Judgment Manolache v. Romania - failure of the appeal court to hear the two main witnesses directly when it sentenced the applicant

issued by the Registrar of the Court   ECHR 134 (2025)   03.06.2025   Applicant’s final conviction after first-instance acquittal, without both judges   who convicted him hearing evidence directly from relevant witnesses,   breached right to fair trial   In today’s Chamber judgment1 in the case of Manolache v. Romania (application no. 7908/17) the   European Court of Human Rights held, unanimously, that there had been:   a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.   The case concerned the fairness of criminal proceedings against the applicant, a police officer. On trial   for influence peddling, he was initially acquitted but was then convicted in a final judgment by the   Piteşti Court of Appeal. One of the two judges on the bench at last instance had not, however, taken   evidence directly from all the witnesses.   The Court found, in particular, that the Court of Appeal, in its judgment of 2 November 2016, had   indeed made a fresh interpretation of witness statements that were decisive in the case, but that both   of the judges on the bench had not heard the evidence from the witnesses directly. The requirements   of a fair trial had thus been breached.   The Court noted the specific features of the case, which involved, first, appeal proceedings following   the applicant’s acquittal at first instance – meaning that the Court of Appeal had been required to take   measures of its own motion to hear evidence directly from the relevant witnesses (compare Miron   v. Romania, no. 37324/16, §§ 31-34, 5 November 2024) – and, second, a two-judge bench whose   decision could only be adopted unanimously.   Principal facts   The applicant, Nicolae-Richard Manolache, is a Romanian national who was born in 1969 and lives in   Câmpulung (Romania). He was a police officer at the time of the events.   On 17 March 2015 Mr and Mrs H. lodged a criminal complaint against the applicant. They alleged that   he had solicited and accepted 1,500 euros (EUR) to have Mr H. employed as a driver, but that he had   then broken his promise without any justification. Mrs H., who worked for the applicant’s wife, had   subsequently been dismissed.   On 21 April 2015 the public prosecutor’s office at Argeş County Court initiated criminal proceedings   against the applicant for influence peddling. Evidence was taken from witnesses including Mr and   Mrs H., who also passed a polygraph test.   The applicant was committed for trial before the County Court. At the hearings, it was noted that   Mr and Mrs H. could not give evidence because they were not in Romania and could not be brought   before the court despite warrants to that effect. Evidence was, however, heard from Mr and Mrs R.   and from F.D. – “indirect” witnesses who had learned of the applicant’s alleged wrongdoing from   Mr and Mrs H.   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any   party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers   whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the   referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   In a judgment of 4 December 2015, the County Court acquitted the applicant. It found that there was   insufficient evidence to rebut the presumption of his innocence, since the only direct evidence was   Mr and Mrs H.’s statements as complainants.   The public prosecutor’s office appealed against the acquittal to the Piteşti Court of Appeal.   The Court of Appeal held a hearing on 8 June 2016, sitting as a two-judge bench comprising   Judges C.A.N. (president) and T.G. Relying on the recently amended Article 421 § 2 (a) of the Code of   Criminal Procedure, which specified the circumstances in which witnesses whose statements had led   to an acquittal were required to give evidence again, it summoned Mr and Mrs H., Mr and Mrs R. and   F.D. to appear before it.   At a hearing on 21 September 2016, the Court of Appeal, this time sitting as a two-judge bench   composed of Judges E.P. (president) and I.F., took evidence from Mr and Mrs H. and Mr and Mrs R.,   who reaffirmed their previous statements.   At the next hearing on 2 November 2016 the Court of Appeal, once again sitting as a new bench, this   time comprising Judges E.P. (president) and T.G., took evidence from F.D., who also reaffirmed his   original statement.   In a final judgment delivered that day – on 2 November 2016 – the Court of Appeal, still sitting as a   bench composed of Judges E.P. (president) and T.G., quashed the acquittal. After re-examining the   merits of the case, it sentenced the applicant to a suspended term of three years’ imprisonment.   Unlike the County Court, the Court of Appeal found that Mr and Mrs H.’s statements were   corroborated by the other evidence and were not therefore the only evidence of guilt. The body of   evidence as a whole thus confirmed the facts as presented in the prosecution’s submissions. The Court   of Appeal made reference to the detailed and consistent statements it had heard from the other,   “indirect” witnesses, who had confirmed Mr and Mrs H.’s allegations. It also referred to the   interpretation of certain passages from the recorded telephone conversations between Mrs H. and   the applicant’s wife, and to the report drawn up after Mr and Mrs H. had passed their polygraph tests.   