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FOURTH
SECTION
CASE OF
NĂVOLOACĂ v.
MOLDOVA
(Application
no. 25236/02)
JUDGMENT
STRASBOURG
16
December 2008
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 Navoloaca v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting 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, Section
Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25236/02) 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 Ştefan
Năvoloacă (“the applicant”), on 13 June 2002.
- The
applicant was represented by Mr B. Druţă,
a lawyer practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent, Mr V.
Grosu.
- The
applicant alleged, in particular, that he had been detained
unlawfully and that he had been convicted arbitrarily of a criminal
offence in the absence of any evidence of his guilt.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 28 November 2006 a Chamber of
that Section decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1968 and lives in Sîngerei.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant was convicted of theft and robbery and served his sentence,
having been conditionally released on 7 April 1999. On 20 April
2000 he was arrested by the police for resisting them and taken to
the police station in Ialoveni. A court found that the applicant had
not committed any offence and ordered his release.
- After
releasing him, the police immediately re-arrested him and filmed him.
Thereafter he was accused of having murdered P., the director of a
private company.
- According
to the prosecution, the applicant had good relations and was in
frequent contact with his former colleague S., who in turn maintained
close relations with a company directly competing with that of P. for
rice imports from Romania. P. had received a number of threats to
make him stop his activity, the latest of which had been on 8
September 1999.
- The
prosecution submitted that on 12 September 1999 the applicant and
another suspect, who remained unidentified, had waited near P.'s
house until he came out with a sports bag in his hand and climbed
into a truck that was waiting for him. At that moment (approximately
7 p.m.) the two suspects had opened the passenger door and one had
ordered P. at gunpoint to hand over the bag containing 8,700 United
States dollars and 12,000 Moldovan lei. P. had kicked the
attacker and had been shot three times. He died shortly afterwards.
The other suspect had threatened Z., the truck driver, with a knife
and ordered him to stay put, and had then taken the bag. He and the
applicant then fled into a nearby park.
1. Judgment of the Chişinău Regional Court of
30 May 2001
- The
court found that the applicant had never admitted his guilt and that
on 20 April 2000 a charge of resisting the police had been fabricated
by officers Dodu and Gulea from the Ialoveni police station. After
being acquitted of the offence by a court, he had been arrested again
by the same police officers.
a. Statements by the witnesses
- The
court examined the statements made by various witnesses in the case.
P.'s wife stated that the decision to travel to Romania on business
had been taken in the afternoon of 12 September 1999 and that only
she, P.'s cousin M.P., a business partner V. and the truck driver Z.
had known about this. She confirmed that threats had been made
against her husband by agents of the competing company.
- M.P.
and V.P., P.'s cousin and brother, were not present at the crime
scene but confirmed that threats had been made against P. by agents
of the competing company.
- Z.,
the truck driver, confirmed the attack by two unknown persons. During
the investigation he listened to three male voices, including that of
the applicant refusing to repeat a standard text, but did not
identify either attacker's voice. He did not recognise the
applicant's voice during the court hearings either. The court
concluded that nothing in Z.'s testimony pointed to the applicant's
involvement in the crime.
- C.I.,
a witness, testified in court that he did not remember the date or
month of the event. He had seen two men attack the passenger in the
truck and flee past him. He later recognised one of them during the
identity parade as being the applicant, who was the shorter of the
two attackers; the other had had a black object in his hand. He also
recognised the shirt taken from the applicant's house as having been
worn by one of the attackers. It was the taller person and not the
applicant who had shot P.
- C.D.,
another witness, did not remember the date, month or year of the
event. She had seen two men attack the truck's passenger. The taller
one, dressed in light coloured clothes, had pulled the victim from
the truck and taken the bag, after which both attackers, who were
armed, had fled. She had not seen anyone come out of the car parked
behind the truck.
- The
court found that the statements of C.I. and C.D. were inconsistent
with their earlier statements. During the initial investigation each
had said that the person wearing a dark denim shirt was the taller
one and had the bag in his hand; they had recognised him as the
applicant. However, during the court hearing they stated that the
applicant was the shorter one and had been wearing a velvet shirt.
