The former’s President of the Chamber of Deputies of the Romanian Parliament application is incompatible ratione materiae with the ECHR!
JUDGMENT
Dragnea v. Romania 04.11.2021 (app. no. 75317/17)
SUMMARY
The case concerned an objection to the enforcement of a judgment sentencing Mr Dragnea (former
President of the Chamber of Deputies and former Chair of the Social Democratic Party) to two years’
imprisonment, suspended, for abuse of authority during an election campaign.
In the proceedings before the High Court Mr Dragnea lodged an objection to enforcement of the
judgment convicting him, on the grounds that two of the five judges of the bench had not signed the
judgment and had retired from office before the reasoning of the judgment was finalised. The
President of the High Court had substituted her signature for those of the two judges concerned, in
accordance with the Code of Criminal Procedure.
In the European Court proceedings Mr Dragnea complained of the dismissal by the High Court of his
objection to enforcement of the judgment. He relied on Article 6 (right to a fair trial) of the
Convention.
The Court reiterated that the criminal limb of Article 6 of the Convention was applicable to criminal
proceedings concerning remedies that were classified as extraordinary in domestic law where the
domestic court was called upon to determine the criminal charge. It observed that in the present
case the examination by the High Court of the applicant’s objection had been confined to
establishing whether the fact that two of the five judges of the bench had not signed the judgment
convicting him constituted grounds precluding enforcement of the judgment. Hence, in its judgment
of 24 April 2017 the High Court had not determined the “criminal charge” against the applicant, but
had simply ruled that the ground relied on by Mr Dragnea in support of his objection did not act as a
bar to enforcement of the final judgment of 22 April 2016 convicting him, for the purposes of the
Code of Criminal Procedure. The applicant’s complaint was therefore incompatible ratione materiae
with Article 6 of the Convention and was rejected.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Nicolae-Liviu Dragnea, is a Romanian national who was born in 1962 and lives in
Turnu Magurele (Romania).
In May 2015 the applicant was sentenced by the High Court of Cassation and Justice (“the High
Court”) to one year’s imprisonment, suspended, for abuse of authority. The applicant and the other
parties appealed.
In April 2016 the High Court, sitting as a bench composed of five judges and one assistant judge,
allowed the appeal lodged by the prosecution and dismissed the applicant’s appeal. In its judgment
of 22 April 2016 the court held that the applicant’s conviction by the trial court was well founded
and that a heavier sentence (of two years’ imprisonment, suspended) should be imposed, in view of
the context in which the applicant had committed the offence, and especially the fact that it had
been committed during an election campaign. All the judges of the bench took part in delivery of the
judgment and signed the original copy of the judgment, drawn up the same day. Subsequently, in
May 2016 and July 2016 respectively, two of the judges (L.L.Z. and L.D.S.) retired from office before the reasoning of the judgment, drafted by the assistant judge who had taken part in all the hearings, was finalised.
In February 2017 the text of the judgment was signed by three of the judges of the appellate bench,
the assistant judge and the President of the High Court. The President signed in place of the two
judges who had retired, in accordance with Article 406 § 4 of the Code of Criminal Procedure. Her
signature appeared in the spaces left blank for the signatures of Judges L.D.S. and L.L.Z.,
accompanied each time by the following handwritten text: “Signed by the President of the High
Court on behalf of Judge L.D.S./L.L.Z., retired judge”.
In February 2017 the applicant lodged an objection to enforcement of the High Court judgment on
the grounds that Judges L.D.S. and L.L.Z. had no longer been present when the judgment was signed
and that, consequently, the reasoning of the judgment was no longer the result of agreement
between all the members of the bench.
In a judgment of 24 April 2017 the High Court dismissed the applicant’s objection to enforcement. It
held that the fact that the two judges had not signed the judgment owing to their retirement was
not a circumstance capable of preventing proper enforcement of the decision convicting the
applicant. In the High Court’s view, the judgment of 22 April 2016 had become final at the time of its
delivery and there were no other grounds, including those relied on by the applicant in support of
his objection, precluding its enforcement.
The application was lodged with the European Court of Human Rights on 18 October 2017.
Relying on Article 6 § 1 of the Convention (right to a fair trial), the applicant complained that he had
not had a fair trial on account of the dismissal by the High Court of his objection to enforcement of
the judgment delivered by that court on 22 April 2016.
THE DECISION OF THE COURT…
The Court specified that the subject matter of the application was the proceedings leading to the
High Court judgment of 24 April 2017 concerning the applicant’s objection to enforcement, and not
the proceedings that had ended with the final judgment of the High Court of 22 April 2016
concerning the applicant’s conviction.
The Court added that its task was to examine whether the applicant’s complaint was compatible
ratione materiae with Article 6 § 1 of the Convention. It observed in that connection that the
criminal limb of Article 6 of the Convention was applicable to criminal proceedings concerning
remedies classified as extraordinary in domestic law where the domestic court was called upon to
determine the criminal charge.
The Court noted that under Romanian criminal law an objection to enforcement did not have the
legal character of an ordinary or extraordinary remedy enabling a case that had been finally decided
to be reopened and a “criminal charge” or the “lawfulness” of a conviction to be determined afresh,
but related only to incidents that might act as a bar to enforcement of a final judgment convicting
the accused, and that it produced effects during the phase of enforcement of a final judgment.
In the present case the applicant had chosen to complain, by means of an objection to enforcement,
of irregularities allegedly committed during the signing of the final judgment of 22 April 2016
convicting him. The Court noted that the High Court’s examination of the applicant’s objection had
been confined to establishing whether the fact that two of the five judges of the bench had not
signed the judgment convicting him constituted grounds precluding enforcement of the judgment.
Hence, even assuming that this had been an extraordinary remedy, in its judgment of 24 April 2017
the High Court had not determined the “criminal charge” against the applicant but had simply ruled
that the ground he had relied on in support of his objection did not act as a bar to enforcement of
the final judgment convicting him, for the purposes of the Code of Criminal Procedure.
In view of the foregoing considerations and the scope of the review carried out by the court
examining the objection to enforcement, the Court found that this complaint was incompatible
ratione materiae with Article 6 of the Convention within the meaning of Article 35 § 3 (a), and
rejected it in accordance with Article 35 § 4 of the Convention.
