Convicted on appeal by a judge who had not heard his witnesses: Romania loses at Strasbourg

A judge who has not heard the witnesses cannot sign a conviction based on them, even if the other judge on the panel heard every one of them. The European Court of Human Rights settled the point in its judgment of 3 June 2025 in the Case of Manolache v. Romania, published in Official Gazette of Romania no. 561 of 8 July 2026, finding a violation of Article 6 § 1 of the Convention. Publication has a concrete effect with a deadline attached: it starts the three months in which the convicted person may seek a review, the procedure that the Constitutional Court also examined in the decisions on the limits of retrial in criminal proceedings.

The case starts from a complaint lodged on 17 March 2015. A married couple reported a police officer to the Arges Directorate-General for Anti-Corruption, accusing him of having asked for and received 1,500 euros to have the husband hired as a driver by a private company, and of not keeping his promise. The prosecution service sent him for trial for influence peddling. The Arges Tribunal acquitted him on 4 December 2015, applying the principle of in dubio pro reo: the only direct evidence consisted of the statements of the two complainants, while the other witnesses merely repeated what they had heard from them.

On appeal, the Pitesti Court of Appeal set aside the acquittal and sentenced him to three years, suspended. What Strasbourg censures is not the outcome but the way it was reached. The appeal panel had two judges and changed three times: on 8 June 2016 it consisted of C.A.N. and T.G., on 21 September of E.P. and I.F., and on 2 November, the day of the conviction, of E.P. and T.G. The decisive witnesses, the two complainants and the wife’s parents, were heard at the hearing of 21 September, which judge T.G. did not attend. The only witness T.G. heard in person was F.D., a hearsay witness.

What it changes in practice

The first effect is the most concrete one. Article 465(4) of the Code of Criminal Procedure provides that an application for review may be made within no more than three months of the publication in the Official Gazette of Romania of the final judgment of the European Court of Human Rights. The period therefore runs from 8 July 2026, not from 3 September 2025, the date on which the judgment became final. The convicted person may apply for review to the court that delivered the judgment, and the Court itself states in its judgment that a fresh trial or the reopening of the proceedings is, in principle, the appropriate means of redress.

The second effect is financial and limited. The Court rejected the claim of 305 euros for pecuniary damage, because no causal link had been shown, and held that the mere finding of a violation was sufficient just satisfaction for non-pecuniary damage. It awarded 1,750 euros for costs and expenses, out of the 2,203 claimed, payable within three months of the judgment becoming final, with interest at the European Central Bank’s marginal lending rate plus three percentage points in the event of delay.

The third effect concerns the practice of the appeal courts. The rule that the judgment reinforces is not new in domestic law. Article 421 of the Code of Criminal Procedure requires an appeal court that sets aside the judgment and rules on the merits itself to take afresh the statements on which the first-instance court based the acquittal. The provision is numbered differently today from what it was at the material time, Article 421(1)(2)(a) in the version given by Law No 201/2023, in force since 9 July 2023, and it additionally refers to Article 374(7) to (12) and to Article 383(3) and (4). The obligation has stayed the same, but the judgment adds something the domestic provision does not say: the evidence must be taken afresh before the judges who sign the conviction, not merely before the court as an institution.

What has changed compared with the previous situation

For the convicted person, what has changed is that he now holds a ruling with which he can ask for a retrial, and a window of time in which to do so. Before publication the judgment existed, but the period for review had not started to run.

For the appeal courts, the judgment closes off an interpretative loophole. The Government argued before the Court that the situation differed from the Beraru and Cutean cases, because here only one of the two judges had been replaced, and the recordings of the hearings and the whole case file were available to the panel. The Court rejected the argument with an arithmetical observation: in the cases where the lack of a direct hearing was tolerated, the judge who had not heard the witnesses was the only one on a panel of four, eight or five members. On a panel of two that can rule only unanimously, his weight is different, and the presence of the other judge at the hearings makes up for nothing.

The Court also rejected the argument that the defence had not asked for the witnesses to be heard again. At the start of the appeal, counsel had in fact objected to hearing the witnesses at all. The Court recalls that, where an appeal court is contemplating a conviction after an acquittal, the duty to hear the relevant witnesses in person falls on it of its own motion, whether or not the defence asks for it. It adds a factual observation as well: the court of appeal itself stressed, in the judgment of conviction, that it had heard in person the persons summoned to testify, a sign that it knew how much a direct hearing weighs, yet it took no account of the change in the panel.

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