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THIRD
SECTION
CASE OF DAN v. MOLDOVA
(Application
no. 8999/07)
JUDGMENT
STRASBOURG
5 July
2011
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It
may be subject to editorial revision.
In the case of Dan v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 14 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8999/07) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Mihail Dan (“the
applicant”), on 18 December 2006.
- The
applicant was represented by Mr G. Ulianovschi, a lawyer practising
in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the criminal proceedings
against him were not fair within the meaning of Article 6 § 1 of
the Convention.
- On
7 December 2009 the Court decided to give notice of the application
to the Government. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Bender. At the time of the
events the applicant was the principal of a high school in Chişinău.
A. Background to the case
- According
to the findings of the domestic courts, on an unspecified date, the
applicant was contacted by C., who requested that a pupil be
transferred to the high school the applicant was a principal of.
Since the applicant requested a bribe in exchange for the pupil’s
transfer, C. contacted the police and, on 14 January 2004, an
undercover operation was organised. For that purpose C. was
instructed to meet the applicant and give him money marked with a
special dust.
- C.
contacted the applicant and they agreed to meet in the Chişinău
central park. The scene was secretly observed by numerous police
officers and filmed. However, later the police submitted that for
technical reasons the actual transmitting of the bribe money had not
been filmed. What had actually happened during the applicant’s
meeting with C. was a matter of dispute during the criminal
proceedings.
- According
to the police, the applicant and C. did not shake hands upon meeting
each other and sat on a bench for several minutes. C. gave the
applicant the bribe money by placing it in a file belonging to the
applicant. When apprehended, the applicant dropped the file and all
of its contents, including the money, were scattered on the ground.
It was later discovered that the applicant had traces of the dust
from the money on his fingers.
- According
to the applicant, he had been contacted by C. when going to the
Ministry of Education and had agreed to meet him shortly afterwards
in a park in the immediate vicinity to the Ministry. He shook hands
with C. upon meeting him and, after a brief discussion, suggested
they sit on a bench in order to be able to write. He placed his file
between himself and C. and wrote on a sheet of paper a list of
documents necessary for the pupil’s transfer. The applicant,
who is missing an eye, did not see C. put the money into his file.
When apprehended, he dropped the file. The bribe money was collected
from the ground by a police officer, who later gave him a pen to sign
the arrest report. The traces of dust on his hands must have come
either from shaking hands with C. or from the pen with which he
signed the minutes. The applicant alleged that he had been set up by
the police.
- According
to the applicant, during the arrest the police officers used
unjustified violence as a result of which he suffered pain in his
wrists. Between 2004 and 2005 the Ministry of Internal affairs issued
several press releases in which it was stated, inter alia,
that the applicant had taken a bribe from a parent. Several media
outlets, including the national television station, reported on this.
It does not appear that the applicant initiated proceedings against
any of the media outlets or the Ministry of Internal Affairs.
B. The applicant’s acquittal
- During
the course of the proceedings the Buiucani District Court heard the
applicant, seven prosecution witnesses and one forensic expert. The
court also viewed the video of the undercover operation and examined
other evidence, such as C.’s complaint to the police, the
record of the marking of the bribe money with special dust, an expert
report finding that following his apprehension the applicant had
traces of the special dust on his fingers and a report concerning the
search of the applicant’s office and home.
- The
court considered C.’s testimony to the effect that the
applicant had requested a bribe from him to be unreliable. The court
also noted that C. and four other prosecution witnesses, all of whom
were police officers, gave different accounts of the moment of the
applicant and C. had met and, in particular, of the manner in which
the bribe money had been transmitted. In that respect the court noted
that according to three witnesses the money had been inserted by C.
into the applicant’s file, which had been placed on the bench
between the two men, while according to another witness the money had
been handed by C. directly to the applicant. One of the witnesses,
who was positioned directly in front of C. and the applicant during
the undercover operation, did not see the money being transmitted at
all. The court also found contradictions in the accounts concerning
the shaking of hands by the applicant and C. The court also noted
that the video of the undercover operation had not been helpful
because, for unknown reasons, the filming had been interrupted
precisely during the meeting between the applicant and C.
- In a judgment of 24 January 2006, relying on the above
reasons, the Buiucani District Court acquitted the applicant. It
concluded that the prosecution had failed to provide reliable
evidence in support of the contention that the applicant had
requested money from C. and that the applicant had been aware that C.
had placed money in his file. In so far as the presence of traces of
special dust on the applicant’s fingers was concerned, the
court considered that it could not be ruled out that the traces
appeared as a result of his shaking hands with C., picking up the
money from the ground after apprehension or using a pen given to him
by the police to sign the arrest report. In reaching this conclusion,
the court relied on an expert report stating that the special dust
could have been transmitted in any of the above-mentioned ways.
