person may copy the case file with the assistance of private parties licensed to provide such services within the court building (“ prestatori priva ţ i care func ţ ioneaz ă î n sediul instan ţ ei ”).

COMPLAINTS

30. The applicant complained that the burden placed upon him, namely having to pay a significant amount of money out of his own pocket (via his lawyer) so as to have access to his file, had been excessive and had prevented him from properly preparing hi s defence, in breach of Article 6 § 3 (b) of the Convention. He also submitted that no domestic remedy had existed in respect of the situation created by the law, in breach of Article 13 of the Convention.

LAW

31. The applicant complained that the refusal of the first-instance court to facilitate his access to the case file by, for instance, granting him free copies of the file, had breached his rights set out in Article 6 §§ 1 and 3 (b) of the Convention, which, in so far as relevant, read as follows:

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

...

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;

...”

A. The parties ’ submissions

32 . The Government argued that all through the proceedings the applicant, assisted by a lawyer of his own choosing, had had a fair opportunity to prepare an effective defence; the defence had raised arguments and objections, presented and challenged evidence, and cross examined witnesses.

33. Concerning the issue regarding the financial burden placed upon the applicant in connection with access to his file, the Government contended that the applicant had never claimed to be poor or to lack appropriate means, either before the domestic courts or before this Court. In such circumstances, no abstract obligation to provide free copies of documents from a case file could be read into Article 6 § 3 (b).

34 . With regard to Article 13, the Government argued that the applicant had had some remedies available, such as seeking an exemption from paying the stamp duty or obtaining legal aid, remedies which he had failed to use. In any event, they pointed out that the applicant had failed to invoke any breach of Article 6 § 3 (b) in his appeal, proving that, by that time, the defence had already fully familiarised itself with the content of the file.

35. The applicant disagreed. He submitted that it was excessive to place on the accused the burden of paying a large amount of money so as to obtain copies from his case file, and that this had been the only effective way in which he could prepare his defence. He contended that his fiancée had paid the required stamp duty, because at the time he had been in detention and had therefore had no means to pay all the costs related to the criminal proceedings against him. He therefore argued that the refusal of the domestic court to release copies of the case file free of charge or to allow his lawyer to make copies of it using her own means had been in breach of Article 6 §§ 1 and 3 (b).

36. He further submitted that the remedies referred to by the Government would have been ineffective in his case, as immediate access to the case file had been essential so that he could properly mount an effective defence. Those remedies took time and their outcomes were unpredictable.

B. The Court ’ s assessment

37. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together (see, among many other authorities, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , § 262, ECHR 2016 and Beraru v. Romania , no. 40107/04, § 63, 18 March 2014).

38. The Court points out that Article 6 § 3 (b) of the Convention secures to everyone charged with a criminal offence the right “to have adequate time and facilities for the preparation of his defence”, and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and stage of the proceedings (see Gregačević v. Croatia , no. 58331/09 , § 51, 10 July 2012).

39. The Court reiterates that it has previously found that unrestricted access to the case file and the unrestricted use of any notes, including, if necessary, the possibility of obtaining copies of relevant documents, are important guarantees of a fair trial. In previous cases concerning lustration proceedings, the Court found that the failure to afford such access had placed an unrealistic burden on the applicants and had weighed in favour of finding a breach of the principle of equality of arms (see Matyjek v. Poland , no. 38184/03, §§ 59 and 63, 24 April 2007, and Luboch v. Poland , no. 37469/05, §§ 64 and 68, 15 January 2008).

40. However, the Court underlines that compliance with the requirements of a fair trial must be examined in each case in the context of the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 113 , ECHR 2017 (extracts)). In the present case, the Court will first examine the allegations made by the applicant and will then proceed to an overall consideration of the fairness of the proceedings in their entirety.

41. As to the first point, the Court notes that the applicant ’ s main complaint referred to the fact that he had not been able to have immediate and free access to the documents in his case file when his case was before the first-instance court, more specifically at the time when he had decided to choose T.G.-H. as his new lawyer. Consequently, in order for him or his lawyer to obtain copies of the relevant documents from a large case file, he had had to pay an amount of money, which he considered excessive, in stamp duty, the court denying him the possibility to be exempted from that payment.

42. In this context, the Court notes that the proceedings before the first ‑ instance court were at an early stage at the time when the applicant hired T.G.-H. to defend him. The court had heard the applicant giving evidence in the presence of D.C., his former lawyer, and had examined three witnesses. It had also granted the defence ’ s application to call further witnesses (see paragraph 6 above). Subsequent to the hearing of 19 January 2010, adjourned by the court so as to allow T.G.-H. to consider the case file (see paragraph 8 above), the first-instance court continued to deal with a significant part of the evidence adduced in the file (witnesses called by both the prosecution and the defence, wiretaps) during the hearings on 16 February, 16 March, 13 April, 11 May, 21 September , 16 November and 19 November 2010 (see paragraph 18 above).

