Published on 3 January 2022

FOURTH SECTION

Application no. 45229/18 Izabella MAJECZKI against Romania lodged on 18 September 2018 communicated on 9 December 2021

SUBJECT MATTER OF THE CASE

The application concerns the fairness of the criminal proceedings against the applicant, former prosecutor, accused of two acts of bribe taking and one of incitement to forging documents. Under Article 6 § 1 of the Convention she complains firstly that S.C. and S.D.E., two of the judges who sat in the bench of the appellate court, had already taken a pre-trial decision in her case, namely, on 6 December 2013, when they decided to maintain her detention on remand. In that decision, taken by a panel of three judges, of which judges S.C. and S.D.E., the court held that

“in the court’s opinion, the applicant diverted the very meaning of the profession of a magistrate and severely disregarded her professional obligations as a magistrate and as a senior prosecutor...acts which have a serious impact on the social relations concerning the course of justice.”

The applicant’s recusal request against judges S.C. and S.D.E. was dismissed as ill-founded on 18 May 2016.

Still under Article 6 § 1 of the Convention, the applicant further complaints that after having been acquitted by the lower court, she was convicted on 4 December 2017 (judgment notified to her on 19 March 2018) by the appellate court in its majority (made of the two judges S.C. and S.D.E., the third judge having formulated a dissenting opinion) for having committed one act of bribe taking, the court having failed to make a direct examination of the witnesses L.T., S.V. and A.S. who were relevant to the proceedings.

Under Article 7 of the Convention, the applicant complains that she was convicted for bribe taking in breach of the law, which at the relevant time stipulated that if the bribe had not been taken for oneself, but rather to the benefit of a third party, it did not constitute the criminal offence of bribe taking.

QUESTIONS TO THE PARTIES

1. Was the tribunal which dealt with the applicant’s case in the appellate phase of the proceedings, impartial, as required by Article 6 § 1 of the Convention, having regard to the fact that S.C. and S.D.E., two of the judges in the panel, had previously made a pre-trial decision in the case, namely on 6 December 2013 concerning the applicant’s detention on remand, in which they reasoned their judgment by making statements suggestive of the applicant’s guilt (see for instance, Romenskiy v. Russia , no. 22875/02, §§ 26 ‑ 27, 13 June 2013)?

2. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular, was her conviction by the court of last instance, after acquittal by the lower court, compatible with the requirements of the said article, considering that her conviction was based on the appellate court’s reconsideration of the facts established by the first instance court without a direct examination by the appellate court of some of the testimonial evidence (witnesses L.T., S.V. and A.S.; see Găitănaru v. Romania , no. 26082/05, § 32, 26 June 2012)?

3. Did the act of bribe-taking, of which the applicant was convicted, constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention (see for instance Del Río Prada v. Spain [GC], no. 42750/09, § 80, ECHR 2013)?