CASE OF COLAC v. ROMANIA
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1969 and lives in Iaşi. 6. On 20 February 2003 the Iaşi Prosecutor’s Office indicted the applicant and a third party for procurement and for unlawful deprivation of freedom. It held, amongst other things, that there was reasonable suspicion that the applicant and his co-accused had threatened and forced into prostitution five underage girls, namely C.R.R., M.A., F.P.D., I.A.P. and G.S.S. It relied on testimonial evidence, including the statements of the five girls, the minutes of witness confrontations, a report of the search carried out at the applicant’s home, lists of telephone calls, the applicant’s medical documents, his statements and those of his co-accused. 7. Between 20 March 2003 and 17 June 2004 the Iaşi District Court adjourned the proceedings fifteen times to allow, amongst other things, the summoning of the witnesses who had been heard at the pre-trial stage of the proceedings. At the hearings of 2 and 30 October 2003 the applicant’s lawyer asked the court to hear the aforementioned witnesses. The court ordered that as from 27 November 2003 any witness who refused to appear should be fined. 8. Between 12 May 2003 and 3 March 2004, bailiffs tried seventeen times to enforce the warrants (mandate de aducere) issued by the court for some of the witnesses to appear before the court. According to the bailiffs’ reports, witnesses had left the country (M.M.K., F.P.D. and I.A.P.), moved to unknown addresses (T.E.P., C.R.R., C.R. and G.C.R.) or could not be found at home (I.I.C.). I.I.C. was still living at the indicated address but was not found at home. C.R.R., as confirmed by her neighbours, had changed her name and had moved to an unknown address years earlier. T.E.P. was not living at the address known by the authorities; he had sold his flat and was not registered at a different one. According to the available information he had left for the United States of America. M.M.K., who was a foreign national, had left the country on an unspecified date and for an unknown destination, while F.P.D.’s and I.A.P.’s mothers declared that their daughters had left the country for Venice, Italy and Austria in November 2002 and on 18 March 2003, respectively, and that they did not know their addresses. According to I.A.P.’s relatives, she had married, changed her name and did not plan to return to Romania in the near future because she was pregnant. F.P.D.’s neighbours confirmed her mother’s statements. G.C.R. had changed his name and according to his neighbours he had moved some time ago to an unknown address. C.R.’s address was incorrect and no one with the witness’s first name lived at the available address. 9. The Iaşi District Court asked the Neamţ Population Records Office (Serviciul de Evidenţă al Populaţiei Neamţ), the Romanian Passport Service and the Iaşi Border Guard Service on several occasions to provide information on the whereabouts of the witnesses who had failed to appear before the court, namely T.E.P., M.M.K., C.R., F.P.D., I.A.P., G.C.R. and I.I.C. At the hearing of 27 November 2003 the court noted that the Neamţ Population Records Office had confirmed that the witness G.C.R. had changed his name to G.C.G. and continued to summon him under both names. On 22 December 2003 the Creţeşti Police Department informed the court that according to I.A.P.’s relatives, she had left the country after marrying a Turkish national, and confirmed that she had changed her name and was residing at an unknown address in Austria. The authorities provided the courts with the available information concerning the aforementioned remaining missing witnesses, and stated repeatedly that they had no other records of their current valid addresses. 10. By interlocutory judgments of 4 September 2003, 8 January, 5 February and 3 June 2004 the Iaşi District Court held that on the basis of information provided in the enforcement reports produced by the bailiffs, the Neamţ Population Records Office, the Romanian Passport Service, the Iaşi Border Guard Service, Iaşi Prison and the Iaşi Police Department, it was impossible to hear C.R., G.C.R., F.P.D., I.A.P., T.E.P., M.M.K. and I.I.C. It relied on Article 327 of the former Romanian Criminal Procedure Code and held that the statements of G.C.R., F.P.D., I.A.P., T.E.P. and I.I.C. given at the pre-trial stage of the proceedings would be read out before the court at the end of the judicial investigation stage of the proceedings. Except for I.I.C.’s statement, there is no evidence in the case file that the statements of those witnesses were read out before the court. 