DAMASCHIN proti Moldavsku

SECOND SECTION

DECISION

Application no. 16192/18
Igor DAMASCHIN
against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 24 January 2023 as a Committee composed of:

Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 16192/18) 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”) on 26 March 2018 by a Moldovan national, Mr Igor Damaschin, who was born in 1968 and is detained in Viișoara (“the applicant”) and who was represented by Mr V. Kovali, a lawyer practising in Chișinău;

the partial decision of 19 March 2019 to join the present case to forty-one other applications and to declare the complaint under Article 3 of the Convention concerning conditions of detention inadmissible;

the decision to give notice of the complaints concerning the hearing of witnesses and the reasons given in the domestic courts’ judgments to the Moldovan Government (“the Government”), represented by their Agent at the time, Mr O. Rotari, and to declare inadmissible the remainder of the application;

the Government’s observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s conviction of fraud and the manner in which the domestic courts examined witnesses and reasoned their decisions.

2. On 12 April 2013 the Botanica District Court in Chișinău found the applicant guilty of defrauding his company, JLC. In particular, the court found it established that, as JLC’s representative, the applicant had bought land from several landowners at a certain agreed price and then sold it to JLC at a higher price, pocketing the difference. Moreover, managing the routes to be taken by one of JLC’s trucks, he reported longer routes than that truck had taken in reality, receiving the difference in fuel spent from the truck drivers and pocketing it.

3. In subsequent judgments the courts acquitted the applicant of three other counts of fraud, upholding his conviction for the two counts mentioned above. They found in particular that a number of witnesses, some of whom were key witnesses for the prosecution, had not been heard in court. The case was remitted for re-examination. In its final, 31-page decision of 20 December 2017, the Supreme Court of Justice dismissed the applicant’s appeal on points of law as unfounded.

4. During the proceedings, the courts heard more than 30 witnesses and examined a number of documents, including two reports made by the Centre for Fighting Economic Crime and Corruption (CFECC). Some of the witnesses only made statements to the prosecutor, which were subsequently read out in court, but the witnesses themselves were not heard. The courts found that three of these witnesses (C.E., T.N. and C.I.) could not be heard since one of them was abroad and his address unknown and the two others were seriously ill and could not appear in court. An accountant report was also submitted to the file, finding no evidence of any wrongdoing by the applicant. The courts did not comment on that report.

THE COURT’S ASSESSMENT

1. Disjoinder of the application

5. In view of similar complaints concerning poor conditions of detention, in 2019 the Court decided to join this application with forty-one other applications (see Bulgacov and Others v. the Republic of Moldova (dec.) [Committee], nos. 54187/15 and 41 other applications, 19 March 2019) and declared the applications partially inadmissible. The Court now considers that it is necessary to disjoin this application from the other forty-one applications and to examine it separately.

2. Alleged violation of Article 6 § 1 of the Convention (hearing of the witnesses)

6. Relying on Article 6 of the Convention, the applicant argued that a number of witnesses had not been heard but their statements had been relied upon to convict him. The Government argued that the statements of all witnesses who had testified before the prosecution, but had not been heard in court, had referred to the three counts of fraud in respect of which the applicant was eventually acquitted. Therefore, not hearing these witnesses did not affect the fairness of the proceedings.

7. The Court reiterates that the principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence have been summarised and refined in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-131, ECHR 2015). In order to assess the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence the Court must examine (i) whether there was a good reason for the non‑attendance of the witness and, consequently, for the admission of the absent witness’s untested statements as evidence; (ii) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction; and (iii) whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid.).

8. The Court finds it established that, except for the testimony of three witnesses (C.E., T.N. and C.I.), all the statements by witnesses who were not heard in court but referred to in the domestic courts’ judgments concern the three counts of fraud in respect of which the applicant was acquitted. These statements did not serve as a basis for the applicant’s conviction and thus did not affect the fairness of the trial. As for the three witnesses mentioned above, the courts explained that there were good reasons for not hearing them, as two had been severely ill and one had left to an unknown address abroad. Moreover, their statements did not constitute the sole or decisive evidence against the applicant; the courts also relied on the statements of other witnesses who were heard in court and on documentary evidence. Finally, the fact that six witnesses were heard at the investigation stage concerning essentially the same conduct by the applicant, and three of them were subsequently heard in court, meant that the applicant had been given the opportunity to test that type of evidence as a counter-balancing factor to compensate for not hearing the remaining three witnesses. He was also able to submit any evidence and arguments aimed at undermining the credibility or evidentiary value of all witness statements. His trial as a whole was therefore not unfair in this respect.

9. Accordingly, the complaint as to the failure to hear several witnesses is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. Alleged violation of Article 6 § 1 of the Convention (reasons for judgments)

10. The applicant further complained under Article 6 § 1 of the Convention that the domestic courts had failed to give reasons for their refusal to rely on certain evidence submitted by him, notably an expert report.

11. The relevant principles regarding the reasons given by the domestic courts notably for the assessment of evidence are summarised, inter alia, in Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, § 61, ECHR 2015). Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a court of fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable.

12. The Court notes that the domestic courts gave fully and extensively reasoned judgments. While they did not comment on certain alleged mathematical mistakes in the two CFECC reports (see paragraph 4 above), these could only affect the amount of damage caused, but did not cast doubt on the courts’ reasoning in finding the applicant guilty. Similarly, while the courts did not comment on the results of an accountant report in the file, they relied on two other reports and on a variety of other evidence. The applicant essentially disagrees with how the courts dealt with evidence, but the Court cannot discern any signs that their findings were arbitrary or manifestly unreasonable.

13. Accordingly, the complaint about the reasoning in the domestic courts’ judgments is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Disjoins the application from the others to which it was joined;

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2023.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President