SECOND SECTION

CASE OF IGOR PASCARI v. THE REPUBLIC OF MOLDOVA

(Application no. 25555/10)

JUDGMENT

STRASBOURG

30 August 2016

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 Igor Pascari v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Işıl Karakaş, President,
	Julia Laffranque,
	Paul Lemmens,
	Valeriu Griţco,
	Ksenija Turković,
	Stéphanie Mourou-Vikström,
	Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 21 June 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 25555/10) 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 Igor Pascari (“the applicant”), on 26 April 2010.
2.  The applicant, who had been granted legal aid, was represented by Mr V. Zamă, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3.  The applicant alleged, in particular, that the courts had determined a criminal charge against him in proceedings in which he had not been involved.
4.  On 15 September 2011 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1983 and lives in Chisinau.
6.  The applicant is a bus driver. On 14 August 2009 he was involved in an accident with a car in which no one was injured. According to the findings of the police, the driver of the other vehicle involved in the accident, P.C., had changed lanes without paying attention to the applicant’s bus, which had been overtaking it in the other lane. The applicant had not had enough time to brake and had hit P.C.’s car on the rear left side. On the same date the chief inspector of the traffic police issued a decision finding P.C. responsible for the accident under Article 242 § 1 of the Traffic Code (see paragraph 12 below), fined him 800 Moldovan lei (MDL) (the equivalent of 50 euros (EUR)) and gave him five penalty points.
7.  On an unspecified date P.C. contested that decision.
8.  By a judgment of 29 September 2009 the Anenii Noi District Court dismissed P.C.’s objection and upheld the decision of the chief inspector of the traffic police. The applicant was not involved in the proceedings. Only P.C. and the police officer who had been present at the site of the accident were present and the latter opposed P.C.’s objection. P.C. challenged the District Court’s decision.
9.  On 19 November 2009, the Bender Court of Appeal reversed the decision of the first-instance court, finding the applicant guilty of causing the accident. The court found that the applicant had not kept a safe distance between his bus and the vehicle in front of him and stated as follows:
“... according to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle.
These rules were not observed by the driver of the vehicle which was behind, namely by the driver of the bus [...], Mr Igor Pascani, and by no means by Mr P.C.”
The applicant was again not involved in the proceedings and only found out about them at a later date. Under domestic law he was not able to challenge the Court of Appeal’s decision.
10.  As a result of the above judgment and based on its conclusions, on 22 January 2010 the chief inspector of the traffic police issued a new decision by which he found the applicant guilty of the breach of Article 49 of the Traffic Code causing the accident of 14 August 2009. The operative part of the decision stated as follows:
“...Pascari Igor is declared guilty of having committed the offence provided by Article 242 § 1 of the Code of Administrative Offences (CAO), however, according to Article 30 § 3 of the CAO no sanction shall be applied in view of the statutory limitation period.”
11.  It appears from the documents submitted by the parties that following the accident the owner of the bus recovered the cost of its repairs from P.C.’s insurance company. After the judicial proceedings in which the applicant was found responsible, P.C. attempted to recover the cost of the repairs of his car from the other party’s insurance company. However, it appears from the case file that the company suspended payment until the case has been finally determined by the Court.
Article II.	II.  RELEVANT DOMESTIC LAW
12.  According to Article 242 § 1 of the Code of Administrative Offences (CAO), a breach of traffic rules which only causes damage is punishable by a fine of MDL 800 and five penalty points.
13.  According to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle.
14.  In accordance with Article 36 of the CAO, when drivers have a total number of fifteen penalty points against them their licence can be suspended for between six months and one year.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15.  The applicant complained that, contrary to Article 6 § 1 of the Convention, the criminal charges against him had been determined in court proceedings in which he had not been involved. Article 6 § 1 reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Section 3.01	A.  Admissibility
16.  The Government submitted that the applicant had failed to exhaust domestic remedies, namely a compensation claim against the insurance companies which had insured both vehicles involved in the accident.
17.  The Court considers that claiming compensation from the insurance company is entirely unrelated to the complaint, which is that the applicant was criminally convicted without being involved in the proceedings. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies as ill-founded.
18.  The Government further contended that the applicant’s complaint under Article 6 § 1 was incompatible ratione materiae because the proceedings from which the applicant had been absent were not criminal proceedings for the purposes of Article 6 of the Convention.
