MADAM proti Moldavsku

SECOND SECTION

CASE OF MADAM v. THE REPUBLIC OF MOLDOVA

(Application no. 42715/19)

JUDGMENT

STRASBOURG

6 September 2022

This judgment is final but it may be subject to editorial revision.

In the case of Madam v. the Republic of Moldova,

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

Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to:

the application (no. 42715/19) 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 1 August 2019 by a Moldovan national, Mr Nicolae Madam, born in 1977 and living in Peresecina (“the applicant”) who was represented by Mr L. Luca, a lawyer practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari;

the parties’ observations;

Having deliberated in private on 28 June 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns the reversal of a judgment of a first instance court by which the applicant was acquitted and his conviction on appeal without hearing witnesses anew.

2. The applicant was accused of a serious breach of traffic rules resulted in an accident in which two persons were injured. However, he was acquitted at first instance on the basis, inter alia, of several witness statements.

3. The Chișinău Court of Appeal reversed the above judgment and found the applicant guilty as charged. In so doing, it did not hear anew any of the witnesses but merely read out their statements from the case-file. The applicant lodged an appeal on points of law arguing inter alia that in reversing his acquittal, the Court of Appeal had failed to conduct a fully-fledged hearing and had not heard anew the witnesses as required by the Code of Criminal Procedure.

4. The Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the above judgment.

5. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair because the Court of Appeal had convicted him without conducting a proper hearing and because it had not heard anew the witnesses.

THE COURT’S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

6. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.

7. The general principles concerning the fairness of criminal proceedings on appeal after the applicant’s acquittal at first instance have been summarized in Dan v. Moldova (no. 8999/07, § 30, 5 July 2011), Covalenco v. the Republic of Moldova (no. 72164/14, §§ 19-24, 16 June 2020) and Dan v. the Republic of Moldova (no. 2) (no. 57575/14, §§ 47-56, 10 November 2020).

8. The Government submitted that the applicant did not seek the hearing of the witnesses by the Chișinău Court of Appeal. Therefore, he was prevented from relying on this argument before the Court.

9. The Court considers that if the Court of Appeal was to ensure a fair trial, it was under a duty to take positive measures in order to rehear the absent witnesses, notwithstanding the fact that the applicant did not ask for a rehearing (see Dan v. the Republic of Moldova (no. 2), cited above, § 57, and Sigurþórsson Arnarsson v. Iceland, no. 44671/98, § 38, 15 July 2003). 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 rather appears 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 is prevented from relying on this argument before the Court. Finally, the Government did not provide the Court with any evidence to prove that all reasonable efforts, if any, were made to secure those witnesses’ attendance before the Court of Appeal.

10. Having regard to the circumstances of the case and to the materials of the case-file, the Court considers that the issues to be determined by the Court of Appeal when convicting and sentencing the applicant - and, in doing so, overturning the decision of the first-instance court by which he was acquitted – could not, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the witnesses and the experts.

11. There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. The applicant claimed 2,300 euros (EUR) in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage and EUR 1,000 for costs and expenses.

13. The Government contested the above amounts claimed by the applicant, alleging that they were excessive.

14 The Court cannot speculate as to whether the applicant would have suffered any pecuniary damage had the breach of Article 6 § 1 not taken place; it therefore rejects that claim. However, the Court awards the applicant the entire amount sought for non-pecuniary damage. In so far as the costs and expenses are concerned, the Court notes that the applicant has not produced any evidence in support of his claims. Therefore, it decides not to award any sum under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros) plus any tax that maybe chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Branko Lubarda
Registrar President