As part of our criminal law and European human rights law practice, we monitor the most recent rulings of the European Court of Human Rights. The Costaș, Negru & Asociații team recently came to the attention of a ruling issued in a case originating from Romania.
On 3.06.2025, the European Court of Human Rights pronounced its judgment finding Romania guilty in the Manolache case – Application no. 7908/17, finding a violation of the right to a fair trial guaranteed by Art. (1) of the European Convention on Human Rights.
In order to judge Romania guilty, the Court held that on 17.03.2025, the Public Prosecutor’s Office of the Argeș Tribunal ordered the commencement of criminal proceedings against the applicant for the offense of trading in influence, provided for and punishable under Article 291 of the Criminal Code, in conjunction with Article 7 lit. c) of Law no. 78/2000 on the prevention, detection and punishment of corruption. The criminal prosecution was initiated following a complaint lodged by H. I. and H. S. at the Argeș General Anti-Corruption Directorate against the complainant, a police officer, accused of having solicited and received from H. S. the sum of 1,500 euro to facilitate the employment of her husband. H. I., as a driver for a private company. The two spouses alleged that the complainant had not kept his promise and subsequently refused to provide explanations when they asked for the money offered to be returned.
On 16.07.2015, the Public Prosecutor’s Office ordered the indictment of the defendant, the accusation being based in particular on the statements of the two spouses, given during the criminal prosecution, which successfully passed the polygraph test for the detection of possible simulated behavior. The couple’s statements were supplemented by the statements of H.S.’s parents, who allegedly provided part of the sum of EUR 1,500, and of a friend of H.S.’s, witnesses confirming the alleged facts.
In front of the Court, the plaintiff contested all the statements made during the criminal prosecution, in which context, the court summoned the two spouses with summonses, who, being out of the country, could not be heard. Thus, the court read the statements given by them during the criminal proceedings. The applicant, on the other hand, was heard before the Tribunal and denied the acts of which he was accused.
By judgment pronounced on 4.12.2015, the General Court acquitted the applicant, applying the in dubio pro reo principle. The court considered that there was insufficient evidence in the case to rebut the presumption of the applicant’s innocence. In this respect, the General Court emphasized that the only direct evidence was the statements of Mr and Mrs H. as complainants, whereas the other witnesses, who merely related what the first witnesses had told them, were to be considered as indirect witnesses.
Even if the conclusions of the technical-scientific reports relating to the polygraph test (a means of proof not provided for by the Code of Criminal Procedure) could constitute an indication of sincerity, since they were corroborated by other evidence, they alone could not justify a conviction, given that, in the present case, the statements of the two H. husband and wife were the only direct evidence.
In its judgment, the Court of First Instance emphasized that it was not for the applicant to prove his innocence.
The Public Prosecutor’s Office appealed against the acquittal judgment, criticizing the lower court’s conclusion that the statements of the H.’s were the only evidence of the complainant’s guilt. The prosecution argued that in cases where it was no longer possible to establish a flagrante delicto, all the evidence, direct and indirect, had to be interpreted in conjunction with each other and taken as such. The public prosecutor’s office pointed out, inter alia, that Mr and Mrs H. had passed the polygraph test without difficulty, whereas the applicant had refused to submit to it.
Before the Court of Appeal, the complainant stated that he did not wish to make any statement and objected to the Prosecution’s request to hear the prosecution’s witnesses whose statements had been used in the acquittal judgment, in particular the H.
The defense argued that the case file contained sufficient evidence for the appellate court to examine the case in light of the grounds of appeal raised by the Prosecution, which were limited to the interpretation of the evidence.
However, the Pitesti Court of Appeal proceeded to summon and hear the two spouses, whose statements proved to be similar to the previous ones.
At the next hearing, the Pitești Court of Appeal, in a newly modified composition of the panel, proceeded to hear the witness F. D., who maintained his initial statement.
The defense argued that the defendant is charged solely on the basis of the statements of the complaining witnesses, the H.’s, and that the other witnesses did not confirm the facts complained of except to the extent that they were described to them by the H.’s.
On November 2, 2016, the Court of Appeal of Pitesti annulled the acquittal judgment and, after re-examining the merits of the case, sentenced the plaintiff to three years’ imprisonment with a suspended sentence. The court held that, in accordance with the in dubio pro reo principle, in order for a judge to convict, the evidence must be convincing and any doubts that may subsist must be reasonably limited. In the present case, the Court of Appeal held, unlike the Court of First Instance, that the statements of Mr and Mrs H. were corroborated by other evidence and could not therefore be considered to be the only evidence of the applicant’s guilt.
