CASE OF LAZU v. THE REPUBLIC OF MOLDOVA
(Application no. 46182/08)
5 July 2016
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 Lazu v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 7 June 2016,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 46182/08) 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, Mr Anatolie Lazu (“the applicant”), on 10 September 2008.
2. The applicant was represented by Mr A. Luca, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The applicant alleged, in particular, that the criminal proceedings against him had been unfair, in breach of Article 6 § 1 of the Convention.
4. On 21 February 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1954 and lives in Chișinău. At the time of the events, he was a bank armoured vehicle driver.
A. Background of the case
6. At around 10.55 a.m. on 12 August 2005 the applicant went around an illegally parked bus while driving an armoured vehicle. While he was completing the manoeuvre, the bus started moving and to prevent having an accident with the armoured vehicle it stopped abruptly. As a result of the sudden stop a bus passenger, C., fell from her seat and suffered moderately severe injuries.
7. On 1 September 2005 a criminal investigation was initiated. The prosecutor heard the applicant, the victim C., the bus driver D., a witness who had been sitting in the applicant’s vehicle and another two witnesses who had been passengers on the bus (S. and V.).
8. On 7 October 2005 D. was charged with violating traffic rules, resulting in C.’s injuries.
9. On 10 October 2005 the applicant and D. were interviewed face-to-face. According to the applicant, he had completed the manoeuvre around the stationary bus and taken the lane in front of it after making sure the bus was still stationary. He had then signalled to turn right and used the horn to alert the driver of his intentions. According to D., the applicant’s car had turned right without any warning and he had been forced to stop abruptly to prevent an accident.
10. The same day the prosecutor discontinued the criminal proceedings against D. for lack of evidence and instead interviewed him as a witness.
11. On 21 October 2005 the applicant was charged with violating traffic rules, resulting in C.’s injuries.
B. The applicant’s acquittal
12. During the course of the proceedings the Botanica District Court heard the same witnesses as the prosecutor. The court also examined a site investigation report and a sketch map of the scene of the incident, both drawn up on 12 August 2005 at 12.20 p.m. in only D.’s presence.
13. The court considered the testimony of C. and the two bus passengers unreliable. They claimed that the applicant had performed a sudden manoeuvre which had obliged D. to suddenly stop the bus. The court considered that none of them had seen any of the events themselves and that their impression that the applicant was guilty was because the bus driver blamed him. The court also considered D.’s testimony unreliable because the same charges had been previously brought against him. The court noted that charges had been brought against the applicant based on statements by D. made shortly after the criminal proceedings against him had been discontinued, without re-interviewing the other witnesses. The court also noted that the site investigation report and the sketch map had not been drawn up immediately after the incident, that the police had gone to the scene several hours later and had been joined only by D., that the applicant’s objections had not been reflected in the documents, and that the sketch map did not correspond to the statements given by all the witnesses shortly after the incident.
14. In a judgment of 27 March 2006 the Botanica District Court acquitted the applicant for the reasons given above. It concluded that the prosecution had failed to provide reliable evidence in support of the contention that the applicant’s actions had obliged D. to suddenly stop the bus. The prosecutor appealed.
C. The applicant’s conviction
15. On 23 May 2006 the Chișinău Court of Appeal dismissed the prosecutor’s appeal and upheld the first-instance judgment. It noted that the first-instance court had correctly scrutinised all the evidence and had provided reasons supporting the findings about the unreliability of the witness statements, referring to the testimony of the two passengers. The prosecutor appealed on points of law.
16. On 17 October 2006 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor’s appeal on points of law, quashed the appellate judgment and ordered a rehearing of the case in accordance with the provisions of Article 436 of the Code of Criminal Procedure, namely that any examination had to be in accordance with the rules applicable in proceedings before the first-instance court. The court found that the appellate court had not thoroughly stated its position on the assessment of the statements made by C., D. and the two passengers, but had merely relied on evidence in the applicant’s favour.
17. After rehearing the case, on 28 December 2006 the Chișinău Court of Appeal dismissed the prosecutor’s appeal and upheld the first-instance judgment. The court analysed the witness testimony and the site investigation report and the sketch map, providing reasons why the evidence was unreliable. The prosecutor appealed on points of law.
18. On 26 June 2007 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor’s appeal on points of law and ordered a rehearing of the case. The court provided reasoning similar to that in its judgment of 17 October 2006.
