CASE OF LAZU v. THE REPUBLIC OF MOLDOVA

1. The case originated in an application (no. 46182/08) 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 Anatolie Lazu (“the applicant”), on 10 September 2008.
2. The applicant was represented by Mr A. Luca, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The applicant alleged, in particular, that the criminal proceedings against him had been unfair, in breach of Article 6 § 1 of the Convention.
4. On 21 February 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1954 and lives in Chișinău. At the time of the events, he was a bank armoured vehicle driver.
6. At around 10.55 a.m. on 12 August 2005 the applicant went around an illegally parked bus while driving an armoured vehicle. While he was completing the manoeuvre, the bus started moving and to prevent having an accident with the armoured vehicle it stopped abruptly. As a result of the sudden stop a bus passenger, C ., fell from her seat and suffered moderately severe injuries.
7. On 1 September 2005 a criminal investigation was initiated. The prosecutor heard the applicant, the victim C., the bus driver D., a witness who had been sitting in the applicant ’ s vehicle and another two witnesses who had been passengers on the bus (S. and V.).
8. On 7 October 2005 D. was charged with violating traffic rules, resulting in C. ’ s injuries.
9. On 10 October 2005 the applicant and D. were interviewed face-to-face. According to the applicant, he had completed the manoeuvre around the stationary bus and taken the lane in front of it after making sure the bus was still stationary. He had then signalled to turn right and used the horn to alert the driver of his intentions. According to D., the applicant ’ s car had turned right without any warning and he had been forced to stop abruptly to prevent an accident.
10. The same day the prosecutor discontinued the criminal proceedings against D. for lack of evidence and instead interviewed him as a witness.
11. On 21 October 2005 the applicant was charged with violating traffic rules, resulting in C. ’ s injuries.
12. During the course of the proceedings the Botanica District Court heard the same witnesses as the prosecutor. The court also examined a site investigation report and a sketch map of the scene of the incident, both drawn up on 12 August 2005 at 12.20 p.m. in only D. ’ s presence.
13. The court considered the testimony of C. and the two bus passengers unreliable. They claimed that the applicant had performed a sudden manoeuvre which had obliged D. to suddenly stop the bus. The court considered that none of them had seen any of the events themselves and that their impression that the applicant was guilty was because the bus driver blamed him. The court also considered D. ’ s testimony unreliable because the same charges had been previously brought against him. The court noted that charges had been brought against the applicant based on statements by D. made shortly after the criminal proceedings against him had been discontinued, without re-interviewing the other witnesses. The court also noted that the site investigation report and the sketch map had not been drawn up immediately after the incident, that the police had gone to the scene several hours later and had been joined only by D., that the applicant ’ s objections had not been reflected in the documents, and that the sketch map did not correspond to the statements given by all the witnesses shortly after the incident.
14. In a judgment of 27 March 2006 the Botanica District Court acquitted the applicant for the reasons given above. It concluded that the prosecution had failed to provide reliable evidence in support of the contention that the applicant ’ s actions had obliged D. to suddenly stop the bus. The prosecutor appealed.
C. The applicant ’ s conviction
15. On 23 May 2006 the Chișinău Court of Appeal dismissed the prosecutor ’ s appeal and upheld the first-instance judgment. It noted that the first-instance court had correctly scrutinised all the evidence and had provided reasons supporting the findings about the unreliability of the witness statements, referring to the testimony of the two passengers. The prosecutor appealed on points of law.
16. On 17 October 2006 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor ’ s appeal on points of law, quashed the appellate judgment and ordered a rehearing of the case in accordance with the provisions of Article 436 of the Code of Criminal Procedure, namely that any examination had to be in accordance with the rules applicable in proceedings before the first-instance court. The court found that the appellate court had not thoroughly stated its position on the assessment of the statements made by C ., D. and the two passengers, but had merely relied on evidence in the applicant ’ s favour.
17. After rehearing the case, on 28 December 2006 the Chișinău Court of Appeal dismissed the prosecutor ’ s appeal and upheld the first-instance judgment. The court analysed the witness testimony and the site investigation report and the sketch map, providing reasons why the evidence was unreliable. The prosecutor appealed on points of law.
18. On 26 June 2007 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor ’ s appeal on points of law and ordered a rehearing of the case. The court provided reasoning similar to that in its judgment of 17 October 2006.
19. Pursuant to the verbatim record of the appellate hearing of 25 October 2007 the applicant and his lawyer did not object to the court continuing to examine the case without recalling the victim and did not request the recalling of witnesses. On the same day, the Chișinău Court of Appeal upheld the prosecutor ’ s appeal, quashed the judgment of the Botanica District Court of 27 March 2006, found the applicant guilty and ordered him to pay an administrative fine of 3,000 Moldovan lei ( MDL – approximately 194 euros (EUR) ) and damages to C. in the amount of MDL 2,500 ( approximately EUR 162). The court referred to a list of evidence, including the disputed statements of C ., D. and the two witnesses, without providing any additional reasons.
20. The applicant appealed and outlined, inter alia, the discrepancies in the witness statements, which had been identified by the first-instance court after hearing them and which had not been clarified by the appellate court. On 13 February 2008 the Supreme Court of Justice examined the applicant ’ s appeal in the absence of the parties and declared it inadmissible.
21. The applicant was served with this judgment on 24 May 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
22. Articles 413 (6), 419 and 436 of the Code of Criminal Procedure provide that the procedure for rehearing a case after an appellate judgment is quashed by the court of cassation must follow the general rules for the examination of a criminal case in first instance and require that the evidence assessed by the appellate court be listed in the verbatim record of the hearing.
23. 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.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
24. The applicant complained that the criminal proceedings against him had been unfair because in overturning his acquittal the Chișinău Court of Appeal had failed to hear the witnesses whose testimony had been used to find him guilty. 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 ...”
