BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF
VETRENKO v. MOLDOVA
(Application
no. 36552/02)
JUDGMENT
STRASBOURG
18 May
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vetrenko v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36552/02) 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 Vilen Vetrenko (“the
applicant”), on 17 August 2002.
- The
applicant, who had been granted legal aid, was represented by Ms N.
Mardari and Mr F. Nagacevschi, lawyers practising in Chişinău.
The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that he had been ill-treated in
order to make self-incriminatory statements and was then convicted on
the basis of such statements, that he had been unlawfully arrested
and that he had not been given, at the beginning of the
investigation, access to the lawyer chosen by him. He essentially
complained of the alleged unfairness of the criminal proceedings
against him, including the domestic courts’ failure to give
sufficient reasons for convicting him.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 9 January 2007 a Chamber of that
Section decided to give notice of the application to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1975 and lives in Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The murder of M.
- According
to the prosecution, M. was invited to a bar on 19 May 1997 by several
persons, including R. M. and U., her former neighbours, and the
applicant, in whose apartment R. M. and U. rented a room.
- In
the bar they all consumed alcohol and then added a soporific to M.’s
glass, after which she fell asleep. R. M. took M., U. and the
applicant in his car to a remote area. R. M. and the applicant took
M. out of the car and tried to strangle her with a cord. When this
failed they tied her limbs and threw her into a well, where she
drowned.
- On 1 June 1997 S. P., a police officer, reported that
he was trying to locate T., who could have information regarding M.’s
whereabouts. Officer S. P. proposed indentifying the person(s)
offering M.’s apartment for sale in order to find T.
- On 3 June 1997 T., one of M.’s neighbours, made
a written statement, giving details about M.’s murder as
allegedly told to her by U. She named R. M., U. and S. as
perpetrators of the crime. She also mentioned her intention to move
to Tashkent, Uzbekistan, where her grandmother lived. On 4 June 1997
officer S. P. filed a report on a conversation with T. in which
he reported that T. had stated that the applicant had also been
involved in the crime. On 5 June 1997 T. was interviewed by
investigator G. and confirmed the events as described in the
officer’s report. She declared that U. had told her about the
details of the crime on 20 May 1997. She did not mention the
applicant’s name or that he had participated in any manner in
the crime.
2. The applicant’s arrest and alleged
ill-treatment
- On
4 June 1997 the police found the applicant at his friends’
address and told him that he owed them money. He was requested to
follow them to the police station, where he was arrested. He was then
informed that he, R. M. and U. were suspected of having murdered M.
- According
to the applicant, immediately after his arrest he told the
investigator all the details about the murder of M. which he had
found out from R. M., including the place where the body had been
left. He had not reported the crime earlier for fear of R. M.’s
retaliation. However, he was then ill-treated for six hours by the
investigators to make him own up to the crime: he was allegedly
nearly asphyxiated several times with a gas mask. He was also
verbally abused and threatened with more serious forms of
ill-treatment.
- In the evening of 4 June 1997 the applicant made a
self-incriminating statement in the presence of a State-appointed
lawyer and two witnesses. That lawyer allegedly never participated in
the proceedings after the confession had been made. In his statement
the applicant described the manner of M.’s murder and the place
where her body had been left. He stated that he and R. M. had
attempted to strangle M. with a cord, and then tied her up and threw
her into a well. No mention was made of hitting M. or causing other
injuries to her. The confession was filmed. Before the filming of the
confessions, a medical expert was requested to verify the presence of
any signs of ill-treatment on the applicant’s body. He found no
such signs. The applicant expressly stated that he had not been
ill-treated. He later declared in court that the filming of his
confession had been rehearsed with the investigator, that it was a
farce and that he had been warned about further ill-treatment if he
were to deny his previous confessions.
- The
applicant was offered the opportunity to sign the minutes of the
interview, first before making any statements in order to confirm
that he had been read his rights and then at the end of the interview
to confirm what he had stated. However, he refused to sign in both
places. He later explained this refusal as a last attempt to resist
unlawful pressure.
- The
second part of the confession made on the same day involved going to
the well where the victim’s body had been deposited and filming
his confession there. He refused to sign this confession.
- On
5 June 1997 the applicant made another statement, which was
essentially the same as that made the day before. He was allegedly
threatened with further ill-treatment if he were to deny his earlier
confessions.
- A forensic report was also drawn up on 5 June 1997,
concluding that M. had died from drowning and that her body had a
number of bruises on it, caused by repeated hitting, as well as marks
on her hands and legs from the cord with which she had been tied. No
sign of strangulation was found on her neck. The expert established
that M. had died “several days before the report was filed”.
- In
the afternoon of 5 June 1997 the applicant was allowed to call his
mother and on 6 June 1997 he declared, in her presence and in
the presence of the investigator, that he was innocent. He also
mentioned a person with whom he had been held in the same cell at the
police station who could confirm that he had been returned to the
cell in a poor general state after ill-treatment by the police.
