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Cite as: [2010] ECHR 1757
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
25470/05
by V.C.
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 12 October 2010 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and Lawrence Early,
Registrar,
Having regard to the above application lodged on 22 June 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms V.C., is a Moldovan national who was born in 1976 and lives in Chişinău. She was represented before the Court by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
In June 2002 the police arrested three women for engaging in prostitution. Following questioning it was discovered that they were part of an organised group headed by a pimp. In particular, it appeared that the pimp, L., had rented an apartment for that purpose, hired three other persons to answer telephone calls from clients and arrange meetings and placed ads in a local newspaper advertising dates with female partners. The police found the ads in the newspaper and identified the persons responsible for answering telephone calls from clients. One of those persons was the applicant.
On 28 June 2002 a search was conducted in the applicant's apartment and a journal containing seventy-three pages of telephone numbers, lists of clients, amounts of money and a black list of clients was seized. The journal also contained the telephone number of L. and of the apartment where the three prostitutes who allegedly worked for L. carried out their activity. Later that day the applicant was questioned at the police station as a witness. She admitted to having worked for L. and gave details about the functioning of their group. Her duty was to answer telephone calls from clients in search of sex services and to set-up meetings between them and prostitutes. She was to inform clients about the rates and the exact description of the services provided by the prostitutes. She was also to ask for a description of the clients' appearance and to indicate to them the time and place for meeting the prostitutes. After that she was to call L. and provide her with the information concerning the time of the meeting and details about the particular client's appearance. L. would then provide the information to the prostitutes who would later approach the client, if he appeared acceptable to them or if they did not find him suspicious. The applicant also gave details about the division of the revenue among all the members of the group and stated that she was entitled to twenty percent of each successful transaction set-up by her. The sums indicated by the applicant in her declaration were consistent with the amounts indicated in the journal seized from her apartment.
The police also questioned the two other telephone operators, the prostitutes and the alleged pimp, L. All except for L. admitted to having been part of the group and gave details about the group's activity. The police also obtained a detailed transcript of the telephone communications of all the members of the group over a period of several months from which it appeared that the pattern of communication between them and the clients was consistent with the scheme described by them during questioning. The police also questioned a client, who had been caught red-handed and who confirmed the story provided by the prostitutes and the telephone operators. The police obtained copies of the applications for placing ads in the newspaper. It appeared from them that the ads containing the applicant's telephone number had been placed by L. Some of the ads concerning other telephone numbers belonging to the two other telephone operators had also been placed by L.
After the criminal investigation was terminated by the police, the file was transmitted to the Prosecutor's Office which indicted all the members of the criminal group, except for the prostitutes, with the offence of trading in prostitution. In the first round of questioning following her indictment the applicant, assisted by a lawyer, admitted to having worked for L. by answering telephone calls and arranging meetings, but stated that she had not been aware that the persons in question were prostitutes and possible clients. Later the applicant hired another lawyer and, during the second round of questioning, rejected the charges against her and refused to make any statements. The prostitutes reiterated their statements made at the police station according to which L. was their pimp. They identified L. from numerous pictures presented to them. One of them was confronted with L.
During the court proceedings the applicant changed her defence and argued that she had been working as an independent prostitute and that the ads in the newspaper had been placed in order to find clients for herself. She did not explain why the ads had been placed by L. According to the applicant she met clients at her home while her husband was away or at the clients' homes. She emphasised that she did not seek clients for other prostitutes. When asked to explain her relationship with L. she submitted that they had been acquaintances and often telephoned each other because she was sewing a costume for L.'s daughter. The journal seized by the police on 28 June 2002 was hers and she had noted down information in it about her own clients. The applicant did not explain why the telephone numbers of L. and of the three prostitutes were contained in the journal. She stated that she had been intimidated during the questioning by the police and that her statements given to the police had not been true. As to her statements made during the first round of questioning at the Prosecutor's Office, she maintained that they were also false because her lawyer had advised her to lie.
On 14 June 2004 the Rascani District Court convicted L. of trading in prostitution but acquitted the applicant and two other co-accused. L.'s conviction was based, inter alia, on the testimonies of the three prostitutes made to the Prosecutor's Office during the investigation stage of the proceedings which were read out in court. None of the witnesses was heard in court because the court had failed to obtain their attendance even with the help of the police. At the same time, the court considered that the testimonies of the three prostitutes given during the investigation stage could not be used against the applicant because they did not contain anything to incriminate her and the two other co-accused telephone operators. The court considered that the applicant's confession made during the investigation stage could not be relied upon and that the prosecution had failed to prove that the applicant's statement that she had been an independent prostitute was incorrect. The Prosecutor's Office appealed against this judgment.
