Apariția unui RIL la câteva luni înainte de introducerea unui recurs, lipsa de invocare a celor stabilite în acel RIL de avocat și lipsa de epuizare a căilor de atac interne

16 septembrie 2018
889 citiri

18. Turning to the facts of the present case, the Court notes that the decision of the High Court of Cassation and Justice urging the domestic courts to assess individually the necessity of withdrawing the voting right became mandatory on 18 July 2008, when it was published in the Official Monitor. The applicant’s lawyer filed the reasons for the appeal on points of law on 18 September 2008, thus after the decision became mandatory. However, he did not complain before the High Court about the automatic ban on his client’s voting rights.
19. It is to be noted that, based on the provisions of the Criminal Code as they read before the High Court decision in question, the lower courts applied automatically the ban on the right to vote. The Court accepts that, at that date, that is, before publication of the High Court decision, the applicant had no means to complain about this ban (see Calmanovici v. Romania, no. 42250/02, §§ 150-151, 1 July 2008; and Cucu v. Romania, no. 22362/06, § 109, 13 November 2012).
20. The Court does not disregard the fact that the new interpretation by the High Court became mandatory only a few months before the date on which the applicant filed the reasons for the appeal on points of law. However, it notes that the applicant was assisted by legal counsel who should have been aware of such a significant amendment to the applicable law.
21. While the domestic court could have aligned itself on its own initiative to the new interpretation of the relevant provision, the fact remains that the applicant could and should have invited the court to do so by raising the argument before it in his appeal on points of law which was an ordinary appeal in the criminal procedure against him (see, in contrast, ATV Privatfernseh-GMBH, cited above, § 32).
22. Without speculating on what the outcome of such a complaint would have been, the Court considers that, should the applicant have raised it with the court, that would have entailed examination of the necessity of the voting ban for his individual case. There is no indication that such a remedy would not have been effective in the circumstances of the case (see, mutatis mutandis, Nagovitsyn and Nalgiyev, § 30, and Balakchiev and Others, §§ 79-80, decisions cited above).
23. Therefore the applicant, by his own inaction, prevented the domestic court from addressing the matter. He thus failed to exhaust an effective domestic remedy.
24. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Curtea Europeană a Drepturilor Omului
(Decizia din data de 10 noiembrie 2015, Leonte împotriva României, cererea nr. 23931/10, :CE:ECHR:2015:1110DEC002393110)

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