CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 janvier 2020

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THE REPUBLIC OF MOLDOVA (Application no. 74542/12)           JUDGMENT   STRASBOURG 7 January 2020       This judgment is final but it may be subject to editorial revision.   In the case of Asimionese 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 10 December 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 74542/12) 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 Vasile Asimionese (“the applicant”), on 8 November 2012. 2.     The applicant, who had been granted legal aid, was represented by Mr   V. Zamă, a lawyer practising in Chişinău. 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 within the meaning of Article 6 § 1 of the Convention. 4.     On 10   December 2018 the Government were given notice of the application. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1965 and lives in Chişinău. 6.     At the time of the events the applicant was the mayor of the village of Bălășinești. On an unspecified date criminal proceedings were initiated against him on several charges. He was accused, inter alia , of having improperly sold a piece of land adjacent to a building belonging to the village; having sold at a reduced price several concrete blocks recovered after the demolition of a publicly owned building; having paid bonuses to a number of employees of the mayor’s office and later misappropriated the money; and having forged a Schengen visa for a third person. 7.     On 23 October 2009 the Briceni District Court acquitted the applicant of all the charges. The court found the accusations against him to be ill ‑ founded, on the basis of the materials in the case file and having heard witnesses in respect of each of the charges. The witnesses stated, inter alia , that the decision to sell the plot of land in question had been taken by the former mayor and voted upon by the local council. They also submitted that it was the local council which had decided to sell the concrete blocks and which had set their price. Witnesses also stated that they had been coerced by prosecutors into signing written statements containing accusations to the effect that their bonuses had been appropriated by the applicant, and that the applicant had not been involved in the forging of a Schengen visa. The prosecutor’s office lodged an appeal against the District Court’s judgment. 8.     On 12 May 2010 the Bălți Court of Appeal dismissed the prosecutor’s appeal and upheld the judgment of the first-instance court. The prosecutor in charge of the case lodged an appeal on points of law with the Supreme Court of Justice. 9.     On 22 February 2011 the Supreme Court of Justice upheld the appeal on points of law, quashed the decision of the Court of Appeal and ordered a fresh re-examination of the case by the Court of Appeal. The court ordered, inter-alia , the re-examination of the case in accordance with Article 419 of the Code of Criminal Procedure, that is, according to the rules on the examination of criminal cases by the first-instance courts. 10.     On 22 December 2011, after re-examining the prosecutor’s appeal against the judgment of 23 October 2009, the Bălţi Court of Appeal upheld the appeal, quashed the judgment and found the applicant guilty of all the charges enumerated in paragraph 6 above. The court sentenced the applicant to a criminal fine of approximately 713 euros and barred him from public office for a period of three years. In reaching its conclusions, the Court of Appeal heard only two witnesses and read out the statements given at first instance by more than twenty further witnesses. The Court of Appeal reached the conclusion that the first-instance court had wrongly interpreted the statements of the above-mentioned witnesses. The applicant lodged an appeal on points of law against this judgment in which he argued, inter alia , that the Court of Appeal had failed to observe the provisions of Article   419 of the Code of Criminal Procedure, requiring it to hear all the witnesses anew, as instructed by the Supreme Court. 11.     On 6 June 2012 the Supreme Court of Justice dismissed the applicant’s appeal on points of law after finding, inter alia , that the provisions of Article 419 had not been breached by the Court of Appeal. RELEVANT DOMESTIC LAW AND PRACTICE 12.     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 criminal cases at first instance. 13.     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.” 14.     Article 464 1 of the Code of Criminal Procedure provides for the possibility of reopening domestic proceedings where the Court has found a violation of an applicant’s fundamental rights and freedoms and where the consequences of the violation continue to have effect and can be redressed only by a review of the final judgment. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15.     The applicant complained that the criminal proceedings against him had not been fair because the Court of Appeal had failed to hear the victims and 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 16.     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 17.     The applicant contended that the failure of the Balti 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. 18.     The Government disagreed and argued that the applicant had had the chance to request that the witnesses be recalled if he had so wanted. However, he had not done so, but had agreed to the reading-out of those statements during the hearing. The Court of Appeal had read the statements out and given them a new interpretation, finding that the interpretation of the first-instance court had been wrong. 19.     The Court reiterates that the manner of applying Article 6 of the Convention to proceedings before courts of appeal depends on the special features of the proceedings involved: account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see Botten v. Norway , 19 February 1996, §   39, Reports of Judgments and Decisions 1996-I). Where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence (see Constantinescu v. Romania , no. 28871/95, §   55, ECHR 2000 VIII; Popovici v. Moldova , nos. 289/04 and 41194/04, §   68, 27 November 2007; and Marcos Barrios v. Spain , no. 17122/07, §   32, 21   September 2010). 20.     