However, he was told by both the investigator and his lawyer that the
courts would not believe such statements. He allegedly mentioned his
ill-treatment and the possible testimony of his cellmate in his
complaints to the courts and the prosecutors but these were not
followed up. His former cellmate was apparently not questioned. In
all his subsequent interviews the applicant maintained his innocence
and explained that he had found out about some of the details of the
murder, including the place where the body had been deposited, from
R. M., who had taken him to the well after the murder.
- The
applicant’s new lawyer allegedly noted, on 12 October 1997,
that there were no signatures on the minutes of the interview,
contrary to the law. On 28 October 1997 signatures appeared on the
minutes and the applicant was allegedly forced to sign. He refused
and the last-minute intervention of his mother prevented the
investigators from ill-treating him further. As a result of her
intervention the investigators had to write in the minutes that the
applicant had refused to sign. He was allegedly prevented from
writing in the minutes the date of 28 October 1997 as the date when
he had refused to sign, contrary to Article 124 CCP (see below). On
31 October 1997 the applicant complained about this fact to the
prosecution, but to no avail. The minutes of the interview with the
applicant of 4 June 1997 were signed by the investigator in charge of
the case, G. The statement concerning the applicant’s refusal
to sign the minutes was countersigned by investigator D., who took
charge of the case at a later date.
- For
several months in 1998 he was allegedly detained in inhuman
conditions in the cellar of the police inspectorate.
- In
a statement to the police, T.’s sister mentioned Tashkent as a
place where their relatives lived.
3. The first set of proceedings (1998-1999)
a. The judgment of the Chişinău
Regional Court
- On 16 December 1998 the Chişinău Regional
Court acquitted the applicant of the charge of murder and convicted
R. M. The court found, inter alia, that it had not been
established that the applicant had participated in the crime. It had
been established, however, that he had failed to report it when he
was told about it by R. M., which was a criminal offence. The court
also found that the confessions made by the applicant in the first
two days of his detention could not be used as a basis for convicting
him because they contradicted other evidence in the case (his refusal
to sign the confessions, which raised doubts about their
truthfulness; the fact that as from 6 June 1997 and throughout the
proceedings he had denied having killed M.; and his alibi, two
persons, including I. M., who also lived in the applicant’s
apartment at the time of the events, having confirmed that he had
returned home at about 11 p.m. on the night of the murder). The court
convicted the applicant of failing to report the crime committed by
R. M., but ordered his release on the basis of an amnesty applicable
to lesser crimes.
b. The judgment of the Court of Appeal
- On 4 November 1999 the Court of Appeal upheld the
lower court’s judgment. The court noted that another person,
S., was also suspected of having helped R. M. to murder M. and that
his case had been disjoined because he was in hiding. The court also
noted that, apart from the self-incriminating statement made by the
applicant on 4 and 5 June 1997, there was nothing in the file proving
his involvement in the crime.
c. The judgment of the Supreme Court of
Justice
- On
21 December 1999 the Supreme Court of Justice quashed those two
judgments, finding that the courts had exceeded their competence and
had accepted, without giving valid reasons, the applicant’s
claim that he had not participated in the crime. A re-hearing of the
case was ordered.
4. The second set of proceedings (2001-2002)
a. The judgment of the Chişinău
Regional Court
- On
21 September 2001 the Chişinău Regional Court convicted the
applicant of participation in the murder of M. and sentenced him to
16 years’ imprisonment.
- The
court referred to the evidence in the case: witnesses testified to
having seen R. M., U., S. and the applicant with M. in a bar on the
night of her disappearance. Witness T. testified about the intentions
of R. M. and U., who had spoken to her about their plan, to kill M.
and sell her apartment. Witness M.E. and I.A. testified about R. M.
and U.’s actions to obtain the documents necessary for the sale
of M.’s apartment. Witness M.N. stated that she had witnessed
S. invite M. to a bar on the day of her disappearance.
- During a search of the applicant’s apartment
some of the documents relating to the sale of M.’s apartment
had been found. The record of the search did not specify whether the
documents were found in the room rented by R. M. and U. or in another
place. One relevant document was found during a personal search of R.
M.
- The
court referred to the applicant’s confession and the version of
the prosecution, according to which the applicant and R. M. had
attempted to strangle M., and, having failed to do so, had thrown her
into a well. The court found that the evidence, in addition to his
confessions, proved his guilt. It was established that R. M. and U.
had fraudulently obtained various documents from M. with the
intention of selling her apartment. Moreover, R. M. had never
confessed and the applicant’s confessions had been made before
the authorities had known the details such as the place where the
body was found and the manner of the killing. These circumstances
were later confirmed when the applicant showed them that place and
when the experts recovered the body in his presence. The forensic
report confirmed the types of injuries inflicted as coinciding with
the description of the murder given by the applicant.
- Besides,
there had been no evidence that the applicant had been ill-treated,
as proved by the medical examination carried out before his first
interview. Moreover, the applicant had declared, in the presence of a
lawyer, that he had not been ill-treated. The court considered that
his refusal to sign the confession was a means of avoiding criminal
responsibility.
All
of the above proved the applicant’s guilt.