11. On 8 January 2004 I.I.C. attended a hearing before the Iaşi District Court, but he was not heard by the court because the applicant’s chosen legal representative was missing. The court adjourned the proceedings until later that day pending the arrival of the applicant’s legal representative. I.I.C. informed the court that he could not wait because he had to undergo surgery. He asked to be summoned for the following hearing, and promised to present documentation attesting to his need for medical treatment. The court noted that the witness was living without being registered at an address in the town of Iaşi. By the time the proceedings were reopened that day, I.I.C. had left the court. He did not attend any subsequent hearings and the authorities failed to find him, although they also attempted to summon him at the aforementioned unregistered address. 12. Some of the witnesses who testified against the applicant at the pretrial stage of the proceedings were located by the authorities and brought before the court. 13. On 2 and 30 October, 27 November 2003 and 1 April 2004 the Iaşi District Court heard M.A, G.S.S., D.V.D., F.H.A. and J.L.A. The court dismissed M.A.’s request to be heard in the applicant’s absence. M.A. stated amongst other things that the applicant had threatened her and had forced her into prostitution. She had not met any other girls apart from C.R.R. and had been sold to the applicant by I.I.C. G.S.S. withdrew her previous statement given at the pre-trial stage of the proceedings and declared that the authorities had forced her to accuse the applicant of procurement. D.V.D. confirmed his previous statements given at the pre-trial stage of the proceedings. He contended that he knew the applicant and that although he had met some of the girls, they did not live with him. F.H.A. stated that he did not know the applicant. Although he had had sex with several of the girls he had met at the club allegedly run by the applicant, he had not paid for it. L.A.J. withdrew his statement given at the pre-trial stage of the proceedings, denied that he knew the applicant or that he had previously been asked by the authorities if he had paid for sexual relations. 14. By an interlocutory judgment of 3 June 2004 the Iaşi District Court dismissed, among other things, a request lodged by the applicant’s lawyer to adjourn the proceedings in order to allow him to locate I.I.C. and to bring him before the court as a witness. Having assumed that I.I.C. would be heard by the court, he had not examined the file thoroughly enough to be able to submit oral observations on behalf of the applicant. The court refused his request, holding that it had already decided that it was impossible to have I.I.C. heard and that the absence of the witness did not hinder the examination of the merits of the case. 15. On the same date the statement given by I.I.C. at the pre-trial stage of the proceedings was read out before the court. Subsequently, the court allowed the parties to submit oral observations on the merits of the case and allowed a request submitted by the applicant’s lawyer to adjourn the proceedings in order to allow the parties to submit written observations on the merits of the case. 16. By a judgment of 22 June 2004 the Iaşi District Court acquitted the applicant of unlawful deprivation of freedom, convicted him of procurement and sentenced him to nine years’ imprisonment. It held that the facts of the case had been established on the basis of the statements given by C.R. and G.C.R.; the statements of the girls forced into prostitution, namely C.R.R., G.S.S., F.P.D. and M.A. – the girls described how they had met the applicant and his co-defendant, and how they had prostituted themselves; they provided details on how they had been contacted by clients, the money given to the applicant, and the appearance of some of the clients; the report of the search carried out at the applicant’s home; the description of the objects found in the applicant’s home which belonged to C.R.R.; the letter received by I.A.P. from her mother, which referred to rumours that her daughter and the other girls had been prostituting themselves; the list of telephone calls made from the applicant’s phone, which established the phone contact between the applicant, his co-defendant and some of the clients who had contacted the applicant’s co-defendant or with whom she had had sexual relations, namely M.M.K., S.S., K.S.E., N.K., Y.F., F.H.A., T.E.P. and O.K.; and the witness testimonies of I.I.C., D.V.D., T.E.P., F.H.A., J.L.A. and M.M.K. made at the pre-trial stage of the proceedings, which established, with the help of the list of telephone calls and the statements of the five underage girls, the applicant’s involvement in procurement. The court noted that only M.A. and D.V.D. had confirmed their own statements given at the pre-trial stage of the proceedings. It also noted that C.R., G.C.R., I.A.P., F.P.D., I.I.C. T.E.P. and M.M.K. could not be heard as witnesses by the court. In