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BUJNITA v. MOLDOVA - 36492/02 [2007] ECHR 42 (16 January 2007)
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[2007] ECHR 42
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FOURTH
SECTION
CASE OF
BUJNIŢA v. MOLDOVA
(Application
no. 36492/02)
JUDGMENT
STRASBOURG
16
January 2007
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 Bujniţa v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 36492/02) 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 Mr Artur Bujniţa (“the applicant”)
on 30 July 2002.
The
applicant was represented before the Court by Mr
Vitalie Iordachi from “Lawyers for Human Rights”, a
non-governmental organisation based in Chişinău. The
Moldovan Government (“the Government”) were represented
by their Agent, Mr Vitalie Pârlog.
The
applicant alleged that his right to a fair hearing was breached as a
result of the quashing of his acquittal on a rape charge.
On
22 March 2005 the Court decided to communicate the application to the
Government under Rule 54 § 2 (b) of the Rules of Court. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
The
applicant and the Government each filed observations on the
admissibility and merits and on the claims for just satisfaction
under Article 41 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1973 and lives in Chişinău.
On
26 June 2001 the applicant was acquitted of rape by the Râşcani
District Court. The District Court examined the parties’
statements, witnesses’ declarations and medical reports. It
found, in particular, that the applicant had not had sexual
intercourse with the victim without the latter’s consent, since
on numerous occasions the victim could have refused intercourse with
the applicant and could have alerted a police patrol which had
stopped them on the way to the applicant’s apartment. The
victim could also have alerted the applicant’s flatmates, who
had been in the apartment during the alleged rape, as well as other
persons. The District Court also found that the medical reports did
not provide a clear answer to the question as to whether the
applicant had had intercourse with the victim.
The
prosecutor and the victim appealed. Their appeals merely stated that
the verdict of the Râşcani District Court was unlawful and
unreasoned.
On
14 August 2001 the Chişinău Regional Court upheld their
appeal, quashed the judgment of the Râşcani District Court
and found the applicant guilty of rape. The Regional Court found that
the victim’s statements, the witnesses’ declarations and
the medical reports indicated that there had been forced intercourse
with the victim. It found that the victim had been depressed and
forcibly taken to the applicant’s apartment. The court
sentenced him to five years’ imprisonment. However, the
Chişinău Regional Court applied an amnesty law of 10 August
2001 and relieved the applicant from the obligation to serve his
sentence. The applicant lodged an appeal in cassation.
By
a final judgment of 30 October 2001, relying on section 335/5 § 2
of the Code of Criminal Procedure (CCP) in force at the time (see
paragraph 13 below), the Court of Appeal upheld the applicant’s
appeal in cassation and quashed the judgment of the Chişinău
Regional Court. The Court of Appeal found that the Regional Court had
not objectively assessed the evidence and had taken into
consideration only the victim’s statements, which appeared to
be contradictory and in conflict with other evidence and the
circumstances of the case. It also concluded that the victim’s
statements that she had been forcibly brought to the applicant’s
apartment were contradicted by the witnesses’ declarations. The
Court of Appeal concluded that the Râşcani District Court
had objectively assessed the evidence and reached the conclusion that
the applicant was innocent. It also stated that any doubts should be
interpreted in favour of the accused. The Court of Appeal upheld the
judgment of the Râşcani District Court of 26 June 2001.
On
20 December 2001 the Deputy Prosecutor General lodged with the
Supreme Court of Justice a request for annulment of the judgments of
the Râşcani District Court and the Court of Appeal. He
argued that the Râşcani District Court and the Court of
Appeal had unlawfully assessed the evidence and asked the Supreme
Court to uphold the judgment of the Chişinău Regional Court
of 14 August 2001.
On
26 February 2002 the Supreme Court of Justice upheld the Deputy
Prosecutor General’s request for annulment, quashed the
above-mentioned judgments and upheld the judgment of the
Chişinău Regional Court of 14 August 2001. The Supreme
Court gave the same reasons for finding the applicant guilty of
committing the rape as the Chişinău Regional Court had used
in its judgment of 14 August 2001.
II. RELEVANT DOMESTIC LAW
The
following are relevant extracts from the Code of Criminal Procedure
of 1961 repealed on 12 June 2003.
Section 335/5 Judgment of the cassation instance
When ruling on an appeal in cassation, the cassation
instance shall provide one of the following judgments:
...
2) it shall uphold the appeal in cassation
and quash the appealed judgment and:
a) maintain the judgment of the
first-instance court, if the appeal had been wrongly upheld.
Section 369/1 Request for annulment
The General Prosecutor and his or her deputies may, on
their own initiative or at the request of the parties, file a request
for annulment with the Supreme Court of Justice in respect of any
judgment which has become final after all the ordinary means of
appeal have been exhausted.