19. Pursuant to the verbatim record of the appellate hearing of 25 October 2007 the applicant and his lawyer did not object to the court continuing to examine the case without recalling the victim and did not request the recalling of witnesses. On the same day, the Chișinău Court of Appeal upheld the prosecutor’s appeal, quashed the judgment of the Botanica District Court of 27 March 2006, found the applicant guilty and ordered him to pay an administrative fine of 3,000 Moldovan lei (MDL - approximately 194 euros (EUR)) and damages to C. in the amount of MDL 2,500 (approximately EUR 162). The court referred to a list of evidence, including the disputed statements of C., D. and the two witnesses, without providing any additional reasons.
20. The applicant appealed and outlined, inter alia, the discrepancies in the witness statements, which had been identified by the first-instance court after hearing them and which had not been clarified by the appellate court. On 13 February 2008 the Supreme Court of Justice examined the applicant’s appeal in the absence of the parties and declared it inadmissible.
21. The applicant was served with this judgment on 24 May 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
22. Articles 413 (6), 419 and 436 of the Code of Criminal Procedure provide that the procedure for rehearing a case after an appellate judgment is quashed by the court of cassation must follow the general rules for the examination of a criminal case in first instance and require that the evidence assessed by the appellate court be listed in the verbatim record of the hearing.
23. Article 4641 of the Code of Criminal Procedure provides for the possibility of reopening domestic proceedings where the Court has found a violation of an applicant’s fundamental rights and freedoms and where the consequences of the violation continue to have effect and can be redressed only by a review of the final judgment.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
24. The applicant complained that the criminal proceedings against him had been unfair because in overturning his acquittal the Chișinău Court of Appeal had failed to hear the witnesses whose testimony had been used to find him guilty. 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 [a] ... tribunal ...”
1. Six-month time-limit
25. The Government submitted that the applicant had failed to lodge his application within six months of the date of the “final decision” within the meaning of Article 35 § 1 of the Convention. More precisely, he had lodged his application on 10 September 2008 while the Supreme Court of Justice had delivered its final judgment on 13 February 2008.
26. The applicant disagreed. He argued that the final decision had been served on him on 24 May 2008 and referred to a letter from the Supreme Court dated 19 May 2008 and the postmark on the accompanying envelope.
27. The Court observes that the final decision for the purposes of Article 35 § 1 was adopted on 13 February 2008 and served on the applicant on 24 May 2008. Accordingly, given that the six-month time-limit started to run on 25 May 2008, the day after the applicant received the Supreme Court’s decision (see also Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V), and that he lodged his application on 10 September 2007, the Government’s objection must be dismissed.
2. Non-exhaustion of domestic remedies
28. The Government submitted that the applicant had not expressly mentioned Article 6 § 1 of the Convention in his appeal on points of law and when asked, had not requested the Chișinău Court of Appeal to recall witnesses. He had thus waived his right to have the witnesses re-examined.
29. The Court considers that this matter is closely related to the merits of the complaint. Accordingly, it joins the issue to the merits.
30. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
31. The applicant complained that the proceedings before the Chișinău Court of Appeal had been unfair because it had convicted him for the first time without hearing the prosecution witnesses. He argued that the obligation had been on the prosecution, not him, to request the court to recall witnesses in order to reverse his acquittal by the first-instance court.
32. The Government disagreed and argued that the applicant had failed to request the Chișinău Court of Appeal to recall witnesses and that by agreeing that the court should continue the examination of the case in this way he had waived his right to have the witnesses re-examined.
33. 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 1996-I, and Hermi v. Italy [GC], no. 18114/02, § 60, ECHR 2006-XII).
34. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28 ECHR 1999-I). Moreover, although it is normally for the national courts to decide whether it is necessary or advisable to call a witness, exceptional circumstances could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158).
35. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 35, Series A no. 277-A). In addition, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A; Hermi v. Italy, [GC], cited above, § 73, ECHR 2006-XII; and Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II).
36. 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 had unlawfully manoeuvred his vehicle and made the bus driver stop abruptly. There was no other evidence which could lead on its own to the applicant’s conviction (paragraphs 12 and 13 above). The witness statements and the weight given to them therefore had a decisive impact on the determination of the case.
37. The first-instance court acquitted the applicant because it did not trust the witnesses after hearing them in person. In re-examining the case, the Chișinău Court of Appeal disagreed with the first-instance court as to the trustworthiness of the witness statements without ever hearing those witnesses. As a result it found the applicant guilty as charged.
