Published on 17 October 2022

FOURTH SECTION

Application no. 33254/17 Silviu IonuÈ› LUPU against Romania and 4 other applications (see list appended) communicated on 27 September 2022

SUBJECT MATTER OF THE CASE

Criminal proceedings were initiated against the applicants, wherein they all have been acquitted by the first instance courts. However, on various dates set out in the appended table, the appellate courts have convicted them without, inter alia , re-hearing the witnesses on which the conviction was based, the applicants themselves and further newly proposed witnesses.

The applications may therefore raise issues in respect of the fairness of the criminal proceedings under Article 6 § 1 of the Convention (see Găitănaru v. Romania , no. 26082/05, §§ 26-33, 26 June 2012, Júlíus Þór Sigurþórsson v. Iceland , no. 38797/17, §§ 34-42, 16 July 2019; and Dan v. the Republic of Moldova (no. 2) , no. 57575/14, §§ 55-56, 10 November 2020).

In respect of applications nos. 35206/19 and 49695/19, the applicants also complain that by changing the legal classification of the charges against them from having committed murder into having been accomplices to murder, directly in the conviction judgment, without giving them the opportunity to put forward any related defence, the appellate court breached their rights provided for under Article 6 § 3 (a) and (b) of the Convention. The applicants’ extraordinary appeals challenging this issue were dismissed as ill-founded, essentially in so far as the said change did not worsen their position in the trial.

QUESTIONS TO THE PARTIES

1. Before the court of last instance, did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, was their conviction by that court, after acquittal by the lower court, compatible with the requirements of the said article, considering, inter alia , that their conviction was based on the appellate court’s reconsideration of the facts established by the first instance court without a direct examination of relevant testimonial evidence and, where applicable, without hearing the newly proposed witnesses and the applicant (see Găitănaru v. Romania , no. 26082/05, § 32, 26 June 2012, Júlíus Þór Sigurþórsson v. Iceland , no. 38797/17, §§ 34-42, 16 July 2019; and Dan v. the Republic of Moldova (no. 2) , no. 57575/14, § 55 ‑ 56, 10 November 2020)?

2. Were the applicants informed in sufficient detail of the nature and cause of the accusation against them, as required by Article 6 § 3 (a) of the Convention, and were they afforded adequate time and facilities to prepare their defence, as required by Article 6 § 3 (b) of the Convention (see Pélissier and Sassi v. France [GC], no. 25444/94, §§ 42-63, ECHR 1999 ‑ II), in view of the change by the appellate court in its judgment of the legal classification of the charges against them?

Appendix List of applications

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

Final (conviction) judgment

1.

33254/17

Lupu v. Romania

21/04/2017

Silviu IonuÈ› LUPU 1983 Corcioveni Romanian

Rodica Magdalena JALBÄ‚

Galaţi Court of Appeal,

03/10/2016,

notified on 11/11/2016

2.

28738/19

Rus v. Romania

09/05/2019

Călin RUS 1988 Luna Romanian

Andrei POPESCU

Cluj Court of Appeal, 13/11/2018

3.

35206/19

Durleci v. Romania

19/06/2019

Dorel DURLECI b:1972; d: 2021

Pursued by heirs

Mirela DURLECI (wife)

1975Stoenești

Romanian

Laura-Andreea DURLECI (daughter)

2000Mihǎești

Romanian

Doru-Vasile DURLECI (son; see application no. 49695/19 under 5. below)

1994Craiova

Romanian

Florentin GHEORGHE-SORESCU

Pitești Court of Appeal,

01/11/2018, drafted on 21/12/2018

4.

41088/19

Galben v. Romania

25/07/2019

Ioan GALBEN 1982 Feldru Romanian

Cluj Court of Appeal, 01/02/2019

5.

49695/19

Durleci v. Romania

20/06/2019

Doru-Vasile DURLECI 1994 Craiova Romanian

Florentin GHEORGHE-SORESCU

See under 3. above