CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2021

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display:inline-block } .fixListIndent { list-style-position: inside }   FOURTH SECTION CASE OF VICTOR LAURENȚIU MARIN v. ROMANIA (Application no. 75614/14)   JUDGMENT   Art 2 (procedural) • Effective investigation • Adequate domestic proceedings and collection of evidence for case involving fatal car accident of applicant’s father Art 6 § 1 (civil) • Fair hearing • Pre-trial judge proceedings confirming discontinuation of criminal proceedings not weakening the applicant’s position to such extent that subsequent proceedings aimed at determining the merits of civil claims rendered unfair from the outset • Art 6 § 1 civil limb applicable • Pre-trial judge proceedings not breaching “tribunal” requirements merely due to judge being called on to perform certain tasks without the same powers as a court examining the merits of the case Art 13 (+Art 2 and 6 § 1) • Effective remedy • No formal obstacles to sending a case for trial in circumstances were such was rendered necessary by evidence, nor to applicant bringing separate civil proceedings   STRASBOURG 12 January 2021   FINAL   12/04/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Victor Laurențiu Marin v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President,   Tim Eicke,   Faris Vehabović,   Iulia Antoanella Motoc,   Carlo Ranzoni,   Pere Pastor Vilanova,   Jolien Schukking, judges, and Andrea Tamietti, Section Registrar, Having regard to: the application (no.   75614/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr   Victor Laurențiu Marin (“the applicant”), on 20 November 2014; the decision to give notice of the application to the Romanian Government (“the Government”); the parties’ observations; Having deliberated in private on 10 December 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complained that both the criminal investigation into the circumstances of his father’s accident and the proceedings before a pre-trial judge which had confirmed a public prosecutor’s decision not to prosecute the alleged perpetrator had been ineffective and excessively lengthy, in breach of the guarantees set out by Article 2 of the Convention. The applicant also complained that the proceedings before a pre-trial judge had been unfair and had breached his rights guaranteed by Article 6 of the Convention because they had taken place in chambers, without the parties being summoned, and the judge had determined that the victim had been responsible for the accident, even though that judge had not acted as a trial court. Lastly, the applicant complained that he had not had access to an effective remedy for his complaints as required by Article 13 of the Convention, because the procedure for an appeal against a public prosecutor’s decision not to prosecute, as provided for by the relevant procedural rules, could not have ended in the case being sent for trial. THE FACTS 2.     The applicant was born in 1968 and lives in Bucharest. He was represented by Mr M.A. Tănăsescu, a lawyer practising in Bucharest. 3.     The Government were represented successively by their Agents, Mr   V. Mocanu and Ms S.M. Teodoroiu of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows.          Investigation into the applicant’s father’s death     The investigation 5 .     On 11 March 2011 the Bucharest police department (“the police department”) was notified that the applicant’s father had been involved in a traffic accident. The applicant’s father, who was the victim of the accident, was taken to hospital immediately after the accident, but died. 6 .     On the same date the police department carried out an on-site investigation, and the Bucharest prosecutor’s office (“the prosecutor’s office”) started a criminal investigation in the case, for involuntary manslaughter. 7 .     According to the report drawn up in respect of the on-site investigation, the police department took photographs of the scene of the accident and made notes about it, identified the driver and an eyewitness, took a statement from the driver and collected blood samples from him to determine his blood alcohol level. They also noted that the road had been dry at the time of the accident, visibility had been normal, and the speed limit in the area had been 60 km/h. The victim had caused the dangerous situation because he had crossed the road in an unauthorised location. The speed of the vehicle had been between 58 and 63 km/h, and the driver had applied the brakes and slowed down once he had seen the victim. 8 .     On 16 March 2011 the National Institute of Forensic Services (“the Forensic Service”) produced a toxicology report concerning the alcohol level in the driver’s blood. It concluded that the driver had not had alcohol in his blood at the time of the accident. 9 .     On 14 April 2011 the police department commissioned a technical expert report in the case and took a statement from the applicant. He stated that he was aware that his father had crossed the road in an unauthorised location and that the brake marks found at the scene of the accident had been 21 metres long. Also, he had been notified of his right to choose his own expert to take part in the preparation of the technical report. 