Editura Universitara The right to a fair trial. Criminal aspects. Judgments of the European Court of Human Rights ruled in cases against Romania

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ISBN: 9786062802714

DOI: 10.5682/978-606-28-0271-4

Publisher year: 2015

Edition: I

Pages: 1200

Publisher: Universitară

Author: Dragos Calin, Mihaela Vasiescu, Paula-Andrada Cotovanu, Beatrice Ramascanu, Alexandra Lancranjan, Cristina Radu, Florin Mihaita, Anamaria Lucia Zaharia, Lavinia Circiumaru, Ionut Militaru, Victor Horia Dimitrie Constantinescu, Alexandra Gherghesanu, Vasile Bozesan, Iulian Balan, Cristinel Ghigheci

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The concept of "fair trial" has its origins in adversarial legal systems (fair trial), from where it was taken over by the European Convention on Human Rights. Subsequently, he imposed himself in the continental legal systems, being currently one of the most important concepts of the criminal process, in all democratic states. Its adversarial origin must be emphasized, because in these systems the trial procedure has a more important role than in the inquisitorial invoice systems, the emphasis being on the correctness of the confrontation between accusation and defense and on the role of the judge to arbitrate this confrontation.
  • Dreptul la un proces echitabil. Aspecte penale. Hotarari ale Curtii Europene a Drepturilor Omului pronunțate in cauzele impotriva Romaniei

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Dragos Calin
Judge at the Bucharest Court of Appeal, trainer of the National Institute of Magistracy for continuous professional training European Union law, international judicial cooperation in civil and commercial matters, labor law and social insurance law; associate scientific researcher of the Institute of Legal Research of the Romanian Academy - Center for European Law Studies, director of the Journal of the Judges Forum, member of the scientific college of the journal Jurisclasor ECHR, co-editor of the Journal iaduer.ro - European Legal Affairs, founding member and co-president Romanian Judges Forum Association (2007-present), member of the GEMME Europe Board of Directors (May 2010-present), vice-president of GEMME Europe - European Grouping of Magistrates for Mediation (May 2010-May 2012), founding member of CIMJ International Conference on Mediation for Justice), October 2009, Paris

Mihaela Vasiescu
Judge, Targu Mures Court of Appeal, vice-president, doctor of law, member of the scientific college of the Jurisclasor ECHR magazine.

Paula-Andrada Cotovanu
Judge Ploiesti Court of Appeal, judicial inspector, Judicial Inspection, member of the editorial board of the ECHR Jurisclasor Magazine, member of the editorial board of the Forumul Judecatorilor Magazine.


Beatrice Ramascanu
Judge, Ploiesti Court of Appeal, trainer of the National Institute of Magistracy, member of the scientific college of the Jurisclasor ECHR magazine, doctor of law.


Alexandra Lancranjan
Prosecutor, National Anticorruption Directorate, trainer of the National Institute of Magistracy.


Cristina Radu
Judge at the Ploiesti Court of Appeal, member of the editorial board of the ECHR Jurisclasor Magazine.


Florin Mihaita
Judge, Bucharest 4th District Court, editor-in-chief of Jurisclasor ECHR magazine, member of the editorial board of Forumul Judecatorilor Magazine.


Anamaria Lucia Zaharia
Judge, Bucharest Court of Appeal, trainer of the National Institute of Magistracy for continuous professional training in commercial law, representative of the Romanian Section of GEMME - European Group of Magistrates for Mediation; member of the editorial board of Forumul Judecatorilor Magazine, member of the editorial board of Jurisclasor ECHR Magazine.


Lavinia Circiumaru
Judge, Bucharest Tribunal, member of the editorial board of the ECHR Jurisclasor Magazine.


Ionut Militaru
Judge, Bucharest Court of Appeal, editor-in-chief of the Forum of Judges Magazine, doctor of law, co-president of the Romanian Judges Forum Association, president of the Association of European Magistrates for Human Rights, editorial director of the ECHR Jurisclasor magazine.


Victor Horia Dimitrie Constantinescu
Judge, District 6 Court of Bucharest, member of the editorial board of Forumul Judecatorilor Magazine, member of the editorial board of Jurisclasor ECHR magazine.


