GIURGIU v. ROMANIA
Inadmissible
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque
1. The applicant, Mr Dorin Mircea Giurgiu, was a Romanian national who was born in 1955 and lived in Urziceni. He was represented before the Court by Mr V. Gafiuc, a lawyer practising in Urziceni. The applicant died on 16 December 2009. His daughter, Ms Dora Samira Giurgiu, born in 1983, applied to pursue the application before the Court in his name and retained the same lawyer to represent her. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 18 December 2000 the Sibiu Police Department opened criminal proceedings against the applicant and two co-accused for fraud and aiding and abetting fraud. 5ne-am adunat pentru a trage țepe, dar nu am gandit-o de o aşa mare amploare). 6 7. On the same date the applicant was taken into police custody for twenty-four hours. He was released the following day. 8. On 28 December 2000 the applicant complained to the Sibiu Prosecutor’s Office about the Sibiu Police Department’s action in seizing several items of movable property used by him on the day of his placement in police custody. 9. On 23 August 2001, following an inquiry conducted by the Sibiu Police Department, the Romanian Ministry of Justice informed the aforementioned police department that the applicant was not being held in any detention facility. 11. On 10 September 2001 the Sibiu Police Department verified the applicant’s identity data and registered address with the Agency for Computerised Records of Individuals (Direcția Generală de Evidență Informatizată a Persoanei). In a report produced on the same date the Sibiu Police Department noted that, according to the available information, the applicant’s registered address was that of his domicile and that a search warrant had been issued in the applicant’s name on 30 May 2001 by the Ialomița Police Department because it (the Ialomița Police Department) had initiated an investigation against the applicant for fraud. 12. According to a police report produced on 21 November 2001, the Sibiu Police Department contacted the Sânnicolau Mare Police Department and asked them to find and summons the applicant to appear before the Sibiu Prosecutor’s Office so that he could be served with the prosecution material. In reply, the Sânnicolau Mare Police Department informed the Sibiu Police Department that for the past year the applicant had not been living in his former domicile and that the Ialomița Police Department had issued a search warrant in his name. Several other police departments had also been searching for the applicant in connection with a number of financial offences. 13. On 7 December 2001 the Sibiu Prosecutor’s Office indicted both the applicant − in his absence − and the two co-accused and sent their case for trial on the basis of documentary and testimonial evidence and their statements. In the act of indictment the Prosecutor’s Office noted that the applicant and his co-accused had been questioned on 18 December 2000 but that it had subsequently been impossible to serve the applicant with the prosecution material because he had absconded. 14. The applicant did not attend any of the hearings held before the firstinstance court. 15. During the hearings of 20 February and 20 March 2002 the Sibiu District Court allowed the Sibiu Prosecutor Office’s request that the Department of Prisons be asked if the applicant was being detained in any prison facility in the country. Moreover, it adjourned the proceedings to 20 March and 10 April 2002, respectively, and ordered that a summons for the applicant to appear before the court be served both by delivery to his domicile and by publicly posting it in the Sibiu Local Council building. The applicant’s registered address, as provided by the court, was incomplete. 16. According to summons reports produced by a bailiff on 7 and 28 March 2002, the court summonses of 20 February and 20 March 2002 were both publicly posted in the Sibiu Local Council building. 17. According to summons reports produced by a bailiff on 8 and 28 March 2002, summonses were served on 20 February and 20 March at the registered address provided by the court. The bailiff found the applicant’s mother at the aforementioned address, but she refused to accept the summonses. Although the applicant had apparently changed his address, the bailiff had been unable to find out his new address from her. 18. On 15 March 2002 the Sibiu Mayor’s Office informed the Sibiu District Court that they had removed the summons posted by the bailiff in the Sibiu Local Council building on 7 March 2002 (see paragraph 16 above). 19. During the hearing of 13 November 2002 before the Sibiu District Court, the applicant was represented by Mr F., a publicly appointed legal representative. His co-defendants were also assisted by a publicly appointed legal representative, namely Mr M. The applicant’s lawyer did not ask the court to admit any evidence in his favour and agreed that the court could dispense with the questioning of a witness who could not be brought before the court because he was no longer living at his registered address. Moreover, he submitted to the court that the facts had been proved and that one of the applicant’s co-defendants, namely V., had partly admitted to having committed the offence. Consequently, the applicant could be convicted for being an accessory to fraud but Mr F. urged the court to take into account the extenuating circumstances in his favour when imposing the applicant’s sentence. 