10.     On 15 April 2011 the police department took a second statement from the driver involved in the accident. He stated that he had seen the victim walking on the road, had started braking, and had veered the car away from him. However, he had been unable to avoid impact. 11.     On 26 April 2011 the police department took a statement from an eyewitness to the accident. She stated that she had not seen the impact between the car and the victim. 12 .     On 20 September 2011 the applicant joined the criminal proceedings as a civil party. He also agreed to pay for both a forensic report that was to be produced in the case and the fee of the expert who was commissioned to produce the technical expert report (see paragraph 9 above). 13.     On 27 September 2011 the Forensic Service produced a forensic report concerning the victim. It concluded that the victim’s injuries had been caused most probably in the context of a traffic accident, and that there was a direct link between the injuries and the victim’s death. No traces of alcohol had been found in the victim’s blood. 14 .     On 29 February 2012 a lawyer chosen by the applicant studied the on-site investigation report and the photographs taken at the scene of the accident. 15 .     On an unspecified date an expert attached to the Central Agency for Technical Expert Reports (“the Agency”) produced the technical expert report (see paragraph 9 above). It concluded that the accident had been caused by the victim crossing the road in an unauthorised location without taking the necessary precautions. The driver had manoeuvred the car to avoid impact. Such impact could have been avoided if the car had been travelling at less than 50 km/h. However, the driver had not been obliged to drive at that speed, because there were no such speed restrictions in the area. 16 .     The applicant objected to the technical expert report and asked for a new one to be produced in the case. 17 .     On an unspecified date the police department commissioned a second technical expert report. The applicant chose his own expert to take part in the preparation of the report. 18 .     On 14 November 2012 an expert attached to the Agency produced the second technical expert report. It concluded that the driver could have avoided the accident only if the car’s speed had been below 56 km/h, which had not been required on that section of road. Also, the victim could have prevented the accident if he had not been walking on the road and had not jumped in front of the vehicle. 19 .     The applicant and his chosen expert objected to the second technical report. That expert also submitted a separate opinion. He concluded that the accident could have been avoided if the victim had not been walking in an area which was not authorised for pedestrians and if the driver had not been driving 7 km/h above the 60 km/h speed limit. 20 .     On 5 April 2013 the expert attached to the Agency who had produced the second technical report in the case submitted explanations in reply to the objections raised. However, the applicant submitted further objections to the explanations provided by the expert. 21.     On 20 May 2013 the police department proposed that the investigation concerning the driver be discontinued on the grounds that, according to the available evidence, the victim had been responsible for the accident. The victim had crossed the road in an unauthorised location without taking the necessary precautions. The driver had been driving lawfully and had not been responsible for the accident, and according to the technical reports he could not have avoided it. 22 .     On 12 July 2013 the applicant reiterated his objections to the second technical expert report and expressed his dissatisfaction with the evaluation system used by the expert, because he found it inaccessible. In addition, he asked for a new expert report to be produced in the case. 23.     On 22 November 2013 the prosecutor’s office dismissed the applicant’s objections concerning the second technical expert report and his request for a new report as ill-founded. It held that both the expert report and the separate opinion had considered that the victim had been responsible for the accident. Regardless of whether they had been appropriate or not, the driver’s conduct and reactions had been made necessary by the victim’s conduct. 24 .     On 11 December 2013 a prosecutor attached to the prosecutor’s office discontinued the criminal prosecution of the case on the grounds that the elements of the offence under investigation had not been made out in the driver’s case. She held that according to the technical expert report produced in the case, only the victim had been responsible for the accident. 25 .     The applicant challenged the decision on the grounds that it was unlawful and ill-founded. He also stated that at the request of the police officer in charge of investigating the case, in an attempt to expedite the proceedings, he had agreed to pay for the forensic report and the first technical expert report produced in the case himself (see paragraph 12 above), even though the State had had a lawful duty to cover those costs. He had agreed to pay only because he had been convinced that the officer’s argument – that the police lacked the resources to cover the costs of expert reports – had been an attempt to delay the proceedings. 