The court also doubted that either of them could have seen P. kicking
one of the attackers: according to both witnesses, the two attackers
had mounted the truck's ladder, but in that case the witnesses could
not have seen anything in the cabin. C.I.'s and C.D.'s statements
also contradicted Z.'s statement, according to which one attacker had
climbed into the truck from the passenger side, while the other
threatened him with a knife. The person wearing dark clothes had shot
P., but Z. did not recognise the applicant as being that person, nor
as being the other attacker. Besides, both C.I. and C.D. stated that
the shots had been fired from a short distance, when both attackers
were on the truck's ladder. However, the expert report could not
prove the distance from which the shots had been fired, except to
find that they had not been made from a short distance (of under one
metre). Another report showed that the shots had been fired upwards
at a 45º angle. Hence, the shot could not have been fired from
the truck's ladder, contrary to the testimony of these two witnesses.
- C.C.,
another witness, generally confirmed the events witnessed by C.I. and
C.D. but could not recognise any of the attackers.
- U.E.
was an off-duty police officer who had been waiting for his friend in
a car parked some distance behind the truck at the time of the
attack. At the beginning of the investigation he stated that he had
not realised that a crime was being committed and did not think he
could identify any of the attackers. He had seen one attacker from
the side and the other from the back. Both had been wearing dark
clothes; one had medium-length dark hair and was aged around 30. He
gave similar statements on 4 January and 19 April 2000. On 7 May
2000 he was able to remember details such as the colour and material
of the attackers' shirts; the colour of their hair and hairstyles;
their approximate height; and that the shorter attacker wore a light
coloured shirt (as opposed to his earlier statement that both had
worn dark clothes). The court considered that his statements were not
reliable since they contradicted his own earlier statements and those
made by witnesses C.I. and C.D. U.E.'s statement was videotaped but
was not shown to him after the event as required by Article 115 of
the Code of Criminal Procedure (“the CCP”, see below).
Moreover, the court questioned U.E.'s actions since he, as a police
officer, had not reacted to a number of signs that a crime was being
committed, such as the sound of shots, the fact that the truck's
driver had fled in one direction while two other persons ran in
another, and that someone had fallen to the ground from the truck.
- Other
witnesses confirmed the nature of the relations between P. and the
competing company but did not, in the court's opinion, confirm in any
way the applicant's involvement.
- N.E.,
another witness, stated that the applicant and his girlfriend E.L.
had been renting her apartment since early 2000. They did not have
much money, and brought food from E.L.'s parents. The applicant was
arrested by two police officers at her apartment; she was told he was
suspected of murder.
- Several
witnesses (E.L., T.I., G.N.) testified that on the day of the crime
they had seen the applicant with his girlfriend E.L. in her room in a
dormitory. G.N., a nurse, had given E.L. medication because she felt
ill, at approximately 4 p.m. and 8 p.m. on that day. She was not sure
whether it had been 11 or 12 September, but she remembered distinctly
that it had been a Sunday (12 September 1999 was a Sunday). She had
seen the applicant with E.L. at 8 p.m.
- E.L.
confirmed that the applicant had been with her all that time. He had
not had any dark trousers before November 1999, as confirmed also by
I.T. and G.N.
- None
of the witnesses who lived in the same dormitory as E.L. had noticed
any improvement in her financial state or that of the applicant after
September 1999.
- S.
and C.A. denied having informed E.L. about the course of the
investigation. C.A. confirmed that he had handed E.L. a note from the
applicant, in which the latter claimed to have requested various
personal items and that food be brought to him. The applicant had
sent a similar letter to S.
b. Reports on evidence gathering
procedures
- On
21 April 2000 the applicant was presented to witnesses in an identity
parade. The court noted that witness C.I. confirmed that he had been
shown a sketch of the applicant before the identity parade, and that
no record of that procedural act had been made, contrary to Article
115 of the Code of Criminal Procedure (see below). He then recognised
the applicant in the identity parade.