Section 369/2 Grounds for a request for annulment of
a judgment
Final judgments in criminal cases shall be subject to
requests for annulment through cassation procedure in the following
instances:
...
2. Instances where a request for annulment is
made only in favour of a convicted person:
a. the provisions governing jurisdiction
ratione materiae or jurisdiction ratione personae had
not been observed;
b. the composition of the court did not
correspond to the legal requirements, or if the provisions of
sections 19, 20 and 22 of the present Code were violated;
c. the judicial hearing was not public, with
the exception of those cases where the law provides otherwise;
d. examination of the case took place without
the participation of the prosecution service, the defendant, the
counsel for the defence and an interpreter, where their participation
was compulsory under the law;
e. examination of the case took place without
due notification of the parties;
f. no forensic-psychiatric examination of the
defendant was conducted, in cases provided for in section 66 (3) of
the present Code;
g. the court permitted procedures for appeal
or for annulment which were not in accordance with the law, and
permitted a request for annulment or an appeal where the prescribed
time-limit had expired;
...
i. an international court found that there
has been a breach of human rights and fundamental freedoms, which
could be remedied by a re-hearing.
Other judgments which have become final shall be subject
to a request for annulment only in instances where they contradict
the legislation.
Section 369/3 Time-limits for lodging a request for
annulment
A request for annulment in favour of the convicted
person or a person in respect of whom criminal proceedings have been
closed may be submitted at any time, including after that person’s
death, in respect of the part concerning the criminal case as a whole
and, in respect of the part concerning the civil action, only where
its resolution affects the criminal case as a whole.
In remaining cases a request for annulment may be
submitted only within one year of the date on which that judgment
becomes final, if some significant error in the previous procedure
has influenced the impugned decision.
...
Section 369/4 Lodging and withdrawal of a request for
annulment of a judgment
A request for annulment of a judgment shall be lodged
with the court in written form, with an indication of the grounds for
annulment and inclusion of as many copies as there are participants
in the proceedings.
From the beginning of the proceedings, the General
Prosecutor shall be entitled to withdraw the request for annulment,
indicating the reasons for that withdrawal.
Section 369/5 Examination and resolution of a request
for annulment
Requests for annulment with regard to judgments of the
Criminal Division and the Enlarged Division of the Supreme Court of
Justice shall be examined by the Plenum of the Supreme Court of
Justice, and requests for annulment of other judgments shall be
examined by the Criminal Division of the Supreme Court of Justice.
A request for annulment shall be examined and dealt with
in accordance with the provisions of Chapter 30 of the present Code,
which shall be applied in the appropriate manner and completed by the
provisions of the present chapter.
A request for annulment which is to the detriment of the
convicted person, an acquitted person or a person in respect of whom
the proceedings have been closed, shall be examined following the
summoning of the parties. Where a request for annulment is submitted
in the convicted person’s favour, the Supreme Court of Justice
shall have discretion in deciding whether to summon the parties.
Where the request for annulment is granted in respect of
a convicted person who is serving a sentence, and where a judgment is
quashed and the case is remitted to the courts for re-examination,
the Supreme Court of Justice shall also decide on any preventive
restrictions that should be imposed.
...
The
following are relevant extracts from the Code of Criminal Procedure
of 12 June 2003.
Section 452 Request for annulment
The General Prosecutor, his or her deputies or the
parties mentioned in section 401 & 2)-4) [the applicant] may
lodge a request for annulment with the Supreme Court of Justice in
respect of any judgment which has become final after all the ordinary
means of appeal have been exhausted.
Section 453 Grounds for a request for annulment of a
judgment
Final judgments in criminal cases shall be subject to
requests for annulment (...) in the following instances:
...
d. an international court found that there
has been a breach of human rights and fundamental freedoms, which
could be remedied by a re-hearing.
THE LAW
I. ADMISSIBILITY OF THE APPLICATION
The applicant complained that the annulment
proceedings conducted after his final acquittal had constituted a
violation of his right to a fair trial. He relied on Article 6 §
1 of the Convention, the relevant part of which provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal...”
The
Government maintained that the quashing of the final judgment was
carried out in order to remedy the wrongful assessment of the
evidence by the lower courts and to ensure the guarantees of a fair
trial to the victim.
The
Court reiterates that a request for annulment of a final judgment in
a criminal case is an extraordinary appeal in that it is not directly
accessible to the defendant and its application depends on the
discretion of authorised officials. The Court has, for example, not
accepted that an extraordinary appeal is an effective domestic remedy
in either the civil or the criminal contexts and it has found that
the quashing of a final judgment on supervisory review can create
problems as to the legal certainty to be afforded to that judgment
(see mutatis mutandis Nikitin v. Russia, no. 50178/99,
§ 39, ECHR 2004 VIII). Therefore, the Court considers that
the complaint under Article 6 § 1 of the Convention raises
serious questions of fact and law, the determination of which
requires an examination of the merits. The Court concludes,
therefore, that it is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. No other ground for
declaring it inadmissible has been established.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Article 6 § 1 of the Convention about
the quashing by the Supreme Court of Justice of the final judgment of
the Court of Appeal of
30 October 2001 following a request for annulment lodged by
the Prosecutor General’s Office.