addition, witnesses G.S.S., J.L.A. and F.H.A., like the applicant’s co-defendant, had significantly changed the statements they had given at the pre-trial stage of the proceedings by affirming that they had never paid for sex. Having regard to the conflicting witness and co-defendant statements, the court decided to rely on those testimonies which had been confirmed by the other evidence available in the file. Consequently, it considered that the testimonies given by the witnesses and the co-defendant at the pre-trial stage of the proceedings were accurate as they had been made closer to the date of the unlawful acts and had also been corroborated by the remaining available evidence. Furthermore, it dismissed G.S.S.’s statement and those of the defendants given before the court because they contained several inaccuracies. 17. The applicant appealed against the judgment, arguing that the court had summoned as witnesses, but had failed to summon as victims, the five girls who had allegedly been forced into prostitution. In addition, the statements of the five girls were not supported by any other evidence, and all the victims of his alleged unlawful acts should have been heard by the court. 18. By a judgment of 17 October 2005 the Iaşi County Court allowed in part the applicant’s appeal in so far as the classification of his offence was concerned, upheld his sentence and dismissed the remaining points of his appeal. It held that given the nature of the unlawful act with which the applicant had been charged, it would not have been justified to summon as victims the girls he had forced into prostitution. Moreover, the applicant could not rely on the court’s failure to do so as long as his personal interest was not affected. As for the facts established by the first-instance court, the appeal court held that they had been confirmed by the evidence in the file. In particular, the testimonies of the five girls, C.R.R., M.A., I.A.P., F.P.D. and G.S.S. had been corroborated by the testimonies of T.E.P., Y.F., N.K., K.S.E. and S.S. that with the help of the applicant’s co-defendant, they had paid for sexual relations with several girls. I.I.C. had testified that the applicant had been interested in meeting girls who wanted to leave the country and work as dancers in bars, and G.C. had repeatedly driven the applicant and the girls to various hotels. Consequently, the appeal court considered that the first-instance court had correctly convicted the applicant of procurement. 19. The applicant appealed on points of law (recurs) against the judgment. He argued, amongst other things, that the court had summoned as witnesses, but had failed to summon as victims the five girls who had allegedly been forced into prostitution. In addition, the judicial investigation of the case had been insufficient because the evidence had not been administered publicly. 20. At a hearing of 9 February 2006 before the Iaşi Court of Appeal the applicant’s lawyer reiterated some of the arguments which he had raised before the second-instance court. Moreover, he contended that some witnesses, including A.P., G.C., O.P., had not been heard directly by the first-instance court and that the court had not provided reasons for its failure to hear them. Also, the address on the summons intended for I.I.C. had been incomplete. The summons had been sent to a town in the county of Neamț, even though the Neamţ Population Records Office had stated that the witness was not registered there. The courts had failed to hear other witnesses as well, including C.Z., and to take measures to bring those witnesses before them. Consequently, he asked the court to quash the judgments of the lower courts and to order a review of all the evidence in the file. 21. By a final judgment of 21 February 2006 the Iaşi Court of Appeal allowed in part the applicant’s appeal on points of law in so far as it reduced his sentence to eight years’ imprisonment, and dismissed the remainder of the appeal. It held that the lower courts had correctly established the facts of the case and the applicant’s guilt on the basis of the evidence administered at the pre-trial stage of the proceedings and re-confirmed at the trial. The fact that the girls forced by him into prostitution had been summoned during the trial not as victims but as witnesses was not an argument the applicant could rely on as long as his personal interest had not been affected. As for the evidence establishing the facts of the case, the court reiterated the reasoning of the second-instance court. Moreover, the applicant’s arguments that the court had failed to administer and examine directly all the evidence raised during the pre-trial stage of the proceedings, that his rights of defence had been breached and that the debate had not been adversarial were unsubstantiated. A court