- During
the identity parade and in court witness C.D. was not completely sure
that she had seen the applicant at the crime scene. She told the
court that she had been shown a short video recording of the
applicant just before the identity parade. One of the other persons
in the identity parade (S.S.) stated that C.D. had not been sure of
herself when she identified the applicant; she had stated that the
attacker had worn a blue denim shirt. In addition, the video
recording of her recognising the applicant in the identity parade was
very poor and it was impossible to determine what she had said or at
whom she had pointed.
- Neither
C.I. nor C.D. was shown the recording of the identity parades with
their participation, again contrary to Article 115 CCP (see below).
- The
court found that the prosecution did not deny having videotaped the
applicant on his arrest without registering that act. The prosecution
merely argued that the applicant and his lawyers had not complained
about the videotaping until the trial.
- During
the identity parade the applicant was dressed in a grey velvet shirt,
which later (on 20 August 2000) was taken as incriminating evidence
by the prosecution and identified by some witnesses as having been
worn by one of the attackers. None of the witnesses recognised the
shirt on the day of the identity parade. The court found that all the
witnesses who recognised the shirt had previously stated that it was
a denim shirt, whereas the one found in the applicant's house was
velvet. Moreover, C.I. was shown another shirt for recognition, the
recorded size of which was much bigger than the one found at the
applicant's house.
- Mr
Andrei Dodu, the officer who arrested the applicant on 20 April 2000,
also reported on a search of the applicant's mother's house on
30 April 2000. At the court hearing witnesses present during the
search, as well as the applicant's mother, confirmed that no bag
handle had been found in the house and taken as incriminating
evidence during the search and that they had signed the report
without any mention of any specific finding. The court also found
that the text of the report had been altered, additional information
about finding a bag handle having been added to the report and
written over the lines crossed through the empty space at the bottom
of the document. Contrary to the legal requirements, the report did
not state precisely where the handle had been found or its
characteristics, and the object was not kept in a sealed bag.
- The
court concluded that the report had been fabricated by its author,
officer Dodu, who could not provide in court any details about the
circumstances of finding the bag handle. In addition, the handle was
absolutely new and could have come from any similar bag sold in the
shops.
- A
number of expert reports were made, establishing that three shots had
been fired from an unknown distance (but not from close range) from
an unknown type of revolver with a 37.5 mm calibre. The weapon was
not found. No report appears to have been made on the presence or
absence of traces of gunpowder on the applicant's clothes.
c. The court's conclusions
- The
court concluded that none of the witnesses had stated that any of the
persons at the competing company, the applicant or his acquaintances
had been aware of P.'s unplanned business trip. Only four persons
close to P. had known about the trip on 12 September 1999. The
prosecution had not investigated whether any of the drivers whom Z.
had informed about the trip during the period between 1 and 5 p.m. on
the date of the crime could have been involved in the crime.
- The
expert reports proved only the manner in which the crime had been
committed and not the applicant's involvement in it. The witnesses
who claimed to have recognised the applicant had contradicted their
own statements made before the applicant's arrest and statements of
other prosecution witnesses, contradictions which could not be
reasonably explained. Moreover, evidence had been obtained with
serious violations of criminal procedure, which meant, under Article
55 of the CCP, that it could not be relied on.
- No
one in P.'s competing company had been charged with ordering the
killing of P., even though this was the version relied on by the
prosecution. Moreover, it was clear from the attackers' actions that
they initially wanted just the money and not to kill P. Only after
the latter resisted was he shot. The court was convinced that the
attackers had planned a robbery and that one attacker had exceeded
the initial common intention and was alone responsible for P.'s
murder. Even if the statements of C.I. and C.D. were to be accepted
in evidence, according to them it was not the applicant but the other
attacker who had shot P. In that case, the applicant could not be
held responsible for the excessive action of the other attacker.
- The
evidence relating to the relations between the applicant, S. and P.'s
competing firm did not in any way prove the applicant's guilt.
- The
court acquitted the applicant, finding that there was no evidence
that he had committed the crime.
