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THIRD
SECTION
CASE OF
FOMIN v. MOLDOVA
(Application
no. 36755/06)
JUDGMENT
STRASBOURG
11 October
2011
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 Fomin v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and
Marialena Tsirli, Deputy Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36755/06) 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, Ms Ecaterina Fomin (“the
applicant”), on 17 August 2006.
- The
applicant was represented by Mr V. Zeamă from “Lawyers for
Human Rights”, a non-governmental organisation based in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the courts had failed to give
sufficient reasons for the judgments convicting her of an
administrative offence and had imposed a penalty on her despite the
expiry of the statutory time-limit for doing so.
- On
9 December 2008 the Court decided to communicate the application to
the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (former
Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1959 and lives in Soroca.
- The
applicant works as a technician for a State telephone company. On 9
June 2005 she called R. over the phone and they arranged for the
applicant to visit R. at her house situated on Viilor str. no. 15/36
in Soroca in order to verify the functioning of the phone line
installed there. Some twenty minutes later when she came to R.’s
home, she was met by R. who, according to the applicant, started
shouting at her and calling her names.
- The
applicant called the police from her mobile phone, but was told that
she needed to go to the police station in person in order to make a
written complaint. She decided to go back to her workplace and told
her superior about the incident, but was advised to forget about it.
She was told that R. had already called her superior to complain
about an alleged assault on her by the applicant.
- R. complained to the police that the applicant had
assaulted her on 9 June 2005. According to R.’s complaint,
the applicant had entered her apartment situated on Viilor str. 15
apartment 36 without authorisation and started ripping the phone
lines off the wall and insulting her with offensive language. The
applicant had then gone to the cellar and destroyed the phone socket
and phone lines. She had been extremely irritated and one could smell
alcohol on her breath. Finally, she had hit R. in the face and left.
R.’s husband wrote a similar complaint, also noting Viilor str.
15 as being the address of the apartment where the incident had taken
place.
- On
11 July 2005 the local police filed a report confirming that the
applicant had committed an administrative offence by insulting R. The
report attested that on 9 June 2005 the applicant had entered R.’s
apartment without authorisation, insulted her with offensive language
and then hit her in the face, causing her physical harm.
- On
26 July 2005 the Soroca District Court found the applicant guilty of
the administrative offence of hooliganism.
- On
an unknown date the Bălţi Court
of Appeal sent the case for a rehearing.
- The applicant submitted statements from five companies
she had visited on 9 June 2005, all confirming that she had been
polite and not under the influence of alcohol that day, which
contradicted R.’s statements concerning the applicant’s
aggressiveness and alcohol consumption. She also submitted a
certificate confirming that no repair of the phone lines at R.’s
home or office had been asked for on 9 June 2005 or thereafter, and
evidence that after her alleged visit phone calls had been made from
both phone lines. That proved, in the applicant’s opinion, that
the statements in R.’s complaint concerning the ripping out of
the phone line and phone socket had been untrue. She submitted
further evidence proving that her company had a contract to service
the phone line installed at R.’s place, that she had been asked
to verify a number of phone lines on 9 June 2005, including that at
R.’s place, and evidence of the applicant’s call to the
police on 9 June 2005.
- On 19 December 2005 the Soroca District Court found
the applicant guilty of the administrative offence of insult
(injuria). The decision was an almost word-for-word copy of
that adopted on 26 July 2005 and reads as follows in its entirety:
“Decision concerning the administrative offence
under Article 471-1 of the Code of Administrative
Offences, 19 December 2005
Judge [V. N.] of the Soroca District Court, having
examined the case concerning the administrative offence regarding
[the applicant, her address and workplace], has found:
On 9 June 2005 at 12.20 p.m. [the applicant] entered
[R.’s] apartment situated on Mateevici str. 1, apartment 42
without authorisation and started shouting and calling her names,
thus denigrating [R.’s] honour and dignity, therefore
committing the administrative offence provided for in Article 473
(1) of the Code of Administrative Offences.
The allegation that [the applicant] hit the victim has
not been confirmed.
In view of the above, relying on [relevant procedural
provisions of the Code of Administrative Offences], the court
decides:
To impose a fine on [the applicant] in the amount of ten
conventional units amounting to 200 [Moldovan] lei.
This decision may be appealed against within 10 days to
the Bălţi Court of Appeal”.
- In her appeal in cassation the applicant submitted
that there was no evidence whatsoever that she had ever been in R.’s
apartment at Mateevici str. or shouted at her. The court had not
given any ground for the decision such as a document, witness
statement or anything other than the statements by R. and her
husband. Moreover, she had visited R. at her address at Viilor str.
no. 15 and not at Mateevici str. no. 1 as stated in the decision.
Finally, the court had disregarded Article 37 of the Code of
Administrative Offences (see below), according to which no
administrative penalty could be imposed after three months from the
date on which the offence had been committed.
