CEDH · CASELAW;CLIN;ENG — 28 janvier 2025

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary February 2025 Secară v. Romania (dec.) - 56658/22 Decision 28.1.2025 [Section IV] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Four-month period (former six-month) Remedy before High Court of Cassation and Justice found to be ineffective in respect of complaint concerning taking of evidence by Court of Appeal: inadmissible Facts – Charged with tax offences, the applicant was acquitted at first instance but sentenced to imprisonment in a final judgment of the Court of Appeal. She then lodged an appeal on points of law with the High Court of Cassation and Justice (“the High Court”) under Article   438 §   1   (7) of the Code of Criminal Procedure (“the CCP”), as in force since 1   February 2014. The High Court dismissed her appeal as unfounded in June 2022, pointing out that neither the factual circumstances as established by the Court of Appeal nor the evidence could be re-examined in such proceedings. Before the Court, the applicant relied on Article   6 §§   1 and   3   (d) of the Convention, complaining that the Court of Appeal had convicted her without directly taking testimonial evidence. Law – Article   35 §   1: The Court noted that the applicant was complaining before it that the Court of Appeal   – which represented the final ordinary remedy   – had breached one of its procedural obligations under domestic law and under Article   6 §   1 of the Convention, namely concerning the taking of evidence. In those circumstances, the Court examined whether an appeal on points of law, as defined in Romania’s legal system, amounted to an effective remedy capable of directly redressing the state of affairs in issue. Under Romanian criminal law, an appeal on points of law had become an extraordinary remedy since the new CCP had entered into force in 2014. However, such a characterisation in the domestic legal system did not necessarily render it ineffective. The remedy in question was intended solely to rectify situations of manifest unlawfulness, and was strictly limited to five grounds of appeal, concerning (i)   errors in the establishment of jurisdiction ratione materiae or ratione personae ; (ii)   errors in relation to the granting of presidential pardons; (iii)   unlawful imposition of sentences; (iv)   unlawful termination of proceedings; and (v)   conviction for acts not covered by criminal law (see Article   438 §   1 of the new CCP). In previous rulings, the High Court had clarified the scope of its review when dealing, as in the present case, with an appeal on points of law under Article   438 §   1   (7) of the CCP. In the Court’s view, the review in question was limited to examining solely whether the person concerned had been convicted of an act which constituted an offence under domestic criminal law, thus potentially engaging a different Convention right from that relied on by the applicant in the present case, more specifically the right under Article   7. Consequently, the applicant’s complaint before the Court was not covered by any of the grounds of appeal on points of law clearly defined and explicitly set out in Article   438 of the CCP, and in particular the ground provided for in the above-mentioned paragraph   1   (7). The applicant, who had been represented by a lawyer, could therefore reasonably have known, from the moment she had lodged her appeal, that such proceedings were not capable of redressing the grievance she intended to raise before the Court and that, accordingly, they could not be taken into account for the calculation of the application time-limit. Furthermore, although the applicant had complained in her appeal on points of law that her acts were not punishable under criminal law, she had not raised that grievance before the Court. All the relevant elements of domestic law indicated that, in view of the High Court’s limited jurisdiction in dealing with appeals on points of law, that extraordinary remedy was not an avenue of redress for the violation alleged before the Court. Nor, for that matter, would it be so for any other breach relating to the manner in which the ordinary courts took evidence. The Court emphasised that its decision was limited to the circumstances of the present case. It should not be interpreted as a general statement to the effect that an appeal on points of law was never a remedy which had to be used for the purposes of Article   35 §   1 of the Convention   – especially where a complaint raised before the Court was consistent with a ground of appeal on points of law provided for in the domestic legal system. The final domestic decision was therefore the Court of Appeal’s judgment, which had been notified to the applicant more than six months before she had applied to the Court. Accordingly, the Government’s preliminary objection of non-compliance with the six-month time-limit had to be upheld. Conclusion : inadmissible (six-month period). (See Kurić and Others v.   Slovenia [GC], 26828/06, 26   June 2012, Legal Summary ; Jeronovičs v.   Latvia [GC], 44898/10, 5   July 2016, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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