THIRD SECTION

Application no. 26850/11 Mohamed Majdi KATTAN against Romania lodged on 26 April 2011

STATEMENT OF FACTS

The applicant, Mr Mohamed Majdi Kattan , is a Syrian national, who was born in 1973 and lives in Ţăndărei . He is represented before the Court by Mr I. Dan, 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.

On 11 October 2007 the Ialomiţa Prosecutor ’ s Office opened criminal proceedings against the applicant for attempted fraud and forgery.

By a judgment of 9 June 2008 the Ialomiţa County Court acquitted the applicant in respect of both charges on the basis of testimonial and document evidence. The Ialomiţa Prosecutor ’ s Office appealed against the judgment.

By a judgment of 7 October 2009 the Bucharest Court of Appeal dismissed the Ialomiţa Prosecutor Office ’ s appeal as ill-founded. The Prosecutor ’ s Office appealed on points of law (recurs) against the judgment.

By a final judgment of 3 November 2010 the Court of Cassation allowed the Ialomiţa Prosecutor ’ s Office appeal on points of law on the basis of the available evidence, convicted the applicant for attempted fraud and forgery and sentenced him to three years and four months of imprisonment. The applicant was not present at the hearing before the last instance court and was represented by his chosen lawyer.

The applicant opened extraordinary appeal of annulment proceedings ( contestaţie în anulare ) against the final judgment of 3 November 2010. He argued inter alia that he was convicted by the last instance court without being heard by the said court.

By a final judgment of 4 April 2011 the Court of Cassation dismissed the applicant ’ s appeal of annulment on the ground that the applicant had been lawfully summoned, but had failed to appear before the court.

B. Relevant domestic law

The relevant provision of the Code of Criminal Procedure in respect of the last instance court ’ s duty to hear evidence from a person on trial when he had not been convicted by the lower courts is set out in Spînu v. R omania , no. 32030/02, § 39, 29 April 2008.

COMPLAINT

Relying on Article 6 of the Convention, the applicant complains that he did not have a fair trial before the Court of Cassation in so far as the last instance court convicted him without hearing him after he was acquitted by the lower courts and failed to employ any positive measures to ensure his presence before the court.

QUESTION 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 of the Convention in so far as the last instance court failed to hear him prior to his conviction?