2. Judgment of the Court of Appeal of 22 October 2001
- On
22 October 2001 the Court of Appeal upheld the lower court's
judgment. It found that the prosecution's case was based on
assumptions and evidence obtained in serious breach of the Code of
Criminal Procedure. The court emphasised that the applicant had been
filmed and the videotape shown to witnesses before the identity
parade and that there was no direct evidence proving his guilt.
- The
court rejected the prosecution's submission that P. had been killed
by the applicant on the orders of the competing company, since those
responsible should also have been accused of the crime.
3. Judgment of the Supreme Court of Justice of 15
January 2002
- On
15 January 2002 the Supreme Court of Justice held a hearing from
which the applicant was absent, being represented by his lawyer, and
at which no witnesses were heard. The court quashed the lower courts'
judgments and delivered a new one, convicting the applicant. It did
not examine any evidence directly and based its findings on the case
file as established by the lower courts. It found the evidence to be
sufficient to prove the applicant's guilt and that the lower courts
had reached incorrect conclusions on the basis of the file.
- The
court found that the applicant's guilt was proved by the following
evidence: P.'s wife stated that unknown persons had killed her
husband and taken money from him; he had earlier been threatened by
agents of the competing company; similar statements regarding threats
from the competing company were made by M.P. and V.P; and they had
also recognised the bag handle found in the applicant's mother's
house as coming from the bag taken from P. on the day of the attack.
- Z.,
the truck driver, confirmed that P. had been threatened by agents of
the competing company. On 12 September 1999 at around 7 p.m. he had
arrived with his truck and P. had come out and climbed in. Then a
person had opened the passenger door and threatened P. with a gun,
asking for the bag containing the money. P. had offered resistance
and two shots were then fired. Another man had climbed into the truck
and threatened him with a knife, taking the bag. Both attackers had
fled into the woods.
Two
expert reports confirmed P.'s death from three gunshots.
- C.I.
declared that he had seen the applicant attack P. and flee with the
bag. He had recognised the applicant in the identity parade. These
statements were confirmed by C.D. and C.C., who were with him.
- U.E.
also confirmed that he had seen the applicant on 12 September 1999
during the attack. After hearing gun shots, he had seen two men
running from the truck, one of whom he had identified as “a
person with sunglasses and a sports bag in his hand”.
- C.I.,
C.D., C.C. had been some fifteen metres from the applicant and U.E.
had been even closer, remembering the shape of the applicant's lips,
and his height, hairstyle and clothes. All witnesses declared that
there could be no case of mistaken identity as they had seen the
applicant clearly.
All
this evidence excluded any doubt about the applicant's guilt.
- The
court dismissed the statements of witnesses providing an alibi for
the applicant because they were inconsistent. There was no evidence
that E.L., the applicant's girlfriend, had been ill on 12 September
1999 precisely and that the applicant had been with her throughout
the day. Moreover, none of the witnesses had indicated 7 p.m.
precisely as the time when the applicant had been with E.L. One
witness (N.E.) had not even been sure of the date, remembering only
“one day in September” as the day which E.L. had spent
ill in bed and not remembering whether the applicant had been with
her.
- Moreover,
E.L. had been coached about what to say during the investigation, as
confirmed by S. and C.A., who had organised meetings and transmitted
information to her. Even though E.L. claimed to have felt very ill on
the day of the crime, she and the applicant had not called an
ambulance, which could have proved her state of health. In addition,
the distance between E.L.'s dormitory and the crime scene was not
substantial and could be covered quickly by car.
- The
court also noted that the applicant was an old colleague of S., with
whom he had maintained contact. S. in turn had been in frequent
contact with P.'s competing company and the applicant had also become
close to that company's owners as an acquaintance of S. Thus the
applicant had been aware of P.'s activity and that he carried a lot
of money, which had prompted him to commit the crime.
- Basing
its decision on the above evidence, which it found to be coherent and
logically consistent, the Supreme Court of Justice convicted the
applicant and sentenced him to twenty years' imprisonment.
II. RELEVANT DOMESTIC LAW
- Article 335 of the Code of Criminal Procedure (in
force before 12 June 2003) read as follows:
“Article 335/4
In examining an appeal on points of law (recurs),
the court shall verify the appealed judgment based on the materials
in the case file and of any new documents submitted to the court of
recurs.