19.  The applicant disagreed with the Government and noted that in Ziliberberg v. Moldova (no. 61821/00, §§ 29-36, 1 February 2005), the Court had found that acts which were considered offences under the CAO were criminal in nature for the purposes of the Convention.
20.  The Court observes that the general principles concerning the applicability of Article 6 were summarised in Ziliberberg (ibid., § 29).
21.  It further finds, with the applicant, that the act considered as an offence and punished by Article 242 of the CAO is directed towards all citizens and not towards a given group possessing a special status. It also notes that the fine and penalty points provided for by that provision are not intended as pecuniary compensation for damage but are punitive and deterrent in nature. That is particularly true when taking into consideration the effect of the penalty points, which can lead to the suspension of a driving licence for between six and twelve months (see paragraphs 12 and 13 above). The Court reiterates that a punitive character is the customary distinguishing feature of criminal penalties (ibid., § 33).
22.  The Court further notes that eventually the applicant was not punished in the way provided for by Article 242 § 1 of the CAO due to a technicality. However, it observes that what is decisive is the potential penalty rather than the one actually imposed (see Demicoli v. Malta, 27 August 1991, § 34, Series A no. 210) and notes that it was a matter of technicality that the applicant was not penalised.
23.  In the light of the foregoing, the Court considers that Article 6 § 1 is applicable in the instant case under its criminal head. It therefore dismisses the Government’s second objection.
24.  Lastly, the Court notes that this complaint 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.
Section 3.02	B.  Merits
25.  The applicant argued that the failure to involve him in the proceedings in which his guilt for the accident of 14 August 2009 had been determined had constituted a breach of his right to a fair trial, guaranteed by Article 6 § 1 of the Convention.
26.  The Government did not make any submissions about the merits of the case.
27.  The Court notes that there is no dispute between the parties about the fact that the applicant was not involved in the proceedings which ended with the decision of the Bender Court of Appeal of 19 November 2009. It further notes that it is clear from the case file that the Bender Court of Appeal determined, inter alia, that the applicant was responsible for causing the accident of 14 August 2009. Although that finding did not amount to a final determination of his guilt, it had a decisive effect on such a determination. Indeed, the police based its decision of 22 January 2010 entirely on the conclusions reached by the Bender District Court of 19 November 2009 without making any further investigation or reaching any new conclusions of its own (see paragraphs 9 and 10 above). In fact, the chief inspector was obliged to conform to the to the appeal court’s judgment and could not have reached any other conclusion. Moreover, the judgment of 19 November 2009 had the effect of res judicata in respect of both the applicant and P.C., if only for making the latter immune from responsibility for the accident. Since in a car accident involving two vehicles, there should be at least one person responsible, the final exclusion of P.C.’s responsibility by the Bender Court of Appeal implicitly predetermined the applicant’s guilt. In those circumstances, the Court must conclude that there has been a breach of Article 6 § 1 of the Convention.
Article IV.	III.  ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION
28.  The applicant also complained that the unfairness of the criminal proceedings against him had had the effect of infringing his right to the peaceful enjoyment of his possessions, as secured by Article 1 of Protocol No. 1 to the Convention, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
29.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore declares it admissible. However, in view of its findings under Article 6 § 1of the Convention (see paragraphs 25-27 above), the Court does not consider it necessary to examine the complaint separately.
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  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.  Damage
31.  The applicant did not make any claim in respect of pecuniary damage and submitted that at this stage of the proceedings such damage was impossible to assess. He therefore asked the Court to reserve the issue of pecuniary damage for a separate judgment. The applicant also claimed 5,000 euros (EUR) in respect of non-pecuniary damage.
32.  The Government objected and argued that the amount claimed was excessive.
33.  In view of the violations found above and of the circumstances of the case, the Court does not consider it necessary to reserve the issue of pecuniary damage. It rejects the applicant’s claim in that respect.
34.  On the other hand, the Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of his right to a fair trial. Making its assessment on an equitable basis, it awards the applicant EUR 2,500 in respect of non-pecuniary damage.
B.  Costs and expenses
35.  The applicant also claimed EUR 590 for the costs and expenses incurred before the Court.
36.  The Government objected and argued that the amount claimed was excessive.
37.  Regard being had to the circumstances of the case and to the documents submitted by the applicant, the Court considers it reasonable to award the entire amount claimed.
C.  Default interest
38.  The Court considers it appropriate that the default interest rate 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
1.  Declares, by a majority, the application admissible;