38. Firstly, the Court notes that the Chișinău Court of Appeal breached the provisions of Article 436 of the Code of Criminal Procedure (see paragraph 22 above) and failed to observe the instructions of the Supreme Court of Justice (see paragraphs 16 and 18 above) to rule on the merits of the case after a fresh examination of the evidence, and did not provide any reasons for doing so (Găitănaru v. Romania, no. 26082/05, §§ 33-35, 26 June 2012).
39. Secondly, in doing so the Chișinău Court of Appeal did not provide any reasons whatsoever as to why it had come to a conclusion different from that of the first-instance court. It simply referred to a summary of the witness testimony without addressing the discrepancies within and between individual witness statements (contrast with Schatschaschwili v. Germany [GC], no. 9154/10, § 150, ECHR 2015).
40. Lastly, 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 himself or herself (see Craxi v. Italy (no. 1), no. 34896/97, § 86, 5 December 2002, and Dan v. Moldova, no. 8999/07, § 33, 5 July 2011). However, that does not appear to have been the case here.
41. Furthermore, with regard to the Government’s contention that the applicant and his lawyer agreed that the proceedings should continue without hearing witnesses, the Court notes that the verbatim record of the hearing of 25 October 2007 does not contain any reference to whether the applicant had waived his right to recall the witnesses, except the victim. The record does not contain any reference to whether the witnesses had been summoned and to what evidence had been assessed by the Court of Appeal before it reached its conclusion on the applicant’s guilt. Moreover, having been acquitted in first instance and being aware that for a conviction the appellate court had to re-assess directly the evidence in the file, the applicant did not have any particular reason to recall the witnesses (see Igual Coll v. Spain, no. 37496/04, § 32, 10 March 2009).
42. For these reasons, the Court notes that the requirements of a fair trial necessitated the rehearing of witnesses and that the Court of Appeal was under an obligation to take positive measures to such an end, even if the applicant did not request it (see Botten v. Norway, cited above, § 53; Dan v. Moldova, cited above, § 26; Serrano Contreras v. Spain, no. 49183/08, § 40, 20 March 2012 and Flueraş v. Romania, no. 17520/04, § 60, 9 April 2013). Moreover, in his appeal on points of law the applicant raised the issue of the Court of Appeal’s failure to clarify the discrepancies in the statements. The Court thus dismisses the Government’s preliminary objection concerning the non-exhaustion of domestic remedies.
43. In the light of the above, the Court considers that the applicant’s conviction without the re-examination of any witnesses, after he had been acquitted by the first-instance court, was contrary to the guarantees of a fair trial within the meaning of Article 6 § 1 of the Convention.
44. There has therefore been a violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
45. The applicant complained under Article 1 of Protocol No. 1 to the Convention that because of his unlawful conviction, he had been obliged to pay an administrative fine and compensation to the victim. The Court cannot speculate on the outcome of the proceedings had the applicant’s case been examined in full compliance with the requirements of Article 6 of the Convention. For these reasons, this part of the application should be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
46. 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
47. The applicant claimed 356 euros (EUR) in respect of pecuniary damage, comprising the administrative fine paid by him and the compensation paid to the victim.
48. The Government disagreed.
49. In the circumstances described above (see paragraph 45), the Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim.
B. Non-pecuniary damage
50. The applicant claimed EUR 15,000 in respect of non-pecuniary damage for the anguish and humiliation he had suffered as a result of being unlawfully convicted for a criminal offence he did not commit.
51. The Government disagreed and asked the Court to reject this claim as unsubstantiated.
52. 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 an assessment on equitable basis, it awards the applicant EUR 2,000 for non-pecuniary damage.
53. Moreover, the Court reiterates that where a person, as in the instant case, is convicted in domestic proceedings which failed to comply with the requirements of a fair trial, a new trial or the reopening of the domestic proceedings at the request of the interested person represents an appropriate way to redress the violation (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, no. 40997/98, § 23, 29 January 2004). In this connection, it notes that Article 4641 of the Moldovan Code of Criminal Procedure provides for the possibility of a retrial or reopening of the domestic proceedings where the Court has found a violation of an applicant’s fundamental rights and freedoms (see Flueraş v. Romania, cited above, § 70, 9 April 2013; and Hanu v. Romania, no. 10890/04, § 50, 4 June 2013).
C. Costs and expenses
54. The applicant also claimed MDL 5,600 (equivalent to EUR 323.71 on the date when the claim was formulated) for costs and expenses incurred before the domestic courts. He submitted receipts for a total amount of MDL 5,100 (equivalent to EUR 294.81).
