The signing of a decision by the President of the Court on behalf of the President who issued the decision and retired after the debate, did not violate the right to a fair trial
JUDGMENT
Iancu v. Romania 23.02.2021 (app. no. 62915/17)
SUMMARY
Signing of a court decision by the President of the Supreme Court on behalf of the President of the court that adjudicated the case and issued the decision, who retired immediately after the hearing. The applicant alleged, in essence, that the signatory judge had no direct knowledge of the case.
National law allowed the President of the Supreme Court to sign only in cases where the trial judge is unable to sign the decision, ie at a stage after the discussion and issuance of the decision. The judge who finally signed, did not participate in either the hearings or the debates and her non-participation in the issuance of the decision was confirmed by her handwritten report next to her signature, clarifying that she signs instead of the President of the court and not in her name. . Thus, her intervention had no specific consequences in resolving the case and there was no change in the composition of the seat of the Court.
The ECtHR did not find a violation of the right to a fair trial (article 6 par. 1 of the ECHR).
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Olimpia-Mirela Iancu is a Romanian national who was born in 1974 and lives in
Oradea.
The case concerned criminal proceedings following which the applicant had been convicted of
complicity in fraud.
Relying on Article 6 § 1 (right to a fair trial) of the European Convention, the applicant complained
that a final judgment delivered on appeal following those proceedings had been signed by only four
out of five judges on the bench. As a fifth judge had retired before being able to sign the judgment,
another judge, who had not taken part in the proceedings, had signed for her. The applicant alleged
in substance that the other judge had not had any direct knowledge of the case.
THE DECISION OF THE COURT…
Article 6 § 1
The Court did not find a breach of the principle of immediacy at the stages of the decision-making process which led to the issuance of the Supreme Court decision for the following reasons.
The decision was issued in the same way as the decision set out to rule on the applicant’s appeal, after examining her submissions and taking part in the direct examination of the evidence.
The decision was drafted by an assistant judge who participated in the hearings and hearings and who, on behalf of the court, gave the reasoning on which the conviction was based in accordance with national law. Therefore, neither the intervention of the LDS President nor her possible replacement by another President was necessary during this stage. And Judge CT did not intervene at this stage.
The Supreme Court held that the evidence in the file supported the applicant’s conviction and upheld the first-instance judges’ decision after analyzing the content of that judgment and making its own assessment of the facts and evidence. The reason for the decision was therefore surrounded by the necessary guarantees.
The LDS judge was no longer in court when the judgment was published and, therefore, could not objectively sign it when it was clarified. Thus, the signature was submitted by Judge CT in accordance with national law and the case law of the Supreme Court. the judges brought a right of appeal to check the existence of this weakness.
The procedural rule for the signing of decisions by all members of the collective formations applies unless there is an impossibility of signing in the Supreme Court. But this is not a common standard for all Council of Europe member states. While in some states court decisions are signed only by the presiding judge or the clerk, in others the judge signing the court decision to replace an absent judge does not necessarily have to be the presiding judge involved in the proceedings.
In addition, national law restricted the admissibility of the signature by the President of the High Court only in cases where the trial judge is unable to sign the decision, ie at a stage after the discussion and issuance of the decision. Judge CT did not attend the hearings and her non-participation in the decision is confirmed by her handwritten statement next to her signature, stating that she is signing on behalf of the LDS President and not in her name. Thus, the intervention of President CT had no specific consequences in resolving the case and there was no change in the composition of the Supreme Court.
Finally, the applicant, assisted by the lawyer of her choice, had already had the opportunity to examine the witnesses she wished, and the judges of the first-instance court had analyzed the evidence in question. In these circumstances, and given the fact that no acquittal was overturned on the basis of a reassessment of the credibility of the witnesses (compared to Dan v. The Republic of Moldova), the principles of a fair trial did not require a second hearing of the same witnesses in the second instance.
No violation of Article 6 § 1