Roxana-Maria Calin
Judge, Bucharest Tribunal, Deputy Editor-in-Chief of the Judges' Forum Magazine, Vice-President of the European Association of Magistrates for Human Rights, member of the editorial board of the ECHR Jurisclasor magazine.


Alexandra Gherghesanu
Judge, Iasi Court of Appeal, trainer of the National Institute of Magistracy, member of the editorial board of the Forum of Judges Magazine, deputy editor-in-chief of the Jurisclasor ECHR magazine.


Vasile Bozesan
Judge, Teleorman Tribunal, member of the editorial board of Forumul Judecatorilor Magazine, member of the editorial board of Jurisclasor ECHR magazine.


Iulian Balan
Judge, Targu Mures Court of Appeal.


Cristinel Ghigheci
Judge, Brasov Court of Appeal, trainer of the National Institute of Magistracy, doctoral lecturer at the Faculty of Law of the Transilvania University of Brasov. member of the editorial board of Forumul Judecatorilor Magazine, member of the editorial board of Jurisclasor ECHR Magazine.

TABLE OF CONTENTS - Volume I
INTRODUCTORY STUDY 9

I. EXCEPT FOR PREREQUISITES 11

1. The exception of the inapplicability ratione materiae of Article 6 of the Convention 11
A. General principles 11
B. Application of the general principles in cases against Romania 11
2. The exception of the lateness of the complaint 12
A. General principles 12
B. Application of the general principles in cases against Romania 13
3. Exception of non-exhaustion of domestic remedies 15
A. General principles 15
B. Application of the general principles in cases against Romania 16
4. Exception of loss of victim status 18
A. General principles 18
B. Application of the general principles in cases against Romania 19

II. GUARANTEES OF A FAIR TRIAL PROVIDED BY ART.6 PAR.1 OF THE CONVENTION 20
1. The right of access to a court 20
A. General principles 20
B. Application of the general principles in cases against Romania 21
2. Independent and impartial court 25
A. General principles 25
B. Application of the general principles in cases against Romania 27
3. Instance established by law 35
4. Equality of arms 37
A. General principles 37
B. Application of the general principles in cases against Romania 38
5. Contradictory 41
A, General Principles 41
B. Application of the general principles in cases against Romania 41
6. Judgment in absentia 44
A. General principles 44
B. Application of the general principles in cases against Romania 44
7. Listening to the accused 46
A. General principles 46
B. Application of the general principles in cases against Romania 46
8. Direct administration of evidence 52
A. General principles 52
B. Application of the general principles in cases against Romania 54
9. Fairness of the procedure in the administration and assessment of evidence 61
A. General principles 61
B. Application of the general principles in cases against Romania 64
10. Provocative agents 73
A. General principles 73
B. Application of the general principles in cases against Romania 75
11. Motivation of the decision 82
A. General principles 82
B. Application of the general principles in cases against Romania 83
12. Statement in public session 89
A. General principles 89
B. Application of the general principles in cases against Romania 89
13. Settlement within a reasonable time 90
A. General principles 90
B. Application of the general principles in cases against Romania 91
14. Security of legal relations 110
A. General principles 110
B. Application of the general principles in cases against Romania 113

III. GUARANTEE OF THE PRESUMPTION OF INNOCENCE CONFERRED BY ART.6 PAR. 2 OF THE CONVENTION 121
A. General principles 121
B. Application of the general principles in cases against Romania 124

IV. GUARANTEES GIVEN TO THE SUSPECT OR DEFENDANT BY ART.6 PAR. 3 OF THE CONVENTION 140
a) The right to be informed in a detailed manner on the nature and cause of the accusation 140
A. General principles 140
B. Application of the general principles in cases against Romania 141
b) The right to have the time and facilities necessary for the preparation of the defense 142
A. General principles 142
B. Application of the general principles in cases against Romania 144
c) The right to defend oneself or to be assisted by a lawyer 146
A. General principles 146
B. Application of the general principles in cases against Romania 147
d) The right to ask or request the hearing of the prosecution witnesses and to obtain the summoning and hearing of the defense witnesses, under the same conditions as the prosecution witnesses 156
A. General principles 156
B. Application of the general principles in cases against Romania 160
e) The right to be assisted free of charge by an interpreter 179
A. General principles 179
B. Application of the general principles in cases against Romania 179