Turning to the facts of the present case the Court notes that the Court of Appeal found the applicant guilty on the basis of, among other things, statements made by over twenty witnesses. It appears from the court’s judgment and from the Government’s submissions that the Court of Appeal considered the interpretation given to those statements at first instance to be wrong and gave them a new interpretation. In reaching its conclusions, the Court of Appeal chose to rely on the transcript of those witness statements, without hearing the witnesses in person and without giving the applicant an opportunity to put questions to them. 21.     The Government submitted that, by not asking for a fresh hearing of the witnesses before the Court of Appeal, the applicant had waived his right to have the witnesses heard during those proceedings. 22.     The Court reiterates that neither the letter nor the spirit of Article   6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol v.   France , 23 November 1993, § 35, Series A no. 277 ‑ A). In addition, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden , 21 February 1990, § 66, Series A no. 171 ‑ A, and Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II). 23.     In the present case, it does not appear that the applicant expressed in an unequivocal manner his intention to waive the right to have the witnesses examined by the Court of Appeal. It would rather appear that, being satisfied with the outcome of the case at first instance and being aware of the provisions of Article 419 of the Code of Criminal Procedure, the applicant did not feel compelled to request a new hearing of the witnesses. Therefore, the Court is not prepared to accept the Government’s argument that the applicant waived his right to have the witnesses heard anew before the Court of Appeal. 24.     The Court further notes that the manner in which the Balti Court of Appeal conducted the proceedings appears to be at odds with the provisions of Article 419 of the Code of Criminal Procedure (see paragraph   12 above) and with the guidelines set out in the Plenary Supreme Court of Justice’s explanatory judgment (see paragraph 13 above). 25.     Moreover, the Balti Court of Appeal did not provide any reasons whatsoever as to why it had come to a different conclusion from the first ‑ instance court. It simply stated that the first-instance court had wrongly interpreted the witnesses’ statements, without providing any explanation. 26.     Having regard to what was at stake for the applicant, the Court is not convinced that the issues that had to be determined by the Court of Appeal when convicting and sentencing the applicant – and, in doing so, overturning his acquittal by the first-instance court – could be properly examined, as a matter of fair trial, without a direct assessment of the evidence. The Court considers that those who have responsibility for deciding on the guilt or innocence of an accused ought, in principle, to be able to hear the victims, the accused and the witnesses in person and assess their trustworthiness (see, conversely, Kashlev v. Estonia , no. 22574/08, §§   48-50, 26   April 2016). The assessment of the trustworthiness of a witness is a complex task which cannot usually be achieved merely by reading a record of his or her words, especially when only some of those words are taken into consideration. Of course, there are cases where it is impossible to hear someone in person at the trial because, for example, he or she has died, or in order to protect the right of a witness not to incriminate himself or herself (see Craxi v. Italy (no. 1) , no.   34896/97, §   86, 5   December 2002, and Dan v. Moldova , no. 8999/07, §   33, 5 July 2011). However, that was not the case here. 27.     In the light of the above, the Court considers that the conviction of the applicant without a re-examination of the witnesses, after he had been acquitted by the first-instance court, was contrary to the guarantees of a fair trial within the meaning of Article 6 § 1 of the Convention. 28.     There has therefore been a violation of Article 6 § 1 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 29.     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.” Pecuniary damage 30.     The applicant claimed 550 euros (EUR) in respect of pecuniary damage, representing the equivalent of the fine paid by him. 31.     The Government disagreed with the applicant and submitted that he was not entitled to any compensation. 32.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged. In particular, it cannot speculate as to the outcome of the proceedings had the applicant’s case been examined in full compliance with the requirements of Article 6 of the Convention. Therefore, the Court rejects this claim. Non-pecuniary damage 33.     The applicant claimed EUR 15,000 in respect of non ‑ pecuniary damage resulting from the breach of his Convention rights. 34.     The Government disagreed and asked the Court to reject the claim as unsubstantiated. 35.     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. 36.     Moreover, the Court reiterates that where a person, as in the instant case, is convicted in domestic proceedings which failed to comply with the requirements of a fair trial, a new trial or the reopening of the domestic proceedings at the request of the interested person represents an appropriate way to redress the violation (see Gençel v. Turkey , no. 53431/99, §   27, 23   October 2003, and Tahir Duran v. Turkey , no. 40997/98, §   23, 29   January 2004). In this connection it notes that Article 464 1 of the Moldovan Code of Criminal Procedure provides for the possibility of a retrial or for the reopening of the domestic proceedings where the Court has found a violation of an applicant’s fundamental rights and freedoms (see Flueraş v. Romania , no. 17520/04, § 70, 9 April 2013, and Hanu v.   Romania , no.   10890/04, § 50, 4   June   2013). Costs and expenses 37.     The applicant also claimed EUR 2,300 for the costs and expenses incurred before the domestic courts and before the Court. He submitted a detailed time-sheet. 38.     The Government contested that amount and argued that it was excessive and unsubstantiated. 39.     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 were 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 EUR 1,000, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable. Default interest 40.     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 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 150 (one hundred and fifty 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 7 January 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Hasan Bakırcı   Egidijus Kūris Deputy Registrar   President