- In
his appeal, the applicant declared that he had found out the details
about the murder from R. M., who had taken him to the crime scene on
the day after the murder. He claimed that he had been ill-treated by
the police in order to own up to the crime. The judgment did not
specify the date of the murder and there was evidence confirming that
M. had died later than the prosecution maintained. The applicant also
submitted that, before being questioned as an accused, he had told
the police all the details about the murder which he had found out
from R. M. This contradicted the court’s finding that the
police had not had any details about the murder before the
applicant’s interview as a suspect. He refused to sign both
confessions but could not offer further resistance due to fear of
ill-treatment. He referred to evidence in his criminal file that on
the morning of 4 June 1997 his relatives had concluded a contract
with a lawyer for his representation but that the investigator had
refused to allow that lawyer to represent him. He was then provided
with another lawyer whom he did not trust and who did not protect his
rights, but was in agreement with the investigator. In addition, the
presence of a medical expert and witnesses at the first interview was
not a common practice and the expert had not been warned, according
to the law, of his criminal responsibility for making false
statements. The unusual presence of so many persons at the very first
interview only confirmed that the investigator had known that the
applicant’s will had been broken as a result of ill-treatment
and he had agreed to “confess”. The investigator needed
to create a very strong appearance of lack of ill-treatment which
would be difficult to rebut. The court had failed to even mention the
statement of I. M., which constituted an alibi for the applicant
because it confirmed that he had returned home much earlier than R.
M. and U.
b. The judgment of the Court of Appeal
- On
5 February 2002 the Court of Appeal upheld the first-instance
court’s judgment. The court found that the guilt of R. M. and
of the applicant had been fully proved by the witness statements of
T., the police officer who reported on T.’s statements and the
results of the forensic report. The court referred to the applicant’s
confession and the version of the prosecution, according to which the
applicant and R. M. had attempted to strangle M. and after they
failed to do so had thrown her into a well.
The
applicant’s withdrawal of his earlier statements was considered
a means of avoiding criminal responsibility.
- In
his appeal in cassation the applicant reiterated his arguments made
earlier and added that U. had testified that he had been back home at
11 p.m., as confirmed by I. M., thus providing him with an
unchallenged alibi. Witness T. did not mention his name in her
statement. The ill treatment applied to him (making him wear a
gas mask and blocking the access of air until he lost consciousness
from suffocation) could not have left marks on his body. He referred
to the findings of the forensic report, which contradicted his
statements and the version of the prosecution, according to which he
and R. M. had attempted to strangle M. That report did not find any
marks of strangulation but found multiple injuries, which confirmed
that M. had been hit repeatedly. The date of the murder had not been
established: the residual quantity of the soporific in M.’s
blood was small, confirming that she had taken it a long time before
her death. In addition, the expert declared that she had died several
days before the report was drawn up (on 5 June 1997), which
excluded the date of 19 May 1997 as the date of the murder. Another
expert submitted in 1998 that M. had died a week before the report of
5 June 1997, which also challenged the prosecution’s version
that M. had been murdered on 19 May 1997. The applicant drew the
court’s attention to his refusal to sign the confessions, which
cast doubt on their genuine character. He invoked Articles 3, 5 and 6
of the Convention.
c. The judgment of the Supreme Court of
Justice
- On 16 April 2002 the Supreme Court of Justice upheld
the judgment of 21 September 2001. The court found that the
guilt of the accused had been fully proved. It referred to the
prosecution’s version of events, according to which the
applicant and R. M. had attempted to strangle M. It also referred to
the confession made by the applicant on 4 June 1997 in the presence
of a lawyer, according to which he and R. M. had taken M. to a well
and hit her repeatedly but because she had not died, they had thrown
her into the well, where she drowned. The forensic report confirmed
the manner of M.’s killing and the injuries on her body
corresponded to the applicant’s statements. In addition,
witnesses confirmed the accused’s intentions to sell M.’s
apartment and the relevant documents were found in the apartment in
which all the accused lived.
- The
court found that there was no evidence of ill-treatment, the
applicant having made his confessions in the presence of his lawyer
and a number of other persons.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Criminal Procedure (in force at
the time of the events) read as follows:
“Article 55
... Evidence obtained in violation of the present Code
or not properly examined during the court hearing cannot constitute
the basis of a court conviction or of other procedural documents.
Article 62
... The initial interview of an accused in custody shall
be made only in the presence of a defence counsel, chosen or
appointed ex-officio.
Article 115
The minutes of an investigation procedure shall be filed
during that procedure or immediately thereafter. ...
After the end of the interview the audio or video
recording shall be reproduced in full for the interviewee. ... The
audio or video recording shall end with a declaration by the
interviewee confirming the correctness of the recording.
Article 124
If the accused ... refuses to sign the minutes of the
investigation procedure, a note on that shall be made in the minutes,
signed by the author of the minutes.
Anyone who refuses to sign the minutes shall be given
the possibility to explain the reasons for the refusal, which shall
be noted in the minutes”.