The
Government pointed out that the request for annulment in the present
case had been made in accordance with the procedure prescribed by
law. They further maintained that the applicant had had the necessary
procedural safeguards during the request for annulment proceedings.
Therefore, in the Government’s opinion, there had been no
violation of Article 6 § 1 of the Convention.
The Court reiterates that the right to a fair hearing
under Article 6 § 1 of the Convention presumes respect for
the principle of the rule of law. One of the fundamental aspects of
the rule of law is legal certainty, which requires that where the
courts’ judgments have become final their ruling should not be
called into question (see Brumărescu v. Romania [GC],
no. 28342/95, § 61, ECHR 1999 VII). This principle
underlines that no party is entitled to seek a review of a final and
binding judgment merely for the purpose of obtaining a rehearing and
a fresh determination of the case. Higher courts’ power of
review should be exercised to correct judicial errors and
miscarriages of justice, but not to carry out a fresh examination.
The review should not be treated as an appeal in disguise, and the
mere possibility of there being two views on the subject is not a
ground for re-examination. A departure from that principle is
justified only when made necessary by circumstances of a substantial
and compelling character (see Ryabykh v. Russia, no. 52854/99,
§ 52, ECHR 2003-IX).
However,
although a mere possibility to re-open a criminal case is prima
facie compatible with the Convention, including the guarantees of
Article 6, certain special circumstances may reveal that the
actual manner in which such a review was used impaired the very
essence of the right to a fair trial. In particular, the Court has to
assess whether, in a given case, the power to launch and conduct the
request for annulment proceedings were exercised by the authorities
so as to strike, as far as possible, a fair balance between the
interests of the individual and the need to ensure the effectiveness
of the system of criminal justice (see, mutatis mutandis,
Nikitin, cited above, §§ 54-57).
In
the instant case, the request for annulment was initiated by the
Deputy Prosecutor General. In the opinion of the Prosecutor General’s
Office, the first-instance and cassation courts had not observed the
provisions of the CCP and had wrongly assessed the evidence and
thereby reached the conclusion that the applicant had not had
forcible intercourse with the victim.
The Court notes that the grounds
for the re-opening of the proceedings were based neither on new facts
nor on serious procedural defects, but rather on the disagreement of
the Deputy Prosecutor General with the assessment of the facts and
the classification of the applicant’s actions by the lower
instances. The Court observes that the latter had examined all the
parties’ statements and evidence and their original conclusions
do not appear to have been manifestly unreasonable. In the Court’s
view, the grounds for the request for annulment given by the Deputy
Prosecutor General in the present case were insufficient to justify
challenging the finality of the judgment and using this extraordinary
remedy to that end. The Court, therefore considers, as it has found
in similar circumstances (see, for instance, Savinskiy v. Ukraine,
no. 6965/02, § 25-27, 28 February 2006), that the State
authorities failed to strike a fair balance between the interests of
the applicant and the need to ensure the effectiveness of the
criminal justice system.
There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
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. Damage
The
applicant claimed 10,000 euros (EUR) for non-pecuniary damage. He
alleged that the request for annulment proceedings and the subsequent
quashing of the judgment acquitting him had resulted in severe stress
and frustration. He alleged that the fact that he had been found
guilty of committing a sex offence resulted in his being ostracised
from social circles. Moreover, since he did not have a clean record,
he could not obtain employment.
The
Government were of the view that there was no causal link between the
violation complained of and the amounts claimed by the applicant.
They further submitted that the applicant’s claims were
excessive and unsubstantiated and should therefore be rejected.
The
Court recalls that the breach of the Convention found in the instant
case was caused by the quashing of the applicant’s acquittal.
Notwithstanding the final nature of the judgment acquitting him, he
was convicted in breach of the principle of legal certainty. The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the quashing of the
judgment of 30 October 2001. The particular amount claimed is,
however, excessive. Making its assessment on an equitable basis, it
awards the applicant EUR 2,000 for non-pecuniary damage.
However,
the Court also notes that the applicant continues to be subject to
the consequences of the quashing of the judgment of 30 October
2001. It considers that the most appropriate form of redress for this
continuing situation would be for the applicant’s final
acquittal of 30 October 2001 to be confirmed by the authorities
and his conviction in breach of the Convention to be erased with
effect from that date.
