European Court of Human Rights

 

 

SECOND SECTION

CASE OF DUBALARI v. THE REPUBLIC OF MOLDOVA

(Application no. 56180/15)

 

 

 

 

JUDGMENT

STRASBOURG

14 December 2021

 

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Dubalari v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 56180/15) 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”) on 3 November 2015 by a Moldovan national, Mr Andrei Dubalari, born in 1984 and living in Chisinau (“the applicant”) who was represented first by Mr V. Ţurcan and then by Ms N. Țurcan, lawyers practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari;

the parties’ observations;

Having deliberated in private on 23 November 2021,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The case concerns the reversal of a judgment of a first instance court by which the applicant was cleared of criminal charges and his conviction on appeal without examining anew any evidence or hearing witnesses.

2.  The applicant rented a car and gave it to a neighbour (M.) to use it. Later it appeared that M. gave the car to a third person (R.) who was a member of a gang specialised in stealing rented cars. Both the applicant and the rental company lodged criminal complaints.

3.  The applicant and several others were later accused of fraud. The first instance court discontinued the criminal proceedings against the applicant on the ground of lack of sufficient evidence supporting the accusation in the indictment order. It found R. guilty and allowed the civil action against both the applicant and R.

4.  The Court of Appeal reversed the above judgment on 17 November 2014, found the applicant guilty as charged and sentenced him to ten years’ imprisonment. In so doing, it did not hear any witnesses, nor did it hear the applicant in person, but merely read out the statements made by them during the investigation phase of the proceedings.

5.  The applicant lodged an appeal on points of law against the above decision, but it was rejected by the Supreme Court of Justice on 5 May 2015.

6.  After the communication of the present case, the Government Agent requested the Prosecutor General’s Office to initiate an extraordinary appeal against the decisions of the Court of Appeal and the Supreme Court of Justice in order to remedy the potential violation of the applicant’s rights as guaranteed by Article 6 § 1 of the Convention.

7.  On 13 July 2020 the Prosecutor General’s Office lodged an extraordinary appeal (recurs în anulare) against the above judgments seeking their quashing and a fresh examination of the case. The reasons relied upon by the Prosecutor General’s Office were that the discontinuation of the criminal proceedings in respect of the applicant by the first instance court had amounted to an acquittal. His subsequent conviction by the Court of Appeal could not therefore have taken place, as a matter of fair trial, in the absence of a fully-fledged hearing with his participation. Nevertheless, the applicant did not have a chance to appear before the Court of Appeal. Moreover, the Court of Appeal did not hear the victim, the other co-accused persons and witnesses but merely read out their statements as recorded in the case-file.

8.  On 5 November 2020 the Supreme Court of Justice dismissed the above extraordinary appeal after finding that the Prosecutor General’s Office was prevented from lodging it because it had not challenged the decision of the Court of Appeal of 17 November 2014 with an ordinary appeal. One of the members of the panel wrote a dissenting opinion in which he expressed the view that the extraordinary appeal must have been admitted.

9.  The applicant complains under Article 6 §§ 1 and 3 of the Convention that the criminal proceedings against him were unfair because the Court of Appeal convicted him without conducting a proper hearing and because it did not hear anew the witnesses and he did not have the possibility to put questions to witnesses.

10.  He also complains under Article 6 § 2 of the Convention that his right to be presumed innocent was breached and under Article 1 of Protocol No. 4 that he was imprisoned for a debt resulting from a civil law contract.

THE COURT’S ASSESSMENT

I.              ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

11.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.

12.  The general principles concerning the fairness of criminal proceedings on appeal after the applicant’s acquittal at first instance have been summarized in Dan v. Moldova, no. 8999/07, § 30, 5 July 2011; Covalenco v. the Republic of Moldova, no. 72164/14, §§ 19-24, 16 June 2020 and Dan v. the Republic of Moldova (no. 2), no. 57575/14, §§ 47-56, 10 November 2020.

13.  The Court notes that the Government did not contest the applicant’s allegation to the effect that the criminal proceedings before the Court of Appeal had not been fair within the meaning of Article 6 § 1 of the Convention because he had not been able to be present and put questions to witnesses and because that court had failed to hear the witnesses in person but merely read out their statements given before the first instance court.

14.  The Court further notes that the Prosecutor General’s Office shared the same view and that it had attempted to have the applicant’s conviction quashed on those grounds (see paragraph 7 above).

15.  Having regard to the circumstances of the case and to the materials of the case-file, the Court considers that the issues to be determined by the Court of Appeal when convicting and sentencing the applicant - and, in doing so, overturning the decision of the first-instance court by which he was discharged - could not, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the witnesses and without giving the applicant a chance to defend himself in person.

16.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.        OTHER COMPLAINTS

17.  The applicant submitted further complaints under Articles 6 §§ 2 and 3 of the Convention and under Article 1 of Protocol No. 4 to the Convention.

18.  However, having regard to the facts of the case, the submissions of the parties and its findings under Article 6 § 1 of the Convention, the Court considers that it has examined the main legal question raised in the present application, and that it is not necessary to examine either the admissibility or the merits of these complaints (see Kaos‑GL v. Turkey, 450 no. 4982/07, § 65, 22 November 2016; Ghiulfer Predescu v. Romania, 451 no. 29751/09, § 67, 27 June 2017; Political Party “Patria” and Others v. the Republic of Moldova, nos. 5113/15 and 14 others, § 41, 4 August 2020).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage and 2,000 euros (EUR) in respect of costs and expenses incurred before the Court. He requested that the latter amount be paid directly to his representative.

20.  The Government contested the above amounts claimed by the applicants, alleging that they were excessive.

21  The Court considers that, in view of the violation found above, the applicant is entitled to compensation for non-pecuniary damage and awards him EUR 3,500.

22.  Having regard to the documents in its possession, the Court considers it reasonable to award 1,500 EUR for costs and expenses, plus any tax that may be chargeable to the applicant, to be paid into a bank account indicated by the applicant’s representative (see Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, § 428, ECHR 2001‑V, and Cobzaru v. Romania, no. 48254/99, § 111, 26 July 2007).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint concerning Article 6 § 1 of the Convention admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds that there is no need to examine the remaining complaints;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five 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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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             Hasan Bakırcı                                                     Carlo Ranzoni
          Deputy Registrar                                                      President