THE LAW
- The
applicant complained under Article 6 § 1 of the Convention that
the criminal proceedings against him had not been fair. The relevant
part of Article 6 § 1 of the Convention reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- He
also complained under Article 6 § 3 of the Convention that he
had not had the proper services of a lawyer during his first days of
detention. The relevant part of Article 6 § 3 of the Convention
reads:
“...3. Everyone charged with a criminal
offence has the following minimum rights:
...(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ... ”
I. ADMISSIBILITY
- In
his initial application the applicant also complained of a violation
of his rights guaranteed under Articles 3 and 5 of the Convention.
However, in his observations on the admissibility and merits he asked
the Court not to proceed with the examination of these complaints,
because they were outside the Court’s competence ratione
temporis. The Court finds no reason to examine any of these
complaints.
- The
applicant also complained of a violation of Article 6 § 2 of the
Convention since he was convicted despite the absence of any evidence
of his guilt. Having examined the materials in the case-file, the
Court considers that this complaint is manifestly ill founded.
- The
applicant complained of a violation of Article 6 § 3 of the
Convention. He submitted that the lawyer (C. S.) hired by his mother
on the first day of his arrest (4 June 1997) was not allowed to see
him on that day. When the lawyer finally saw him, he did not ask for
time to discuss with the applicant in private or to understand the
case, but went directly to the interview and did not make sure to
check whether the applicant had been ill-treated or threatened with
ill-treatment.
- The
Court notes that the events complained of took place before the
Convention entered into force in respect of Moldova on 12 September
1997. However, the Court recalls that the criminal proceedings
conducted before a court are concluded by the final decision, which
embodies any defects by which they may be affected (see, for
instance, Klimentyev v. Russia (dec.), no. 46503/99, 21 June
2005). Therefore, the manner in which the applicant’s interview
in the present case was conducted may be taken into account in
examining the fairness of the proceedings as a whole, which continued
until well after the date of ratification.
The
Court notes that the applicant did not submit evidence that C. S. had
asked to see the applicant on 4 June 1997 and that this had been
refused, or that C. S. had acted unprofessionally on 5 June 1997. The
documents in the file confirm that the applicant was assisted by a
State-appointed lawyer on the first day of his arrest and by a lawyer
chosen by his mother on the next day. There is nothing in the file to
prove that the performance of those two lawyers was of such a low
standard as to compromise the fairness of the proceedings as a whole.
Therefore, this complaint should be rejected as manifestly ill
founded.
- The
Court considers that the applicant’s complaint under Article 6
§ 1 of the Convention raises questions of fact and law
which are sufficiently serious that their determination should depend
on an examination of the merits, and no other grounds for declaring
them inadmissible have been established. The Court therefore declares
this complaint admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of the
complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. The submissions of the parties
1. The applicant’s submissions
- The
applicant submitted that he had been convicted on the sole basis of
the self-incriminating statements made by him as a result of
ill-treatment on 4 and 5 June 1997. He did not sign those statements,
thus expressing his disagreement with what he had been forced to say
at the interview. No minutes were taken at the time of the events,
and the applicant was later compelled to sign the minutes in October
1997. When he refused, investigator D. noted that the applicant had
refused to sign. That investigator took charge of the case after the
interviews of 4 and 5 June 1997 and therefore did not have the
authority to sign anything on those minutes. The fact that
investigator D. signed the minutes instead of the investigator who
had originally conducted the interview proved that the minutes had
not been signed on 5 June 1997, contrary to what had been stated in
those minutes.
- Moreover, the medical expert and the witnesses who had
participated in the interview were never heard in court. The courts
did not establish with certitude the date of M.’s death. The
only expert report that was made on M.’s body found that she
had died “several days earlier” than the day the report
was drawn up, on 5 June 1997. This could not be understood to mean
“16 days earlier”, and therefore M. could not have
been murdered on 19 May 1997 as submitted by the prosecution.
While the expert that had compiled the report on 5 June 1997 later
died in an accident and could not be questioned as to the meaning of
the phrase “several days earlier” which he had used, the
courts rejected, without giving any reasons, the applicant’s
requests for an additional expert analysis in order to determine more
precisely the date of M.’s death.
- The
courts remained silent on the alibi provided for the applicant by two
different witnesses, according to which he returned home right after
the events at the bar, at approximately 11 p.m., while R. M. and U.
returned much later. Moreover, none of the witnesses, including T.,
mentioned the applicant’s name, which appeared only in a report
written by a police officer who referred back to T.’s
statement. In any event, none of the domestic courts analysed the
discrepancy between T.’s statement and the officer’s
account of her earlier statement. No cross examination of the
applicant and T. was held in order to determine whether T. had
actually said anything about the applicant. The Government’s
suggestion that she simply forgot or omitted to mention the
applicant’s name in her subsequent interview was a new argument
which had never been examined by the domestic courts and was thus
irrelevant. The authorities had, moreover, not taken sufficient
measures to ensure that T. was found and heard in court, given that
in her interview of 3 June 1997 she mentioned her intention to leave
for Tashkent, Uzbekistan, where her grandmother lived. There was no
evidence of any attempt to verify whether she had moved to that city,
even though T.’s sister also mentioned Tashkent as a place
where their relatives lived. Nor was M. D. heard, even though
she had initially been interviewed and had given details about the
crime, as heard from T. She did not mention the applicant’s
name, but named R. M., U. and S. as the perpetrators of the crime.