- On 8 February 2006 the Bălţi
Court of Appeal upheld the lower court’s decision. The court’s
decision started by stating that:
“By its decision [of 19 December 2005] the [lower
court] imposed an administrative penalty on [the applicant] because
on 9 June 2005 she insulted [R.] in her apartment situated on
Mateevici str. in Soroca, thus denigrating [R.’s] honour and
dignity.”
It
then summarised the applicant’s appeal. The court further found
that the lower court had properly applied the procedural law by
summoning the parties and explaining their rights to them and by
verifying all the circumstances of the case. It correctly dismissed
the part of the complaint that the applicant had hit R., since during
the court hearing R. herself had denied having been hit. The court
reduced the fine to 136 Moldovan lei (8.80 euros (EUR)), using a
slightly different manner of calculating the amount of the fine. That
decision was final. Its text was accessible at the Soroca District
Court, where it arrived on 20 February 2006.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Administrative
Offences (“the CAO”) read as follows:
“Section 47/3. Insult
Insult, that is, the intentional denigration of honour
and dignity of a person through an action, verbally or in writing,
shall be punished by a fine of seven to fifteen conventional units or
by administrative detention of up to fifteen days.
Section 266. Circumstances to be clarified during
the examination of the case concerning an administrative offence.
The authority (official) shall clarify during the
examination of the case concerning an administrative offence: whether
an administrative offence has been committed; whether the person is
guilty of having committed it; whether (s)he should be subjected to
administrative responsibility; whether there are circumstances
attenuating or aggravating responsibility; whether pecuniary damage
was caused; whether there are grounds for forwarding the materials
concerning the administrative offence for examination by a public
association, the staff [of his/her employer]; as well as other
circumstances which are important for the examination of the case.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 of the Convention that the
courts had not given sufficient reasons for their decisions
convicting her of an administrative offence. The relevant part of
Article 6 reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. As to the admissibility
- The
Government did not dispute the applicability of Article 6 to the
present case. For its part, the Court recalls that it has already
established that “in principle, the general character of the
Code of Administrative Offenses (“the CAO”) and the
purpose of the penalties, which are both deterrent and punitive,
suffice to show that for the purposes of Article 6 of the Convention
the applicant was charged with a criminal offence” (Ziliberberg
v. Moldova, no. 61821/00, § 33, 1 February 2005). It
does not see any reason to depart from that finding in the present
case. Accordingly, Article 6 was applicable to the applicant’s
case under its criminal head.
- The
Court must further determine whether the applicant’s complaints
are admissible under Article 35 of the Convention, as amended by
Protocol No. 14 to the Convention which entered into force on 1
June 2010.
- The
Court notes in particular that in accordance with Article 35 § 3 b)
in fine a case can be declared inadmissible only if it has
been “duly considered by a domestic tribunal”. The Court
finds that in the present case the answer to the question whether the
case was duly considered by a domestic tribunal is closely related to
the substance of the complaint under Article 6 of the Convention. It
therefore joins the examination of this issue to the merits.
- The
Court notes moreover that the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. As to the merits
- The
applicant considered that the courts had not given any details as to
why they had accepted R.’s version of events and convicted the
applicant, despite the evidence which she had adduced to challenge
that version of events.
- The
Government considered that the courts had fully examined the case
including all the evidence submitted by the applicant, as was clear
from the minutes of the court hearings. The application was thus of a
“fourth-instance” nature. They noted that the appellate
court was not obliged by law to give reasons and could write a short
version of its judgment.
- The Court reiterates that the effect of Article 6 §
1 is, inter alia, to place a “tribunal” under a
duty to conduct a proper examination of the submissions, arguments
and evidence, without prejudice to its assessment or to whether they
are relevant for its decision, given that the Court is not called
upon to examine whether arguments are adequately met (see Perez
v. France [GC], no. 47287/99, § 80, ECHR 2004 I,
and Buzescu v. Romania, no. 61302/00, § 63, 24 May
2005). Nevertheless, although Article 6 § 1 obliges courts
to give reasons for their decisions, it cannot be understood as
requiring a detailed answer to every argument (see Van de Hurk v.
the Netherlands, 19 April 1994, §§ 59 and 61, Series A
no. 288, and Burg v. France (dec.), no. 34763/02, ECHR
2003-II). The extent to which this duty to give reasons applies may
vary according to the nature of the decision and must be determined
in the light of the circumstances of the case (see Ruiz Torija v.
Spain and Hiro Balani v. Spain, 9 December 1994, Series A
nos. 303-A and 303-B, § 29 and § 27 respectively; and Helle
v. Finland, 19 December 1997, § 55, Reports of
Judgments and Decisions 1997 VIII).
