Communicated on 18 January 2021 Published on 8 February 2021

FOURTH SECTION

Application no. 13867/19 Simion ZÄ‚GREAN against Romania lodged on 4 March 2019

SUBJECT MATTER OF THE CASE

The applicant was convicted for a murder committed in Spain in 2004 and sentenced to twenty years ’ imprisonment. On 11 October 2017 (decision notified to the applicant on 5 September 2018), the Cluj Court of Appeal upheld the lower court ’ s findings that the applicant, together with one other man (L.D.), had beaten the seventeen year old victim into unconsciousness, and had then thrown him into an irrigation pool, where he drowned. The criminal investigations opened in Spain in relation to the crime focused on the acts of L.D., who at the time had declared to have been the only perpetrator of the crime allegedly committed on 2 June 2004. These proceedings ended in 2006 with the acquittal of L.D. ( in dubio pro reo ).

Parallel criminal proceedings in rem were launched in Romania, following the criminal complaint lodged in 2004 with the public prosecutor by the victim ’ s father. In 2009 these proceedings were opened against the applicant. Four witnesses (mainly belonging to the Romanian community working close to the place of the murder, in Spain) were heard by the prosecution, who had gone to Spain for that purpose; those hearings were conducted without allowing the applicant and/or his lawyer to participate or be present. The applicant alleged that his conviction relied, inter alia , on the statements of these witnesses.

During the investigative stage of the criminal proceedings before the prosecutor, several forensic reports were produced in the case, in addition to the already existing one which had been issued by the Spanish relevant authorities in 2004. The last report was issued in 2010, replying affirmatively to the prosecution ’ s question as to whether the crime could have been committed on 1 July 2004 rather than 2 July 2004.

The domestic courts dismissed the applicant ’ s request for leave to propose further questions to the forensic experts, to produce another expert report or to be given the opportunity to examine the experts in court.

Also, the applicant ’ s request to have examined twenty-one witnesses who allegedly had knowledge of relevant events was initially allowed by the first ‑ instance court, who launched a request for mutual assistance in criminal matters with the Spanish authorities. However, in view of the latter ’ s response that the indicated facts had already been the object of criminal investigations in Spain, the request was eventually refused. Those witnesses had not been heard by the domestic courts.

The application concerns the applicant ’ s allegations relating to the unfairness of the criminal proceedings against him. In particular, he complains about:

- the domestic courts ’ failure to re-examine four witnesses whose statements made before the prosecutor and in the absence of the defence were used to convict him;

- the domestic courts ’ failure to examine twenty-one witnesses called by the defence, in so far as the Spanish authorities had refused their request for mutual assistance in criminal matters;

- the domestic courts ’ refusal to allow his request for a new forensic report and/or for the hearing of the forensic experts, as the relevant reports produced in the case had been delivered without allowing the defence the opportunity to participate therein (asking questions, formulating objections, appointing an expert in the team on behalf of the defence).

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, were the principles of equality of arms and adversarial proceedings respected as regards taking, exclusion and examination of evidence proposed by the parties, as detailed below?

( a) Was the applicant able to respectively examine witnesses against him and to obtain the attendance of witnesses on his behalf, as required by Article 6 § 3 (d) of the Convention (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015; and Murtazaliyeva v. Russia [GC] , no. 36658/05, §§ 152-59, 18 December 2018, respectively )?

( b) Was the applicant allowed to challenge the conclusions of the forensic expert reports, for instance by putting questions to the expert, proposing experts to be included in the team, proposing alternative expert reports or requesting additional expert examinations, or by soliciting expert opinions otherwise in the course of the trial (see for instance Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 725, 25 July 2013; and Avagyan v. Armenia , no. 1837/10, § 43, 22 November 2018 ) ?

( c) Was the defence placed at a substantial disadvantage vis-à-vis the prosecution regarding the preparation and examination of expert reports (see for instance Matytsina v. Russia , no. 58428/10, § 187, 27 March 2014)?

( d) More generally, what were the legal requirements for such evidence to be admitted by the court for examination (see Matytsina , cited above, § 194)?

( e) Lastly, was the applicant afforded adequate procedural safeguards to compensate his inability to examine the witnesses, including forensic experts, during his trial?