- The
lawyer present during the interviews with the applicant on 4 and 5
June 1997 was provided to the applicant by the prosecutor and did not
do anything to defend the applicant’s rights. The lawyer joined
the interview without attempting to have a confidential meeting with
the applicant. The applicant’s self-incriminating statement was
contradicted by objective evidence and the proper procedure had not
been followed in that the applicant was not allowed to note the date
on which he had been asked to sign the minutes of the interview.
- The
courts did not give sufficient reasons for their judgments. Some of
the reasons that were given contradicted the facts of the case: the
courts’ finding that the applicant had told the investigator
details about the murder and the place where the corpse was
eventually found disregarded that most of those details had already
been reported on 4 June 1997 by the police officer after her
conversation with T., and that the applicant had found out additional
details from R. M. himself and had informed the police of those
details.
2. The Government’s submissions
- The
Government submitted that the domestic courts had adopted reasoned
judgments after examining all the evidence in the file and fully
assessing the circumstances of the case. In their view, the Court
could not take the place of the domestic courts by re-examining
evidence, but was concerned only with the fairness of the trial as a
whole.
- The
fact that T.’s statements differed from those of the police
officer who reported on her conversation with her was irrelevant,
since both reported essentially the same facts. Even though the
police officer registered her report on 4 June 1997, she had written
it on 22 May 1997 after speaking with T., who could have omitted
certain facts eleven days later when she was officially interviewed
on 3 June 1997. In any event, it was not the Court’s task to
determine whether a particular witness statement had been correctly
attached to the file as evidence but only to examine the fairness of
the proceedings under Article 6 of the Convention. The fact that T.
later disappeared and could not be found in order to testify in court
was not in itself a circumstance requiring the rejection of her
initial statements. This did not raise an issue under Article 6 of
the Convention (see Doorson v. the Netherlands, 26 March 1996,
§ 80, Reports of Judgments and Decisions 1996 II).
- The
applicant’s request for another medical report to be carried
out in order to determine the date of M.’s death was rejected
by the courts since a number of expert reports had been carried out
in the case and there was no need for another one. In any event, the
determination of the exact date of M.’s death would not have
affected the outcome of the proceedings or the sentence in any
manner.
- The
Government conceded that the courts had not examined the video
cassette recording of the applicant’s interviews on 4 and 5
June 1997. However, that did not raise an issue under Article 6 of
the Convention, since there was sufficient evidence that the
applicant had not been ill-treated. The courts found that all the
pieces of evidence in the case were consistent with each other and
with the applicant’s statements. They adopted judgments based
on the facts of the case and having followed exactly the procedural
requirements of the criminal proceedings.
B. The Court’s assessment
1. General principles
- The Court reiterates that the effect of Article 6 §
1 is, inter alia, to place a “tribunal” under a
duty to conduct a proper examination of the submissions, arguments
and evidence, without prejudice to its assessment or to whether they
are relevant for its decision, given that the Court is not called
upon to examine whether arguments are adequately met (see Perez
v. France [GC], no. 47287/99, § 80, ECHR 2004 I,
and Buzescu v. Romania, no. 61302/00, § 63, 24 May
2005). Nevertheless, although Article 6 § 1 obliges courts
to give reasons for their decisions, it cannot be understood as
requiring a detailed answer to every argument (see Van de Hurk v.
the Netherlands, 19 April 1994, §§ 59 and 61, Series A
no. 288, and Burg and Others v. France (dec.), no. 34763/02,
ECHR 2003-II). The extent to which this duty to give reasons applies
may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case (see Ruiz
Torija v. Spain and Hiro Balani v. Spain, judgments of
9 December 1994, § 29 and § 27, respectively, Series A
nos. 303-A and 303-B, respectively, and Helle v. Finland, 19
December 1997, Reports 1997 VIII, § 55).
- For instance, in Ruiz Torija v. Spain (cited
above, §§ 29 and 30) the Court found that the failure of
the domestic court to deal with the applicant’s contention that
the court action against her had been time-barred amounted to a
violation of Article 6 of the Convention. In Grădinar
v. Moldova (no. 7170/02, § 117, 8 April 2008) the Court
found a violation of Article 6 since “the domestic courts chose
simply to remain silent with regard to a number of serious violations
of the law noted by the lower court and to certain fundamental
issues, such as the fact that the accused had an alibi for the
presumed time of the murder.”
Similar
failures to give sufficient reasons resulted in findings of
violations of Article 6 of the Convention in Hiro Balani
(cited above, §§ 27 and 28), Suominen v. Finland
(no. 37801/97, §§ 34-38, 1 July 2003), Salov v.
Ukraine (no. 65518/01, § 92, ECHR 2005 VIII
(extracts)), Popov v. Moldova (no. 2) (no. 19960/04,
§§ 49-54, 6 December 2005), Melnic v. Moldova
(no. 6923/03, §§ 39-44, 14 November 2006) and
other similar cases.
