European Court of Human Rights

 

 

 

SECOND SECTION

CASE OF MELEGA v. THE REPUBLIC OF MOLDOVA

(Application no. 40427/18)

 

 

 

 

JUDGMENT

STRASBOURG

18 January 2022

 

 

 

 

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

 

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

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

          Branko Lubarda, President,
          Pauliine Koskelo,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 40427/18) 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 16 August 2018 by a Moldovan national, Mr Vitalie Melega, born in 1983 and living in Călărași (“the applicant”) who was represented by Mr V. Zamă, 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 parties’ observations;

 

Having deliberated in private on 14 December 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 acquitted and his conviction on appeal without examining anew any evidence or hearing witnesses.

2.  The applicant was accused of influence paddling (trafic de influiență). However, he was acquitted at first instance on the basis, inter alia, of several witness statements.

3.  The Chișinău Court of Appeal reversed the above judgment and found the applicant guilty as charged. In so doing, it did not hear anew all the witnesses but merely read out their statements from the case-file. The applicant lodged an appeal on points of law arguing inter alia that in reversing his acquittal, the Court of Appeal had failed to conduct a fully-fledged hearing and had not heard anew all witnesses as required by the Code of Criminal Procedure.

4.  The Supreme Court of Justice upheld the applicant’s appeal on points of law and changed the solution given by the Court of Appeal in the case by removing the finding of the aggravated form of the offence and by reducing the amount of the fine applied to the applicant.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

5.  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.

6.  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).

7.  The Government submitted that the applicant did not seek the hearing of the witnesses by the Chișinău Court of Appeal. Therefore, he was prevented from relying on this argument before the Court.

8.  The Court considers that if the Court of Appeal was to ensure a fair trial, it was under a duty to take positive measures in order to rehear the absent witnesses, notwithstanding the fact that the applicant did not ask for a rehearing (see Dan v. the Republic of Moldova (no. 2), cited above, § 57; and Sigurþórsson Arnarsson v. Iceland, no. 44671/98, § 38, 15 July 2003). Moreover, the Government did not provide the Court with any evidence to prove that all reasonable efforts were made to secure those witnesses’ attendance before the Court of Appeal.

9.  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 acquitted - could not, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the witnesses and the experts.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

11.  The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,500 in respect of costs and expenses incurred before the Court.

12.  The Government contested the above amounts claimed by the applicant, alleging that they were excessive.

13.  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.

14.  Having regard to the documents in its possession, the Court considers it reasonable to award 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 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 3,500 (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;

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

Done in English, and notified in writing on 18 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Hasan Bakırcı                                                   Branko Lubarda
          Deputy Registrar                                                      President