CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 19 septembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s4BAE41EE { font-family:Arial; font-size:11pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s42FEB1BD { width:30.88pt; display:inline-block } .sA4FA8E5F { width:143.76pt; display:inline-block } .sA3D40E95 { width:52.56pt; display:inline-block } .sA8847899 { width:93.07pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .sD66FB302 { margin-top:0pt; margin-bottom:14pt; text-indent:14.2pt } .s91E06A92 { width:115.68%; border-collapse:collapse } .sFD197310 { width:6.7%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sE1A7A04C { font-family:Arial; font-weight:bold; color:#424242 } .s6F1C0F8A { width:23.26%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s8DE12AFE { width:20.02%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sE3762A08 { width:30%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sF93BF261 { width:6.7%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s976F30C2 { width:23.26%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sF9F07A8D { width:20.02%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sA3D13A5 { width:30%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top }     FOURTH SECTION DECISION Application no. 1250/15 Nicolae BOLMANDÎR and Others against Romania   The European Court of Human Rights (Fourth Section), sitting on 19   September 2023 as a Committee composed of:   Faris Vehabović, President ,   Anja Seibert-Fohr,   Sebastian Răduleţu , judges , and Crina Kaufman, Acting Deputy Section Registrar , Having regard to: the application (no.   1250/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 December 2014 by the applicants listed in the appended table (“the applicants”) who were represented by Mr M. Pâcleşan, a lawyer practising in Bucharest; the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs to the European Court of Human Rights; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns several complaints raised by the applicants under Article 6 of the Convention in relation to the criminal proceedings against them. 2.     On 1 April 2010, around noon, a group of people of Roma origin, including the four applicants, armed with knives, axes and firearms, attacked the members of another Roma family. 3.     Police enforcement officials arrived at the scene of the incident and found M.S. slumped on the pavement with life-threatening traumatic injuries, which according to a forensic report ordered by the prosecutor had been caused by repeated hits with hard bodies to the head. 4.     By an indictment of 30 December 2010, the prosecutor’s office attached to the Constanta County Court sent 11 people, including the four applicants to trial in connection with the incident. 5.     On 27 April 2012 the Constanta County Court acting as first instance court convicted the first applicant for attempted aggravated murder and outrage to public decency and breach of the public order. The other three applicants were acquitted for complicity in attempted aggravated murder and were convicted for outrage to public decency and breach of the public order. 6.     The first instance court heard numerous witnesses proposed by both the prosecution and the applicants. It heard the injured party M.S and the applicants who denied having committed the offences. The first instance court relied on the police report drawn up on the spot after the incident, photographs, material evidence - i.e. axes, forks, handcuffs found on the spot, as well as on a forensic report concerning the victim M.S. The first instance court granted civil claims to M.S., explaining in detail the reasons and the calculation of the damages awarded. 7.     The applicants and the prosecutor’s office filed an appeal against the judgment of the first-instance court with the Constanta Court of Appeal (the appeal court). 8.     The applicants, assisted by lawyers of their choice, were directly heard by the appeal court. All the applicants stated that they stand by their statements to the first-instance court. 9 .     The appeal court heard several of the witnesses already heard by the first-instance court. On 6 December 2012 the appeal court rejected the applicants’ requests to hear more witnesses, explaining, among other things, that the testimonies of the witnesses proposed by the applicants did not appear to add anything new or change what had been established by other evidence in the file. 10 .     The appeal court ordered a new forensic expert report on the injuries suffered by M.S. and a technical expert report concerning the accuracy of the images recorded by the surveillance cameras. 11.     On 23 April 2013 the appeal court, in the presence of the applicants and their lawyers, watched the images recorded by the surveillance cameras placed closed to the train station where the incident had taken place. 12 .     By a decision of 17 June 2014, the appeal court dismissed the applicants’ appeals and admitted the appeal of the public prosecutor’s office. It maintained the conviction of all the applicants for outrage to public decency and breach of the public order, but in addition to the conviction of the first applicant for attempted aggravated murder, it convicted the other three applicants for complicity in attempted aggravated murder. The appeal court considered that the actions of all four applicants had been motivated from the very beginning by the same reasons, namely, to punish or scare M.S. and that the presence of the other three applicants had encouraged the first applicant to act and therefore, it held that they had acted as moral accomplices to the attempted murder. THE COURT’S ASSESSMENT Complaint under Article 6 §   1 of the Convention 13.     Relying on Article 6 §   1 of the Convention the last three applicants (in the appended table) contended that the appeal court had convicted them for the first time for complicity in attempted aggravated murder - after the first instance court acquitted them for the same offence, without having heard all the witnesses heard by the first instance. 14.     The principles concerning the conviction of a defendant by a final ‑ instance court after he or she was acquitted by a lower court, without the final-instance court hearing evidence from witnesses directly have been summarised in the case of   Júlíus Þór Sigurþórsson   v.   Iceland (no. 38797/17, §§ 30-38, 16 July 2019). 15.     From the outset, it appears that the domestic courts did not act in an arbitrary or unreasonable manner in assessing the evidence, establishing the facts or interpreting the domestic law. 16.     The applicants had the opportunity to put forward their arguments both before the first instance and the appeal court in the presence of their lawyers (see, inter alia , Júlíus Þór Sigurþórsson , cited above, § 33). 17.     The appeal court administered numerous pieces of evidence: in addition to rehearing some of the witnesses heard by the first instance court, it administered new evidence, such as a new forensic expert’s report on the injuries suffered by M.S. and a technical expert report (see paragraph 10 above). 18.     Moreover, it results from the file that the appeal court gave sufficient reasons for rejecting the applicant’s request for hearing more witnesses (see paragraph 9 above). On this point, the Court reiterates that while Article   6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). 19.     The appeal court did not put into question the credibility of the witnesses or the reliability of their statements. The difference in the first instance’s and the appeal court’s conclusions mainly resulted from the courts’ different interpretation of the same facts (see, mutatis mutandis , Kashlev v.   Estonia , no. 22574/08, § 48, 26 April 2016). The appeal court provided thorough reasoning for departing from the assessment of the evidence by the first-instance court (see paragraph 12 above). 20.     In conclusion, the fact that the appeal court did not consider it necessary to re ‑ hear all the witnesses does not appear either arbitrary or unreasonable 21.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Other complaints under Article 6 of the Convention 22.     The applicants also raised other complaints under Article 6 of the Convention. Relying on Article 6 § 3, the applicants complained that they had not had adequate time and facilities to prepare their defence before the appeal court. They also complained that the appeal court had not ruled on the grounds raised by them on appeal regarding the admission of the civil action by the first instance court. 23.     The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 24.     It follows that this part of the application must be rejected in accordance with Article   35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 12 October 2023.     Crina Kaufman   Faris Vehabović   Acting Deputy Registrar   President Appendix List of applicants: Application no. 1250/15 No. Applicant’s Name Year of birth Nationality Place of residence 1. Nicolae BOLMANDÎR 1976 Romanian Constanța 2. Daniel BĂLAN 1982 Romanian Constanța 3. Adrian BOLMANDÎR 1977 Romanian Constanța 4. Sorin CONDURACHE 1978 Romanian Constanța