European Court of Human Rights

 

 

SECOND SECTION

CASE OF BOGATICOV v. THE REPUBLIC OF MOLDOVA

(Application no. 48833/16)

 

 

 

 

JUDGMENT

STRASBOURG

14 December 2021

 

 

 

 

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

 

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

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

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 48833/16) 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 5 August 2016 by a Moldovan national, Mr Maxim Bogaticov, born in 1981 and living in Chișinău (“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 23 November 2021,

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 examining anew any evidence or hearing witnesses.

2.  While driving late in the evening, the applicant run over with his car a person who was lying on the road. The doctors from an ambulance which arrived at the scene of the accident shortly after found that the victim was dead.

3.  After examining the expert reports and hearing the experts and the witnesses, the first instance court acquitted the applicant. It found that he was not responsible of the victim’s death because the reduced visibility did not allow him to brake in time and avoid collision with the victim who was lying on the road. Moreover, the expert reports found that the victim’s body presented two types of injuries: antemortem and post-mortem, meaning that most probably he had been already dead at the moment of the impact with the applicant’s car.

4.  The Chișinău Court of Appeal reversed the above judgment and found the applicant guilty as charged. In so doing, it did not hear anew the witnesses or the experts but merely read out their statements from the case‑file. The hearing of the witnesses was sought by the prosecution. 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 all witnesses and experts as required by the Code of Criminal Procedure.

5.  The Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the above judgment. One of members of the panel of the Supreme Court of Justice wrote a dissenting opinion and expressed the view that the applicant should have been acquitted.

THE COURT’S ASSESSMENT

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. Moreover, two of the witnesses had changed their addresses and, therefore they could not be cited.

9.  The Court notes that the prosecutor requested that the accusation witnesses be present and heard during the proceedings. Thus, there was no need for the applicants to request the same thing too. Moreover, the Government did not provide the Court with any evidence to prove that all reasonable efforts 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 1,882 euros (EUR) in respect of pecuniary damage and EUR 3,000 in respect of non-pecuniary damage.

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.

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 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

           {signature_p_2}

             Hasan Bakırcı                                                     Carlo Ranzoni
          Deputy Registrar                                                      President