The Romanian Judges’ Forum Association, the Movement for Defence of Prosecutors’ Status Association along with the Initiative for Justice Association, considering the letter addressed by the Minister of Justice, Mr. Tudorel Toader, to the First Vice-President of the European Commission, Mr Frans Timmermans, on 7th of February 2019 and taking into account its core issue on enacting a criminal procedure review able to quash a final appeal decision delivered by an unlawfully composed panel,
submit the following considerations:
- The legal certainty is a key element of the rule of law, having been the object of extensive professional studies, even if its definition still raises some rhetorical queries in Romania. One of these studies is the Report on the rule of law – CDL-AD(2011)003rev-e, adopted by the Venice Commission at its 86th plenary session (Venice, 25-26 March 2011) which states the legal certainty among the six main ingredients of the rule of law, subsequent to a thorough analysis on different law systems.[1]
Going to the core meaning of this concept, Venice Commission reminds „the principle of legal certainty is essential to the confidence in the judicial system and the rule of law and it requires respect for the principle of res judicata, meaning that final judgements by domestic courts should not be called into question; this does not exclude, of course, the right to apply to an international court complaining that the final domestic judgment is in violation of an international legal obligation”.
Therewith, Venice Commission highlights that „systems which allow for the quashing of final judgments without cogent reasons of public interest and for an indefinite period of time are incompatible with the principle of legal certainty”.
Contrarily, it is to highlight that the interest of the finally tried defendants by the panels of the High Court of Cassation and Justice, settled by the Constitutional Court as having been unlawfully set up is a private one, unable to justify the establishment of general reparatory measures impairing the rights of the victims, who could lose financial compensations for the crimes resulted damages, as a consequence of a potential acquittal in the new review procedure.
The same aspect is referred to in the 21st November 2008 Resolution CM(2008)170 issued by the Committee of Ministers of the Council of Europe which underlines (par. 48) that the „legal certainty requires respect for the principle of res judicata. Final judgments by domestic courts should not be called into question”. The Resolution also states the principle according to which ”systems which allow for the quashing of final judgments for an indefinite period of time are incompatible with the principle of legal certainty”, same to the reasoning of the European Court of Human Rights in case Riabykh v. Russia (par. 55), namely ”the anyone’s right of access to a court, enshrined in article 6 of the Convention, would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party”, as would be the victims’ rights to financial compensations in the criminal cases. The very meaning of this principle was stated in the early stages of ECHR analysis of Romania’s violations of the Convention, in case Brumărescu v. Romania: ”one of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question.” (par.61).
„This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise”– case Riabykh v. Russia (par. 52).
- The letter above mentioned makes a clear reference to a mandatory enactment of a remedy to the breach of the right to a fair trial, seen by the Romanian authorities as automatically originating in the Constitutional Court Decision nr. 685/2018, settling as unlawful the way of set up the High Court of Cassation and Justice five panels judges.
In this matter it could be noted that the deliberative resorts of international courts often depart the more coercive boundaries of domestic law formalism and for what usually takes that a fair trial as a whole comply with ECHR standards, some precise breaches are not always seen as impairing the right to a fair trial whether all the other safeguards were observed.
Thus, we give the example of the case Tsanova – Gecheva v. Bulgaria, where ECHR ruled on the applicant’s complaint concerning the composition of Supreme Administrative Court five judges panel which determined her case, namely „even if one admitted that the panel had not been randomly assigned, as long as a lack of impartiality cannot be suspected of the judges, the Court could not find a violation of article 6 (par. 108)”.
ECHR reasoning supports this conclusion in a recent (04.02.2019) final decision issued in the case Kontalexis v. Greece (nr. 2), where no violation of article 6 was found as Court of Cassation of Greece had rejected the applicant’s request (on grounds of a previous violation held by ECHR in case Kontalexis v. Greece (nr. 1) for the review of the criminal conviction decision delivered by a first instance panel out of which one judge had been unfoundedly replaced, ground for final appeal which was rejected as such by the Court of Cassation but held as violation of article 6 by ECHR in the first application lodged with the Court.
Therefore, recent ECHR jurisprudence clearly shows that even in the cases where the Court itself had previously found a violation of the right to a fair trial, complying to its standards doesn’t necessary mean to put in place a mandatory remedy, but on the contrary, it is up to the national courts to assess the extent to which the right in its core had been impaired.
- As for the claim in different media that should a remedy were not immediately put in place, ECHR would be overwhelmed with numberless applications for finding a violation of the right to a fair trial, we stress that under no circumstance the Convention ensures the right to extraordinary reviews in criminal cases, whose settlement does not fall anyway under the scope of article 6, which must be complied with only if the merits of the case are determined again subsequent to the admissibility of the extraordinary review.
Furthermore, we highlight that article 2 of the 7th additional Protocol to the Convention, the one that ensures a double jurisdiction in criminal cases, states that one’s right to have his case reviewed could be restricted whether it was the highest jurisdiction the one which determined the case.
Therefore, in the cases determined by the High Court of Cassation and Justice five panels which have been found unlawfully set up by the Constitutional Court, defendants were tried by the highest jurisdiction not only in first instance, but in final appeal as well, although minimal ECHR standards would have not compelled to double jurisdiction from the outset.
With regard to figures in terms of violations of the right to a fair trial, official 2018[2] statistics reveals a whole of 21 cases where ECHR hold that Romania acted in breach of article 6, out of which 10 were violations in undistinct civil/criminal cases, 8 undistinct civil/criminal cases as well for length of proceedings and another 3 for non-enforcement. An analysis of these figures shows that Romania is far from „scoring the greatest number of ECHR violations”, as authorities voice empirically and unsubstantiatedly, being outrun by Ukraine, Turkey, Russian Federation and even Hungary and Greece in respect of length of proceedings.
- Not least we underline that the observance of fundamental rights, as they are clearly stated in article 50 of the European Union Chart of the Fundamental Rights, have been also longly scrutinized by the European Court of Justice which, in its turn, issued in case C-234/17 a Grand Chamber Decision on 24 th October 2018, stating as follows: ” EU law (..), must be interpreted as meaning that a national court is not required to extend to infringements of EU law, in particular to infringements of the fundamental right guaranteed by Article 50 of the Charter of Fundamental Rights and Article 54 of the Convention implementing the Schengen Agreement (…) a remedy under national law permitting, only in the event of infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms (…), the rehearing of criminal proceedings closed by a national decision having the force of res judicata”, as long as the applicant was able to claim his rights during those proceedings, meaning in High Court of Cassation and Justice five panels issue to have filed a complaint in due time concerning its unlawful set up.
The Romanian Judges’ Forum Association
judge Dragoș Călin, co-president
judge Anca Codreanu, co-president
The Movement for the Protection of Prosecutors’ Statute Association
prosecutor Antonia Diaconu, co-president
prosecutor Adrian Cosmin Iordache, co-president
The Initiative for Justice Association
prosecutor Bogdan Pîrlog, co-president
prosecutor Sorin Lia, co-president
[1] See web page https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-f .
[2] See web page https://www.echr.coe.int/Documents/Stats_violation_2018_ENG.pdf.
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