CASE OF IGOR PASCARI v. THE REPUBLIC OF MOLDOVA

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.
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 200 9 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.
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.
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 ...”
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.
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.
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.
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.”
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.
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.
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.
1. Declares, by a majority, the application admissible;