25. The Government submitted that the applicant had failed to lodge his application within six months of the date of the “ final decision ” within the meaning of Article 35 § 1 of the Convention. More precisely, he had lodged his application on 10 September 2008 while the Supreme Court of Justice had delivered its final judgment on 13 February 2008.
26. The applicant disagreed. He argued that the final decision had been served on him on 24 May 2008 and referred to a letter from the Supreme Court dated 19 May 2008 and the postmark on the accompanying envelope.
27. The Court observes that the final decision for the purposes of Article 35 § 1 was adopted on 13 February 2008 and served on the applicant on 24 May 2008. Accordingly, given that the six-month time-limit started to run on 25 May 2008, the day after the applicant received the Supreme Court ’ s decision (see also Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997 ‑ V), and that he lodged his application on 10 September 2007, the Government ’ s objection must be dismissed.
2. Non-exhaustion of domestic remedies
28. The Government submitted that the applicant had not expressly mentioned Article 6 § 1 of the Convention in his appeal on points of law and when asked, had not requested the Chișinău Court of Appeal to recall witnesses. He had thus waived his right to have the witnesses re-examined.
29. The Court considers that this matter is closely related to the merits of the complaint. Accordingly, it joins the issue to the merits.
30. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
31. The applicant complained that the proceedings before the Chișinău Court of Appeal had been unfair because it had convicted him for the first time without hearing the prosecution witnesses. He argued that the obligation had been on the prosecution, not him, to request the court to recall witnesses in order to reverse his acquittal by the first-instance court.
32. The Government disagreed and argued that the applicant had failed to request the Chișinău Court of Appeal to recall witnesses and that by agreeing that the court should continue the examination of the case in this way he had waived his right to have the witnesses re-examined.
33. The Court reiterates that the manner of application of Article 6 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 1996 ‑ I, and Hermi v. Italy [GC], no. 18114/02, § 60, ECHR 2006 ‑ XII ).
34. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28 ECHR 1999 ‑ I ). Moreover, although it is normally for the national courts to decide whether it is necessary or advisable to call a witness, exceptional circumstances could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 ( see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158).
35. 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; Hermi v. Italy, [GC], cited above, § 73, ECHR 2006 ‑ XII; and Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II).
36. Turning to the facts of the present case, the Court notes that the main evidence against the applicant was the witness statements to the effect that he had unlawfully manoeuvred his vehicle and made the bus driver stop abruptly. There was no other evidence which could lead on its own to the applicant ’ s conviction (paragraphs 12 and 13 above). The witness statements and the weight given to them therefore had a decisive impact on the determination of the case.
37. The first-instance court acquitted the applicant because it did not trust the witnesses after hearing them in person. In re-examining the case, the Chișinău Court of Appeal disagreed with the first-instance court as to the trustworthiness of the witness statements without ever hearing those witnesses. As a result it found the applicant guilty as charged.
38. Firstly, the Court notes that the Chișinău Court of Appeal breached the provisions of Article 436 of the Code of Criminal Procedure (see paragraph 22 above) and failed to observe the instructions of the Supreme Court of Justice (see paragraphs 16 and 18 above) to rule on the merits of the case after a fresh examination of the evidence, and did not provide any reasons for doing so ( Găitănaru v. Romania, no. 26082/05, §§ 33-35, 26 June 2012).
39. Secondly, in doing so the Chișinău Court of Appeal did not provide any reasons whatsoever as to why it had come to a conclusion different from that of the first-instance court. It simply referred to a summary of the witness testimony without addressing the discrepancies within and between individual witness statements (contrast with Schatschaschwili v. Germany [GC], no. 9154/10, § 150, ECHR 2015).
40. Lastly, having regard to what was at stake for the applicant, the Court is not convinced that the issues 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, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the prosecution witnesses. The Court considers that those who have the responsibility for deciding the guilt or innocence of an accused ought, in principle, to be able to hear witnesses in person and assess their trustworthiness. The assessment of the trustworthiness of a witness is a complex task which usually cannot be achieved by a mere reading of his or her recorded words. Of course, there are cases when it is impossible to hear a witness in person at the trial because, for example, he or she has died, or in order to protect the right of the 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 does not appear to have been the case here.
41. Furthermore, with regard to the Government ’ s contention that the applicant and his lawyer agreed that the proceedings should continue without hearing witnesses, the Court notes that the verbatim record of the hearing of 25 October 2007 does not contain any reference to whether the applicant had waived his right to recall the witnesses, except the victim. The record does not contain any reference to whether the witnesses had been summoned and to what evidence had been assessed by the Court of Appeal before it reached its conclusion on the applicant ’ s guilt. Moreover, having been acquitted in first instance and being aware that for a conviction the appellate court had to re-assess directly the evidence in the file, the applicant did not have any particular reason to recall the witnesses (see Igual Coll v. Spain, no. 37496/04, § 32, 10 March 2009).
42. For these reasons, the Court notes that the requirements of a fair trial necessitated the rehearing of witnesses and that the Court of Appeal was under an obligation to take positive measures to such an end, even if the applicant did not request it (see Botten v. Norway, cited above, § 53; Dan v. Moldova, cited above, § 26; Serrano Contreras v. Spain, no. 49183/08, § 40, 20 March 2012 and Flueraş v. Romania, no. 17520/04, § 60, 9 April 2013 ). Moreover, in his appeal on points of law the applicant raised the issue of the Court of Appeal ’ s failure to clarify the discrepancies in the statements. The Court thus dismisses the Government ’ s preliminary objection concerning the non-exhaustion of domestic remedies.
43. In the light of the above, the Court considers that the applicant ’ s conviction without the re-examination of any 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.