CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 3 décembre 2019

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THE REPUBLIC OF MOLDOVA (Application no. 44896/11)           JUDGMENT   STRASBOURG 3 December 2019           This judgment is final but it may be subject to editorial revision.   In the case of Ciobanu v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Egidijus Kūris, President,   Valeriu Griţco,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 12 November 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 44896/11) 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 Mihail Ciobanu (“the applicant”), on 11 July 2011. 2.     The applicant was represented by Mr C. Tănase, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari. 3.     The applicant alleged, in particular, that the criminal proceedings against him had not been fair under Article 6 § 1 of the Convention. 4.     On 11   June 2018 the Government were given notice of the application. 5.     The Government submitted a unilateral declaration and invited the Court to strike out the application, in accordance with Article 37 of the Convention. THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1987 and lives in Pfungen, Switzerland. 7.     In January 2009 the applicant was involved in a car accident in Chișinău as a result of which one person died and another was injured. As a consequence he was accused of reckless driving resulting with the death and injury of persons. 8.     On 15 April 2010 the Buiucani District Court acquitted the applicant, inter alia , on the basis of witness testimonies. The court came to the conclusion that it had been the two victims and not the applicant who had been responsible for the accident. The prosecutor in charge of the case and one of the victims’ families appealed against the judgment. 9.     On 8 September 2010 the Chișinău Court of Appeal upheld the appeals and reversed the judgment of the first instance court. In so doing, the Court of Appeal did not hear anew the witnesses but only read out their statements as recorded by the first instance court. The applicant was convicted and given a suspended sentence of five years’ imprisonment. He lodged an appeal on points of law and argued, inter alia , that in convicting him, the Court of Appeal had failed to examine the evidence relied upon by the first instance court to acquit him. 10.     On 9 February 2011 the Supreme Court of Justice rejected the applicant’s appeal and confirmed the judgment of the Court of Appeal. RELEVANT DOMESTIC LAW AND PRACTICE 11.     Article 419 of the Code of Criminal Procedure provides that the procedure for rehearing a case on appeal must follow the general rules for the examination of a criminal case at first instance. 12.     An explanatory judgment of the Plenary Supreme Court of Justice, No. 22 of 12 December 2005, reads, in so far as relevant, as follows: “Bearing in mind the provisions of Article 6 of the European Convention on Human Rights, the appellate court, after an acquittal by a first-instance court, cannot order a conviction for the first time without hearing the accused or assessing the evidence directly.” THE LAW THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 13.     On 14 February 2019 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, ECHR 2003 ‑ VI) and informed the Court that they were ready to accept that there had been a violation of the applicant’s rights under Article 6 § 1 of the Convention. In so far as the just satisfaction was concerned, they considered that their acknowledgement would also serve as just satisfaction. The Government invited the Court to strike out the application in accordance with Article   37 of the Convention. 14.     The applicant disagreed with the Government’s proposal and argued that he was entitled to non-pecuniary damage and compensation for costs and expenses. 15.     The Court reiterates the principle set out in Nagmetov v. Russia ([GC], no. 35589/08, § 65, 30 March 2017) according to which a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. The Court is of the opinion that this principle is also applicable in cases such as the present one, where a Government seek to obtain a strike-out decision by means of a unilateral declaration ( Decev v. Moldova (no. 2) , no.   7365/05, §   18, 24   February 2009). 16.     In the light of the circumstances of the case, the Court is not convinced that the reparation proposed by the Government would “put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach”. In particular, the Court notes that in admitting that there has been a violation of Article 6 § 1 of the Convention, the Government have not proposed compensation for non-pecuniary damage and costs and expenses. 17.     For the reasons set out above, the Court finds that the Government have failed to submit a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see, by contrast, Akman v.   Turkey (striking out), no. 37453/97, §§ 23-24, ECHR 2001 ‑ VI). 18.     This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19.     The applicant complained that the criminal proceedings against him had not been fair because the Court of Appeal had failed to hear the witnesses before overturning his acquittal. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility 20.     The Court notes 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. Merits 21.     The applicant contended that the failure of the Chişinău Court of Appeal to rehear the witnesses before overturning his acquittal by the first ‑ instance court had amounted to a breach of Article 6 § 1 of the Convention. 22.     The Government agreed with the applicant and admitted that there had been a breach of Article 6 § 1 of the Convention. 23.     The Court refers to its case-law in the cases of Dan v. Moldova (no.   8999/07, § 34, 5   July 2011); Lazu v. the Republic of Moldova (no.   46182/08, § 43, 5 July 2016); and Manoli v. the Republic of Moldova (no.   56875/11, § 33, 28 February 2017), where, in similar circumstances, it found a breach of Article 6 § 1 of the Convention. In the light of the above case-law and in view of the Government’s clear acknowledgement of a breach, the Court concludes that there has been a violation of Article 6 § 1 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24.     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.” Non-pecuniary damage 25.     The applicant claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage resulting from the breach of his Convention rights. 26.     The Government disagreed and asked the Court to reject the claim as unsubstantiated. 27.     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 2,000 in respect of non-pecuniary damage. Costs and expenses 28.     The applicant also claimed EUR 810 for the costs and expenses incurred before the domestic courts and before the Court. 29.     The Government contested that amount and argued that it was excessive and unsubstantiated. 30.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the entire amount claimed. Default interest 31.     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, UNANIMOUSLY, Rejects the Government’s request to strike the application out of its list of cases; Declares the application admissible; 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 the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)         EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 810 (eight hundred and ten 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 the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 December 2019, pursuant to Rule   77 §§   2 and 3 of the Rules of Court.   Hasan Bakırcı   Egidijus Kūris Deputy Registrar   President