URSU v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
1. The applicant, Mr Costin Ursu, is a Romanian national, who was born in 1971 and lives in Timişoara. He was represented before the Court by Ms C.L. Schwartz, a lawyer practising in Timişoara. 2. The Romanian Government (“the Government”) were represented successively by their Agents, Mr Răzvan-Horaţiu Radu, Mrs Carmen Ciută and Mrs Irina Cambrea, of the Ministry of Foreign Affairs. 3. On 4 February 2000 the applicant was taken to the Bihor police headquarters for questioning in relation to fraud charges. He was suspected, together with P.C.C., his business associate, of having written cheques to be drawn on the bank account of the company they owned together, despite being aware that there was no money in that account. In the absence of a lawyer, the applicant gave a statement and maintained that he had acted in accordance with the law at all times. At 11.30 pm, after he gave this statement, the police informed the applicant that he was accused (învinuit), according to domestic law. The applicant waived his right to have an appointed lawyer. 4. On 5 February 2000 the applicant was brought before a prosecutor. He gave a new statement in the presence of a lawyer who had been appointed to represent him. It appears from the documents in the file that he maintained his initial statement. He was then placed under arrest and taken to the cells of Bihor police station. 5. On 29 February 2000 a complaint that the applicant had lodged against the arrest warrant was allowed and the Oradea Court of Appeal ordered his immediate release. 6. On 22 March 2000 he was summoned to appear in front of the prosecutor for further questioning. On that occasion, he was again placed in pre-trial detention. He was subsequently released on 31 March 2000, following a decision of the Oradea Court of Appeal allowing a challenge to his arrest brought by the applicant. 7. Before being released, on 29 March 2000 he was transferred to Oradea Prison, where his head was shaved. 8. The applicant was committed for trial and the case was registered with the Bihor County Court. On 24 April 2000 the county court fixed a new date for the start of the trial, because the summons had not been served on the applicant at the correct address. On 29 May 2000 following a written request from the applicant, the trial was again postponed to 26 June 2000. On that date, the applicant was absent from the trial hearing but his lawyer was present. The county court questioned P.C.C. and dismissed further requests for witnesses to be heard made by P.C.C. and the prosecutor, holding that the written evidence in the file was a sufficient basis on which to decide the case. It proceeded to judge the case, convicting the applicant of having been an accessory to fraud and sentencing him to six years’ imprisonment. In so ruling, the county court mainly relied on the parties’ submissions and on the commercial and accounting evidence adduced before it. 9. The applicant lodged an appeal. On 26 April 2001 the Oradea Court of Appeal examined the case by calling, at the applicant’s request, one witness and also hearing the parties’ submissions. The applicant was present on this occasion. On 3 May 2001, the Court of Appeal acquitted the applicant of all charges, holding that the first-instance court had erred in its interpretation of the evidence as to the applicant’s guilt. It considered that the simple fact that the applicant had written two cheques following the instructions of his co-accused did not indicate that he was guilty, as long as he had not been aware that the cheques could not be cleared because of a lack of money in the account. 10. The prosecutor appealed. The case was heard by the Supreme Court of Justice on 10 December 2003. The applicant was present at the hearing and he was also represented by three lawyers of his choosing. His lawyers presented arguments for dismissing the appeal on points of law. From the report of the hearing, it appears that the applicant made a concluding statement to the effect that he agreed with his lawyers’ submissions. 11. In his application, the applicant maintained that both he and his coaccused had been heard by the Supreme Court. However, he submitted that he had only been asked two questions during the hearing, namely: (i) if he was a business associate of his coaccused; and (ii) if the new criminal proceedings pending against him also related to fraud. He also claimed that these two questions, and his answers to them, were purposely omitted from the transcript of the hearing. The Government did not provide any clarification on that point. 12. On 10 December 2003, the same date as the hearing, the Supreme Court of Justice delivered a final decision by which it found the applicant guilty, convicted him of having been an accessory to fraud and sentenced him to six years’ imprisonment. It held that the evidence available in the case file was sufficient to indicate that the applicant had knowingly written the cheques and had been aware that there was no money in the account to clear them. 13. On the basis of this final decision, the applicant started serving his prison sentence. He was conditionally released on 22 June 2007. 14. The relevant provisions of the Romanian Code of Criminal Procedure with regard to the authority of the courts of appeal, as in force at the time of the events, read as follows: “(1) A court judging on an appeal shall review the contested decision on the basis of the evidence in the file and all additional written documents that were adduced before it. (2) In order to decide on the appeal, the court can make a new assessment of the evidence in the file and can order any new evidence that it deems necessary (...)” “A court judging an appeal shall decide to: (...) 2. uphold the appeal and: (a) quash the decision of the first-instance court, deliver a new decision and proceed in accordance with Article 345 et seq. to [render] a judgment on the merits (...)” 15. The relevant provisions of the Code of Criminal Procedure with regard to the authority of the courts examining appeals on points of law that were in force at the time of the events, as well as the amendments to those provisions adopted in September 2006, are detailed in the case of Găitănaru v. Romania (no. 26082/05, §§ 17-18, 26 June 2012).