- The
Prosecutor’s Office appealed against this judgment.
C. The applicant’s conviction
- On 23 March 2006 the Chişinău Court of
Appeal held a hearing at which the applicant, his representative and
the prosecutor were present. The court upheld the appeal lodged by
the prosecutor and reversed the judgment of the first-instance court.
In so doing the Court of Appeal did not hear the witnesses anew but
merely gave a different assessment to the testimonies given by them
by the first-instance court. The Court of Appeal considered all the
witness statements to be reliable and did not find any major
contradictions between them.
- The
applicant was found guilty as charged and sentenced to a criminal
fine of 60,000 Moldovan lei (MDL) (approximately 3,350 euros (EUR))
and to five years’ imprisonment suspended for two years. The
applicant was also prohibited from occupying any administrative post
for a period of three years.
- The
applicant lodged an appeal on points of law against the judgment and
argued that the witnesses on whose testimonies his conviction had
been based were not credible. In particular, he submitted that C. was
being investigated in two separate cases by the police station which
had organised the undercover operation. He also submitted that all
the prosecution witnesses had been police officers. One of those
witnesses could not objectively have seen what had happened from the
distance at which he was located because he had serious problems with
his eyesight. The applicant also argued that the police had deleted a
part of the video of the undercover operation because it was not
favourable to the prosecution and submitted that he had been the
victim of entrapment.
- On
21 June 2006 the Supreme Court of Justice examined the applicant’s
appeal in the absence of the parties and declared it inadmissible.
- The
applicant also lodged and extraordinary appeal with the Plenary
Supreme Court of Justice in which he claimed a breach of Article 6 of
the Convention. However, on 19 February 2007, the Plenary Supreme
Court of Justice dismissed the applicant’s appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
explanatory judgment of the Plenary Supreme Court of Justice No. 22
of 12 December 2005, in so far as relevant, reads as follows:
“Bearing in mind the provisions of Article 6 of
the European Convention on Human Rights, after an acquittal judgment
pronounced by a first-instance court, the appeal court cannot order
the conviction for the first time without hearing the accused and
without the direct administration of the evidence.”
- Article 441 of the Code of Criminal Procedure provides
that the court examining an appeal on points of law has a general
duty to examine not only the reasons invoked in the appeal on points
of law but all the aspects of the case without, however, worsening
the situation of the person who lodged the appeal on points of law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the criminal proceedings against him had
not been fair because in overturning his acquittal the Court of
Appeal had failed to hear the witnesses on the basis of whose
testimonies it found him guilty. The applicant also argued that the
Court of Appeal and the Supreme Court of Justice had failed to give
reasons for dismissing some of his important submissions concerning
the alleged entrapment organised by the police and the fact that the
main prosecution witness, C., was being investigated in two cases.
The applicant also complained that he had not been summoned to the
proceedings before the Supreme Court of Justice. The applicant lastly
complained that he had not been informed promptly about the nature of
the accusation against him and that he had not had adequate time and
facilities to prepare his defence. Article 6 § 1 of the
Convention, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The Government submitted that they did not intend to
make any admissibility objections. Nonetheless, they submitted in
their observations on the merits that the applicant had not expressly
mentioned Article 6 § 1 of the Convention in his appeal on
points of law and that he had invoked this provision for the first
time in his extraordinary appeal. The Government also submitted that
the applicant could have, but did not, challenge the lawfulness of
the manner in which evidence was obtained at the investigation stage.
- The
applicant disagreed with the Government and submitted that he had
used all the available remedies.
- In
spite of the Government’s position, the Court will treat the
above Government’s submissions as an admissibility objection
and namely as a non-exhaustion objection. It reiterates that in order
to exhaust domestic remedies the applicant must raise the substance
of the complaint that is made under the Convention in the domestic
proceedings. The complaint does not have to be formulated expressly
under the Convention, but the domestic authorities must have been
given the chance to prevent or remedy the alleged violation (Gasus
Dosier- und Fördertechnik GmbH v. the Netherlands, 23
February 1995, § 48, Series A no. 306 B).
- The
Court notes that the applicant did not expressly complain before the
Supreme Court of Justice about the Court of Appeal’s failure to
hear the witnesses anew. The Court notes that the Supreme Court of
Justice had an obligation under Article 441 of the Code of Criminal
Procedure (see paragraph 21 above) to examine of its own motion
all the aspects of the case when examining the applicant’s
appeal on points of law, but not only the issues raised by the
applicant. In such circumstances, it cannot be said that the Supreme
Court was not given the chance to remedy the alleged violation.
Therefore, the Government’s objection must be dismissed. In any
event since the Supreme Court of Justice did not address the
applicant’s appeal on points of law, the issues raised
concerning the proceedings before the Court of Appeal remain open.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- It
is the applicant’s case that the proceedings before the Court
of Appeal were unfair because that court convicted him for the first
time without hearing the prosecution witnesses.