Article 335/5.
After examining an appeal on points of law, the court
shall adopt one of the following decisions:
...
(2) allow the recurs, set aside the
judgment and:
(a) uphold the judgment of the first-instance
court, where the appeal was accepted incorrectly;
(b) order the
acquittal of the accused person and the termination of the criminal
proceedings in the cases provided for in article 5 of the Present
Code;
(c) order a re-examination of the case by the
court which adopted the quashed judgment [in cases where that court
allowed procedural violations];
(d) order a re examination of the case by the
court of recurs in all other cases not covered by paragraph
(2)(c) of the present Article.”
THE LAW
- The
applicant complained under Article 5 of the Convention that his
detention had been unlawful. The relevant part of Article 5 reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
... (c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
- He
also complained under Article 6 of the Convention that the criminal
proceedings against him had not been fair. The relevant part of
Article 6 § 1 of the Convention, reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- He
finally complained under Article 7 of the Convention, the relevant
part of which reads:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. ...”
I. ADMISSIBILITY
- The
Government argued that the applicant had missed the six-month period
for lodging his complaint concerning his unlawful detention.
Moreover, he had failed to exhaust available domestic remedies in
respect of that complaint.
- The
Court notes that on 30 May 2001 the first-instance court acquitted
the applicant, following which he was released from detention.
However, he lodged his application only on 13 June 2002, more than
six months after his detention had ended. Accordingly, this complaint
was introduced outside the time-limit set by Article 35
§ 1 of the Convention and must be rejected as inadmissible
pursuant to Article 35 § 4 of the Convention.
57. The
Court also notes that in his initial application the applicant
complained of a violation of Article 7 of the Convention. However, he
gave no detail and did not submit any arguments in his observations
in this respect. The Court considers that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
- The
Court considers that the applicant's complaint under Article 6 of the
Convention raises questions of fact and law which are sufficiently
serious that their determination should depend on an examination of
the merits, and no other grounds for declaring them inadmissible have
been established. The Court therefore declares this complaint
admissible. In accordance with its decision to apply Article 29
§ 3 of the Convention (see paragraph 4 above), the Court
will immediately consider the merits of the complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant argued that the proceedings leading to his conviction and
sentencing had been unfair and arbitrary. He submitted, in
particular, that the Supreme Court of Justice had convicted him
without directly examining any evidence and based only on the
materials of the case file as constituted by the lower courts. He
also argued that the Supreme Court of Justice accepted evidence
obtained in clear violation of domestic procedure, such as
fabricating evidence by showing witnesses the applicant's video
before the identity parade or adding text to the minutes of a search
at the applicant's parents' house.
- The
Government submitted that it was primarily for the domestic courts to
determine the relevance of evidence and that the Court should not
re-examine the case as a “fourth instance court”. The
Supreme Court of Justice had the power to reverse the lower courts'
judgments (see paragraph 51 above), and this was not, in itself,
contrary to Article 6. In reversing the lower courts' judgments, the
Supreme Court of Justice gave ample reasons which cannot be regarded
as arbitrary or unsupported by evidence in the case. The applicant
fully enjoyed the various aspects of the rights to a fair trial and
had the opportunity to challenge, before the domestic courts, the
manner of obtaining and using evidence.
- The
Court refers to the general principles concerning the manner of
application of Article 6 to proceedings before courts of appeal, as
summarised in Popovici v. Moldova (nos. 289/04 and 41194/04,
§§ 66-69, 27 November 2007). In particular, in
Sigurþór
Arnarsson
v. Iceland (no. 44671/98,
§ 32, 15 July 2003) it was observed that the fact that the
highest court in a Contracting State, such as the Supreme Court in
the instant case, was empowered to overturn an acquittal by the lower
court(s) without the defendant and witnesses being present and
without hearing them did not of itself infringe the fair hearing
guarantees in Article 6 § 1 of the Convention.
That
being said, in determining whether the rights of the defence have
been respected it is essential to have regard to the nature of the
issues which are being examined by the highest court in question and
the role assigned to it (see Popovici, cited above, §
69).