- In
Ruiz Torija v. Spain (cited above, §§ 29-30) the
Court found that the failure of the domestic court to deal with the
applicant’s contention that the court action against her had
been time-barred amounted to a violation of Article 6 of the
Convention. Similar failures to give sufficient reasons resulted in
findings of violations of Article 6 of the Convention in Hiro
Balani (cited above, §§ 27-28); Suominen v. Finland,
no. 37801/97, §§ 34 38, 1 July 2003; Salov
v. Ukraine, no. 65518/01, § 92, ECHR 2005 VIII
(extracts); Popov v. Moldova (no. 2), no. 19960/04,
§§ 49 54, 6 December 2005; and Melnic v.
Moldova, no. 6923/03, §§ 39 44, 14 November
2006.
- In
the present case, the Court observes that the applicant was convicted
of insulting R. in her apartment on 9 June 2005. It also notes that
the judgment of the first-instance court started by stating, from the
very beginning, that the applicant had committed the offence (see
paragraph 13 above). No other reason was given either for
finding the applicant guilty or for dismissing her arguments aimed at
challenging R.’s version of events.
- Similarly,
while the Court of Appeal’s judgment was longer, it too started
from the established fact of the applicant’s guilt and moved on
to whether the lower court had observed procedure before dealing with
the issue of the penalty imposed on the applicant (see paragraph 15
above).
- Moreover,
the Court finds it strange that the domestic courts did not comment
in any manner on the fact that the complaint made by R. and her
husband referred to one address (Viilor str.), while the applicant
was convicted of insulting R. at another address (Mateevici str., see
paragraphs 8, 13 and 15 above). This could not be seen as a
simple typographical mistake, because the applicant had made an
express argument in this regard to the Court of Appeal (see paragraph
14 above), which did not comment.
- Finally,
the applicant submitted a number of additional arguments, supported
by evidence, aimed at undermining the veracity of the statements made
by R. and her husband (see paragraph 12 above), including their
admission to the courts that R. had not been hit by the applicant,
contrary to their initial statements made to the police (see
paragraphs 8 and 13 above). The domestic courts did not react in any
manner to these arguments.
- The
Court recalls that it is primarily for the domestic courts to decide
on the admissibility of evidence and on its relevance and weight to
be given in reaching a judgment. However, in the present case the
domestic courts have failed to even mention, let alone address, any
of the applicant’s arguments challenging the veracity of the
plaintiff’s statements, or to explain why they accepted the
plaintiff’s version of events.
- The
Court reiterates its findings in the case of Suominen v. Finland,
(cited above, § 37) as follows:
“... a further function of a reasoned decision is
to demonstrate to the parties that they have been heard. Moreover, a
reasoned decision affords a party the possibility to appeal against
it, as well as the possibility of having the decision reviewed by an
appellate body. It is only by giving a reasoned decision that there
can be public scrutiny of the administration of justice (c.f.
Hirvisaari v. Finland, no. 49684/99, § 30,
27 September 2001, unreported).”
The
right to be heard therefore includes not only the possibility to make
submissions to the court, but also a corresponding duty of the court
to show, in its reasoning, the reasons for which the relevant
submissions were accepted or rejected. This duty is always subject to
the proviso that a court may consider it unnecessary to respond to
arguments which are clearly irrelevant, unsubstantiated, abusive or
otherwise inadmissible owing to clear legal provisions or
well-established judicial practice in respect of similar types of
arguments.
- The
Court finds that the applicant’s arguments in the present case,
such as those undermining R.’s credibility or those concerning
the discrepancy between the address of the alleged wrongdoing as
described in R.’s complaint and that mentioned in the courts’
decisions, were not clearly inadmissible and were supported by
evidence. Moreover, the first-instance court’s failure to give
any reasons for finding the applicant guilty of the offence hindered
her from appealing in an effective way against her conviction.
- Moreover,
it is apparent that the domestic courts did not comply with their
duty under Section 266 of the Code of Administrative Offences (see
paragraph 16 above), notably by failing to verify whether an
administrative offence had indeed been committed by the applicant.
- In
the light of the foregoing considerations, the Court considers that
the applicant did not have the benefit of fair proceedings (see
Suominen v. Finland, cited above, § 38 and Grădinar
v. Moldova, no. 7170/02, § 117, 8 April 2008). Since
the domestic courts have failed to deal in any manner with the
applicant’s arguments and evidence or to specify the reasons
underlying her conviction, the Court finds that the case has not been
“duly considered by a domestic tribunal”. Accordingly,
the Court concludes that the criterion introduced in Protocol No. 14
to the Convention is not applicable in the present case and that
there has been a violation of Article 6 § 1.
II. 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.”
A. Pecuniary damage
- The
applicant claimed EUR 8.80 in compensation for the pecuniary damage
caused to her, representing the amount of fine imposed on her.
