CONCURRING OPINION OF JUDGE GROZEV

While I am in full agreement with the conclusion that the two complaints under Article 6 in the present case are inadmissible, I have significant reservations as to the grounds on which the first complaint under Article 6 was declared inadmissible by the majority. And as the issue goes to the basic principles of interpreting and applying Article 6 of the Convention, it merits a separate opinion.

This part of the applicant’s complaint is about the decision of the pre ‑ trial judge to reopen the criminal proceedings, and the alleged violation of his rights due to a breach of his rights of defence, equality of arms and legal certainty in the proceedings before the pre-trial judge. The majority decided to treat the proceedings for reopening before the pre-trial judge as separate proceedings, triggering the full Article 6 guarantees. And as the application was lodged with the Court more than six months after the decision of the pre ‑ trial judge, it was declared inadmissible by the majority as outside the six ‑ month time-limit.

My disagreement is on the point whether Article 6 could be applied separately to different stages of domestic criminal proceedings, in this case the decision of the pre-trial judge to pursue criminal charges against the applicant before the domestic courts. The Court has persistently held that this is not the case, as the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”. The final determination of a criminal charge has consistently been interpreted as being the final – in accordance with domestic law – decision declaring an accused guilty or not guilty and the final sentence imposed on him or her. As a result, the Court has refused to apply the Article 6 guarantees to any separate proceedings that might exist under domestic law, carrying out instead an overall analysis of the fairness of the criminal proceedings. To cite one of many authorities, the Court’s primary concern is to evaluate the overall fairness of the criminal proceedings. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 250-51, 13 September 2016). The reason for this approach is clearly to allow the domestic courts to address and remedy any shortcomings before the matter comes before the Court.

This does not mean that events in such separate proceedings, and particularly at the pre-trial stage, will have no relevance for the overall fairness of the criminal proceedings. The Court has recognised that Article 6 applies to pre-trial proceedings – especially rights guaranteed under Article 6 § 3 – and that “it may be relevant before a case is sent for trial if and in so far as the fairness of the trial is liable to be seriously prejudiced by an initial failure to comply with its provisions” (see Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015). It has expressly held that it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In this connection, where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial in accordance with Article 6 of the Convention (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 113, 12 May 2017, and Mehmet Zeki Çelebi v. Turkey , no. 27582/07, § 51, 28 January 2020). Still, the Court has consistently refused to review events at the pre ‑ trial stage separately, and has consistently reviewed them taking into account the subsequent trial stage. In doing so, the Court has specifically looked into whether the alleged breaches at the pre-trial stage prejudiced the fairness of the trial and whether the trial and appeal courts took steps to overcome such prejudice.

It might well be that domestic law provides enhanced procedural guarantees at certain steps of the domestic proceedings, including adversarial proceedings and the possibility of an appeal to a higher court, as the Romanian Constitutional Court has held in relation to proceedings before the pre ‑ trial judge (see paragraphs 42-44 of the judgment). This, however, remains a domestic decision on how to best organise criminal proceedings in balancing the numerous rights and interests involved in order to achieve an efficient and fair judicial process. But it is not something required by the Convention or requiring a separate analysis by the Court as to Article 6 compliance.

Turning to the facts of the present case, the applicant complained that “the reopening of the criminal proceedings and his conviction had breached his rights of defence and equality of arms ... because the lawfulness of the decision reopening the proceedings had been examined by a pre-trial judge in his absence and without his being summoned” (see paragraph 46 of the judgment). Taking the standard approach of the Court, the question that should have been answered first is whether this alleged breach seriously prejudiced the applicant’s subsequent trial. The answer to this question for me is clearly no. As under the Convention there is no right to judicial review of a decision to pursue criminal charges before the courts, and the legal arguments raised by the applicant were reviewed by the domestic courts and his ability to mount an effective defence was not hampered (see paragraphs 28-29 of the judgment), I see nothing to disagree with in this analysis by the domestic courts, As a result, this complaint is manifestly ill ‑ founded, and inadmissible on this ground.