B. Costs and expenses
The
applicant also claimed EUR 2,000 for the costs
and expenses incurred before the Court claiming that his lawyer had
spent thirty-six hours on the case. He submitted a detailed
time-sheet and a contract according to which the lawyer’s
hourly rate was EUR 60. He also claimed EUR 50 for secretarial
expenses.
The
Government did not agree with the amount claimed, stating that the
applicant had failed to prove the alleged representation expenses.
According to them, the amount claimed by the applicant was too high
in the light of the average monthly wage in Moldova. The Government
also contested the number of hours spent by the applicant’s
representative on the case in general and on research of the case-law
of the Court in particular.
The
Court recalls that in order for costs and expenses to be included in
an award under Article 41, it must be established that they were
actually and necessarily incurred and were reasonable as to quantum
(see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
In the present case, regard being had to the itemised
list submitted by the applicant, the above criteria and the
complexity of the case, the Court awards the applicant EUR 1,250 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
Declares unanimously the application admissible;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
Holds by six votes to one
(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) in respect of non-pecuniary damage and EUR 1,250 (one thousand
two hundred and fifty euros) in respect of costs and expenses, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of Mr
Pavlovschi is annexed to this judgment.
N.B.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI
Like
my fellow Judges I have voted in the present case in favour of
finding a violation of Article 6 § 1.
Indeed,
the quashing of the applicant’s final acquittal presents - if I
may put it this way - a “classic” violation of the
principle of legal certainty, which can be considered one of the most
important elements of the notion of a fair trial.
At
the same time I decided to vote against making any award for non-
pecuniary damage in this case and now, in order to avoid any
misinterpretation of my position, I would like to explain my reasons
for that decision.
It
has been a long-held view of this Court that the best kind of redress
could be considered to be “restitutio in integrum”,
and if this type of restitution is not possible for one reason or
another the Court should award compensation.
The
case before us raises the following question - what kind of redress
can be considered “restitutio in integrum”? In my
view, such redress could consist in the total removal of the
consequences of the quashing of the judgment of 30 October 2001. And,
in this sense, I am really satisfied with the formula used by the
Court in paragraph 29, namely that “...the most appropriate
form of redress...would be for the applicant’s final acquittal
of 30 October 2001 to be confirmed by the authorities and his
conviction in breach of the Convention to be erased with effect from
that date...”. I cannot but agree that such action would be a
real “restitutio in integrum” in the applicant’s
case, and that being so there was no need to award an additional EUR
2,000 for non-pecuniary damage.
Of
course, it would have been even better to order, in the operative
part of the judgment, the removal of all negative consequences of the
applicant’s illegal conviction, but, because the applicant
failed to ask the Court to rule on this issue it would have been
contrary to the Court’s practice to do this “proprio
motu”.
In
any event, according to Moldovan legislation (Law No. 1545 of
25 February 1998), once acquitted the applicant will have the
right to submit a claim for pecuniary and non-pecuniary damage, and
to seek the elimination of other negative consequences of his illegal
conviction.
According
to Article 41 of the Convention the Court is entitled to afford “just
satisfaction” only where “the internal law of the High
Contracting Party concerned allows only partial reparation to be
made”.
In
the case before us, neither the applicant nor the Court claimed or
suggested that the national legislation of Moldova allowed only
“partial reparation”.
And,
indeed, Law No. 1545 provides for full compensation for illegal
conviction. To illustrate this let me mention, by way of example, the
case of Duca v. Moldova
where the applicant, after having been acquitted, was awarded by the
Moldovan courts MDL 150,000 (the equivalent of EUR 10,289 at the
time). As that case clearly showed, Moldovan legislation cannot be
regarded as allowing “only partial reparation to be made”.
If so, the Court has clearly exceeded its powers as stipulated in
Article 41 of the Convention.
Moreover,
in theory, granting the applicant compensation for non-pecuniary
damage might prevent him from submitting a claim in respect of the
same non-pecuniary damage with the Moldovan authorities, as it might
allow the Moldovan courts to reject the applicant’s claims (if
lodged) on the grounds that an award for non-pecuniary damage has
already been made by our Court. Here I am referring to the Baybaşın
case, where the Court ruled that “... once the
necessary general and individual measures have been taken to put an
end to the violation found and provide redress for its effects –
any additional awards over and above those made by the Court are at
the discretion of the competent domestic authorities...”
(Baybaşın v. the Netherlands, no. 13600/02, §
76, 6 July 2006). This situation, in my view, may damage the
applicant’s interests because, in principle, he could have
received from the Moldovan authorities a higher amount in respect of
non-pecuniary damage than that awarded by our Court.
Just
to sum up, in my judgment, both from the point of view of the Court’s
powers as stipulated in Article 41 and from the point of view of the
applicant’s interests, making an award for non-pecuniary damage
in the present case was a wrong step.