could rely either on the testimonies given at the pre-trial stage of the proceedings or on the ones given before the court if it was convinced that only some of them reflected the truth and were corroborated by the evidence in the file. A court could rely on the testimonies given at the pre-trial stage of the proceedings if it was impossible to hear the witness directly. A judgment could not be quashed on the grounds that a witness had not been heard directly by the court, unless a party had been prejudiced. In the present case, the lower courts had allowed the applicant’s requests to hear the witnesses who had testified at the pretrial stage of the proceedings and had taken measures to secure their attendance at the trial. The judgments of the lower courts could not be quashed because they had provided reasons for their inability to hear some of the witnesses, namely that they had left the country, and the testimonies had been read out at a public hearing. Consequently, the lower courts had followed the correct procedure in establishing the applicant’s guilt by using evidence collected both at the pre-trial and the trial stages of the proceedings. 22. On 3 October 2006 the applicant lodged an extraordinary appeal (contestație ȋn anulare), seeking the quashing of the final judgment of 21 February 2006. He argued that his right of defence had been breached on 9 February 2006 because he had been unable to attend the hearings held before the last-instance court on account of his serious medical condition and therefore he had been unable to ask for additional evidence. 23. On 31 October 2006 the Iaşi Court of Appeal allowed the applicant’s extraordinary appeal, quashed the judgment of 21 February 2006 and ordered the last-instance court to re-examine the appeal on points of law lodged by the applicant against the judgment of 17 October 2005 because he had been unable to attend the hearings before the last-instance court on account of his medical condition. 24. On 1 March 2007 the applicant submitted his reasons for appeal on points of law before the last-instance court. He argued, among other things, that some of the witnesses, including A.P., G.C., O.P., had not been heard. In addition, the first-instance court had dismissed the request to re-summon the witness I.I.C., whose testimony had been relevant for the case. Other witnesses, including C.Z., had also not been heard and no steps had been taken to bring them before the first-instance court. 25. By a final judgment of 21 December 2010 the Iaşi Court of Appeal allowed in part the applicant’s appeal on points of law against the judgment of 17 October 2005 and reduced his sentence to seven years’ imprisonment. It held that the first and second-instance courts had been active and had collected all the relevant evidence for the case. They had diligently taken all the necessary steps in order to hear the evidence directly and to verify the applicant’s defence arguments. They had valid reasons for not having directly heard all the victims and witnesses in the case, namely that the individuals in question had left the country. Consequently, the courts had applied Article 327 of the Romanian Code of Criminal Procedure. The factual circumstances had been established on the basis of C.R.’s and G.C.R.’s statements; the statements of the girls forced into prostitution, namely C.R.R., G.S.S., F.P.D. and M.A., who described how they had met the defendants and how they had prostituted themselves, and provided details on how they had been contacted by clients and on the money given to the applicant; the report of the search carried out at the applicant’s home; the report containing a description of the objects belonging to C.R.R., which had been found in the applicant’s home; the letter received by I.A.P. from her mother, which had been found in the applicant’s home; the list of telephone calls made from the applicant’s phone, which had established the phone contact between the defendants and some of the clients who had contacted the applicant’s co-defendant or with whom she had had sexual relations; and the witness testimonies of I.I.C., D.V.D., T.E.P., F.H.A., J.L.A. and M.M.K. 26. On an unspecified date the Iaşi Prosecutor’s Office instituted criminal proceedings for perjury against the witness G.S.S. who had changed her testimony before the first-instance court in the applicant’s favour. 27. By an order of 15 June 2006 the Iaşi Prosecutor’s Office discontinued the criminal proceedings for perjury against G.S.S. on the grounds that her action had not met the level of severity required for an offence and the domestic courts had disregarded her statement given at the trial. However, it fined G.S.S. the sum of RON 1,000 (approximately EUR 200) for her behaviour. G.S.S. did not challenge the order before the domestic courts.