Communicated on 17 June 2015

THIRD SECTION

Application no. 47600/10 Nicolae Dan ŢIGLAR against Romania lodged on 5 August 2010

STATEMENT OF FACTS

The applicant, Mr Nicolae Dan Ţiglar , is a Romanian national, who was born in 1966 and lives in Sibiu .

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

On 4 February 2009 the applicant was fined by the police 120 Romanian lei (RON) (approximately 27 euros (EUR)) for driving on public roads without wearing a seatbelt and without using his dimmed headlights, but only his sidelights. In addition he received a warning and four points were taken off his driving licence.

According to the police report produced at the time of the incident, the events of 4 February 2009 had been witnessed by V.D.O. The applicant refused to sign the police report or to state his objections in the report. The police report was signed by the witness.

On an unspecified date the applicant challenged the police report before the domestic courts. He argued, amongst other things, that the witness had not been present when the report had been produced and that the applicant had left the scene of the incident before any witness had appeared. Consequently, the report had not been signed by the witness in his presence. Also, according to the European Convention on Human Rights the burden of proof in circumstances like the one in the present case was on the Vrancea Police Department who had to prove that the applicant had committed the acts described in the report. The report itself could not have been considered evidence given that it had been produced unlawfully.

On 15 October 2009 the Vrancea District Court dismissed the applicant ’ s challenge. It held that the documentary evidence submitted by the applicant did not rebut the facts attested by the police report. The applicant appealed on points of law ( recurs ) against the judgment. He argued, amongst other things, that the first-instance court had failed to examine his arguments, including the ones concerning the absence of the witness, which were essential for his defence. Furthermore, although the hearing of V.D.O. had been necessary to determine if he had acted unlawfully, the first-instance court had failed to hear him and therefore the case had to be referred back to it for the witness to be heard.

By a final judgment of 2 February 2010 the Vrancea County Court dismissed the applicant ’ s appeal on points of law. It held, amongst other things, that the police report, produced in V.D.O. ’ s presence, had stated that the applicant had refused to sign it and to submit objections. In addition, the applicant had failed to submit evidence proving his allegations.

COMPLAINTS

The applicant complains under Article s 6, 13 and 2 of Protocol No. 7 to the Convention that the proceedings had been unfair, had breached his right to be presumed innocent, his right to defence and his right to equality of arms because the domestic courts forced him to prove his innocence, failed to examine his argument for defence and refused to hear V.D.O. who was an essential witness for both parties and whose presence at the scene he had contested. Moreover, the last-instance court had failed to examine all his appeal on points of law arguments.

QUESTIONS TO THE PARTIES

1. D id the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was he able to examine all the witnesses against him, as required by Article 6 § 3 (d) of the Convention ? Also, was the applicant afforded a reasonable opportunity to present his case before the domestic courts – including submissions, arguments and evidence – under conditions that did not place him at a substantial disadvantage vis-à-vis his opponents?

2. Has the applicant ’ s right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention been breached in the present case in so far as the domestic courts imposed on the applicant a duty to rebut the presumption of lawfulness and rightfulness of the police report?