Published on 12 June 2023

FOURTH SECTION

Application no. 61547/19 Alina Elena BADEA against Romania lodged on 5 November 2019 communicated on 22 May 2023

SUBJECT MATTER OF THE CASE

The application concerns proceedings whereby the courts calculated the aggregate prison sentence to be served by the applicant, in respect of two prison sentences pronounced in previous proceedings.

In a decision of 15 October 2018 concerning the establishment of the sentence to be served by the applicant, the Bolintin Vale District Court observed that the applicant had been found guilty of several concurrent criminal offences ( în concurs ) in two separate sets of criminal proceedings, by final decisions of the Bucharest Court of Appeal of 5 and 25 April 2018, and thus received two separate sentences: a two years and two months’ suspended prison sentence, and a two years and four months’ suspended prison sentence respectively. Consequently, the Bolintin Vale District Court proceeded to the merging of the two sentences ( contopirea pedepselor ) and fixed the aggregate final prison sentence to be served at three years and six months, pursuant to Article 585 § 1 (a) of the Code of Criminal Procedure (“the CCP”) and Article 40 of the Criminal Code. The latter provides the rules for calculating an aggregate sentence.

The applicant objected according to Article 597 § 7 of the CCP and, in the presence of the applicant and her lawyer, the Giurgiu County Court set the date of the hearing for 23 May 2019. In accordance with the applicable law, it was considered that the applicant was aware of the date of the hearing and thus no subpoena was served on either her or her lawyer.

The County Court heard the case, however, earlier, i.e. on 19 April 2019, without the applicant of her lawyer being present. The County Court observed that the applicant had not submitted the reasons for her appeal, but proceeded to examine the case on its own motion. It dismissed it as ill-founded by means of a final decision rendered on the same day.

On 7 May 2019 the applicant started serving her prison sentence.

Meanwhile, she lodged an extraordinary appeal of annulment ( contestaţie în anulare ) against the final decision of 19 April 2019, arguing that the case had been heard in her absence, at a different date than that decided by the court in her presence and without her or her lawyer being informed of that change. Her appeal was dismissed on the grounds that Article 426 of the CCP did not provide for the possibility to lodge an extraordinary appeal against a decision whereby the court had examined an objection.

She also filed an administrative complaint against the judges who had sat in her case. On 2 August 2019 the Judicial Inspection of the Superior Council of Magistracy observed that the procedure had not been respected when the aggregate sentence had been set but the applicant had no means to have that error corrected. It nevertheless considered that the judges responsible for that situation had not committed a serious mistake ( culpă gravă ) and therefore, they were not liable to a disciplinary sanction as provided by Article 99 (t) second limb of Law 303/2004 on the statutes of judges and prosecutors.

Relying on Article 5 § 1 of the Convention, the applicant complains that by changing the date of the hearing without informing her or her lawyer, on 19 April 2019 the County Court gave a decision which was unlawful, thus tainting her ensuing detention.

She also argued, relying on Article 6 of the Convention, that the proceedings against her had not been fair, and in particular that she was deprived of the right of access to a court for the determination of the criminal charges brought against her and was not afforded adequate time to prepare and present her defence.

QUESTIONS TO THE PARTIES

1. Is Article 5 of the Convention applicable to the proceedings which ended on 19 April 2019, and which concerned the calculation of the final term of the applicant’s prison sentence pursuant to Article 40 of the Criminal Code, as a result of the applicant’s conviction and sentencing in two previous separate sets of proceedings? If so, was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention, in so far as the decision of 19 April 2019 was delivered in proceedings in which both the applicant and her lawyer were unable to participate because the date of the hearing was not notified to either of them? In particular, was the applicant’s detention, which started on 7 May 2019, ordered “in accordance with a procedure prescribed by law” (see Szabó v. Sweden (dec.), no. 28578/03, ECHR 2006 ‑ VIII)?

2. Is Article 6 § 1 of the Convention under its criminal head applicable to the proceedings giving rise to the decision of 19 April 2019 of the Giurgiu County Court, concerning the merging of the applicant’s two sentences and thus the calculation of the final prison sentence to be served by the applicant, pursuant to Articles 40 and 91 of the Criminal Code (see, mutatis mutandis , Aleksandr Dementyev v. Russia , no. 43095/05, § 26, 28 November 2013)?

3. In case of a positive answer to question no. 2 above:

(a) in the proceedings concerning the final calculation of the sentence to be served by the applicant, which ended with the decision of 19 April 2019, did the applicant have access to a court for the determination of the criminal charges brought against her, in accordance with Article 6 § 1 of the Convention, in so far as the hearing scheduled to take place on 23 May 2019 was rescheduled and took place on 19 April 2019 without the applicant or her lawyer’s knowledge?

(b) in the same proceedings as above under a), bearing in mind the circumstances of the change of date to 19 April of the hearing originally scheduled for 23 May 2019, was the applicant afforded adequate time to prepare her defence and to defend herself in person and/or through legal assistance of her own choosing, as required by Article 6 §§ 3 (b) and (c) of the Convention?

In particular:

(i) Was the applicant’s and/or her lawyer’s presence during the hearing before the Giurgiu County Court mandatory by law?

(ii) Was the County Court authorised by law to examine the objection in the absence of any written submissions from the applicant and/or her lawyer?

(iii) In the light of the findings of the Judicial Inspection in its decision no. 2585/A of 2 August 2019, did the applicant have at her disposal any means to obtain the re-examination of the objection in the light of the obvious error concerning the date of the hearing?