Article 6, paragraph 1, of the Convention. Guarantees a fair trial 181
ALBERT'S CASE AGAINST ROMANIA 181
THE CAUSE AGAINST ROMANIA 186
THE ANDREESCU CASE AGAINST ROMANIA 197
THE CASE OF ANGHEL AGAINST ROMANIA 206
ANCIENT CAUSE AND S.C. „R" S.A. AGAINST ROMANIA 209
THE BERARU CASE AGAINST ROMANIA 218
CAUSE BIRLA. AGAINST ROMANIA 228
CAUSE BLAJ AGAINST ROMANIA 231
CAUSE BOLDEA AGAINST ROMANIA 240
THE CAUSE BOTA AGAINST ROMANIA 245
CAUSE BOTEA AGAINST ROMANIA 250
THE CAUSE OF JOY AND TOMA AGAINST ROMANIA 255
BULFINSKY CASE AGAINST ROMANIA 280
BUTUSINA CAUSE AGAINST ROMANIA 287
CALMANOVICI'S CASE AGAINST ROMANIA 292
THE CARABULA CAUSE AGAINST ROMANIA1 310
THE CIPLEUS CAUSE AGAINST ROMANIA 336
CARLAN'S CASE AGAINST ROMANIA 341
THE CONSTANTIN AND STOIAN CASE AGAINST ROMANIA 347
THE CONSTANTINESCU CASE AGAINST ROMANIA 353
THE CHRISTMAS CAUSE AGAINST ROMANIA 357
CUTEAN CAUSE AGAINST ROMANIA 360
DANILA'S CASE AGAINST ROMANIA 366
DUMITRU'S CASE AGAINST ROMANIA 370
THE CASE OF FLORIN IONESCU AGAINST ROMANIA 377
THE FLUERAS CAUSE AGAINST ROMANIA 383
FODOR CASE AGAINST ROMANIA 390
CAUSE FOLEA IMPOTRIVA ROMANIEI 394
THE GAGA CAUSE AGAINST ROMANIA 399
THE GAITANARU CAUSE AGAINST ROMANIA 404
THE JURAN CASE AGAINST ROMANIA 408
THE CASE AGAINST ROMANIA 414
THE GREEK CAUSE AGAINST ROMANIA 425
THE HANU CASE AGAINST ROMANIA 428
THE CASE OF HOGEA AGAINST ROMANIA 435
THE CAUSE IANOS AGAINST ROMANIA 440
IEREMEIOV'S CASE AGAINST ROMANIA (NO. 1) 446
IERMEIOV'S CASE AGAINST ROMANIA (NO. 2) 451
THE ILISESCU AND CHIFOREC CASE AGAINST ROMANIA 456
THE ION TUDOR CASE AGAINST ROMANIA 458
THE IONUT-LAURENTIU TUDOR CASE AGAINST ROMANIA 461
THE CASE OF IULIAN POPESCU AGAINST ROMANIA 470
THE CASE OF LACATUS AND OTHERS AGAINST ROMANIA 475
THE LEONTIN POP CASE AGAINST ROMANIA 490
THE LONG AND OTHER CAUSE AGAINST ROMANIA 495
CASE M. AND C. AGAINST ROMANIA 500
THE MARINE CASE AGAINST ROMANIA 511
THE CASE OF MASZNI AGAINST ROMANIA 515
MIHAILA'S CASE AGAINST ROMANIA 520
THE MIHAIU CASE AGAINST ROMANIA 524
CASE OF MIRCEA AGAINST ROMANIA1 527
MIXED CAUSE AGAINST ROMANIA1 531
THE VINEYARD CAUSE AGAINST ROMANIA 537
CAUSE POPA AND TANASESCU AGAINST ROMANIA 542
THE CASE OF POPESCU SERGIU AGAINST ROMANIA 548
THE POTCOAVA CAUSE AGAINST ROMANIA 551
PRECUP CAUSE AGAINST ROMANIA 554
THE CAUSE OF RACHE AND OZONE AGAINST ROMANIA 558
CAUSE ROTARU AGAINST ROMANIA126 561
THE SPINU CAUSE AGAINST ROMANIA 570
THE WRONG CAUSE AGAINST ROMANIA 577
THE STEFAN CASE AGAINST ROMANIA 587
THE CASE OF POTTERY AGAINST ROMANIA 590
THE WIDOWS CAUSE AGAINST ROMANIA 599
VISAN CASE AGAINST ROMANIA 608
TABLE OF CONTENTS - Volume II

