Additional arguments from the ECHR cases law on the unexplained evidence in the COMVEX case

European case law offers a more subtle and, legally, stronger argument than the claim that the courts were obliged to grant the recording a certain probative value. Neither the European Court of Human Rights nor the Court of Justice of the European Union imposes on the national judge the conclusion to be drawn from a piece of evidence and does not substitute itself for it in establishing the factual situation. The European standard concerns the intellectual and adversarial process by which evidence is admitted, put to the discussion of the parties, verified, confronted with the other elements and, if it is decisive, integrated into a reasoning susceptible to control. Freedom to assess evidence does not mean the freedom to leave unanswered the contradiction that it introduces into the very premise of the decision.

In the ECHR case law, the starting rule is that the admissibility of evidence belongs, mainly, to domestic law and the national courts. In the case of Schenk v. Switzerland (10862/84, decision of 12 July 1988), then in the case of Khan v. the United Kingdom (35394/97) and the case of Bykov v. Russia (4378/02), the Court made it clear that its role is not to decide, as a general rule, whether a particular piece of evidence was admissible, but to verify whether the proceedings as a whole were fair. European control takes into account the nature and manner of obtaining the evidence, the possibility for the party to challenge its authenticity and use, its quality and reliability, and the importance that the evidence had for the outcome. This standard is relevant to the COMVEX case precisely because the recording does not appear to have been a clandestine element introduced unilaterally by the applicant, but material transmitted by the banking institution. If its authenticity, provenance and content were not refuted, the focus of the analysis had to shift from mere admissibility to its probative value and its effect on the thesis of the anonymity of the orders.

In the COMVEX case, the recording may have been insufficient to prove fraud or market manipulation, but sufficient to prove simultaneous knowledge of the two orders. Rejection of the final legal thesis does not exempt the court from identifying the intermediate fact that the evidence can confirm.

A second line of case law concerns adversarial proceedings. In the case of Mantovanelli v. France (21497/93), the ECHR indicated that evidence likely to have a preponderant influence on the court's assessment must be able to be effectively discussed by the parties. The principle of adversarial proceedings is not limited to the formal submission of observations; the party must have a real opportunity to take cognizance of the element and to comment on its content, methodology, relevance and conclusions. In Niderost-Huber v. Switzerland (18990/91), the Court reiterated that the parties must be able to take cognizance of and discuss any evidence or observation submitted to the judge with the aim of influencing the decision.

In the COMVEX case, there is not only a problem of adversarial access to the record, since the transcripts were invoked in the dispute, but one situated at a later stage: what legal effect did the adversarial debate produce? Adversarialism would become purely ceremonial if the parties could discuss a decisive piece of evidence, but the judgment would not allow the court's response to the central contradiction revealed by it to be identified. The right to comment on the evidence must be correlated with the court's obligation to effectively examine the arguments capable of influencing the solution.

This obligation follows directly from Kraska v. Switzerland (13942/88). The ECHR ruled that the effectiveness of the right to a court requires that the parties' arguments, arguments and evidence be examined in a real and adequate manner, without the European court deciding in advance on their relevance. The formula is particularly useful in the COMVEX case: it is not enough for the record to be materially included in the file or for the court to generically invoke the "evidence as a whole”. It must be possible to identify an appropriate examination of its essential consequence, namely whether the person administering the purchase order could be treated, in factual reasoning, as a seller who knew nothing about the opposing order.

Furthermore, in the case of Albina v. Romania (57808/00), the ECHR established that the national court must effectively examine the essential arguments, and silence on a decisive one makes it impossible to find out whether it was ignored or rejected with reasons. In Boldea v. Romania, the ECHR sanctioned the insufficient nature of the reasoning, which did not allow an understanding of the real basis of the solution.

In relation to the COMVEX case, the correct question is not whether the judges had to comment on each reply between Viorel Panait and the broker. The question is whether they had to respond to the decisive contradiction between two factual propositions: on the one hand, the orders were anonymous and the investor could not know the counterparty; on the other hand, the same investor was simultaneously discussing with the intermediary his sell order and the buy order he was administering for Ruxandra Nicola, and the broker anticipated their partial meeting. This is not a collateral objection, but concerns the premise on which one of the arguments of the trial court was based.

It follows from the body of the ECHR case-law that there is no obligation to respond separately to each detail, but there is an obligation to respond to the contradiction capable of changing the factual premise of the solution. An answer can be implicit only if it results unequivocally from the whole of the reasoning. And judicial review is effective only if it allows verification of the logical connection between the evidence, the fact retained and the legal consequence.

European principles firmly support a more cautious conclusion: the simple statement that the orders were anonymous in the system does not respond to the proof according to which Viorel Panait knew and administered both instructions; the invocation of the "evidence set” does not show why this knowledge was considered irrelevant; and the final dismissal of the action cannot be presented as a positive judicial finding that the recording reveals no coordination.

The courts could still dismiss the action after an explicit examination of the evidence, they could establish that there was mutual knowledge of the intentions, but not control over the execution, or they could argue that the orders met only as an effect of the algorithm, that the circumstance did not prove an illicit cause, that the possible coordination did not affect the validity of the contested acts, or that the chosen procedural remedy was inadmissible. What the European standard requires is not a specific solution, but a visible logical bridge between the recording and the solution. In its absence, the process is finished, but the evidentiary question remains open.