20. On the same date the Sibiu District Court convicted the applicant for aiding and abetting fraud and sentenced him to four years’ imprisonment. In addition, it ordered the applicant and his co-defendants to pay jointly to a third party compensation amounting to 114,757,865 Romanian lei (ROL) (approximately 3,132 euros (EUR)) in respect of pecuniary damage. 21. The Sibiu Prosecutor’s Office and the applicant’s co-defendants lodged an appeal against the judgment with the Sibiu County Court. 22. The applicant did not attend any of the hearings before the secondinstance court. 23. On 11 February 2004, during a hearing before the Sibiu County Court, the applicant and one of his co-defendants, namely V., were represented by the same publicly appointed legal representative, namely Mr C. The latter did not submit any arguments to the court on the applicant’s behalf and left his conviction and sentence to the court’s discretion. 24. On the same date the Sibiu County Court allowed the appeals lodged by the Sibiu Prosecutor’s Office and by the applicant’s co-defendants on the grounds that the first-instance court had miscalculated V.’s sentence. It quashed the first-instance judgment and ordered a re-trial. 25. During the re-trail at first-instance the applicant had been represented by the same publicly appointed legal representative as V. and did not attend any of the hearings held by the first-instance court. 26’s conviction and sentencing to the court’s discretion. 27. Between 13 May and 31 August 2004 the Sibiu District Court issued three “warrants to appear” in the applicant’s name. According to enforcement reports produced by bailiffs on 13 May, 15 June and 31 August 2004, the applicant’s neighbours stated that he had not been living at the address registered as his domicile for four or five years. Moreover, the applicant’s mother had sold the apartment a year earlier and no one had been able to provide information about her new address. 28. Between 23 September 2004 and 27 March 2005 the Sibiu District Court issued three search warrants in the applicant’s name. According to enforcement reports produced by bailiffs on 23 September and 20 October 2004 and 27 March 2005, neither the applicant nor his mother was still living at the address registered as his domicile. They had sold the apartment and left town. Neither the neighbours nor the persons who had purchased the apartment from the applicant’s mother had known where they could be contacted. Moreover, several warrants to appear had been issued in the applicant’s name by different district courts in the country following numerous proceedings that had been instituted against him. 29. On 26 October and 5 November 2004 and 24 March 2005, following inquiries by the first-instance court, the National Agency for Persons’ Records (Inspectoratul Național pentru Evidența Persoanelor) informed it that their records showed the applicant’s known address to be his registered address. Moreover, the applicant had never notified the relevant authorities of any change of address. 30. During the hearing of 4 May 2005 the Sibiu District Court noted that, according to information submitted by the Bucharest Department of Prisons following an inquiry from the court, the applicant was detained in Timişoara Prison. Consequently, it adjourned the proceedings until 18 May 2005 and ordered that a summons be served on the applicant in that prison. It also ordered the applicant’s transfer to Aiud Prison and asked the Romanian Ministry of Justice to assist with the transfer. Lastly, it ordered that a summons also be served on him in Aiud Prison. 31. During hearings on 18 May, and on 8 and 29 June 2005, the Sibiu District Court noted the applicant’s absence from the hearings and the fact that he had not been transferred from Timişoara Prison. It adjourned the proceedings and ordered that a summons be served on him in Timişoara and Aiud Prisons as well as his transfer from the former prison to the latter. Furthermore, on 8 June at the request of all the parties, the court heard one of the witnesses in the case. 32. On 30 June and 11 July 2005, in reply to the first-instance court’s order of 4 May 2005 (see paragraph 30 above) the Prisons Department informed the Sibiu District Court that they had been unable to transfer the applicant because he had been made available for an appearance before the Constanța County Court but had been released by it on 23 June 2005. Furthermore, upon his release the applicant had provided them with the same home address he had given to the authorities previously. 