JOINT PARTLY DISSENTING OPINION OF JUDGES RANZONI, RAVARANI AND SCHUKKING

To our regret, we are unable to agree with our colleagues in the majority in so far as the complaint under Article 7 of the Convention was declared inadmissible for non-exhaustion of domestic remedies.

It emerges clearly from the judgment that the Court of Cassation erred in imposing an illegal sentence on the applicant, namely a three-year probation period whereas the law only allowed a period of two years and six months. Indeed, pursuant to Article 82 of the Romanian Criminal Code (see paragraph 25 of the judgment), which was applicable to the facts of the case, the probation period is composed of the length of the prison sentence (which was six months, see paragraph 16 of the judgment), to which a period of two years is added.

It is open to discussion whether the imposition of an illegal sentence is actually to be considered a material error, but apparently it is considered as such in the Romanian system and it is not for us to challenge that classification.

What is more important and was ultimately at the origin of our dissent is the means of correcting such a material error.

Pursuant to Article 195 of the former Romanian Code of Criminal Procedure, as in force at the relevant time, obvious material errors found in a procedural document had to be rectified by the court that produced the document, following an application by the interested party or of its own motion (see paragraph 24 of the judgment).

The judgment makes it very clear that the courts are “ ... under a duty to examine such errors once they have noticed them on their own or when they have been brought to their attention” (see paragraph 64 in fine of the judgment).

It is correct that an extraordinary application for annulment, the remedy that was used by the applicant in order to bring her complaint before the Court of Cassation, is subject to very strict admissibility conditions and can be used only in relation to certain clearly defined grounds which did not include miscalculation of a probation period (see Article 386 of the former Code of Criminal Procedure, quoted in paragraph 24 of the judgment). However, even if the applicant used an inappropriate legal remedy in order to have the error corrected, the fact remains that this application, although it was the wrong procedural tool to rectify what was considered a material error, nevertheless brought to the attention of the competent court the residual flaw which, at any rate, it was under a duty to correct of its own motion. Despite the case-law cited in paragraph 27 of the judgment, it then appears to us as overly formalistic to require the applicant to introduce an application in order to have material errors corrected as provided for in Article 195 of the former Code of Criminal Procedure, in a situation where the court had previously engaged in an exercise of correcting errors without correcting an error which, by definition , was obvious and which, moreover, was extremely serious, namely an illegal sentence. How could the applicant realistically have expected that the court would perform a second correction of a flaw, especially one of such magnitude, when it had previously engaged in the exercise without correcting the most obvious error? Moreover and more importantly, once informed of the error, albeit through the wrong channel, the Court of Cassation was at any rate under an obligation to correct it of its own motion .

In these circumstances, to hold that the applicant was under an obligation not only to inform the competent court of the error, but to use the remedy designed for correcting material errors, bearing in mind that the exercise of correcting the material errors had already been engaged in earlier, appears to us too formalistic a ground on which to declare the application inadmissible for non-exhaustion of an available domestic remedy.

We would like to add that if the application had been declared admissible under Article 7, we would have found a violation of that provision, as the last-instance court pronounced an illegal sentence, namely a probation period of three years whereas, as admitted by the Government themselves, the correct period would have been two years and six months. As to the Government ’ s objection that the probation period did not constitute a penalty within the meaning of Article 7 and consequently that the complaint was inadmissible ratione materiae , we would argue that the probation period forms an integral part of the punishment and the penalty imposed. Therefore, Article 7 is applicable to the present case. Because there was no legal basis under the applicable domestic law for imposing a probation period of three years, the applicant ’ s punishment was in violation of Article 7.