- The
Government considered that this claim should be rejected since the
applicant had been fined in strict conformity with the law.
- The
Court observes that it has found a violation of Article 6 § 1 of
the Convention in respect of the domestic courts’ failure to
give sufficient reasons for the applicant’s conviction.
However, it will not speculate as to the outcome of the proceedings
against the applicant, had the courts given reasons for their
decisions. It therefore makes no award in this respect.
B. Non-pecuniary damage
- The
applicant claimed EUR 10,000 in compensation for the non-pecuniary
damage caused to her as a result of the courts’ failure to give
reasons for her conviction.
- The
Government considered that the applicant’s claim was
exaggerated.
- The
Court considers that the applicant’s conviction without
sufficiently specifying the underlying reasons has clearly caused the
applicant non-pecuniary damage. In the Court’s view, this
finding does not in itself afford sufficient just satisfaction in
this respect (see, for instance, Suominen v. Finland, cited
above, § 43). Judging on an equitable basis, the Court awards
the applicant EUR 1,200 for non-pecuniary damage.
C. Costs and expenses
- The
applicant claimed EUR 1,100 for legal costs. She relied on a contract
with her lawyer, as well as a detailed time-sheet of the hours which
her lawyer had spent working on the case.
- The
Government considered that the applicant’s claim was
exaggerated, and disputed the number of hours worked and the hourly
rate charged.
- The Court reiterates that costs and expenses will not
be awarded under Article 41 unless it is established that they have
been actually and necessarily incurred and are also reasonable as to
quantum (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
- In
the present case, regard being had to the documents in its possession
and the above criteria, the Court awards the applicant EUR 1,000
for costs and expenses.
D. 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
- Declares by a majority the application
admissible;
- Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention;
- Holds by five votes to two
(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
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand 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;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge López
Guerra joined by Judge Gyulumyan is annexed to this
judgment.
J.C.M.
M.T.
DISSENTING OPINION OF JUDGE LÓPEZ GUERRA JOINED
BY JUDGE GYULUMYAN
The
ruling given by the Section in the present case refers to a fine
imposed by a Moldovan court amounting to a total of 8.80 euros. That
fine was the result of domestic proceedings involving two levels of
jurisdiction and four court rulings by the Soroca District Court on
26 July 2005; the Bălţi Court of Appeal on an unknown date
(paragraph 11); the Soroca District Court again, on 19 December 2005;
and finally by the Bălţi Court of Appeal again, on 8
February 2006.
To
address the merits, given the nature of the proceedings, which dealt
with a verbal dispute between the applicant and another person, the
insignificant amount of the penalty imposed, the fact that the case
was heard four times by domestic courts and the handling of the case
by those courts as described in the Section judgment, I cannot find
any violation of Article 6 § 1 of the Convention.
Concerning the alleged lack of reasoning in the domestic judicial
rulings, as the Section’s judgment points out (paragraph 25),
Article 6 § 1 does not require the courts to answer the parties’
arguments in any specific detail. Indeed, cases such as the present
one dealing with minor administrative offences can certainly be
adequately adjudicated in oral proceedings, hearing the parties’
claims, stating the facts as found, deciding the case and citing the
applicable norms in a summary judgment. This was the procedure
followed by the Soroca District Court. Moreover, the Bălţi
Court of Appeal subsequently delivered a longer judgment, which
provided an analysis of the applicant’s complaint (paragraph
15).
The
present dissent refers, therefore, to the Section’s ruling on
the merits of this case. But I also strongly question whether the
Court should have ruled on the merits in the first place. The Section
posed the question as to whether the applicant’s complaints
were inadmissible under Article 35 § 3 (b) of the
Convention concerning the absence of any significant disadvantage to
the applicant. The Section was certainly justified in posing that
question in view of the reduced amount of the fine imposed, as well
as the fact that the issue raised by the applicant has been amply
dealt with by the Court. But the Section decided in favour of
admission because it concluded that the question as to whether the
case had been duly considered by a domestic tribunal (provided for
under Article 35 § 3 (b) of the Convention) was closely related
to the applicant’s complaint under Article 6. In my
opinion, this approach, which equates an examination of the existence
of due consideration by a domestic tribunal with the examination of
the Article 6 requisites for a fair trial, is contrary to the very
terms of Article 35 § 3 (b). In accordance with the Court’s
case-law in Holub v. the Czech Republic ((dec.), no. 24880/05,
14 December 2010), the requirement of having been “duly
considered” should not be interpreted as strictly as the
requirements of a fair trial. Thus the Section’s interpretation
voids the content of Article 35 § 3 (b), which represents a
reflection of the principle of subsidiarity, and the guarantee that
the Court shall examine any complaint brought before it which has not
been duly considered by a domestic tribunal. Therefore, it would have
been preferable to have declared this case inadmissible by virtue of
Article 35 § 3 (b).