26.     On 27 January 2014 a more senior prosecutor attached to the prosecutor’s office dismissed the applicant’s challenge. She held that according to the technical expert report, the victim had created the dangerous situation by walking on the road and stepping in front of the vehicle without taking the necessary precautions. The driver could have avoided the accident only by driving at a speed lower than 56 km/h, which had not been required on that section of road.     Proceedings before pre-trial judge 27 .     On 14 February 2014 the applicant appealed against the prosecutor’s office’s decisions to the Bucharest District Court (“the District Court”) and asked the court to reopen the criminal proceedings in the case. He reiterated his statement about paying for the costs of the forensic expert and the first technical expert report produced in the case (see paragraph 25 above). In addition, he argued that the prosecutor’s office: had discontinued the prosecution of the case by relying on the wrong legal basis; had wrongly assessed the evidence, in particular the speed limit on the section of road where the accident had happened; had not considered all possible forms of the offence of involuntary manslaughter, given that the driver had not taken the necessary steps to avoid the victim; had not tried to reconcile the results of the technical expert reports produced in the case; had not provided reasons for its decisions; and had failed to notify him of its decisions before he had expressly asked it to do so. 28 .     The applicant also argued that the authorities: had not examined whether it would have been possible for the driver to avoid the accident; had not touched on the question of the driver’s blood alcohol level; had not considered the position of the traffic sign displaying the speed limit on that section of road; and had ignored his arguments and failed to take any measures even though those arguments had suggested that his father had been murdered. Lastly, he argued that the technical expert reports produced in the case had been plagued by errors, had not responded to his objections, and had not considered that the driver could have shared responsibility for the accident. 29 .     The applicant asked the court to order the prosecutor’s office to produce a new technical expert report in the case and consider all possible aspects of the offence of involuntary manslaughter. He also asked to be granted access to the case file. 30.     On an unspecified date the District Court, sitting as a pre-trial judge, notified the applicant of the date, time and place of the examination of the appeal against the prosecutor’s office’s decisions. In addition, it informed the applicant that in accordance with the relevant provisions of the Code of Criminal Procedure (“the CCP”), the case would be examined in chambers and without the parties being present. The applicant was given the opportunity to submit written observations on the admissibility and merits of the appeal. 31.     Between 13 March and 22 May 2014 the District Court, sitting as a pre-trial judge, repeatedly adjourned the examination of the appeal on procedural grounds. On two occasions it did so because notifications sent to the driver could not be delivered. 32.     There is no information in the case file that the applicant made other submissions before the District Court apart from the ones of 14 February 2014 (see paragraphs 27-29 above). 33 .     By an interlocutory judgment of 22 May 2014 which was not amenable to appeal, the District Court, sitting as a pre-trial judge, dismissed the applicant’s appeal against the prosecutor’s office’s decisions on the grounds that not all the elements of the various forms of the offence of involuntary manslaughter had been made out. 34 .     The pre-trial judge held that according to the available evidence, the driver could not have avoided the accident. The victim had been the only person responsible for the accident, because he had attempted to cross a busy road in an unauthorised location. The driver could not have foreseen such an event, because he could not have predicted that a pedestrian would be walking on the line separating two lanes of traffic. The driver’s inability to foresee such a situation excluded the criminal nature of his actions, given that one of the elements of the offence, namely his guilt, was missing. 35.     As regards the prosecutor’s office’s discontinuance of the prosecution by allegedly relying on the wrong legal basis and not investigating all possible forms of the offence of involuntary manslaughter, the pre-trial judge held that this had most likely been an immaterial error on the part of the investigating authorities, and had in no way affected the applicant’s legitimate interests. In addition, given the conclusions of the experts on the circumstances of the accident, the dangerousness and causes of the accident would have remained the same, regardless of the maximum speed limit for the section of road where the accident had happened. 