Referral to trial of the accused by the investigator’s decision. No violation of the due process in the pre-trial procedure
JUDGMENT
Alexandru–Radu Luca v. Romania 14.06.2022 (app. no. 20837/18)
SUMMARY
Pre-trial, arraignment of the accused and fair trial.
The applicant complained of a violation of the fair trial when he was referred to the audience after a preliminary investigation by decision of the investigating officer. In particular, he claimed that he did not have access to the case file, he was not given the opportunity to present evidence and the principle of adversarial trial was not respected.
The Court reiterated that the fair trial also concerns the pre-trial stage. The Court found that the applicant and his attorney duly participated in the pre-trial stage, had access to the file and presented evidence. It also pointed out that the appellant made use of his procedural rights and submitted an apologetic memorandum and objections before the investigator.
The ECtHR ruled that the measures and decisions taken during the pre-trial did not weaken the applicant’s position in the trial that followed and did not find a violation of the fair trial.
PRINCIPAL FACTS
Criminal proceedings were brought against, inter alia, the applicant for being an accessory to fraud when working as a loans broker and assisting private persons to obtain loans from a bank. The case became the subject of proceedings before a pre-trial judge who confirmed the indictment decision and sent the case to trial. The applicant appealed unsuccessfully. He was eventually found guilty of the charges brought against him and received a sentence of imprisonment. The relevant provisions for pre-trial proceedings have since been amended, following a Constitutional Court finding that they were unconstitutional.
The applicant complained that the criminal proceedings against him had been unfair because of procedural shortcomings in the pre-trial judge proceedings (notably, the alleged lack of their adversarial character) and because he had been deprived of the opportunity to challenge the pre-trial judge’s decision.
THE DECISION OF THE COURT…
Article 6 §§ 1 and 3 (c): It was not for the Court to seek to impose any particular model on the Contracting Parties concerning the procedures, competences and role of investigating or pre-trial judges. These issues might involve important and sensitive questions about fairness and how to strike an appropriate balance between the parties to the proceedings, and the solutions to be adopted were linked with complex procedural matters specific to each constitutional order. Rather, the Court’s task was to conduct a review of the specific circumstances of the case, on the basis of the complaints brought before it.
In the instant case, the proceedings before a pre-trial judge had concerned the preliminary stage of criminal proceedings. Their main purpose had been to decide whether to commence a criminal trial in a case or whether to end a criminal-law dispute. Among other things, the pre-trial judge had been called upon to examine the lawfulness of the bill of indictment. The judge’s activities had not concerned the merits of the case, and his or her decisions had neither been aimed at determining the essential elements of the alleged criminal offence, namely the act in question, the person who had committed it, and that person’s guilt, nor any civil claim lodged by a civil party within criminal proceedings. These points could have been determined by the criminal court only at the trial stage of the proceedings.
Given that under the national legal framework the applicant could have had the merits of the criminal charges brought against him determined only within the context of the criminal trial, the Court had regard to the proceedings as a whole, assessing the handling of the case by the pre-trial judge in light of the subsequent trial, when determining whether the applicant’s rights had been prejudiced.
In line with the relevant legal framework in place at the time, the proceedings before the pre-trial judge had been conducted in chambers and in the absence of the parties. The applicant could make only written submissions before the pre-trial judge concerning the competence of the court charged with the examination of the case and the lawfulness of the bill of indictment, the criminal investigation authorities’ actions and the manner in which evidence had been gathered by them. He could not rely on any legal provision expressly giving him the opportunity to ask for a public and oral hearing to be held by the pre-trial judge and could not ask that judge to administer again the available evidence. In addition, there was no procedural requirement to be notified either of the objections raised ex officio by the pre-trial judge or about the response of the prosecutor’s office to such objections, and any possible challenge against the pre-trial judge’s decision was examined under similar circumstances.
The Constitutional Court’s decision and the subsequent legislative changes had had no impact on the proceedings in the applicant’s case; they had only come into force after those proceedings and had no retroactive effect. That being said, as pointed out by the Constitutional Court, the pre-trial judge proceedings could have had an impact on the subsequent criminal trial as once the pre-trial judge had decided to actually exclude evidence from the case file or to accept it, the criminal trial court determining the merits of the case was no longer able to take into account during the trial the excluded evidence or decide on the lawfulness of the manner in which the accepted evidence had been gathered. Nevertheless, nothing in the Constitutional Court’s judgment suggested that the pre-trial judge’s decision imposed any pre-determined weight on the probative value of the evidence that he or she deemed lawful, prevented the trial court from administering directly the evidence in question, and prevented the parties from contesting the weight or probative value of such evidence or from asking for new evidence to be adduced to the case file.
There had been no reason to doubt that the applicant and his legal representative could have actively participated in the proceedings at the criminal investigation stage, asked for evidence to be adduced to the case file and submitted comments, applications and challenges. Moreover, he had had access to the case file and the evidence therein and before each round of trial court proceedings he had been given a copy of the bill of indictment and duly informed of his rights, including those concerning the pre-trial judge proceedings. The applicant had taken advantage of his rights and had submitted written comments and objections before the pre-trial judge as had his co-defendants.
Certain of the arguments of the applicant and his co-defendants had been dismissed by the pre-trial judge on the basis of the relevant criminal procedural rules; indeed, it had been possible to adequately resolve those issues of interpretation of the national law on the basis of the case file alone. In so far as their comments and objections as to the available evidence had been dismissed, the pre-trial judge had been of the view that they had been within the scope of the examination and review of the available evidence that had to be conducted by the trial court and outside the scope of the examination that could be conducted by a pre-trial judge. The applicant had not argued that he had been estopped from reiterating those arguments before the trial court. In any event, it appeared that in so far as both he and his co-defendants had done so, the trial court had examined them and allowed or dismissed them by reasoned decisions. It had not treated the points in question as having been settled by the pre-trial judge decision with res judicata effect or as not being within the scope of its the examination. Therefore, the pre-trial judge’s decision had been of little consequence for the manner the criminal trial court could examine the case. Further, the pre-trial judge had not raised any arguments or objections concerning the applicant’s case ex officio and therefore neither party could have been placed at a disadvantage vis-à-vis the other party by being denied the opportunity to comment on those objections.
Although the reasons for the applicant’s inability to submit arguments supporting his challenge against the pre-trial judge’s decision had been somewhat unclear, his challenge lodged before the pre-trial judge attached to the Court of Appeal would have been examined under the same conditions as those applicable to the proceedings before the lower pre-trial judge and therefore would not have been able to remedy his alleged procedural shortcomings of the proceedings. Moreover, the applicant had not pointed to any evidence suggesting that the arguments supporting his challenge would have rested on different grounds than those he had already raised before the lower pre-trial judge.
In this context – also taking into account that the applicant had been able to reiterate his arguments concerning the available evidence before the trial courts and that nothing indicated that those proceedings had failed to comply with all the guarantees set out in Article 6 – the Court was not prepared to attach any weight to the impossibility alleged by the applicant to have the pre-trial judge’s decision properly challenged before the Court of Appeal.
Overall, the measures and decisions taken during the pre-trial judge proceedings had not weakened the applicant’s position to such an extent that the subsequent proceedings aimed at determining the merits of the criminal charge against him had been rendered unfair. These findings were without prejudice to the domestic authorities’ actions to set up a domestic legal framework in order to ensure a heightened level of protection compared with the Convention as regards proceedings before a pre-trial judge.
Conclusion: no violation (unanimously)