- The
Government disagreed and argued that the proceedings had been public
and fair, that the applicant had been represented and had had the
possibility to call defence witnesses. They contended that all the
guarantees of Article 6 had been observed by the domestic courts in
this case.
- The
Court reiterates that the manner of application of Article 6 to
proceedings before courts of appeal depends on the special features
of the proceedings involved; account must be taken of the entirety of
the proceedings in the domestic legal order and of the role of the
appellate court therein. (see Botten v. Norway, 19 February
1996, § 39, Reports 1996I). Where an appellate
court is called upon to examine a case as to the facts and the law
and to make a full assessment of the question of the applicant’s
guilt or innocence, it cannot, as a matter of fair trial, properly
determine those issues without a direct assessment of the evidence
(see Popovici v. Moldova, nos. 289/04 and 41194/04, §
68, 27 November 2007; Constantinescu v. Romania, no. 28871/95,
§ 55, ECHR 2000 VIII and Marcos Barrios v. Spain,
no. 17122/07, § 32, 21 September 2010).
- Turning
to the facts of the present case, the Court notes that the main
evidence against the applicant was the witness statements to the
effect that he solicited a bribe and received it in a park. The rest
of the evidence was indirect evidence which could not lead on its own
to the applicant’s conviction (see paragraphs 13 and 15 above).
Therefore the witness testimonies and the weight given to them were
of great importance for the determination of the case.
- The
first-instance court acquitted the applicant because it did not trust
the witnesses after having heard them in person. In re-examining the
case, the Court of Appeal disagreed with the first-instance court as
to the trustworthiness of the accusation witnesses’ statements
and convicted the applicant. In so doing the Court of Appeal did not
hear the witnesses anew but merely relied on their statements as
recorded in the file.
- Having
regard to what was at stake for the applicant, the Court is not
convinced that the issues to be determined by the Court of Appeal
when convicting and sentencing the applicant - and, in doing so,
overturning his acquittal by the first-instance court - could, as a
matter of fair trial, have been properly examined without a direct
assessment of the evidence given by the prosecution witnesses. The
Court considers that those who have the responsibility for deciding
the guilt or innocence of an accused ought, in principle, to be able
to hear witnesses in person and assess their trustworthiness. The
assessment of the trustworthiness of a witness is a complex task
which usually cannot be achieved by a mere reading of his or her
recorded words.
Of
course, there are cases when it is impossible to hear a witness in
person at the trial because, for example, he or she has died, or in
order to protect the right of the witness not to incriminate him- or
herself (see Craxi v. Italy (no. 1), no. 34896/97, §
86, 5 December 2002). However, that does not appear to have been the
case here.
- In
the light of the above the Court considers that there has been a
violation of Article 6 § 1. In the circumstances, it does not
consider it necessary to examine, additionally, whether other aspects
of the proceedings did or did not comply with that provision.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 3 of the Convention that the
police used excessive force against him during arrest and under
Article 6 § 2 of the Convention that his right to be
presumed innocent had been breached. However, it is noted that the
applicant did not use any of the remedies available to him under
domestic law. In particular he did not attempt to initiate
proceedings against the police officers who had allegedly ill-treated
him and against the Ministry of Internal Affairs, which had allegedly
breached his right to be presumed innocent. In view of the above,
these complaints must be declared inadmissible under Article 35 §§
1 and 4 for failure to exhaust domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant claimed 6,121 euros (EUR) in respect of pecuniary damage.
The amount was composed of the criminal fine paid by him and the net
salary which he had been unable to earn owing to his unlawful
conviction.
- The
Government disagreed with the applicant and submitted that in their
view the applicant was not entitled to any compensation.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. In particular, it cannot speculate
as to the outcome of the proceedings had the applicant’s case
been examined in full compliance with the requirements of Article 6
of the Convention. Therefore, the Court rejects this claim.
B. Non-pecuniary damage
- The
applicant claimed EUR 20,000 for non-pecuniary damage resulting from
the anguish and humiliation of being unlawfully convicted for a
criminal offence which he had not committed.
- The
Government disagreed and asked the Court to reject this claim as
unsubstantiated.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the breach of his
right to a fair trial. Making its assessment on an equitable basis,
it awards the applicant EUR 2,000 for non-pecuniary damage.
C. Costs and expenses
- The
applicant also claimed EUR 3,799 for the costs and expenses incurred
before the domestic courts and before the Court. He submitted a
detailed time-sheet.
- The
Government contested this amount and argued that it was excessive and
unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 for costs and
expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 6 §
1 admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage and EUR 3,000 (three thousand euros) in
respect of costs and expenses, to be converted into Moldovan lei at
the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President