36.     The applicant had had the opportunity to submit objections to the technical expert reports and ask for new reports to be produced in the case. He had been assisted by an expert chosen by him (see paragraph 17 above), and the investigating authorities had provided pertinent reasons for dismissing his objections concerning the second expert report produced in the case. The fact that the applicant was dissatisfied with the conclusions of the experts who had been asked to examine certain aspects which were relevant for solving the case did not mean that new expert reports had to be produced in the case until the results he desired were achieved. 37.     Given that both experts who had been assigned to the case had reached similar conclusions concerning who had been responsible for the accident, the investigating authorities had correctly established that a third technical expert report had not been necessary. The discrepancies concerning the vehicle’s speed as established by the experts had been minor, and any doubt in this regard had benefitted the accused. 38.     The driver could not have been held responsible for not reacting when he had noticed the victim, given that, by creating the dangerous situation, the victim had accepted the risk of an inadequate reaction by the driver. The latter could not have been held responsible for not reacting to the situation with the highest level of skill. 39 .     Lastly, the pre-trial judge held that the investigating authorities had not had a duty to inform the applicant about the alcohol level in the driver’s blood. In any event, the results of the toxicology report concerning the driver were available in the case file.     Appeal and extraordinary appeal proceedings brought by the applicant 40 .     On 29 July 2014 the applicant lodged an appeal and an extraordinary appeal for annulment against the interlocutory judgment of 22 May 2014 (see paragraphs 33-39 above) which was not amenable to appeal. In addition, he raised an unconstitutionality objection in relation to Article   3 §§   1 (c) and 6, Article 54, Article 340 § 1 and Article 341 of the CCP (see paragraph 53 below). He argued that by drawing conclusions about the guilt of the parties involved in the accident, the pre-trial judge had breached the relevant procedural rules applicable to proceedings before a pre-trial judge, and had prejudged the merits of the case. The judge’s reasoning had amounted to pleadings in favour of the driver, and not to an objective assessment of the aspects which he had been called upon to review, namely the manner in which the evidence had been added to the case file and the lawfulness of the investigating authorities’ decision in the case. 41.     Moreover, the pre-trial judge: had assessed the evidence wrongly and had misinterpreted the applicable legal provisions; had failed to reconcile the discrepancies in the technical expert reports, which had resulted in decisions being taken on an incorrect factual basis; and had failed to comply with the relevant provisions concerning the administration of evidence. 42.     The errors made by the pre-trial judge might have been caused by deficiencies in the new procedural rules which had entered into force in February 2014. In accordance with those rules, a pre-trial judge had to review the lawfulness of decisions delivered by the investigating authorities by carrying out only an administrative review of their acts and the measures which they had implemented. The legislation had not provided for a specific procedure to be followed by a pre-trial judge for resolving cases in circumstances where a decision not to prosecute had been taken, and had not granted the judge the freedom to ask for new evidence to be added to the case file pending his or her decision in the case. Therefore, the new rules had created an administrative obstacle to a case being examined by a trial court. 43.     Unlike the old procedural rules, the new rules breached the Constitution, because in circumstances such as the ones at hand justice was served by a pre-trial judge and not a trial court. The former could prevent a trial court from examining a criminal case. 44 .     Relying on his above-mentioned arguments and the relevant Constitutional provisions, the applicant also argued that the pre-trial judge in his case had not been competent to examine his appeal against the decisions of the prosecutor’s office. He contended that he had not been able to raise that argument directly before the pre-trial judge, because Article 341 §   2 of the CCP allowed only defendants to lodge applications and raise objections before a pre-trial judge (see paragraph 53 below). 45.     