issued by the Registrar of the Court

ECHR 067 (2020)

18.02.2020

Overturning of an acquittal by a court of last instance

did not violate the Convention
In today’s Chamber judgment1 in the case of Marilena-Carmen Popa v. Romania (application
no. 1814/11) the European Court of Human Rights held, by six votes to one, that there had been:
no violation of Article 6 (right to a fair trial) of the European Convention on Human Rights.
The case concerned criminal proceedings against the applicant for forgery.
The Court found in particular that the Court of Cassation, the court of last instance in the case, had
found the applicant guilty of an act of forgery, overturning a first-instance acquittal. The Court of
Cassation had relied on a forensic report as proof of the case against her, without rehearing a key
witness.
The Court found that the applicant’s right to a fair trial had not been infringed: the Court of
Cassation had been entitled to find the forensic report conclusive of her guilt. It had not been
necessary to hear the key witness again, in particular because the credibility of her testimony had
not been a point of difference between the two courts.

Principal facts
The applicant, Marilena-Carmen Popa, is a Romanian national who was born in 1960 and lives in
Bucharest (Romania).
The applicant was a notary who practised until September 2010.
In November 2003 she authenticated a contract for the sale of land between two companies, one of
which was represented by E.C. In 2005 the prosecutor’s office charged the applicant with continuous
acts of forgery, asserting that she had falsified several contracts and had authenticated some of
them in the absence of the signatories, including that of November 2003.
The Court of Appeal acquitted the applicant after hearing evidence from witnesses, including E.C.,
and examining a forensic report on the signatures on the November 2003 contract. The court held
that although the report confirmed that the signature on the contract was not E.C.’s, there was no
other evidence to rebut the defendant’s statement that E.C. had been present at the signing.
The prosecution appealed and in 2010 the Court of Cassation amended the charge to one of a single
act of forgery regarding the November 2003 contract, of which it convicted her. The applicant
maintained her statement that all the contracts had been signed by the parties in her presence but
the court found that the forensic report confirming E.C.’s testimony was decisive.
The applicant was sentenced to six months’ imprisonment, stayed conditionally with a probation
period of three years. The final judgement was modified to correct obvious errors, but the court did
not change the probation period, which had exceeded the statutory maximum period of two years
and six months.

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.
The applicant lodged an extraordinary application for annulment of the final judgement. She notably
argued that the Court of Cassation had changed the legal classification of the charge against her
without giving her a chance to express her views on that issue or testify directly. Moreover, it had
imposed a longer probation period on her than was legally allowed.
A different bench of the Court of Cassation rejected her extraordinary application as inadmissible in
November 2010. It did not examine her argument about the probation period. In September 2010
she was removed from the register of public notaries owing to her conviction.

Complaints, procedure and composition of the Court

Relying on Article 6 (right to a fair trial) and Article 7 (no punishment without law), the applicant
complained that the proceedings against her were unfair and that her sentence was heavier than
allowed by law.
The application was lodged with the European Court of Human Rights on 15 December 2010.
Judgment was given by a Chamber of seven judges, composed as follows:
Jon Fridrik Kjølbro (Denmark), President,
Iulia Antoanella Motoc (Romania),
Carlo Ranzoni (Liechtenstein),
Stéphanie Mourou-Vikström (Monaco),
Georges Ravarani (Luxembourg),
Jolien Schukking (the Netherlands),
Péter Paczolay (Hungary),

and also Marialena Tsirli, Deputy Registrar.

Decision of the Court

Article 6
The Court reiterated the principles set out in the 2019 case of Júlíus Þór Sigurþórsson v. Iceland on
situations where an acquittal by a lower court has been followed by a conviction by a court of last
instance without a fresh hearing of the defendant or witnesses directly.
The Court then examined whether the Court of Cassation had been able to make a fair judgment in
Ms Popa’s case without hearing evidence directly from E.C.
It observed that the main difference between the first-instance decision and the Court of Cassation’s
was that the latter court had held that the forensic report was capable by itself of dispelling any
doubts about the applicant’s guilt. The reasons provided for that departure, though succinct, did not
appear arbitrary or manifestly unreasonable, being that the expert evidence in question was an
incontestable scientific fact.
Ms Popa had also expressed doubts about the impartiality of the report because it had been
produced by a forensic expert working for the Ministry of Interior. However, the applicant had not
provided any argument pointing to any links, hierarchical or otherwise, between the expert and the
judges and prosecutors who had examined her case or any other person involved in the proceedings.
The Court saw no elements which could call into question either the independence of the experts
appointed or the reliability of the opinions.
The Court was not convinced that the requirements of a fair trial had necessitated the rehearing of
evidence from E.C. or that the Court of Cassation had been under an obligation to take positive
measures to such an end, even if the applicant had not asked for the witness to be reheard.

2
In that context the Court considered it relevant that E.C.’s reliability or credibility was not an issue
and that the transcripts of her testimony had been available to the Court of Cassation judges. The
applicant had not asked for additional evidence to be added to the case file and had been heard by
the Court of Cassation on the merits.
Given that the disagreement between the two courts had concerned the weight that could be
attached to the evidentiary value of the expert report, and not the reliability and credibility of E.C.,
the Court took the view that the applicant’s case could be distinguished from those where domestic
courts of last instance had convicted defendants who had earlier been acquitted, without directly
hearing evidence from them or reviewing testimony considered relevant for the convictions.
Finally, in so far as the applicant had complained that the Court of Cassation had changed the legal
classification of the charge against her without giving her the opportunity to express her opinion on
that issue, the Court noted that the single act of forgery was part of the initial charge of continuous
acts of forgery. She had been able to submit comments and evidence on every alleged act and must
thus have known that she could be found guilty of a single offence of that type.
The Court concluded by finding that there had been no violation of Article 6.
Article 7
Both parties had acknowledged that the Court of Cassation had made an error when calculating the
length of the applicant’s probation period.
However, the legal action taken by the applicant, an extraordinary application for annulment, was
not an effective remedy in such situations. Rather, she should have applied to the Court of Cassation
itself to rectify the judgment owing to an obvious material error as defined in that court’s own
case-law. Such a request could have been made under Article 195 of the former Code of Criminal
Procedure, but there was no information in the case file to show that she had taken that step.
The Court concluded that the applicant had failed to exhaust all available domestic remedies and
found by a majority her complaint under this Article inadmissible.

Separate opinions
Judges Ranzoni, Ravarani and Schukking issued a joint partly dissenting opinion while Judge Ranzoni
issued a dissenting opinion. The opinions are annexed to the judgment.
The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.