2. Application of these principles to the present case
- The Court notes that the applicant raised several
serious arguments challenging the only three pieces of evidence which
arguably linked him to the crime. He pointed, for instance, that the
search at his apartment had not indicated that the relevant documents
had been found in his room (as opposed to that rented from him by R.
M., whose guilt had been proved by various types of evidence), that
S. P.’s statement only reproduced what T. had allegedly said to
her (while T. herself never mentioned the applicant’s name) and
that there were circumstances which seriously challenged the genuine
character of his “confessions” (most importantly, his
refusal to sign them, despite them being “voluntary”,
both before making the statements and after the statements were
recorded, and the clear discrepancy between what he had “confessed”
and what objective expert reports subsequently found concerning the
attempted strangulation). He finally relied on his alibi for the
night of the murder.
- The
Court reiterates that it is not its role to re-examine the facts of a
case which has been dealt with by the domestic courts or to act as a
“fourth-instance court” and decide on an applicant’s
guilt or innocence. Rather, its concern is to verify whether the
proceedings as a whole complied with the requirements of Article 6 of
the Convention. As it recalled in paragraphs 52 and 53 above, one of
the requirements of Article 6 is for the domestic courts to deal with
the most important arguments raised by the parties and to give
reasons for accepting or rejecting such arguments. Even though the
extent to which the courts should give reasons may vary depending on
the particular circumstances of the case, a failure to deal with a
serious argument or a manifestly arbitrary manner of doing so is
incompatible with the notion of a fair trial.
- In
the present case, the Court considers that the applicant’s
arguments mentioned in paragraph 54 above could not be regarded as
being insignificant or not capable of influencing the outcome of the
proceedings. However, it does not see in the domestic courts’
judgments a proper analysis of these arguments raised by the
applicant. The one exception was the judgment of the Supreme Court of
Justice, which addressed the discrepancy between the
self-incriminating statement concerning an attempt to strangulate M.
with a cord and the findings of the expert, who had found no signs of
strangulation on M.’s body. However, while the Supreme Court of
Justice apparently tried to deal with this clear discrepancy, it
chose to simply rephrase the applicant’s statement from what it
expressly said (an attempt at strangulation) to something better
corresponding to the findings of the expert (signs of severe beating,
which had never been mentioned in the applicant’s statement,
see paragraphs 13 and 33 above). The Court considers that this
tempering with evidence (by significantly amending the applicant’s
statements) was not only arbitrary but also did not answer the
applicant’s argument that there was a serious contradiction
between his statements and objective evidence found which, together
with his refusal to sign those statements, challenged their genuine
character. Answering the applicant’s arguments in this respect
was even more important in the light of the fact that this was one of
the reasons for which the courts had acquitted him in the first round
of the proceedings (see paragraph 22 above).
- Moreover,
just as in Grădinar, cited above, in the present case the
domestic courts failed to deal with the applicant’s alibi for
the presumed night of M.’s murder, even though that alibi had
been accepted by two courts in the first round of proceedings (see
paragraphs 22 and 23 above). There was no explanation for this
omission, which concerned one of the strongest arguments put forward
by the defence and thus required a proper analysis. Similarly, even
though there was a discrepancy between what T. declared to the police
(not mentioning the applicant, but another person S.) and what S. P.
reported as having been told by T. (mentioning the applicant), the
investigators and the courts did not question T. again in this
respect during her interview on 5 June 1997 to dispel any doubts, but
simply preferred to rely on S. P.’s hearsay evidence, to the
detriment of that provided by the original witness.
- The
Court finds that, while heavily relying on the self-incriminating
statements made by the applicant and failing to address his serious
challenge to the genuine character of those statements, even
re-phrasing those statements so as to avoid contradictions with
objective evidence, the domestic courts chose simply to remain silent
with regard to certain fundamental issues, such as the fact that he
had an alibi for the presumed time of the murder. The Court could not
find any explanation for such omissions in the domestic courts’
decisions (see Grădinar, cited
above, § 117). This is striking, given that two courts
acquitted the applicant in the first round of proceedings (see
paragraphs 22 and 23 above) and since, in the absence of any new
evidence mentioned in the courts’ judgments, they convicted the
applicant in the second round of proceedings, disregarding
circumstances which had earlier led to his acquittal (see Salov,
cited above, § 91). Therefore, the domestic courts did not
give sufficient reasons for their judgments.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 224,297 euros (EUR) for both pecuniary and
non-pecuniary damage caused to him by his unlawful conviction and his
detention for many years, as well as the fact that he had lost any
chance of a normal life and reasonable earning and had been defamed
in the eyes of all those who had known him. He referred to Ilaşcu
and Others v. Moldova and Russia [GC] (no. 48787/99, ECHR
2004 VII) as a precedent of the Court’s making similar
awards for illegal conviction and prolonged unlawful detention.
- The
Government submitted that the applicant could not claim any damage
since he had not adduced any evidence thereof. The reference to the
case of Ilaşcu and Others was irrelevant since that case
concerned a conviction by courts which could not be considered
competent to convict the applicants, while the applicant in the
present case had been convicted by a lawfully constituted and
competent court.