2.  Holds, by four votes to three, that there has been a violation of Article 6 § 1 of the Convention;

3 Holds, by four votes to three, that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention;

4.  Holds, by four votes to three,
(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 the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 590 (five hundred and ninety 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, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 August 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Işıl Karakaş
	Registrar	President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges P. Lemmens, K. Turković and G. Ravarani is annexed to this judgment.
A.I.K.
S.H.N.

JOINT DISSENTING OPINION OF JUDGES LEMMENS, TURKOVIĆ AND RAVARANI
1.  We regret that we cannot share the view of the majority that there has been a violation of Article 6 § 1 of the Convention in this case. We consider that the majority apply Article 6 § 1 in a way that is wholly inconsistent with the Court’s case-law and disregards the limits of the res judicata effect.

The proceedings at issue

2.  In order to analyse the legal issues raised by the complaint, it is important to correctly determine the facts, in particular the scope of the proceedings at issue.

On 14 August 2009 a road accident took place, involving P.C., the driver of a car, and the applicant, the driver of a bus owned by V.B.

On the same date the chief inspector of the traffic police found that P.C. had violated the traffic rules and imposed a fine on him. Seeking to be relieved of criminal responsibility and exempted from the imposed fine, P.C. challenged that decision. He was unsuccessful before the District Court of Anenii Noi (judgment of 29 September 2009), but eventually won his case before the Court of Appeal of Bender (judgment of 19 November 2009). The latter court held that the applicant had not observed the traffic rules and that he was responsible for the accident. The court accordingly annulled the decision of the chief inspector.

We would like to underline that the judicial proceedings brought by P.C. were aimed solely at obtaining a ruling on the “criminal” liability of the one accused person, namely P.C. himself. The applicant was not a party in those proceedings as there had not been any charge against him and there had not been any request by any of the parties to join him to the proceedings.

On 22 January 2010 the chief inspector of the traffic police issued a new decision. Basing himself on the judgment of the Court of Appeal, he declared the applicant guilty of a breach of the traffic rules, but did not apply any sanction, the reason for this being that the criminal prosecution was time-barred. The applicant did not challenge that decision.

3.  In his application, the applicant also mentioned the civil consequences of the decision to hold him responsible.

He indicated that after the decision of the chief inspector of 14 August 2009, P.C.’s insurer paid 2,702 Moldovan lei (MDL) (approximately EUR 124) to V.B. for the damage to the bus. Following the decision of the chief inspector of 22 January 2010, P.C. sought payment of his car repairs from V.B.’s insurer. The insurance company replied that it would await the decision of our Court in the present case. The applicant calculated that the insurer would compensate only part of the damage, leaving himself liable for MDL 40,894 (approximately EUR 1,870). P.C.’s insurance company, for its part, indicated that it expected V.B. to pay back the money which he had received.

None of the claims of P.C. or his insurer seems to have led to any civil proceedings.

