European Court of Human Rights

 

 

SECOND SECTION

CASE OF V.P. v. THE REPUBLIC OF MOLDOVA

(Application no. 27402/16)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

6 September 2022

 

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

In the case of V.P. v. the Republic of Moldova,

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

          Branko Lubarda, President,
          Jovan Ilievski,
          Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to:

the application (no. 27402/16) 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 27 April 2016 by a Moldovan national, V.P., born in 1979 and detained in Chișinău (“the applicant”) who was represented by Mr I. Cernolev, a lawyer 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 decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 28 June 2022,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s conviction in criminal proceedings without giving him the opportunity to call two important witnesses for the defence.

2.  The applicant was accused of trafficking in children, namely that in 2011 he had contacted A.G. and had asked him to set up a meeting between him and two minor boys, N.C. and D.G., (the victims) aged fifteen and sixteen to have sex with them in exchange for money. According to the accusation, A.G. used to act as a pimp for the victims and to set them up with multiple clients. The applicant denied the accusation and explained that A.G. used to be his landlord for several months when he rented from him a part of his house. During that time, he saw the victims on several occasions in the company of A.G. He also submitted that at one point he was questioned by the police in respect of the criminal investigation against A.G. and since he refused to make statements incriminating the latter, the police threatened him that he would end up as A.G. He considered that he was a victim of a police setup.

3.  During the first questioning, which took place in September 2011, N.C. mentioned the names of numerous clients with whom he and his friend D.G. had been set up by A.G. He did not mention the applicant as being one of them and said that “he did not remember other paedophiles”. However, two months later, in November 2011, he changed his statements and submitted that the applicant had come once to A.G.’s house accompanied by a friend of his and had performed oral sex on him and on G.D. and paid them money afterwards. He also stated that the applicant had been informed about his and G.D.’s age and that he did not know the applicant’s friend’s name. Two years later, during his last questioning, N.C. repeated the same statements, but this time recollected the applicant’s friend’s name.

4.  Another important piece of evidence of the accusation was the minutes of N.C.’s and D.G.’s recognising the applicant by a photo as being the person with whom they had sex in exchange for money.

5.  During the proceedings the applicant requested that a psychological and psychiatric examination of N.C. be carried out in order to determine whether he was lying. He also requested that N.C. be subjected to a lie detector machine examination. The applicant also requested the questioning of A.G. The latter, who was tried in a separate set of proceedings for a similar offence, also requested to be heard in the proceedings against the applicant. However, all the above requests were dismissed.

6.  On 22 December 2014 the Centru District Court found the applicant guilty as charged and sentenced him to sixteen years’ imprisonment. In so doing, the court did not hear either of the victims but merely relied on the statements given by N.C. during the investigation phase of the proceedings. Nor did the court hear A.G., despite the applicant’s request to that effect.

7.  The applicant appealed and argued¸ inter alia, that the first instance court had based its judgments on one of the victims’ submissions without giving him the opportunity to examine neither of the victims. He also submitted that the first instance court had refused to hear A.G., who was a key witness in the case.

8.  On 1 June 2015 the Chișinău Court of Appeal dismissed the applicant’s appeal and confirmed the judgment of the first instance court. Before doing so, the Court of Appeal heard N.C., who confirmed the statements given during the investigation and conducted a confrontation between him and the applicant. D.G. did not appear at the hearing despite being summoned and the court decided to dispense with his presence. The court rejected the applicant’s objection about the first instance court’s failure to hear A.G. and argued that the latter could not be heard because he would have self-incriminated himself.

9.  The applicant lodged an appeal on points of law and argued that the Court of Appeal had failed to fix all the issues he had complained about in his appeal. He also insisted on A.G. being heard and informed the Supreme Court that A.G. had already been convicted by a final decision and had written a letter in which he had expressed the wish to be heard in court in the proceedings against the applicant.

10.  On 19 November 2015 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the lower courts’ judgments.

11.  The applicant complains of a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the trial court’s refusal to hear two important witnesses for his defence.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

12.  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 grounds. It must therefore be declared admissible.

13.  The general principles concerning the right to call witnesses for the defence have been summarised in Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 158-68, 18 December 2018).

14.  The Government submitted that the failure to hear G.D. during the court proceedings was due to his failure to appear after being summoned. The authorities took all the necessary measures to find him, but apparently, he had moved to the Transdniestrian region of Moldova and could not be located. In so far as A.G. was concerned, the Government submitted that he could not have been summoned as a witness because there was evidence that he had committed an offence.

15.  The Court notes that the applicant was accused and found guilty of having had sex with D.G. in exchange for money at A.G.’s house and with the latter acting as an intermediary between them. In such circumstances, any statements that D.G. and A.G. might have made would have been decisive in establishing the facts and might have had impact on the legal characterisation of the case. Therefore, the request to examine these two witnesses was sufficiently reasoned and relevant to the subject matter of the accusation (see Murtazaliyeva, cited above, §§ 160-61).

16.  The Court notes next that the domestic courts’ judgments do not contain any examination of the relevance of the possible testimonies of D.G. and A.G. Moreover, having examined the materials submitted by the parties, the Court is not persuaded that all reasonable efforts can be said to have been made to secure the attendance of D.G. at the applicant’s trial, if only before the Court of Appeal (see paragraph 8 above). Similarly, the explanation given by the domestic courts and the Government in respect of the refusal to hear A.G. is not convincing, especially since the latter expressed the wish to be heard in the proceedings (see paragraph 9 above). Thus, the Court concludes that the domestic courts did not consider the relevance of D.G. and A.G. testimonies and did not provide sufficient reasons for their decision to dispense with them at the trial (see Murtazaliyeva, cited above, §§ 162-66).

17.  The Court finally considers that hearing the two witnesses in the proceedings was crucial not only because of the relevance and of the decisive nature of the submissions they could have made but also because the main piece of evidence relied upon by the courts to find the applicant guilty, i.e. N.C.’s submissions, appeared to have been flawed with inconsistencies. Namely, if in September 2011 he did not mention having had sex with the applicant, then two months later he said the contrary and two years later he appeared to recollect things which he did not know in 2011 (see paragraph 3 above). The Court therefore considers that the domestic courts’ failure to examine D.G. and A.G. undermined the overall fairness of the proceedings (see Murtazaliyeva, cited above, §§ 167-68).

18.  In the light of the above, the Court finds that by not warranting the right of the defence to hear D.G. and A.G. and by accepting all the prosecution arguments and evidence, the trial courts created an unfair advantage in favour of the prosecution and consequently deprived the applicant of any practical opportunity to effectively challenge the charges against him.

19.  There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 900 in respect of costs and expenses.

21.  The Government contested the above amounts and argued that they were excessive.

22.  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 3,000. Having regard to the documents in its possession, the Court awards the applicant the entire amount claimed for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

3.      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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 900 (nine 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;

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

Done in English, and notified in writing on 6 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Hasan Bakırcı                                                   Branko Lubarda
                 Registrar                                                             President