The applicant also argued that his right of access to court had been breached, because in the absence of regulations concerning a specific procedure to be followed by a pre-trial judge for resolving cases in circumstances where a decision not to prosecute had been taken, the pre ‑ trial judge could not be held accountable for any possible deficiencies or procedural faults in the proceedings. The new procedural rules had given a pre-trial judge the power to restrict a person’s access to court, in the absence of clear guidelines and without the judge being able to take procedural steps such as the administration of new evidence capable of guaranteeing the uncovering of the truth. Also, the interlocutory judgment delivered by the pre-trial judge in his case had not been amenable to an appeal that would have given a trial court the opportunity to review that judge’s decision. Therefore, the applicant’s constitutional rights had been breached, as his case could not be examined by a trial court competent to examine all aspects of the case. 46.     On 26 September 2014, following instructions from the court which had been called upon to examine his extraordinary appeal, the applicant submitted written comments concerning the unconstitutionality objection which he had raised. He argued, amongst other things, that the fact that a pre-trial judge examined a case in chambers and in the absence of the parties was more proof that the nature of a pre-trial judge’s activity was not that of an act of justice. 47.     On the same date, by a judgment amenable to appeal, the District Court, sitting as a pre-trial judge, dismissed as inadmissible both the applicant’s extraordinary appeal and his unconstitutionality objection (see paragraph 40 above). There is no evidence in the case file that the applicant appealed against the judgment. 48.     On 28 October 2014, by a judgment not amenable to appeal, the Bucharest Court of Appeal dismissed as inadmissible the appeal lodged by the applicant against the interlocutory judgment of 22 May 2014 (see paragraph 40 above).        Civil proceedings brought against the applicant 49.     On 5 March 2014 the Bucharest public transport company brought civil proceedings against the applicant, seeking damages for losses suffered following an alleged disturbance to public transport caused by his father’s actions. 50 .     By a judgment of 4 September 2014 which was amenable to appeal, the District Court allowed the civil proceedings and ordered the applicant to pay the damages claimed by the public transport company. It held, amongst other things, that on 11 December 2013 the prosecutor’s office had established that the victim had been responsible for causing the accident because he had stepped onto the road without taking the necessary precautions (see paragraph 24 above). Subsequently the investigating authorities had discontinued the prosecution of the case, and their decision remained final. 51 .     There is no evidence in the case file that the applicant appealed against the judgment. RELEVANT LEGAL FRAMEWORK AND PRACTICE          THE CONSTITUTION 52 .     The relevant provisions of the Constitution read as follows: Article 20 International human rights treaties “(1)     The provisions of the Constitution concerning citizens’ rights and freedoms shall be interpreted and applied in line with the Universal Declaration of Human Rights [and] the covenants and other treaties to which Romania is a party. (2)     Where ... there are inconsistencies between the covenants and treaties on fundamental human rights to which Romania is a party and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favourable provisions.” Article 21 Free access to court “(1)     All persons may bring cases before the courts for the defence of their legitimate rights, liberties and interests. (2)     The exercise of this right shall not be restricted by any law. (3)     Parties have the right to a fair trial and [the right to have] their cases examined within a reasonable time. ....” Article 24 Right of defence “(1)     The right of defence is guaranteed. (2)     Throughout a trial parties have a right to be assisted by a lawyer [who is] either chosen or appointed.” Article 129 Use of appeals “Interested parties and the [prosecutor’s office attached to the High Court of Cassation and Justice] may lodge appeals against judgments under the conditions set out by law.” Article 147 Constitutional Court decisions “(1)     Provisions of the laws ... in force ... [which are] declared unconstitutional shall cease to have any legal effect 45 days after the [relevant] decision of the Constitutional Court is published if, during this time, Parliament or the Government, as the case may be, does not bring the unconstitutional provisions in line with the Constitution. During this time, the provisions which have been declared unconstitutional are suspended by law. ... (4)     Decisions of the Constitutional Court shall be published in the Official Gazette ... From the moment they are published the decisions are ... mandatory and apply only ex nunc .”        THE CODE OF CRIMINAL PROCEDURE 53 .     