The Court of Appeal referred in particular to the testimonies of Mr. R. and Mr. F. D., describing the latter as “indirect” witnesses, in the sense that they were not eyewitnesses, but nevertheless their statements were consistent, detailed and precise. Thus, despite the family or friendly relations they had with Mr and Mrs H., the Court of Appeal held that they had no interest in securing the applicant’s conviction. The Court also based its judgment on the polygraph test reports which concluded that Mr and Mrs H. had not engaged in simulated conduct in the polygraph test, which the applicant refused to take. According to the Court, the reports drawn up by the experts can be assimilated to expert reports, which constitute means of proof under the Code of Criminal Procedure, and therefore had to be examined and corroborated with the other evidence in the case file.
The plaintiff was acquitted by the first instance – the Argeș Court of First Instance – and on appeal, at various trial dates, witnesses were heard in different compositions of the trial panel. Finally, the defendant was convicted by the Court of Appeal Pitesti.
In its judgment, the European Court of Human Rights stated in para. 22, that procedural fairness implies that the accused has the possibility to confront witnesses in the presence of the judge who will decide his case. This is also justified by the fact that the observations that the court makes on the demeanor and credibility of a witness are essential and have important consequences for the accused (in the same sense, European Court of Human Rights, judgment of 18 March 2014, Beraru v. Romania, para. 64).
The Court also recalled at para. 23 of the judgment, that the decision in a criminal proceeding must be taken by the judges who were present throughout the proceedings and in the process of taking evidence. This entails making arrangements for hearing, in a hearing at which the members of the panel that will deliver the judgment are present, both the relevant witnesses and the relevant arguments (to the same effect, European Court of Human Rights, judgment of December 2, 2014, Cutean v. Romania, para. 61).
The Strasbourg Court has reiterated that it has already ruled, in similar cases, that appellate courts that tend to pronounce a judgment of conviction after an acquittal on the merits are obliged to order of their own motion the direct examination of witnesses, even in the absence of a request by the accused (ECHR, judgment of March 5, 2013, Manolachi v. Romania, para. 50; ECHR, judgment of June 27, 2017, Chiper v. Romania, para. 56).
In the judgment, the Court emphasizes that the direct hearing of witnesses was essential, as they had the character of “important witnesses”, on which the courts ruled differently: the first instance questioned their credibility and acquitted them, while the appellate court found them credible and based its conviction on the statements of these witnesses.
The European Court upheld its conclusions even though the applicant had not even asked the Court of Appeal to hear the witnesses, considering that it would have been unnecessary (para. 31).
In addition, the Court held that in a panel of two judges, decisions can only be taken unanimously, so it is essential that the hearing of relevant witnesses takes place in the presence of both judges who are to pronounce judgment (para. 33).
In conclusion, the reasons that led to Romania’s conviction can be summarized as follows:
- the lack of a fair trial before the appellate court led to the applicant’s conviction after his acquittal by the first instance;
- the new interpretation of the evidence, namely the depositions of witnesses – which, in the scheme of the case, were decisive elements – without the sentencing judges having proceeded directly to hear them;
- failure by the appellate court to comply with the obligation to hear the relevant witnesses directly in order to establish the guilt/innocence of the appellant;
- compliance with the principle of non-mimicrosecution by one of the two judges of the panel cannot compensate for the absence of the other judge from hearing all the relevant witnesses, with the exception of indirect witnesses.
It still remains to be seen whether the national courts will effectively transpose the new case law of the European Court of Human Rights, resonating with the principles regulated by the Convention, or whether they will limit the applicability of the judgment only in perfectly identical cases, as the Bucharest Court of Appeal has already done in a pending criminal case, concerning tax evasion and money laundering offenses. The reasoning of the Court of Appeal was that we are not in the hypothesis considered in the Manolache v. Romania judgment, the defense, through its arguments, mainly referring to the injunction, ordered by reference to the incidence of the statute of limitations for criminal liability ordered for the crime of tax evasion and not to the acquittal, which is why it considers that it is not applicable in the case. It should be noted that the defendant requested the continuation of the criminal proceedings in order to prove his innocence. However, the Bucharest Court of Appeal considered that it was not necessary to review the provisions regarding the evidence requested by the defense and rejected by the current panel, even though the previous panel considered the evidence necessary and useful for the resolution of the case and ordered its administration.
This article was prepared for the Blog of Costaș, Negru & Asociații by Mrs. Lia Pricope, PhD (Arad Bar Association) and Ms. Maria Monica Tușa (Cluj Bar Association).
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