33. At the hearing of 28 September 2005 the Sibiu District Court adjourned the proceedings. Moreover, it ordered that a summons be served on the applicant at the home address provided by him and that it also be posted at both the Sibiu and Sânnicolau Mare Local Councils. It also asked the Timiş Agency for Computerised Records of Individuals to provide the applicant’s new home address. 34. According to a summons report produced by bailiffs on 5 October 2005, the court summons of 28 September 2005 was posted at both Sibiu and Sânnicolau Mare Local Councils as well as on the main door of the building in which the applicant had his last known home address. 35. On 16 December 2005 the Sibiu District Court re-examined the case, convicted the applicant for aiding and abetting fraud, and sentenced him to four years’ imprisonment. In addition, it ordered the applicant and his codefendants to pay jointly to a third party compensation in the amount of EUR 3,132 in respect of pecuniary damage. 36. The applicant’s co-defendants lodged an appeal against the judgment before the Sibiu County Court. 37. The applicant did not attend any of the hearings held before the second-instance court. 38. On 11 September 2006, during a hearing before the Sibiu County Court, the applicant was represented by Ms H., a publicly appointed legal representative, while his co-defendants were assisted by other publicly appointed legal representatives. The applicant’s lawyer did not submit any arguments before the court and left the assessment of the circumstances of the applicant’s case to the court’s discretion. The court noted that all the parties had been lawfully summonsed to appear before the court. 39. On 18 September 2006 the Sibiu County Court dismissed the appeal lodged by the applicant’s co-defendants and upheld the judgment of the first-instance court. The applicant’s co-defendants appealed on points of law against the judgment. 40. The applicant, assisted by his chosen legal representative, lodged a belated appeal on points of fact and points of law against the judgment and asked for the time-limit for appeal on points of fact and points of law to be reinstated. In addition, he asked the last-instance court to order the reopening of the appeal proceedings. He further argued that, although he had informed the authorities of his correspondence address at the criminal investigation stage of the proceedings, during the appeal stage of the proceedings the summons and the judgment had been served at an incorrect address. He had found out about the judgment by chance after having been detained in a separate set of proceedings. Lastly, he indicated that his new correspondence address, to which the courts should deliver any summons, was the address of his chosen legal representative’s law practice. 41. During the hearing of 30 November 2006 the Alba-Iulia Court of Appeal found that the applicant’s summonsing for that hearing had been flawed and that the applicant’s chosen legal representative had reiterated that the applicant’s new correspondence address for the purpose of receiving summonses from the courts was the address of his representative’s legal practice. It also noted that the applicant’s legal representative had asked for the proceedings to be adjourned in order for him to have time to prepare his defence. Consequently, it adjourned the proceedings and ordered that the summons be served on the applicant at both his former and his new correspondence addresses. 42. According to a summons report produced by a bailiff on 15 December 2006, the court’s summons of 30 November 2006 inviting the applicant to attend the hearing of 4 January 2007 was delivered to the new correspondence address and was handed to the assistant charged with receiving correspondence for the legal representative’s law practice. 43. On 4 January 2007, in the presence of the applicant’s chosen legal representative, the Alba-Iulia Court of Appeal allowed the applicant’s belated appeal on points of fact and points of law, quashed the judgment of 18 September 2006 (see paragraph 39 above) and ordered a re-trial of the appeal on the grounds that the applicant had not been lawfully summonsed and notified of the judgment. It noted that the applicant had notified the authorities of his correspondence address at the criminal investigation stage of the proceedings (see paragraph 5 above); but that during the proceedings before the first and the second-instance courts the summons and the judgments had been served at an address that was incorrect as it had been misspelled. 44. Between 5 March and 2 July 2007, after the appeal proceedings had been re-opened, the Sibiu County Court adjourned the proceedings five times at the request of the applicant’s chosen legal representative or of the other parties. On 4 June 2007 the court also decided to ask the Bucharest Department of Prisons to inform it if the applicant or his co-defendants had been incarcerated in any of the prisons in the country. The court continued to serve summonses for the applicant at the address of his chosen legal representative’s law practice. 45. On 3 September 2007 the applicant’s lawyer informed the court that the applicant had been detained following his conviction by the firstinstance court and asked for the applicant’s release pending the outcome of the proceedings. 