Inapplicability of Article 6 § 1 to the proceedings before the Court of Appeal

4.  The majority hold that Article 6 § 1 is applicable in the instant case (see paragraphs 18-23 of the judgment).

We have no problem accepting that the proceedings which started with the chief inspector’s decision of 14 August 2009 concerned a “criminal charge” within the meaning of Article 6 § 1. The “criminal” nature of a charge based on the traffic rules and resulting in an administrative fine being imposed is also not disputed by the Government. However, this is not the point at issue. The question is whether the relevant proceedings concerned a charge against the applicant.

Indeed, “charge”, for the purposes of Article 6 § 1, is defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the suspect has been substantially affected (see Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; Reinhardt and Slimane-Kaïd v. France, 31 March 1998, § 93, Reports of Judgments and Decisions 1998‑II; Escoubet v. Belgium [GC], no. 26780/95, § 34, ECHR 1999‑VII; and McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010). In their submissions, the Government referred to the Court’s case-law, and argued on that basis that Article 6 § 1 was not applicable.

There is no doubt that the proceedings before the Court of Appeal concerned a charge brought against P.C. The latter had a right to respect for the guarantees provided by Article 6 § 1. By contrast, as indicated above (see paragraph 2), there had been no charge against the applicant in those proceedings. The procedural guarantees of Article 6 § 1 were therefore totally irrelevant for him.

In our opinion, the Government’s objection based on the incompatibility ratione materiae of the application with the Convention is well-founded. In so far as the applicant complains of a violation of Article 6 § 1 as a result of the decision of the Court of Appeal, the application should have been declared inadmissible.

Effects of the findings of the Court of Appeal with respect to the applicant

5.  In finding that there was a violation of Article 6 § 1 as a result of the Court of Appeal’s decision, the majority refer to the fact that that court determined that the applicant, not P.C., was responsible for causing the accident, and that this decision was res judicata in respect of both P.C. and the applicant (see paragraph 27 of the judgment). The majority thus consider that the decision of the Court of Appeal had a far-reaching erga omnes effect attached to each and all of its findings.

We note, first of all, that the majority’s decision is based on an interpretation of the domestic rules on res judicata in criminal cases. However, the contents and scope of domestic law on this point have not been discussed by the parties. In our opinion, it is questionable whether the majority are correct in assuming that the chief inspector was obliged to conform to the Court of Appeal’s judgment to the extent that he could not have reached any other decision on the applicant’s conduct in the light of the applicable traffic rules.

6.  Indeed, res judicata is generally attached only to those findings that form the necessary basis for the court’s conclusion. The proceedings before the Court of Appeal concerned the “criminal” liability of P.C. The decision that P.C. was not guilty of having violated the traffic rules is undoubtedly a decision that constitutes res judicata. We are not sure that the same can be said about any findings with respect to the applicant. Should not all findings other than the ones relating to the “criminal” liability of P.C. be considered obiter dicta, with no binding force at all? Should this not be particularly true of findings relating to a third party who was not charged and who accordingly was not able to defend himself against any charge?

It is true that in order to relieve P.C. of responsibility the Court of Appeal stated that the applicant was the only one of the two drivers involved in the accident who was responsible for the accident. However, it seems to us that this statement concerning the applicant’s responsibility would fit within the category of obiter dicta, as that finding was not necessary for assessing P.C.’s criminal liability. Indeed, the acquittal of P.C. was not dependent on a finding that the applicant was criminally liable. To hold otherwise would ignore the whole spectrum of situations that might arise in concreto, in which neither party may be responsible or where certain circumstances may exclude the criminal responsibility of both drivers, such as force majeure.

Moreover, contrary to what the majority suggest (see paragraph 27 of the judgment), even in the event of a car accident involving two drivers, the acquittal of one driver on the basis that the accident was caused by the other driver does not necessarily mean that that other driver is criminally liable.