The relevant provisions of the CCP, as in force at the relevant time, read as follows: Article 3 Separation of judicial functions “(1)     The following judicial functions are exercised during criminal proceedings: (a)     the criminal investigation function; ... (c)     the function of reviewing the lawfulness of an indictment or decision not to indict; (d)     the trial function. .... (3)     Except for the function mentioned in section (1) (c), which is compatible with the exercise of the trial function, the exercise of one judicial function is incompatible with the exercise of another judicial function during the same set of criminal proceedings. (4)     In exercising the criminal investigation function, the prosecutor and the criminal investigation bodies gather the necessary evidence to determine whether there are grounds to send a case for trial. .... (6)     Under the conditions set out by law, the pre-trial judge examines the lawfulness of an act of indictment and the evidence on which it is based, as well as the lawfulness of a decision not to send a case for trial. (7)     A case is tried by a court ...” Article 28 The force of a criminal judgment in a civil trial, and the effects of a civil judgment in a criminal trial “(1)     The final judgment of a criminal court is res judicata for a civil court, which examines a civil action as regards the existence of an act and [the existence of evidence that] a person has committed it. The civil court is not bound by a final judgment acquitting [a person] or discontinuing a criminal trial, as regards the existence of damage and the guilt of the person who has committed the unlawful act. ...” Article 54 The competence of a pre-trial judge “(1)     A pre-trial judge is a judge who is attached to a court and who, in accordance with the court’s competence (a)     reviews the lawfulness of an act of indictment produced by the prosecutor; (b)     reviews the lawfulness of [both] the manner in which evidence has been gathered and the actions of the criminal investigation authorities; (c)     examines complaints against decisions not to prosecute or not to indict; [and] (d)     examines other situations expressly provided for by law.” Article 341 Examination of complaints by a pre-trial judge “(1)     After a complaint [against a prosecutor’s office’s decision to close or discontinue a prosecution] has been registered with the competent court, it is referred to the pre-trial judge [attached to that court] on the same date ... (2)     The pre-trial judge has to set a date for the examination of the case, of which the prosecutor and the parties have to be given notice, in addition to a copy of the complaint, and they can submit written observations on the admissibility and merits of the complaint. The complainant has to be given notice of the date for the examination of the case. The person who was a defendant in the case can lodge applications and raise objections which also concern the lawfulness of the manner in which evidence has been gathered or the criminal investigation has been conducted. ... (5)     The pre-trial judge has to examine a complaint by way of a reasoned interlocutory judgment, in chambers, in the absence of the complainant, the prosecutor, and the respondents. (6)     In cases where no formal charge has been brought, the pre-trial judge can decide to (a)     dismiss the complaint as out of time, inadmissible or ill-founded, as the case may be; (b) allow the complaint, quash the contested decision and refer the case back to the prosecutor, giving reasons, so that the prosecution of the case may be started or supplemented or a formal charge may be brought ..., as the case may be; [or] (c)     allow the complaint and change the legal grounds on which the contested decision to close the investigation is based, if this [change] does not place the person who has lodged the complaint in a more difficult situation. (7)     In cases where a formal charge has been brought, the pre-trial judge 1.     dismisses the complaint as out of time or inadmissible; 2.     reviews the lawfulness of the manner in which evidence has been gathered and the criminal investigation has been conducted, excludes unlawfully gathered evidence, or penalises ... unlawful acts in the criminal investigation, as the case may be, and (a)     dismisses the complaint as ill-founded; (b)     allows the complaint, quashes the contested decision and refers the case back to the prosecutor, giving reasons why the prosecution of the case should be supplemented; (c)     allows the complaint, quashes the contested decision and, when the evidence which has been lawfully gathered is sufficient, sends the case for trial in respect of ... the persons who have been formally charged during the criminal investigation ...; [or] (d)     allows the complaint and changes the legal grounds on which the contested decision to close the investigation is based, if this [change] does not place the person who has lodged the complaint in a more difficult situation. (8)     An interlocutory judgment based on one of the solutions provided for in section   6 and [section] 7 (1) and (2) (a), (b), and (d) is [not amenable to appeal]. ... (11)     Evidence excluded [from the case file] cannot be taken into account when the case is examined on the merits.” Article 342 The scope of the procedure before a pre-trial judge “The scope of the procedure before a pre-trial judge consists in reviewing, after a case has been sent for trial, a court’s competence and [reviewing] whether the case has been referred to it lawfully, as well as [reviewing] the lawfulness of [both] the manner in which evidence has been gathered and the criminal investigation authorities’ actions.” Article 344 Preliminary steps “... (4) ..., the pre-trial judge notifies the