On 27 October 2004 the court of appeal, following an oral hearing, upheld the prosecutor's appeal and reversed the judgment of the lower court in respect of the applicant and the two other telephone operators. It found the applicant guilty as charged on the strength of her own admission during the first round of questioning by the Prosecutor's Office, namely that she had been working for L. by answering telephone calls and arranging meetings between interested persons. The court dismissed the applicant's defence that she had been an independent prostitute. The court also considered relevant the applicant's testimony made to the police in her capacity as a witness in which she gave details about her duties in the criminal group. The court also gave weight to the journal seized from the applicant's apartment on 28 June 2002, the detailed transcript of her telephone communications and other evidence contained in the case file, without specifying the nature of that evidence. According to the court of appeal's judgment, the testimonies of the three prostitutes used against L. were not the basis of the applicant's conviction. The applicant was exempted from serving a prison sentence on the basis of an amnesty law.
The applicant lodged an appeal on points of law against this judgment and argued mainly that the witnesses whose testimonies had been relied upon in the court of appeal's judgment had not been heard by that court and that she did not have a chance to put questions to them.
On 19 January 2005 the Supreme Court of Justice rejected the applicant's appeal on points of law, finding that the court of appeal had correctly established her guilt on the strength of the evidence in the case file and the witness testimonies relied upon.
B. Relevant domestic law
Under the Moldovan legislation prostitution is not considered to be a criminal offence but an administrative misdemeanour punishable by a fine or administrative detention. The same is not the case of the offence of trading in prostitution (“proxenetism”) and obtaining revenue from prostitution practiced by other persons. The latter is considered to be a criminal offence and is punishable by up to seven years' imprisonment.
COMPLAINT
The applicant complained under Article 6 §§ 1 and 3 of the Convention that the proceedings were unfair because key prosecution witnesses were not heard during the proceedings and she could not put questions to them.
THE LAW
The applicant complained under Article 6 §§ 1 and 3 of the Convention that she was not afforded the possibility to put questions to the prosecution witnesses during the criminal proceedings against her. The relevant parts of Article 6 of the Convention read as follows:
1. “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...
The Government disagreed with the applicant and submitted, inter alia, that the criminal proceedings were fair in all respects.
The Court recalls that evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238, and Van Mechelen and Others v. the Netherlands, 23 April 1997, § 51, Reports of Judgments and Decisions 1997 III).
As the Court has stated on a number of occasions (see, among other authorities, Isgrò v. Italy, 19 February 1991, § 34, Series A no. 194-A, and Lüdi, cited above, § 47), it may prove necessary in certain circumstances to refer to depositions made during the investigative stage. If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Unterpertinger v. Austria, 24 November 1986, §§ 31-33, Series A no. 110; Saïdi v. France, 20 September 1993, §§ 43-44, Series A no. 261-C; and Van Mechelen and Others, cited above, § 55).
In the present case the applicant was convicted by the court of appeal on the strength of evidence which included her own admission during her first questioning by the Prosecutor's Office that she had worked for L. by answering telephone calls and arranging meetings between clients and prostitutes. The court of appeal also relied on a journal kept by the applicant containing extensive information about clients, amounts of money, the telephone numbers of L. and three prostitutes working for L., detailed transcripts of the applicant's telephone calls consistent with the modus operandi of the criminal group as described by the prosecution, newspaper ads placed by L. advertising sex services and giving the applicant's telephone number and other evidence. It appears clearly from the judgment of the court of appeal that the testimonies of the three prostitutes were not used to convict the applicant. Indeed, as stated in the judgment of the first-instance court, there was nothing in those testimonies which could have incriminated the applicant. Furthermore, the Supreme Court of Justice did not controvert the judgment of the court of appeal on this point notwithstanding its reference to the court of appeal's use of witness testimonies.
In view of the above the Court considers that the present case is clearly distinguishable from other cases in which similar complaints were raised but in which the Court found that the applicant had been convicted solely or to a decisive degree on the basis of the incriminating evidence of a third party whom he had no opportunity to cross-examine at any stage of the proceedings (see, among others, Lucà v. Italy, no. 33354/96, ECHR 2001 II) The present application is therefore manifestly ill-founded and inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza
Registrar President