- The
Court considers that the applicant must have been caused stress and
anxiety as a result of his conviction based on insufficient reasons.
It further considers that where non-pecuniary damage is claimed for
violations of the sort established in the present case it is very
difficult, if not impossible, for an applicant to adduce any evidence
of his personal suffering. At the same time, it considers that the
amount claimed is excessive. Based on the materials in its
possession, the Court awards the applicant EUR 5,000 in respect of
non-pecuniary damage, together with any value-added tax that may be
chargeable (see Popovici v. Moldova, nos. 289/04 and
41194/04, § 90, 27 November 2007).
- The
Court also considers that where, as in the instant case, an
individual has been convicted following proceedings that have
entailed breaches of the requirements of Article 6 of the Convention,
a retrial or the reopening of the case, if requested, represents in
principle an appropriate way of redressing the violation (see Öcalan
v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 IV,
and Popovici, cited above, § 87).
B. Costs and expenses
- The
applicant claimed EUR 2,275 for legal assistance, including EUR 718
for legal assistance before the domestic courts. In support of his
claims he submitted a contract with his representative and an
itemised list of hours worked on the case, confirming that the
representative had worked 31.15 hours at a rate of EUR 50 per hour,
as well as receipts of payments made to lawyers in the domestic
proceedings.
- The
Government submitted that the applicant had failed to provide
evidence that he had in fact paid for legal assistance, since by the
date of submitting his claims he had not paid anything to his lawyer.
Given the legal assistance provided by the Council of Europe, no
additional legal assistance was required. The legal fees paid during
the domestic proceedings were not accompanied by a contract with the
relevant lawyers and were thus vague and uncertain.
- The
Court reiterates that under its case-law an applicant is entitled to
the reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
- Regard
being had to all of the information in its possession, the complexity
of the case and the parties’ submissions, the Court considers
it reasonable, given the amount granted under the Council of Europe’s
legal aid scheme, to award him the additional sum of EUR 650 for the
proceedings before this Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously admissible the complaint
under Article 6 § 1 of the Convention, and the remainder of the
application inadmissible;
- Holds by four votes to three that there has been
a violation of Article 6 § 1 of the Convention;
- Holds by four votes to three
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage and EUR 650 (six
hundred and fifty euros) for costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement, plus any tax that may be chargeable;
(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;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of
Judges Bratza, Garlicki and David Thór Björgvinsson is
annexed to this judgment.
N.B.
T.L.E.
JOINT DISSENTING OPINION OF JUDGES BRATZA, GARLICKI AND
DAVID THÓR BJÖRGVINSSON
- While
we have voted in favour of the admissibility of the applicant’s
complaint under Article 6 § 1 of the Convention, we are unable
to share the view of the majority of the Chamber that there has been
a violation of that provision.
We
note at the outset that, although dissatisfied with the outcome of
the criminal proceedings against him, the applicant does not complain
about unfairness in the procedures before the Chişinau Regional
Court, the Court of Appeal or the Supreme Court of Justice: he was
legally represented in all three courts and it is not suggested that
there was any breach of the principle of equality of arms or that the
applicant was unable, through his counsel, to present such arguments
or submissions as he wished. The majority’s finding that the
criminal proceedings against the applicant were unfair is based
exclusively on the alleged inadequacy of the reasons given by the
Regional Court in convicting the applicant on his retrial and those
given by the appellate courts in upholding his conviction. We
consider that, in concluding that Article 6 was violated in the
present case, the majority of the Chamber have strayed beyond the
Court’s proper supervisory function and, contrary to what is
asserted in the judgment, have assumed the role of a “fourth
instance” tribunal.
- In
reaching their conclusion, the majority place reliance on the
judgment of the Chamber in Grǎdinar v. Moldova (No.
7170/02, 8 April 2008), where the Court similarly found a violation
of Article 6 on the grounds of the insufficiency of the reasons given
by the appellate courts to support the applicant’s conviction.
It is said that, as in the Grǎdinar case, the domestic
courts in the present case remained silent with regard to certain
fundamental issues in the case, including the applicant’s alibi
which had led to his previous acquittal.
Despite
their superficial similarity, there exists a fundamental distinction
between the two cases. In the Grǎdinar case, as in this,
the Supreme Court had quashed the lower courts’ judgments
acquitting the applicant’s husband of murder and a full
rehearing of the case had been ordered. On the retrial, the
applicant’s husband was once again acquitted by the trial court
but the judgment was quashed by the Court of Appeal, which convicted
him on the basis of the same evidence and without rehearing any of
the principal witnesses in the case. His conviction was subsequently
upheld by the Supreme Court. It was this failure of the two appellate
courts to give sufficient reasons for reversing the factual
conclusions of the trial court which was at the heart of the Court’s
finding of a violation of Article 6. In marked contrast, the
applicant in the present case was convicted of murder on his retrial
after a full rehearing of the evidence in the case and his conviction
was upheld by both the Court of Appeal and the Supreme Court. The
majority’s finding is based not, as in Grǎdinar, on
the failure of the appellate courts to give sufficient reasons for
reversing the trial court’s conclusion on the evidence before
it, but on the alleged failure of the trial and appellate courts on
the retrial of the applicant to give sufficient reasons for departing
from the assessment of the evidence by the original trial court.