Complaints, procedure and composition of the Court   Relying on Article 6 (right to a fair trial), the applicant submitted that the failure by one of the judges   to take evidence from witnesses directly – including from the complainants, who were the only   eyewitnesses – had infringed the principle of immediacy.   The application was lodged with the European Court of Human Rights on 11 January 2017.   Judgment was given by a Chamber of seven judges, composed as follows:   Lado Chanturia (Georgia), President,   Jolien Schukking (the Netherlands),   Faris Vehabović (Bosnia and Herzegovina),   Ana Maria Guerra Martins (Portugal),   Anne Louise Bormann (Denmark),   Sebastian Răduleţu (Romania),   András Jakab (Austria),   and also Simeon Petrovski, Deputy Section Registrar.   Decision of the Court   Article 6   The Court referred to its case-law on the principle of immediacy in criminal proceedings.   2 The Court noted that by virtue of a generally accepted principle of law relating to appeals, as reflected   in Romanian law, the jurisdiction of courts hearing an appeal extended to questions of fact and law.   Such courts could thus conduct full proceedings, following the same rules as for a trial on the merits.   Furthermore, the Court observed that the Court of Appeal had from the outset considered quashing   the first-instance judgment and examining the merits itself, without remitting the case to the lower   court for a retrial. In those circumstances, Article 421 § 2 (a) of the Code of Criminal Procedure   expressly required it to take evidence again from any witnesses whose statements had formed the   basis of the County Court’s first-instance acquittal.   At the hearing of 2 November 2016, at the close of which the Court of Appeal had delivered a   judgment convicting the applicant, the bench had comprised Judges E.P. (president) and T.G. It was   thus different from the bench that had taken evidence from the complainants – Mr and Mrs H. – and   from Mr and Mrs R. at the previous hearing on 21 September 2016, which had been composed of   Judges E.P. (president) and I.F. Admittedly, the applicant’s conviction had been based on a whole body   of evidence, consisting of witness testimony, documentary evidence and recordings of telephone   conversations. The fact remained, however, that that evidence alone was not capable of leading to   the applicant’s conviction and had served solely to corroborate the direct evidence of Mr and Mrs H.,   the only eyewitnesses to the disputed act. In those circumstances, and noting that the County Court   had expressed doubts as to Mr and Mrs H.’s credibility, the Court considered that the witnesses’   statements, especially those of Mr and Mrs H., were extremely important, if not decisive for the   outcome of the case (contrast Miron v. Romania, cited above, § 30).   The Court observed that the credibility of Mr and Mrs H.’s statements had been called into question   both by the County Court in its acquittal judgment and subsequently by the lawyer of the applicant   himself. It thus considered that providing the judges on the Court of Appeal bench that had convicted   the applicant with transcripts of their testimony was not sufficient to satisfy the requirements of the   Court’s case-law.   In addition, to the extent that the Court of Appeal had considered the possibility of reversing the   applicant’s initial acquittal and given the nature of the case, it was obliged under the Convention to   take measures of its own motion to hear evidence directly from the relevant witnesses, with a view to   determining the applicant’s guilt or innocence. Such was the case even in the absence of an explicit   request to that effect by the applicant’s lawyer. Article 421 § 2 (a) of the Code of Criminal Procedure,   moreover, contained provisions along similar lines (compare Miron, cited above, §§ 31-34). The Court   of Appeal had taken care to point out that it had heard evidence directly from those called to testify   on appeal. It had not, however, taken into account the final change in the bench and the effect of that   change on compliance with the principle of immediacy.   Admittedly, only one judge, T.G., had not taken evidence directly from the relevant witnesses   (excluding F.D.). The Court observed, however, that the bench in the present case had not been a large   one. It had consisted of T.G. and one other judge, and had been required to adopt its decision   unanimously. The fact that the other judge, E.P., had complied with the principle of immediacy could   not compensate for T.G.’s absence during all witness testimony except that of the indirect witness F.D.   The Court found that the Court of Appeal, in its judgment of 2 November 2016, had indeed made a   fresh interpretation of witness statements that were decisive in the case, but that both of the judges   on the bench had not heard the evidence from the witnesses in question directly. The requirements   of a fair trial had thus been breached.   There had accordingly been a violation of Article 6 § 1 of the Convention.   3 Just satisfaction (Article 41)   The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the   non-pecuniary damage sustained by the applicant. In respect of costs and expenses, Romania was to   pay the applicant EUR 1,750.   The judgment is available only in French.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. 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