- In
this connection, and from the angle of compliance with Article 6
guarantees, the Court observes that there are certain similarities
between the circumstances of the instant case and those of Popovici,
cited above. In Popovici, the Supreme Court of Justice acted
as a second-instance court empowered to hear the entire case and to
examine any evidence submitted by the parties. The Court found that
there had been a breach of Article 6 because the Supreme Court of
Justice, in the event, reversed Mr Popovici's acquittal without
rehearing the case. In the present case the Supreme Court of Justice
acted as a third-instance court under the provisions of the old Code
of Criminal Procedure and was prevented by law from directly
examining witnesses (see paragraph 51 above), although it could have
heard the applicant in person. The Court notes in this latter
connection that the Government have not argued that the applicant had
waived his right to appear before the Supreme Court of Justice and
there is nothing in the file which would support that the applicant
had unequivocally waived his right.
- The
Court notes that the case against the applicant was virtually
entirely based on witness statements. All other evidence, such as
various technical reports, only showed the manner in which the crime
had been committed, but did not prove the applicant's involvement in
it. In overturning the lower courts' judgment, the Supreme Court of
Justice dealt extensively with the witness statements. It found, for
instance, that several witnesses whose statements provided the
applicant with an alibi were not coherent or credible enough to
constitute an acceptable defence. It did not deal with the lower
courts' findings that the witnesses for the prosecution had made
inconsistent statements which were partly contradicted by objective
evidence and that those statements were unreliable since the
witnesses had been influenced by seeing a video recording before the
identity parade. The Supreme Court of Justice therefore disagreed
with the assessment of the witnesses made by the lower courts, while
it was prevented by law from directly examining those witnesses.
- In
such circumstances, and having regard to what was at stake for the
applicant, the Court does not consider that the issues to be
determined by the Supreme Court when convicting and sentencing the
applicant – and, in doing so, overturning his acquittal by the
lower courts – could, as a matter of fair trial, have been
properly examined without a direct assessment of the evidence given
by the applicant in person and by the witnesses (see Botten v.
Norway, 19 February 1996, § 52 and 53, Reports of
Judgments and Decisions 1996 I and Popovici, cited
above, § 72). While the Supreme Court of Justice did not have
the power to carry out such a direct examination of the witness
testimony, it did have the power to order a re-hearing of the case by
the lower courts (see paragraph 51 above). Fairness required that the
Supreme Court of Justice should have ordered a rehearing. However, it
did not do.
- In
the light of the above the Court finds that the requirements of a
fair trial have not been met in the present case. In the
circumstances, it does not consider it necessary to examine
additionally whether other aspects of the proceedings in the Supreme
Court of Justice did or did not comply with that provision.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant claimed 150,000 euros (EUR) in compensation for
non-pecuniary damage caused to him. He did not give any further
details, but sought the quashing of his conviction by the Supreme
Court of Justice.
- The
Government considered that this amount was exaggerated and
unsubstantiated by either any detail or reference to the Court's
case-law. They argued that the Court previously awarded much smaller
amounts in cases where it had found a violation of Article 6 by the
Moldovan authorities.
- Having
regard to the violation found above, and to the prominent place which
the right to a fair administration of justice holds in a democratic
society (see Delcourt v. Belgium, judgment of 17 January 1970,
§ 25, Series A no. 11), the Court considers that an
award for non-pecuniary damage is justified in this case. Making its
assessment on an equitable basis, the Court awards the applicant EUR
5,000.
- In
so far as the request for a consequential order is concerned, the
Court considers that where, as in the instant case, an individual has
been convicted following proceedings that have entailed breaches of
the requirements of Article 6 of the Convention, a retrial or the
reopening of the case, if requested, represents in principle an
appropriate way of redressing the violation (see Öcalan
v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 IV
and Popovici, cited above, § 87).
B. Costs and expenses
- The
applicant did not claim any sum in compensation for his costs and
expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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 UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention admissible, and the remainder of the application
inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds
(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, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 16 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
