Published on 3 April 2023

FOURTH SECTION

Application no. 19160/18 Radu MUSTÄ‚Å¢EA against Romania lodged on 19 April 2018 communicated on 17 March 2023

SUBJECT MATTER OF THE CASE

The case concerns the allegation that the court that convicted the applicant at first instance was not a “tribunal established by law” and/or was not impartial.

The applicant was accused of acts of corruption and was convicted by a panel composed of one judge of the Bucharest Court of Appeal on 8 March 2016. In his appeal the applicant argued, inter alia , that the judge who had examined his case at first instance could not sit in the case because he had sat previously in the case as a judge of rights and freedoms (judecător de drepturi și libertăți) . He relied on the provisions of Article 64 (4) of the Code of Criminal Procedure which stated that the judge of rights and freedoms cannot sit in panels which examine the merits of the criminal case.

In a decision of 28 June 2017 the Supreme Court of Justice held that the incompatibility at issue, although present, could not lead on its own to the quashing of the judgment of the first instance court in the absence of any proof of lack of impartiality of the judge in question. The court did not find any reasons to question the impartiality of the judge, dismissed the applicant’s appeal on that point and partly confirmed his conviction. One of the members of the panel of the Supreme Court put in a dissenting opinion in which he stressed that the first instance judge had been in a state of incompatibility and that, therefore, his judgment needed to be quashed.

The applicant complains that the criminal case against him was examined at first instance by a judge who was in a state of incompatibility and who therefore lacked impartiality, contrary to Article 6 § 1 of the Convention.

QUESTION TO THE PARTIES

Was the Bucharest Court of Appeal a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention and impartial, in view of the fact that the judge who examined the merits of the case had previously sat as a judge of rights and freedoms in the same case (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 231-32, 1 December 2020; Lavents v. Latvia , no. 58442/00, § 115, 28 November 2002; and Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005-XIII)?