46. On the same date the Sibiu County Court allowed the applicant’s lawyer’s request and ordered the applicant’s release. In addition it ordered that a summons be served on the applicant at the address of the applicant’s lawyer’s law practice. 47. On 3 October 2007 the applicant’s legal representative informed the court that the applicant had been released and a summons had been served on him at his former home address. He left to the court’s discretion the issue of whether the applicant should also have been summonsed at his new home address. 48. On the same date the Sibiu County Court held that, in the light of his request for an appeal, the applicant had indeed been lawfully summonsed for that hearing. Moreover, it ordered that the applicant be served with a summons both at the address of his lawyer’s law practice and at the address of his new domicile. 49. Between 12 November 2007 and 7 January 2008 the Sibiu County Court adjourned the proceedings three times either on procedural grounds or at the request of the applicant’s lawyer and continued to summons the applicant both at the address of his chosen legal representative’s law practice and at his new home address. On 7 January 2008, when the court adjourned the proceedings to 4 February 2008, the applicant’s daughter appeared before the court and notified it that the applicant and his lawyer had been snowed in in a different city and that they had therefore been unable to attend the hearing. She confirmed that the applicant was living at his new home address and requested that the court adjourn the proceedings. 50. On 4 February 2008 the applicant’s chosen legal representative asked the Sibiu County Court to quash the judgment of the Sibiu District Court of 16 December 2005 (see paragraph 35 above) and to order a re-trial. He argued that the summons and the judgment had been served on the applicant at an incorrect address, even though he had notified the investigating authorities of his correspondence address (see paragraph 5 above). In addition, the applicant had not had effective legal representation because he had been assisted by a publicly appointed legal representative who was the same legal representative as the one appointed to assist the co-defendant V., even though they had conflicting interests in the case. 51. The Sibiu Prosecutor’s Office argued that if the applicant’s summonsing at a misspelled address by the first-instance court had been perceived as a flawed summonsing procedure in respect of his trial, the applicant’s appeal would have had to have been allowed and the proceedings before the first-instance court would have had to have been reopened. Also, in the light of the applicant’s and V.’s modus operandi, it did not appear that they had had conflicting interests entailing that they should not have been represented by the same lawyer. 52. On 11 February 2008 the Sibiu County Court allowed in part the applicant’s and his co-defendants’ appeals, dismissed the third party’s claims for civil damages, and upheld the remaining part of the first-instance court’s judgment. It held, inter alia, that the applicant’s appeal against the first-instance court’s judgment had been lodged within the lawfully allowed time-limit. In this connection it noted that the judgment of the first-instance court had been served at an incorrect address, even though the applicant had notified the investigating authorities of his correspondence address. Consequently, the applicant had never been lawfully notified of the judgment. The court further held that, even if the applicant and V. had had to share the same publicly appointed legal representative, it could not be argued that they had conflicting interests in the case and that the applicant had therefore been deprived of his right to defence. 53. All the parties, including the applicant, appealed on points of fact and points of law against the judgment. 54. On 29 April 2008 the applicant asked the Alba-Iulia Court of Appeal to adjourn the proceedings in order to allow him to appear before it together with his chosen legal representative and to defend himself. 55. On the same date the Alba-Iulia Court of Appeal allowed the applicant’s request and adjourned the proceedings. It also ordered that the applicant be summonsed and indicated as his address that of his former domicile. 56. On 20 May, 10 June, 2 and 23 September and 14 October 2008 the Alba-Iulia Court of Appeal allowed the applicant’s lawyer’s requests for an adjournment of the proceedings. The court continued to summons the applicant and ordered that the summons specify that the applicant had to attend the hearing in order to be questioned. The court indicated as the address for the summons that of his former domicile. 