43. While taking note of the complexity of the case file, as also indicated by the large amount of material in it, the Court cannot overlook that, from the moment when she was appointed by the applicant to represent him, all through the proceedings, as well as in her written submissions, T.G.-H. was able to raise an important number of arguments in the applicant ’ s defence (see paragraphs 17 , 18 and 21 above). This serves to confirm the Government ’ s statement that she was sufficiently familiar with his case (see paragraphs 32 and 34 above; see also, by way of contrast, Galstyan v. Armenia , no. 26986/03, § 87, 15 November 2007, where the manner in which the proceedings – albeit less complex than in the present case – were conducted did not enable the applicant to develop a viable legal strategy for his defence).

44. The Court also acknowledges that the applicant ’ s counsel appears to have had restricted access to the case file initially; nevertheless, that restriction was only of a financial nature, in the sense that the payment of certain taxes was required in exchange for copies of the relevant and necessary documents. In that respect, the Court considers it important to distinguish the present case from the line of cases in which the restricted access to certain documents was justified by the domestic legislation on public interest grounds (see, for instance, Luboch , cited above, § 63).

45. While reiterating that, in principle, the failure to afford effective access to a case file may be an important factor in the Court ’ s assessment of how the principle of equality of arms has been applied, the Court considers that the effectiveness of such access cannot necessarily imply the obligation on domestic authorities to provide free copies of the case file in the absence of any indication that the interested party lacks the financial means to pay the stamp duty on those copies prescribed by the law. The Court notes that, in the present case, the applicant has never argued that he was poor or otherwise unable to pay the required fees for obtaining the copies; his lawyer ’ s application to be exempted from paying the legal fees was based mainly on an alleged lack of legal justification for such payments (see paragraph 13 above). Furthermore, the Court cannot ignore that in exchange for the copies of some 200 pages from the case-file, the applicant and/or his lawyer had to pay approximately EUR 80 (see paragraph 11 above), amount which does not appear as excessive in itself, let alone proved to be excessive in relation to the applicant ’ s financial means.

46. Lastly, the Court notes that the applicant did not refer to any breach of his defence rights protected by Article 6 of the Convention in his appeal against the first ‑ instance court ’ s decision, either expressly or in substance. For the purposes of the applicant ’ s complaints before it, the Court finds it relevant that the appeal court had the opportunity to fully review the applicant ’ s case, from both a procedural and substantive point of view (see paragraph 23 above).

47. Assessing the fairness of the proceedings as a whole, and in view of the particulars of the present case, the Court is satisfied that, even assuming that there were defects in the proceedings before the first-instance court in relation to the applicant ’ s right to mount an effective defence, those defects were cured before the case went before the appeal court. The fact that the applicant himself chose to withdraw his appeal on points of law against the appeal court ’ s judgment (see paragraphs 24 and 25 above) may also be interpreted as indirect confirmation of this viewpoint.

48. For the reasons set out above, the Court is convinced that the proceedings complied with the requirements of adversarial proceedings and the principle of equality of arms, and that the applicant ’ s legal representative had sufficient access to all the relevant material for the preparation of his defence. It follows that the applicant ’ s complaint under Article 6 §§ 1 and 3 (b) of the Convention must be rejected as being manifestly ill-founded pursuant to Article 35 § 3 of the Convention.

49. As to the remaining complaint raised by the applicant, the Court would reiterate that in cases where an individual raises an accompanying complaint under Article 13 of the Convention in relation to his allegations of a breach of the right to fair trial, the safeguards of Article 6 § 1, implying the full panoply of a judicial procedure are stricter than, and absorb, those of Article 13. In such cases there is no legal interest in re-examining the same subject matter of complaint under the less stringent requirements of Article 13 and, consequently, it is unnecessary for the Court to make a separate ruling (see Kudła v. Poland [GC], no. 30210/96, §§ 146-147, ECHR 2000-XI, and Austin v. the United Kingdom ( dec. ), no. 40/14, § 63, 10 January 2017).

50. In any case, the Court notes that the applicant was able to appeal against his conviction (see paragraph 22 above). The Cluj Court of Appeal considered his submissions and gave a fully reasoned decision, dismissing the applicant ’ s complaints (see paragraph 23 above; see also, mutatis mutandis , Austin , decision cited above, § 64).

51. Consequently, the complaint under Article 13 of the Convention is in any event manifestly ill-founded and must be rejected pursuant to Article 35 § 3 (a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 June 2018 .

Andrea Tamietti Paulo Pinto de Albuquerque              Deputy Registrar President