Conviction at second instance despite the first-instance acquittal. Non-violation of a fair trial
JUDGMENT
Ignat v. Romania 09.11.2021 (app. no. 17325/16)
SUMMARY
Right to a fair trial. Acquittal at first instance and conviction at second instance.
The applicant alleged that his right to a fair trial had been violated because the appellate court had overturned the acquittal initially granted by the appellate court. In particular, the applicant was charged with conspiracy to commit bribery of an official, in order to facilitate the living of a prisoner in prison. He asserted that his confession had been obtained through torture and that his confession had been obtained through torture.
The ECtHR considered, taking into account that the applicant had been given an opportunity to put forward all the arguments in its defense and that the dispute between the first and second instance courts concerned the way of assessing the evidence, that from a procedural point of view the views and that the fairness of the trial was ensured.
Non-violation of the right to a fair trial (Article 6 of the ECHR).
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Radu-Florin Ignat, is a Romanian national who was born in 1985 and is detained in
Turda (Romania).
The case concerns the applicant’s complaint of the unfairness of criminal proceedings brought
against him for complicity in influence peddling, namely facilitating the life of a prisoner in exchange
for money. In 2015 the appellate court overturned the applicant’s acquittal, finding that the court
had incorrectly assessed evidence, in particular video footage of the attempted exchange of money
and phone transcripts between the applicant and a former prisoner involved in setting up the
exchange. The applicant was sentenced to one year and four months’ imprisonment.
Relying on Article 6 (right to a fair trial) of the European Convention on Human Rights, the applicant
alleges that the criminal proceedings against him were unfair because the appellate court convicted
him on the basis of the same evidence which had led the first-instance court to acquit him, and
without rehearing oral evidence from witnesses.
THE DECISION OF THE COURT…
At the outset and in view of the principles stated above, the Court considers that the issue to be examined in the present case is whether the proceedings against the applicant, taken as a whole, were fair in the light of the specific features of those proceedings.
It notes first of all that, having quashed the first‑instance court’s acquittal judgment, the appellate court determined the criminal charge brought against the applicant in connection with the incident of 27 April 2014 and convicted him.
In that connection, the Court notes that the applicant was heard both by the first-instance court, which acquitted him, and by the appellate court, which overturned the acquittal. In that respect, the procedural safeguard established in the Court’s case-law to the effect that in the determination of a criminal charge, the defendant should, as a general rule, be heard by the tribunal convicting him, was fully complied with.
The Court also notes that the witnesses were examined before the first-instance court in his and his lawyer’s presence, and that he did not argue that the defence had been prevented from putting questions to the witnesses before the first-instance court.
At this juncture, the Court cannot but note that in the present case the applicant did not argue that the witnesses’ statements were unreliable or that the witnesses themselves were not credible. Crucially, neither did the appellate court, which did not disregard those statements but simply reassessed their value and their significance to the proceedings when corroborated by the other evidence, and consequently drew the conclusions it considered justified in the circumstances of the case before it.
As regards therefore the question whether the Court of Appeal was required to re-examine the defence witnesses – who had already been examined at the hearing before the lower court – in person, the Court reiterates that the applicant, who was assisted by a lawyer, was aware of the content of the prosecutor’s appeal and was present before the appellate court. The applicant should also have been aware of the Court of Appeal’s powers to convict him under the relevant domestic law.
Furthermore, the appellate court reversed the first-instance court’s reasoning because in its view, the non-testimonial evidence, in particular the recordings and transcripts of phone conversations between G.S. and the applicant, had been disregarded by the lower court without appropriate justification. At this juncture, the Court notes that G.S. refused to give any further statements before the appellate court and recalls in this respect that anyone “charged with a criminal offence”, within the autonomous meaning of this expression in Article 6, has the right to remain silent and not to contribute to incriminating himself. The Court of Appeal could therefore not compel G.S. to testify. As far as the defence witnesses D.G. and V.S.U. are concerned, the last-instance court reassessed the evidence on file without reaching any different conclusions from those of the Cluj County Court as to their credibility; indeed, the appellate court simply considered that those witnesses’ statements were not sufficient to exculpate the applicant.
The Court therefore considers that in the present case the aspect which the appeal court was called on to assess in deciding on the applicant’s conviction was whether the testimonial evidence, which supported the applicant’s defence, reconciled with the other evidence, which was of a more objective nature, as it consisted of video footage and phone transcripts which provided more nuanced information about the factors that were relevant to the case, such as, principally, the nature of the business relationship between the applicant and G.S.
Whereas it is true that, in finding that the witnesses’ statements were not sufficiently endorsed by the above-mentioned objective evidence, the appellate court took a fresh position on facts which were decisive for the determination of the applicant’s guilt, the crucial point remains that that fresh position was based on evidence which the appellate court was able to assess directly, by examining the recording of the meeting at the inn as well as the transcripts of the several phone conversations between the applicant and G.S..
Moreover, in finding that the said evidence had more relevance in the case than the testimonial evidence and that the non-testimonial evidence did not fully reconcile with the applicant’s version of facts, the appellate court fully exercised its essential role of assessing the evidence before it, the way evidence should be assessed being primarily a matter for regulation by national legislation and the domestic courts. Furthermore, the applicant did not indicate what other evidence the appellate court should have examined that would have been decisive for the outcome of the case.
In the light of the above considerations, and in particular the fact that the applicant was given the opportunity to put forward all his defence arguments, and that the disagreement between the first-instance and final-instance courts concerned the manner of assessing the documentary evidence, starting with how each of them assessed the video footage and the phone transcripts, rather than the reliability and credibility of the defence witnesses as such, the Court takes the view that the applicant’s case must be distinguished from other cases in which final-instance domestic courts convicted defendants who had been acquitted by the lower courts, without directly hearing evidence from them or reviewing testimony considered relevant for the defendants’ convictions.
The foregoing considerations are sufficient to enable the Court to conclude that, regard being had to the proceedings as a whole, the overall fairness of the criminal proceedings against the applicant was ensured.
There has accordingly been no violation of Article 6 § 1 of the Convention.