57. At the hearing of 4 November 2008, in the applicant’s absence, his chosen legal representative argued, inter alia, that the applicant’s right of defence had been breached on account of the superficial defence mounted during the proceedings by the publicly appointed legal representatives. In addition, during the first round of proceedings, although his interests in the case that conflicted with those of V., they had been assisted before the last-instance court by the same publicly appointed legal representative and no additional submissions had been made before that court. Consequently, the applicant’s defence had been ineffective and the proceedings before the first-instance court should be re-opened. 58. On the same date the court held that the summonsing procedure had been lawfully conducted. 59. By a final judgment of 12 November 2008 the Alba-Iulia Court of Appeal dismissed the applicant’s appeal on points of fact and points of law. It held that there was no evidence that the applicant’s right to defence had been breached. Moreover, he had been lawfully assisted by a publicly appointed legal representative and his interests had been protected appropriately. However, the court allowed the argument put forward by the Sibiu Prosecutor’s Office that the third party’s civil claims had been wrongly dismissed by the second-instance court, quashed the aforementioned judgment, and upheld the judgment of the first-instance court in respect of the civil limb of the proceedings. 60. On 24 November 2008 the applicant’s chosen legal representative lodged an extraordinary appeal for annulment against the judgment on the applicant’s behalf. He argued that the conditions for the examination of his appeal on points of fact and points of law on 4 November 2008 (see paragraphs 54-59 above) had been inappropriate both procedurally and in respect of the merits of the case in so far as they related to the provisions of Article 386 of the Code of Criminal Procedure (hereinafter “the CCP” – see paragraph 65 below). He also argued that at the time of writing his application for an extraordinary appeal for annulment he had not been fully aware of the grounds relied on by the last-instance court because its reasoning had not been made available to the parties. However, he submitted that he had lodged his application in order to comply with the ten-day time-limit provided for by Article 388 of the CCP (see paragraph 67 below) and that he had intended to state the specific reasons for his extraordinary appeal for annulment under Article 386 of the CCP after having had sight of the reasoning part of the judgment. He also stated that he had reserved his right to clarify his application no later than the second hearing held by the court. 61. On 16 December 2008 the Alba-Iulia Court of Appeal dismissed the applicant’s extraordinary appeal for annulment as inadmissible. It held that the reasons relied on by the applicant did not correspond to the reasons for an extraordinary appeal for annulment expressly provided for by Article 386 of the CCP. On 4 November 2008, when the debates had been held before the Alba-Iulia Court of Appeal, the procedure concerning the applicant had been lawfully conducted and he had been assisted by his chosen legal representative. In addition, the court had answered all the points raised in his appeal on points of fact and points of law. 62. Article 46 (1) of Law no. 51/1995 on the legal profession provides that a lawyer may not assist or represent parties who have conflicting interests in the same case. 63. Law 356/2006, published in the Official Gazette no. 677 of 7 August 2006, amended the former CCP. It entered into force on 6 September 2006 but, in accordance with its transitional provisions, it was not applicable to pending proceedings. 64. Articles 378 (11) and 38514 (11) of the former CCP, introduced by Law no. 356/2006 (see paragraph 63 above), provided that the court examining an appeal or an appeal on points of fact and points of law had to hear a defendant who was present if he or she had not been heard by the lower courts. 65. Article 386 of the former CCP provided that an extraordinary appeal for annulment could be lodged against a final judgment if the procedure to summons a party to the hearing at which the appeal on points of fact and points of law was examined had not been executed in accordance with the law. Following its amendment by Law no. 356/2006 (see paragraph 63 above), the aforementioned Article of the CCP also provided that an extraordinary appeal for annulment could be lodged against a final judgment if, when examining or re-examining an appeal on points of fact and points of law, the last-instance court had not heard a defendant who had been present although such hearing by the court was mandatory according to Article 38514 (11) of the former CCP. 66. Pursuant to Article 387 of the former CCP, the accused had to mention in his application for an extraordinary appeal for annulment all the grounds on which he was basing the said appeal and all the supporting arguments. 67. Article 388 of the former CCP provided that an extraordinary appeal for annulment could be lodged by the person against whom the final judgment had been enforced within ten days of the enforcement of the judgment and by the other parties within thirty days of the delivery of a final ordinary judgment.