7.  A consequence of the right to adversarial proceedings is that the quality of res judicata cannot be invoked against a person with respect to assessments of fact or law made in proceedings to which that person was not a party. Assessments made in a given case must remain relative and their effect limited to those proceedings (see Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 105, 23 February 2016; see also, from the point of view of the right to a court having jurisdiction to examine all the factual and legal issues relevant to the determination of the dispute before it, Beaumartin v. France, 24 November 1994, § 38, Series A no. 296‑B; Terra Woningen B.V. v. the Netherlands, 17 December 1996, § 54, Reports of Judgments and Decisions 1996‑VI; and Chevrol v. France, no. 49636/99, § 82, ECHR 2003‑III). Accordingly, in the present case it would not be compatible with the right to a fair trial if a criminal or civil court were automatically to follow the Court of Appeal’s view that the applicant was responsible for the accident without full and proper examination at a trial in which the applicant would be able to challenge that view.
However, the present application does not lend itself to an examination of whether either Moldovan law or any subsequent decision by a Moldovan authority complies with this aspect of the right to a fair trial.
In the first place, while the chief inspector, following the judgment of the Court of Appeal, found the applicant guilty of a breach of the traffic rules, the applicant did not challenge that decision. He therefore did not avail himself of the opportunity to challenge any alleged automatic reliance by the chief inspector on the Court of Appeal’s statement before a competent court. In addition we note that the Court is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it. In any event, as stated above, the parties have not discussed the contents and scope of domestic law relating to res judicata in criminal cases.
Secondly, no civil claim has yet been brought against the applicant, either by P.C. or by P.C.’s insurer (see paragraph 3 above). His complaint in this respect is premature. At the present time the applicant cannot claim to be already a victim of a violation of his right to a fair trial with respect to the possible civil consequences of the Court of Appeal’s finding. It is in this sense that we also understand the objection of the Government, who argue that the applicant has not exhausted all remedies at his disposal to obtain compensation for the damage he may have sustained himself or to defend himself against claims for compensation for the damage sustained by other parties (see paragraph 16 of the judgment, which, however, in our opinion expresses the objection too narrowly). In so far as the applicant complains about the civil consequences of the Court of Appeal’s decision, the Government’s objection should have been accepted and the application declared inadmissible.

Respect for the applicant’s right to presumption of innocence?

8.  The foregoing does not necessarily exclude the possibility that the applicant is already in a position to complain of a violation of his human rights as a result of the decision of the Court of Appeal.

Indeed, Article 6 § 2 of the Convention guarantees the right to be presumed innocent. This provision is relevant with respect to premature statements made by public authorities or public officials suggesting that a person is guilty before that person has been charged and his guilt established by the competent judicial authority (see, among many others, Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308, and Lavents v. Latvia, no. 58442/00, § 125, 28 November 2002). The presumption of innocence may be infringed on account of premature expressions of a person’s guilt made within the scope of a judgment against another person, for instance a separately prosecuted co-accused (see Karaman v. Germany, no. 17103/10, § 42, 27 February 2014).

In a case about the criminal liability of a person involved in a situation in which other persons are also involved, it may be indispensable for the assessment of the guilt of the person who is on trial to refer to the role of third persons. However, if facts relating to the role of third persons have to be introduced, the court should avoid giving more information than necessary for the assessment of the criminal responsibility of the person who is accused in the trial before it (see Karaman, cited above, § 64; see also Bezek v. Germany (dec.), nos. 4211/12 and 5850/12, § 36, 21 April 2015, and Navalnyy, cited above, § 104).

9.  The applicant did not allege a violation of Article 6 § 2. We therefore will not discuss whether an issue could be said to have arisen in the present case. We would like to point out, however, that in order to assess whether or not there has been a violation of Article 6 § 2, regard would have to be had not only to the language used by the Court of Appeal, but also to the nature and the context of the proceedings before that court (see Allen v. the United Kingdom [GC], no. 25424/09, § 126, ECHR 2013).

For the purposes of the present opinion it is sufficient to note that if the majority had seen a problem, they could only have examined that problem from the point of view of Article 6 § 2 (provided that the application lent itself to such an examination) and not, as they did, from the point of view of Article 6 § 1.