Article 6, paragraph 1, of the Convention. Guarantees of a fair trial - reasonable time 7
ABABEI'S CASE AGAINST ROMANIA 9
THE ALLIED CAUSE AGAINST ROMANIA 14
THE CAUSE OF ANCA MOCANU AND OTHERS AGAINST ROMANIA 16
THE ARDELEAN CASE AGAINST ROMANIA 28
THE CAUSE OF THE S.C. SYSTEM DAMAGES ASSOCIATION ROMPETROL S.A. SI S.C. GEOMIN S.A. AGAINST ROMANIA 41
BALINT CAUSE AGAINST ROMANIA 50
BALLAI CAUSE AGAINST ROMANIA 52
CAUSE BAKA AGAINST ROMANIA 56
THE BOGDAN CASE AGAINST ROMANIA 68
THE CAUSE OF BOROBAR AND OTHERS AGAINST ROMANIA 70
THE CASE OF BOSNIGEANU AND OTHERS AGAINST ROMANIA 78
THE BRAGADIREANU CASE AGAINST ROMANIA 84
THE BURSUC CASE AGAINST ROMANIA 91
THE CITIZEN CASE AGAINST ROMANIA 95
THE CASE OF CONSTANTIN FLOREA AGAINST ROMANIA 101
THE CASE OF CSIKI AGAINST ROMANIA 107
THE DAMIAN-BURUEANA AND DAMIAN CASE AGAINST ROMANIA 118
THE ENCULESCU CASE AGAINST ROMANIA 133
THE CAUSE OF THE POP FLOWER AGAINST ROMANIA 139
THE CASE OF FLORIN MACOVEI AGAINST ROMANIA 151
GEORGESCU'S CASE AGAINST ROMANIA 154
THE MARIAN NITA CASE AGAINST ROMANIA 160
THE CASE OF MARIAN TOMA AGAINST ROMANIA 166
THE CASE OF MOLDOVAN AND OTHERS AGAINST ROMANIA (NO. 2) 171
THE CASE OF MOCANU AND OTHERS AGAINST ROMANIA 187
CAUSE SLOPE AGAINST ROMANIA 243
PETER'S CASE AGAINST ROMANIA 258
THE RICCARDI CASE AGAINST ROMANIA 261
THE ROSENGREN CASE AGAINST ROMANIA 271
THE SCHULLER CASE AGAINST ROMANIA 276
SERCARU'S CASE AGAINST ROMANIA 280
SERENY CAUSE AGAINST ROMANIA 282
THE CAUSE OF THE SUN AGAINST ROMANIA 288
THE STOIANOVA AND NEDELCU CAUSE AGAINST ROMANIA 292
THE CASE OF SZABO AND OTHERS AGAINST ROMANIA 295
TEMESAN CASE AGAINST ROMANIA 300
THE CASE OF TOPLICEANU AND OTHERS AGAINST ROMANIA 304
THE TUDORACH CAUSE AGAINST ROMANIA 309
VITCOVSCHI CASE AGAINST ROMANIA 312
THE CASE OF VLAD AND OTHERS AGAINST ROMANIA 316

Article 6, paragraph 2, of the Convention. The guarantee of the presumption of innocence 325
CAUSE DIACENCO AGAINST ROMANIA 325
THE CAUSE DIDU AGAINST ROMANIA 334
CAUSE E.M.B. AGAINST ROMANIA 338
CAUSE G.C.P. AGAINST ROMANIA 343
THE JIGA CAUSE AGAINST ROMANIA 347
THE PAVALACHE CASE AGAINST ROMANIA 361
THE SAMOILA AND CIONCA CAUSE AGAINST ROMANIA 370
VITAN'S CASE AGAINST ROMANIA 379

