Communicated on 18 September 2015

THIRD SECTION

Application no. 1814/11 Marilena -Carmen POPA against Romania lodged on 15 December 2010

STATEMENT OF FACTS

The applicant, Ms Marilena -Carmen Popa , is a Romanian national, who was born in 1960 and lives in Bucharest . She is represented before the Court by Ms I.M. Peter , a lawyer practising in Bucharest .

A. The circumstances of the case

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

Until 10 September 2010 the applicant was a public notary practising in Bucharest.

On 28 November 2003 the applican t authenticated a land sale contract, concluded between the seller S.C. V. S.R.L., represented by C.E., and the buyer S.C. O.E. S.R.L., represented by M.S.

On 1 July 2005 the prosecuto r ’ s office attached to the High Court of Cassation and Justice – the Directorate for Investigating Organized Crime and Terrorism issued an indictment against the applicant and four other individuals (“the co-accused”).

The applicant was charged with the continuing offence of forgery, being accused of having authenticated seven contracts, including the one signed on 28 November 2003, in the absence of the signatory parties.

The co-defendants were charged on the count of fraudulent bankruptcy.

1 . First-instance proceedings

During the proceedings, the Bucharest Court of Appeal heard thirty-nine witnesses, including C.E., and, at the request of the defendant O.K.H., ordered that an audit report be produced.

C.E. had declared that she had not been present in the notary office at the time when the sale contract of 28 November 2003 was concluded, the signature on the contract belonging to someone else. She further declared that she had no connection to or knowledge of the company S.C. V. S.R.L.

Based on the evidence on file, including that administered during the pre-trial investigation proceedings, including a foren sic report concluded on 28 June 2005 in respect of the veracity of the signatures on the impugned contracts, o n 9 July 2008 the Bucharest Court of Appeal acquitted the applicant of all charges . The court also acquitted the other defendants.

In respect of the contract of 28 November 2003, the court referred to the forensic report drawn on 28 June 2005, stating that the signature on th is contract did not belong to the witness C.E.

In assessing the statements of the witness C.E., the court held they were contradictory; the court noted that C.E. alleged that she had never gone to the public notary office and that the declarations, samples of signature and fiscal certificate submitted to the expert in charge with the forensic report for comparison had not been signed by her, but by her daughter. At the same time , the witness denied that the signature made on the statement given durin g the pre-trial investigation belonged to her.

In such circumstances, t he court concluded that there was no evidence on file, other than the report ’ s conclusions, to contradict the applicant ’ s defence arguing that C.E. had in fact been present at the applicant ’ s office to conclude the sale contract of 28 November 2003.

2. Appeal proceedings

Following a series of hearings postponed due to various failures in the summoning procedure, on 28 May 2010 the applicant ’ s lawyer submitted as evidence some more documents, without raising any other objection or requesting for more evidence to be adduced in the case.

The applicant, as well as another defendant, G.I., were present at the hearing and were heard by the High Court of Cassation and Justice (hereinafter the HCCJ). In her statement, the applicant declared that all the impugned contracts had been signed by the contracting parties, in her presence.

No witnesses were heard by the court.

On 29 July 2010 the court allowed the prosecutor ’ s appeal and gave a fresh judgment on the merits.

Contrary to the lower court ’ s conclusion according to which the report drawn by the handwriting expert was not corroborated with any other evidence disputing the applicant ’ s assertion that the parties of the contract had been present in her office on 28 November 2003, t he HCCJ noted that the witness C.E. herself had declared that she had not signed the contract and that had no knowledge of the activity of the company S.C. V. S.R.L. whatsoever.

The HCCJ c hanged the legal classification of the charges brought against the applicant , eliminating the continuing form of the offence of forgery ; it convicted the applicant for forgery committed only in relation to the contract signed on 28 November 2003 , to a suspended sentence of six m onth s ’ imprisonment ( suspendare condiționată ) , imposing a term of suspension ( termen de incercare ) of three years.

