THIRD SECTION

Application no. 4941/07 Mihai Victor CONIAC against Romania lodged on 18 January 2007

STATEMENT OF FACTS

The applicant, Mr Mihai Victor Coniac , is a Romanian national, who was born in 1955 and lives in F oc ÅŸ ani .

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

As administrator of four commercial companies, the applicant concluded several contracts with different commercial companies for the supply of merchandise. In payment for the merchandise the applicant issued several cheques.

On 3 July 2003 one of the sellers lodged a criminal complaint against the applicant, accusing him of fraud ( înşelăciune ) under Article 215 of the Criminal Code, as he had issued cheques without having the necessary funds in the companies ’ account.

On 8 September 2003, the prosecutor ordered the initiation of a criminal investigation against him on charges of fraud. The investigation took place in the absence of the applicant, who had left the country on 25 June 2003.

According to the documents submitted by the applicant, his wife had brought divorce civil proceedings against him . By a final judgment of 20 October 2003 the FocÅŸ ani District Court allowed her claim and pronounced the divorce.

On 13 November 2003, the prosecutor issued an indictment for aggravated fraud (Article 215 § § 1, 3 and 4 of the Criminal Code). The case was registered with the Vrancea County Court.

On the ground that the applicant ’ s domicile abroad was unknown, the proceedings before the first-instance court took place in the applicant ’ s absence. Moreover, the court did not assign him a lawyer.

On 13 May 2005 the Vrancea County Court found the applicant guilty of fraud and sentenced him to three years ’ imprisonment.

The applicant and the prosecutor ’ s office appealed against the judgment. The applicant claimed, inter alia , that his defence rights had not been observed as he had not been notified about the accusations against him and had not been summoned in order to be heard by the investigation body. The applicant claimed that he had been unaware that criminal proceedings had been pending against him.

The applicant was represented by a lawyer of his choice during the appeal proceedings.

By a decision of 23 December 2005 the Galaţ i Court of Appeal partly allowed the appeal lodged by the prosecutor and increased the applicant ’ s sentence to four years ’ imprisonment. It dismissed the applicant ’ s appeal as unfounded. The appeal court acknowledged that the applicant had not been officially notified about the charges against him and had not been heard neither by the investigation body not by the first-instance court. It further held that this situation was caused by the applicant, who left the country on 25 June 2003 deliberately seeking to escape trial. The investigation body went repeatedly to his known domicile in Romania and informed his wife about the criminal complaint lodged against him. Written reports were issued on 2 and 4 August, 9, 15 and 16 September and 14 October 2003 in this respect. His wife told them that she did not know his address abroad.

The applicant lodged an appeal on points of law against the decision invoking again that his right of defence had been infringed on account of his absence during the proceedings before the first ‑ instance court. He claimed that he was not aware of the proceedings because he had left the country for Italy before the criminal complaint was lodged against him. The applicant was present and assisted by a lawyer of his choice during the proceedings before the High Court of Cassation and Justice. However, he was not heard by the court.

On 18 October 2006 the High Court of Cassation and Justice dismissed the applicant ’ s appeal on points of law as unfounded.

COMPLAINT

The applicant complains under Article 6 of the Convention that his right to a fait trial has been infringed as he had been convicted by the first ‑ instance court in absentia and the appeal courts refused to reopen the proceedings in his presence. He claims that he has not been aware about the proceedings against him because he had left the country before the proceedings commenced and he has never been notified about the accusations against him.

QUESTION TO THE PARTIES

Do the applicant ’ s conviction in absentia by the first-instance court and the impossibility to obtain a fresh examination of the merits of his case in his presence disclose a breach of Article 6 of the Convention?