KATTAN v. ROMANIA
Inadmissible
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
1. The applicant, Mr Mohamed Majdi Kattan, is a Syrian national, born in 1973 and living in Ţăndărei. He was represented before the Court by Mr I. Dan, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unspecified date a third party brought criminal proceedings and joined civil claims against the applicant for attempted fraud and forgery. 5. On 11 October 2007 the Ialomiţa Prosecutor’s Office indicted the applicant for attempted fraud and forgery and sent his case for trial. 6. By a judgment of 9 June 2008 the Ialomiţa County Court acquitted the applicant in respect of both charges on the basis of statements he had given to the prosecutor’s office and the court, and testimonial and documentary evidence. The prosecutor’s office and the third party appealed against the judgment. 7. By a judgment of 7 October 2009 the Bucharest Court of Appeal dismissed their appeals as unfounded on the merits. The prosecutor’s office and the third party lodged an appeal on points of law (recurs) against the judgment before the High Court of Cassation and Justice (“the Court of Cassation”). 8. On 5 February 2010 the Court of Cassation summoned the applicant to its first hearing of the case, listed for 23 February 2010. On the same date, a bailiff posted the summons on the applicant’s front door and on the Ţăndărei local council noticeboard because no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts. 9. By an interlocutory judgment of 23 February 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. In addition, it allowed a request by the applicant’s chosen legal representative seeking an adjournment of the hearing in order to familiarise himself with the case and the reasons for the prosecutor’s office’s and third party’s appeals on points of law. It also ordered that the applicant be summoned to the next hearing, listed for 20 April 2010. 10. On 17 March 2010 the bailiff posted the summons for a second time on the applicant’s front door and on Ţăndărei local council noticeboard because again no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts. 11. By an interlocutory judgment of 20 April 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. It also noted that the applicant’s chosen legal representative had submitted before it that the applicant had not left the country, and that he would contact his client and ask him to appear before the court. In addition, it ordered that the applicant be summoned to the next hearing, listed for 1 June 2010, with a specific direction on the summons which stated “mandatory attendance before the court in order to be heard” (prezența obligatorie la instanță pentru a fi audiat). 12. By an interlocutory judgment of 1 June 2010 the Court of Cassation noted that the applicant had not been lawfully summoned to the hearing and adjourned the proceedings until 14 September 2010. It ordered that the applicant be summoned in accordance with its directions of 20 April 2010. 13. On 22 June 2010 the bailiff posted the summons for a third time on the applicant’s front door and Ţăndărei local council noticeboard because again no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts. The summons included the specific direction given by the Court of Cassation on 20 April 2010. 14. By an interlocutory judgment of 14 September 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. In addition, it allowed the applicant’s chosen legal representative and the other parties to submit observations on the merits of the case, and afterwards adjourned the proceedings pending deliberation. 15. By a final judgment of 3 November 2010 the Court of Cassation allowed the Ialomiţa Prosecutor’s Office’s and third party’s appeals on points of law on the basis of the evidence available to it, quashed the judgments of the lower courts, convicted the applicant of attempted fraud and forgery and sentenced him to three years and four months’ imprisonment. 16. The applicant lodged an extraordinary appeal (contestaţie în anulare) against the final judgment of 3 November 2010. He argued, inter alia, that the final-instance court had breached the applicable rules of criminal procedure and Article 6 of the European Convention on Human Rights because it had convicted him without hearing evidence from him after he had been acquitted by the lower courts. 17. By a final judgment of 4 April 2011 the Court of Cassation dismissed the applicant’s extraordinary appeal. It held that after the applicant had been acquitted by the lower courts, the Court of Cassation sitting as court of final appeal had had a duty to hear evidence from him in accordance with the applicable rules of criminal procedure. However, although the applicant had been summoned at the correspondence address he had chosen himself, he had failed to attend the hearings. Also, he had not indicated, either through his chosen legal representative or by way of written submissions, his wish for the court to hear evidence from him directly or the objective reasons preventing him from attending the hearings. The final-instance court had summoned the applicant in exactly the same way the lower courts had done. Furthermore, during the proceedings before the first-instance court the summoning of the applicant through the procedure he was contesting had not prevented him from appearing before the court, from being heard by it or from submitting arguments in his defence, either directly or through the same chosen legal representative who had represented him during the entire course of the proceedings. At no stage of the proceedings had the applicant or his legal representative asked the court to summon him at a different address. Consequently, it could not be held that the final-instance court had lacked diligence in determining if the applicant was living at the address indicated by him. The court had assumed that as long as the applicant had been lawfully summoned, he had been familiar with the proceedings and had opted not to appear before the court. In fact, his conduct had been similar to the conduct he had displayed before the second-instance court, in that he had failed to attend the hearings despite having been lawfully summoned to do so, and had chosen to be defended exclusively through his chosen legal representative. It further dismissed the applicant’s argument that he had not been familiar with the proceedings because he had not been in contact with his chosen legal representative, on the grounds that they had signed separate legal representation contracts for each stage of the proceedings, and that on 20 April 2010 the applicant’s legal representative had informed the court about his whereabouts and had pledged to ensure his client’s attendance before it. 18. Articles 38514 § 2 and 38516 provide that it is mandatory for the finalinstance court to hear direct evidence from an accused when the lower courts have acquitted him or her. Where an appellate court quashes a judgment delivered by a lower court, it has to decide on the evidence to be adduced and set a date on which to take statements from the accused directly if the latter has not been heard or if he or she has been acquitted by the lower court. 19. Articles 183 § 1 and 184 §§ 1 and 4 provide that if a summoned person fails to appear before the court, and her attendance or direct evidence is required, he or she can be taken before the court on the basis of an order to appear (mandat de aducere). The order to appear is enforceable by the national police, the gendarmes or the local police. If the person responsible for enforcing the order to appear is unable to find the intended recipient of the order at the address indicated, he or she must open an investigation. If the investigation remains fruitless, he or she must draft a report outlining the investigative steps that have been carried out. 20. Article 38515 § 2 (d) provides that the court examining the appeal on points of law can allow the appeal on points of law and re-examine the case.