Article 6, paragraph 3, of the Convention. Guarantees granted to the suspect or defendant 387
THE CASE OF ADRIAN CONSTANTIN AGAINST ROMANIA 387
THE CASE OF ANDREI IULIAN ROSCA AGAINST ROMANIA 389
BACANU CASE AND THE COMMERCIAL COMPANY „R“ S.A. AGAINST ROMANIA 395
THE BALTEANU CASE AGAINST ROMANIA 404
CAUSE BOBES AGAINST ROMANIA 411
CASE COLAC AGAINST ROMANIA35 415
THE CASE OF HACIOGLU AGAINST ROMANIA 430
LAZARIU'S CASE AGAINST ROMANIA 436
THE MARIANA MARINESCU CASE AGAINST ROMANIA 450
THE CASE OF MIHAI MOLDOVEANU AGAINST ROMANIA 459
THE NICULESCU CASE AGAINST ROMANIA 470
CAUSE PRAJINA AGAINST ROMANIA 480
THE RADU POP CASE AGAINST ROMANIA 488
THE REINER AND OTHER CASE AGAINST ROMANIA 494
THE CAUSE OF THE RUPA AGAINST ROMANIA 503
THE SANDRU CASE AGAINST ROMANIA 515
THE SICA CAUSE AGAINST ROMANIA 522
THE CASE OF THE COUNTRY AGAINST ROMANIA 531
CAUSE V.D. AGAINST ROMANIA 540
VALENTINO ACATRINEI'S CASE AGAINST ROMANIA 558
THE VARARU CASE AGAINST ROMANIA 568
CASE OF VIOREL BURZO AGAINST ROMANIA

The concept of "fair trial" has its origins in adversarial legal systems (fair trial), from where it was taken over by the European Convention on Human Rights. Subsequently, he imposed himself in the continental legal systems, being currently one of the most important concepts of the criminal process, in all democratic states. Its adversarial origin must be emphasized, because in these systems the trial procedure has a more important role than in the inquisitorial invoice systems, the emphasis being on the correctness of the confrontation between accusation and defense and on the role of the judge to arbitrate this confrontation.

In the system of the European Convention on Human Rights, the right to a fair trial has acquired an autonomous content compared to that of the adversarial procedural systems, meaning imposed by the specifics of the Convention to guarantee the fundamental rights and freedoms of persons from different procedural systems. This clarification is important, because there is a temptation of the doctrine to extend the content of the right to a fair trial, guaranteed by the European Convention on Human Rights, to that which this concept has in adversarial systems, sometimes forcibly taking over established rules. of the Anglo-Saxon courts. Or, the theoretical foundation of the continental procedural systems is different from that of the adversarial systems, fact that attracts in some cases an incompatibility of the procedural rules from the two systems. For these reasons, the European Convention on Human Rights guarantees only a minimum level of rights that a fair trial entails, allowing Member States to further develop their procedural systems in relation to the foundations and traditions specific to each state.

The right to a fair trial, provided for in Article 6 of the Convention, is, in essence, a procedural right or guarantee.

Article 6, paragraph 1, of the Convention provides that "every person has the right to a fair and public hearing within a reasonable time (...)" fair only the publicity of the procedure and the reasonable term. The third characteristic used in the text of the Convention ("equitably") implicitly results from other guarantees of a fair trial, developed in the jurisprudence of the Court, such as equality of arms, the principle of adversarial proceedings and the reasoning of judgments.

Article 6 paragraph 2 of the Convention regulates the presumption of innocence, and Article 6 paragraph 3 of the Convention regulates a series of specific guarantees of the accused persons.

The jurisprudence of the European Court of Human Rights in the cases against Romania offers the possibility to develop rules for establishing the content of these rights and the way in which the injured persons can invoke their violation, before the Court.



Judge Cristinel Ghigheci,

Brasov Court of Appeal

www.editurauniversitara.ro

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