prosecutor’s office of applications made and objections raised by the defendant, or objections raised [by the pre-trial judge] of [his or her] own motion, and the [prosecutor’s office] can submit a written response ...” Article 345 The procedure before a pre-trial judge “(1)     Where applications have been made and objections have been raised, or [the pre-trial judge] has raised objections of [his or her] own motion, the pre-trial judge has to examine them by way of a reasoned interlocutory judgment, in chambers, in the absence of the prosecutor and the defendant ... (2)     When the pre-trial judge considers that an act of indictment is deficient, [or] when [he or she] sets aside... steps in a criminal investigation which have been carried out unlawfully, or excludes one or more pieces of evidence from the case file, the prosecutor’s office which has issued the act of indictment is notified of the interlocutory judgment. (3)     ... the prosecutor corrects the deficiencies in the act of indictment and informs the pre-trial judge whether he or she is maintaining the decision to send the case for trial or asking for the case to be referred back [to the prosecutor’s office].” Article 346 Decisions “(1)     The pre-trial judge makes a decision by way of an interlocutory judgment, in chambers, in the absence of the prosecutor and the defendant. The prosecutor and the defendant must immediately be notified of the interlocutory judgment. (2)     If no applications have been made and no objections have been raised, and [the pre-trial judge] has not raised any objections of [his or her] own motion, ... the pre ‑ trial judge has to decide whether the referral of the case to the [trial] court, the manner in which the evidence has been gathered and the criminal investigation authorities’ actions have been lawful, and order the beginning of the trial. (3)     The pre-trial judge has to refer the case back to the prosecutor’s office if (a)     the act of indictment is deficient and the deficiency has not been remedied by the prosecutor ..., in circumstances where the deficiency makes it impossible to determine the scope or limits of the trial; (b)     [he or she] has excluded all the evidence gathered during the criminal investigation stage of the proceedings; [or] (c)     the prosecutor asks for the case to be returned ..., or does not respond .... (4)     In all other circumstances, where [he or she] has found deficiencies in the act of indictment, has excluded one or more pieces of evidence ..., or has set aside... the criminal investigation authorities’ actions which have been carried out unlawfully, the pre-trial judge has to order the beginning of the trial. (5)     Excluded evidence cannot be taken into account during the trial. ... (7)     The pre-trial judge who has ordered the beginning of the trial has to be the trial judge in the case.” Article 347 Challenge[s] “(1)     The prosecutor and the defendant can contest decisions concerning applications which have been made and objections which have been raised, as well as decisions which are set out in Article 346 §§ 3-5, within 3 days of notice of the interlocutory judgment mentioned in Article 346 § 1 being given. (2)     A challenge has to be examined by a pre-trial judge who is attached to a higher court ... (3)     The rules set out in Articles 343-346 apply accordingly.” 54 .     The relevant provisions of the former CCP and of the Civil Code on civil parties joined to criminal proceedings and separate civil proceedings are set out in Nicolae Virgiliu Tănase v.   Romania ([GC], no.   41720/13, §§   66-70, 25   June 2019).     DECISIONS BY THE CONSTITUTIONAL COURT     Decision no. 599 of 21 October 2014 55 .     By decision no. 599 of 21 October 2014, published in Official Gazette no. 886 of 5 December 2014, the Constitutional Court examined two unconstitutionality objections concerning Article 341 §§ 5-8 of the CPP. It held that Article 341 § 5 was unconstitutional in so far as it provided that a pre-trial judge examined a complaint against the decision of a prosecutor’s office in the absence of the complainant, the prosecutor and the respondent, and that Article 341 §§ 6-8 was constitutional. 56 .     The Constitutional Court took the view that the fact that the decisions of a pre-trial judge which were set out in Article 341 §§ 6 and 7   (a), (b) and (d) of the CCP were not amenable to appeal was constitutional, because the rules concerning appeals fell within the exclusive competence of the legislature. A person’s right of defence, right of access to court or right to a fair hearing could not be breached by Article 341 § 8 of the CCP, because that person could still have the benefit of the procedural rights and guarantees provided for by law during a trial examined expeditiously by an independent and impartial tribunal. 57 .     