3. Extraordinary appeal

At the beginning of July 2010 the applicant initiated extraordinary proceedings ( contestaţie în anulare ) seeking to annul the final judgment of 29 June 2010. Sh e argued that s he had not been lawfully heard by the appeal court and that the summoning procedure was not carried out lawfully as far as the co-defendant O.K.H. was concerned. The co-defendant s also requested the annulment of the judgment on this ground. The applicant also invoked the fact that the appeal court erred in setting a term of suspension longer than the legal one, which was of two years and six months.

By a final judgment of 16 November 2010 the HCCJ dismissed the applicant ’ s and the co-defendants ’ appeal as inadmissible. It held that the applicant had been heard by the court and her deposition was not censured in any way. Concerning the failures of the summoning procedure, no objection had been raised before the appeal court by any of the parties present, while the court had taken appropriate measures to duly summon all parties.

No mention was made in respect of the term of suspension.

4. Subsequent procedures

On 10 September 2010 the Ministry of Justice issued an order confirming the termination of the applicant ’ s office as a notary, following her being criminally convicted.

On 17 September 2010 the applicant was informed by the Bucharest Chamber of Public Notaries that on 20 September 2010 two of its representatives would be present at her office in order to take over the archive and the official seals.

The applicant alleged that the representatives of the Bucharest Chamber of Public Notaries ripped off the board with the applicant ’ s name, deleted the information existing in her professional computer and took over the seal and the archive without her agreement –as she was away on sick leave at that moment – and without drafting any minutes thereto.

No domestic proceedings were lodged by the applicant in relation to these events.

B. Relevant do mestic law

The relevant provisions of the Romanian Code of Criminal Procedure as in force at the relevant time read as follows:

Art icle 385 16 – Solution and complementary aspects

“ When the appeal court quashes the decision and holds the case for retrial ... , it takes a decision also on the evi de nce to be produced , setting a hearing for the retrial . At the hearing set for retrial, the court has the obligation to hear the defendant who i s present ... when he/she was not heard by the first-instance court and the appeal, as well as when these courts have not convicted the defendant. ”

In respect of the suspension period, the Romanian Criminal Code as in force at the time stated that:

Article 8 2 – Term of suspension

“ (1) The period when the execution of the sentence is suspended represents a term of suspension and is composed of the sentence itself and of a fixed period of two years ...”

The Public Notaries Law no 36 of 12 May 1995 stated in its relevant parts as follows:

Article 23

“ (1) The quality of public notary ends:

...

f) in case of a conviction by a final judgment for having committed an offence with intent or an offence which undermines the prestige of the profession ...”

Article 42

“... On the date when the sentencing judgment becomes final, and if it refers to offences described in article 23 f), the Minister of Justice orders that the convicted notary be excl uded from the profession. ...”

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about the overall fairness of the proceedings, claiming, on the one hand, that she had not been properly heard by the court in view of the quashing by the HCCJ of the acquittal and of the change of legal classification of the charges against her, and that, on the other hand, the HCCJ overturned her acquittal without a direct assessment of the relevant evidence on which it relied.

2. The applicant further complains that by fixing her term of suspension to three years, the domestic courts breached Article 7 of the Convention in that they imposed a heavier penalty than the one prescribed by the law.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against her , in accordance with Article 6 § § 1 and 3 b) and d) of the Convention?

In particular, did the change of legal classification of the charges against the applicant, followed by the ove rturning by the appellate court of the applicant ’ s acquittal without a direct assessment of the evidence which had led to her previous acquittal and without rehearing the applicant in accordance with the domestic law, impair the overall fairness of the proceedings?

2. In view of the term of suspension set for the applicant to three years, w as a heavier penalty imposed than the one which was applicable at the time of the commission of the offence in the present case, in breach of the guarantees set out by Article 7 of the Convention?