55. The Government disagreed.
56. 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 EUR 300 for the costs and expenses incurred in the domestic proceedings.
D. Default interest
57. The Court considers it appropriate that the default interest rate 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
1. Joins, by a majority, to the merits the Government’s preliminary objection concerning the non-exhaustion of domestic remedies and rejects it;
2. Declares, by a majority, the complaint concerning Article 6 of the Convention admissible;
3. Declares, unanimously, the remainder of the application inadmissible;
4. Holds, by six votes to one, that there has been a violation of Article 6 of the Convention;
5. 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, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
6. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Işıl
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE LEMMENS
1. To my regret, I cannot agree with the decision of the majority to declare the complaint concerning Article 6 of the Convention admissible.
In my opinion, it should be declared inadmissible for non-exhaustion of domestic remedies.
2. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation of a violation of a Convention right and, where appropriate, afford redress before it is submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 37, ECHR 2004-III). If an application is nonetheless subsequently brought to Strasbourg, it also allows the Court to have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008).
While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not merely require applications to be made to the appropriate domestic courts and use to be made of effective remedies designed to challenge decisions already given. It also normally requires complaints intended to be brought subsequently to the Court to have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200; Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996-IV; Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I; Azinas, cited above, § 38; Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010; and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).
If the complaint presented to the Court has not been put to the national courts, either explicitly or in substance, when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient for the applicant to have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of a violation of a Convention right. The Convention complaint must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application with the Court on the basis of the Convention argument (see Azinas, cited above, § 38; Vučković and Others, cited above, § 75; and Nicklinson and Lamb v. the United Kingdom (dec.), nos. 2478/15 and 1787/15, § 90, 23 June 2015).
3. In the present case, in his appeal to the Supreme Court of Justice against the judgment of the Chișinău Court of Appeal of 27 October 2007, the applicant “outlined, inter alia, the discrepancies in the witness statements, which had been identified by the first-instance court after hearing them and which had not been clarified by the appellate court” (see paragraph 20 of the judgment). He thus merely argued that the Court of Appeal had wrongly assessed the witness evidence contained in the file, or at least had not sufficiently explained why it had assessed that evidence differently from the first-instance court.
In their submissions the Government indicate that the applicant did not complain to the Supreme Court of Justice of unfairness in the proceedings before the Court of Appeal or allege a violation of Article 6 of the Convention. According to the Government, he did not even complain that the Court of Appeal had decided the case without hearing the witnesses itself. The applicant does not refute those allegations, and there is nothing in the file to suggest that the Government’s submissions on this point lack any factual basis.
I therefore consider that the applicant did not raise with the Supreme Court of Justice the legal issue of whether the Court of Appeal could convict him on the basis of certain witness statements without hearing those witnesses. In other words, he did not raise the complaint that his right to a fair trial had been violated by the Court of Appeal’s failure to hear the witnesses whose testimony it relied on to find him guilty.
That complaint is, however, the complaint now before the Court (see paragraph 24 of the judgment).
4. Comparing the complaints brought to the Supreme Court of Justice and to the Court, I feel compelled to conclude that by failing to articulate the complaint that the Court of Appeal did not hear the witnesses, the applicant did not provide the Moldovan courts with the opportunity which is, in principle, intended to be afforded to a Contracting State by Article 35 § 1 of the Convention, namely to address, and thereby prevent or put right, the particular Convention violation alleged against it (see, mutatis mutandis, Cardot, cited above, § 36; Azinas, cited above, § 41; Gherghina v. Romania [GC] (dec.), no. 42219/07, § 115, 9 July 2015; Peacock v. the United Kingdom (dec.), no. 52335/12, § 40, 5 January 2016; R.A. v. the United Kingdom (dec.), no. 73521/12, § 58, 3 May 2016; and for a case with similar facts to the present case, Condé v. France (dec.), no. 52878/99, 29 January 2002). By not raising the Convention complaint with the Supreme Court of Justice, explicitly or in substance, the applicant also deprived the Court of the benefit of having the Supreme Court of Justice’s views on the compatibility of the appeal proceedings with the Convention.
The majority dismiss the objection concerning the non-exhaustion of domestic remedies on the sole ground that, “in his appeal on points of law the applicant raised the issue of the Court of Appeal’s failure to clarify the discrepancies in the statements” (see paragraph 42 of the judgment). For the reasons stated above, and with all due respect, I find this reasoning insufficient.
5. The objection that the applicant did not exhaust domestic remedies should, in my opinion, be declared well-founded.
Consequently, the application should be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.