The relevant provisions of the Constitution or international norms did not require a second level of jurisdiction in every case, and the special nature of the proceedings covered by Articles 340 and 341 of the CCP – namely proceedings examining prosecutor’s offices’ decisions not to prosecute or not to indict rather than the merits of the offence being investigated – justified the absence of an appeal and rendered Article 2 of Protocol No. 7 to the Convention inapplicable. Likewise, Article 13 of the Convention was inapplicable in such instances, since the right to an effective remedy was different from the right to appeal. The legislature had sought to ensure that such proceedings were examined expeditiously, and that a final judgment on the decisions of a prosecutor’s office was delivered without delay. 58 .     However, as regards Article 341 § 5, the Constitutional Court held that the legislature had an obligation to ensure that every individual had fair access to court for the protection of his rights and freedoms. This could be accomplished by setting up a procedure which complied with the requirements of fairness set out in Article 21 § 3 of the Constitution, failing which a person’s right to bring proceedings before a court, and any review of the decision of a prosecutor’s office to close or discontinue criminal proceedings, became devoid of substance. A pre-trial judge’s review of those decisions had to be effective, since the decision of the prosecutor’s office ended the criminal-law dispute and therefore fell within the category of acts by which justice was served. 59.     The Constitutional Court took the view that elements of the right to fair proceedings had to be examined by taking into account proceedings as a whole and the specific principles defining the organisation of each procedure within the proceedings. However, even in the case of ongoing proceedings, a specific examination of certain important aspects of the proceedings could not be excluded. 60.     The level of protection conferred by proceedings before a pre-trial judge – where the judge was called upon to examine a case in the absence of the complainant, the prosecutor and the respondent, and without the proceedings being oral and adversarial – was lower than the level conferred by the type of proceedings which had been in force before February 2014. This fact could not be considered a breach of the principles set out in the Constitution or in international human rights treaties ab initio , as long as no adverse effects could be identified. Therefore, in order to determine whether Article   341 § 5 of the CPP had breached the right to a fair trial, it had to be examined both in isolation and within the overall framework of the procedure concerning the examination of appeals against prosecutor’s offices’ decisions not to prosecute. 61.     The preliminary stages of proceedings constituted only a part of the overall proceedings. However, a breach of certain conditions set out in Article 21 § 3 of the Constitution, such as the right to defend oneself, during the early stages of proceedings could affect the fairness of the proceedings. Also, the manner in which the guarantees of the right to fair proceedings were enforced during the preliminary stages of criminal proceedings was intrinsically linked to the circumstances of the case, the characteristics of the specific procedure, and the possibility that the outcome of proceedings concerning the admissibility of a complaint was decisive for determining whether the criminal charge was well founded. 62.     The procedure under examination did not concern ab initio a criminal charge or criminal proceedings touching on the merits of the case. However, a pre-trial judge’s judgment had the character of a possible act of indictment and therefore a criminal charge, since in accordance with Article   341 § 7 (2) (c) of the CCP, a pre-trial judge could quash a prosecutor’s decision and order that a case be sent for trial. Therefore, the right to a fair trial had to be respected, since there was a possibility that the outcome of proceedings concerning the admissibility of a complaint against a prosecutor’s decision was decisive for the determination of a criminal charge. 63.     In accordance with the principle of adversarial proceedings, parties were placed on an equal footing as regards presenting and pleading a case, rebutting the submissions made, and expressing opinions on the court’s initiatives aimed at establishing the truth in the case. The complainant and the defence challenged each other, so that the court could assess the evidence correctly. Therefore, adversarial proceedings implied equality of arms as regards both the civil and criminal limb of proceedings. 64.     A purely written procedure was not sufficient; it also had to be adversarial and oral, in order for a victim or civil party to be able to fully exercise his or her rights. In accordance with Article 341 § 2 of the CCP, the prosecutor and the parties could submit written observations on the admissibility and merits of a complaint, but none of the parties had the opportunity to read the other parties’ submissions and submit rebuttals. A court was under a duty to effectively examine reasons invoked by the complainant, the parties and the prosecutor, including arguments that were decisive for solving the case. However, as a court could examine only the complaint and the written observations of the parties and the prosecutor, it was not in a position to examine a decisive argument, simply because such an argument could not be raised. 65