- We
consider that this is to go too far. While the procedural guarantees
of fairness in Article 6 § 1 of the Convention undoubtedly
require that a tribunal conduct a proper examination of the
submissions, arguments and evidence before it, it is for the tribunal
itself to assess the extent to which they are relevant for its
decision. As is correctly emphasised in the judgment, the Article
cannot be understood as requiring a detailed answer to every argument
advanced or detailed reasons to be given for accepting or rejecting
the evidence before it. Still less can Article 6 be understood as
requiring, in a case such as the present, where there has been a
retrial of an applicant, that reasons are given by the tribunal for
reaching a different assessment of the evidence before it, or a
different conclusion on that evidence, from that of the original
trial court. The Strasbourg Court will in principle be justified in
intervening only in a case where the assessment of the evidence
before the domestic courts, or the reasons given for the conclusions
reached on that evidence, are manifestly unreasonable or otherwise
arbitrary.
The
grounds relied on in the judgment for finding that Article 6 was
violated are, in our view, very far from establishing any such
arbitrariness on the part of the domestic courts.
- It
is argued in the first place that the domestic courts failed properly
to analyse or respond to “several serious arguments of the
applicant challenging the only three pieces of evidence which
arguably linked the applicant to the crime”, namely the
relevant documents found in the search of the applicant’s
apartment; S. P.’s statement as to what T. had allegedly said
to him about the involvement of the applicant; and the confessions of
the applicant himself.
- This
argument illustrates the difficulty faced by the Court when it
assumes the role of a court of appeal and seeks to substitute its own
view for that of the national courts as to which of the arguments
advanced before them called for an answer. As to the first of these
elements, it is said that, while noting that the incriminating
documents had been found in the apartment which the applicant shared
with his co-defendant, R. M., the Regional Court omitted to mention
that the record of the search of the apartment did not specify
whether the documents were found in the room rented by R. M. or
elsewhere in the apartment. However, there is nothing in the material
before the Court to indicate what reliance, if any, was placed by the
applicant at his trial on this element of the evidence. Certainly, it
does not appear from the judgments of the appellate courts, that it
was made a central part of the applicant’s appeals to the Court
of Appeal or the Supreme Court.
- As
to the second element, it is true that T.’s statement
incriminating the applicant appeared only in S. P.’s report of
his interview with T. and not in T.’s own statement. However,
it is also true that S. P. was called as a witness at the retrial and
that he confirmed his account of what T. had told him on 4 June 1997.
Complaint is made in the judgment of the fact that the domestic
courts “preferred to rely on S. P.’s hearsay evidence to
the detriment of that provided by the original witness” and
that no steps had been taken to question T. again during her
interview of 5 June 1997 to dispel any doubts about the alleged
discrepancy between the two accounts. But, again, it is unclear
whether any objection at trial was taken by the applicant to the
admission of S. P.’s evidence; nor does it appear what, if any,
reliance was placed at the trial or on appeal on the alleged
inconsistency between the two statements.
- As
to the applicant’s confession statements, it is beyond dispute
that the domestic courts examined the applicant’s principal
claim that the statements were not made voluntarily. The Regional
Court expressly found the statements to have been voluntary, noting
that the forensic medical expert had discovered no physical injuries
on the applicant, that when questioned by the police inspector the
applicant had stated in the presence of a lawyer and witnesses that
there had been no coercion whatsoever and that he had given the
statements without any constraints. The judgment asserts that there
was a “serious contradiction” between the statements and
the objective evidence which cast doubt on the genuineness of the
statements and that the Supreme Court had “tampered” with
the applicant’s statements in order to circumvent this
contradiction. It is not in our view the role of this Court to reach
an independent assessment of the existence or the seriousness of the
alleged contradiction; still less do we feel justified in drawing the
conclusion that the Supreme Court tampered with evidence by
significantly amending the applicant’s statement as alleged.
- It
is finally argued in the judgment that the domestic courts failed to
deal with the applicant’s alibi for the presumed night of M.’s
murder. The alleged alibi witness was I. M., who also lived in the
applicant’s flat at the material time. It appears that I. M.
did not give evidence, his alibi being included in a written
statement before the Regional Court. It is true that the domestic
courts on the retrial of the applicant did not make reference to the
alibi or explain why it had been discounted. However, we note that,
although the alibi was claimed by the applicant to be “unchallenged”,
it was clearly inconsistent with the applicant’s own confession
statements, which were accepted by the domestic courts as valid. In
these circumstances, we find no basis for concluding that the failure
to refer to the alibi is indicative of any arbitrariness on the part
of the domestic courts.
- We
are, for these reasons, unpersuaded that the applicant has
established such deficiencies in the domestic courts’
assessment of the evidence, or in the reasons given for their
judgments, to give rise to a violation of Article 6 § 1 of the
Convention.
