European Court of Human Rights

 

SECOND SECTION

CASE OF NADDUR v. THE REPUBLIC OF MOLDOVA

(Application no. 22939/19)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 December 2022

 

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

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

The European Court of Human Rights (Second Section), sitting 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. 22939/19) 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 12 April 2019 by a Ukrainian national, Mr Issam Naddur, born in 1966 and living in Kiev (“the applicant”), who was represented by Mr I. Cernolev, 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 decision of the Ukrainian Government not to avail themselves of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court;

the parties’ observations;

Having deliberated in private on 22 November 2022,

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

SUBJECT MATTER OF THE CASE

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

2.  The applicant was initially charged with fraud. It was alleged that he had been part of a group of persons who had defrauded a foreign businessperson of a large amount of money.

3.  After hearing the victim, the applicant and numerous witnesses and examining all the available evidence, the first instance court acquitted the applicant.

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 any witnesses or the victim but merely read out their statements from the case-file. Contrary to the view expressed by the first instance court, the Court of Appeal considered that these statements confirmed the applicant’s guilt.

5.  The applicant lodged an appeal on points of law arguing, inter alia, that the Court of Appeal had failed to conduct a fully-fledged hearing by hearing anew the witnesses as required by the Code of Criminal Procedure before reversing his acquittal. The Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the above judgment.

6.  The applicant complained, in particular, 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 hearing the witnesses anew.

THE COURT’S ASSESSMENT

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

7.  The Court notes that the applicant’s said complaint under Article 6 § 1 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.

8.  The Government submitted that the proceedings were fair and in accordance with Article 6 § 1 of the Convention.

9.  The general principles concerning the fairness of criminal proceedings on appeal after the applicant’s acquittal at first instance have been summarised 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). In particular, where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence (Dan, cited above, ibid.).

10.  Having examined the materials in 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, the victim and any other relevant material in the case file. In particular, the question of whether the applicant had committed fraud in the circumstances of the case depended essentially on the credibility of the witnesses, including the victim, which cannot be fully assessed by a mere reading of their statements before the first instance court as recorded in the file (compare also Dan v. Moldova, cited above, § 33).

11.  The Court would also note in this context that the manner in which the Chișinău Court of Appeal conducted the proceedings appears to be at odds with the Article 419 of the Code of Criminal Procedure and with the guidelines set out in the Plenary Supreme Court of Justice’s explanatory judgment No. 22 of 12 December 2005, under which, after an acquittal judgment pronounced by a first-instance court, the appeal court cannot order the conviction for the first time without hearing the accused and without the direct administration of the evidence (see for the text of the provision and of the guidelines Dan v. the Republic of Moldova (no. 2), cited above, §§ 34-35).

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

II.      OTHER COMPLAINTS

13.  The applicant also complained under Article 6 § 2 of the Convention that the courts refused to assist him in obtaining evidence and failed to deal with all the arguments of the defence. Furthermore, Article 6 § 2 of the Convention was breached as a result of the Supreme Court of Justice’s finding that he had not asked for the witnesses heard by the first instance court to be heard again by the appellate court, thus reversing the burden of proof.

14.  Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

 

APPLICATION OF ARTICLE 41 OF THE CONVENTION

15.  The applicant claimed 355,700 United States Dollars (USD) in respect of pecuniary damage, 50,000 euros (EUR) in respect of non-pecuniary damage and EUR 900 in respect of costs and expenses.

16.  The Government contested the above amounts claimed by the applicant, alleging that they were either unjustified or excessive.

17.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged. In particular, it cannot speculate as to the outcome of the proceedings had the breach of Article 6 § 1 not occurred; it therefore rejects that claim. However, the Court, making its assessment on an equitable basis, awards the applicant EUR 3,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. Furthermore, having regard to the documents before it, it considers it reasonable to award the applicant the entire amount sought for costs and expenses, that is, EUR 900, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 6 § 1 of the Convention admissible;

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

3.      Holds that there is no need to examine the admissibility and merits of the applicant’s remaining complaints;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 900 (nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

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

Done in English, and notified in writing on 13 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President