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SECOND SECTION

 

 

 

 

 

 

 

CASE OF VIERU v. THE REPUBLIC OF MOLDOVA

 

( Application no. 25763/10 )

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

18 June 2019

 

 

 

 

 

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

 

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

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

Egidijus Kūris , President,
Valeriu Griţco ,
Darian Pavli, judges,
and Hasan Bakırcı , Deputy Section Registrar ,

Having deliberated in private on 28 May 2019 ,

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

PROCEDURE

1.     The case originated in an application (no. 25763/10) 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 Vieru ("the applicant"), on 21 April 2010.

2.     The applicant was represented by Mr R. Zadoinov , a lawyer practising in Chişinău . The Moldovan Government ("the Government") were represented by their Agent ad interim at the time, Ms Ruxanda Revencu .

3.     The applicant alleged, in particular, that his rights guaranteed under Article 6 § 1 of the Convention had been breached as a result of the abusive quashing of a final judicial decision issued in his favour.

4.     On 30   May 2016 notice of the complaint concerning Article 6 § 1 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court.

THE FACTS

I.     THE CIRCUMSTANCES OF THE CASE

5.     The applicant was born in 1971 and lives in Chişinău .

6.     In 2007 criminal proceedings were initiated in respect of the applicant on charges of unlawful appropriation of property. On 25 April 2008 the prosecutor discontinued the proceedings in respect of the applicant for lack of evidence. A civil party, G., appealed against that decision.

7.     On 26 June 2009 the Centru District investigating judge dismissed G. ' s appeal and upheld the prosecutor ' s decision of 25 April 2008. That decision was final.

8.     G. lodged an extraordinary appeal with the Supreme Court of Justice. On 26 January 2010 the Supreme Court of Justice allowed G. ' s extraordinary appeal, quashed the decision of the investigating judge and remitted the case for a fresh examination to the investigating judge. The court argued that the investigation had not thoroughly examined G. ' s complaints.

II.     RELEVANT DOMESTIC LAW

9.     The relevant domestic law was summarised in Be ș liu v. the Republic of Moldova (no. 28178/10, §§ 9-10, 9 July 2013).

THE LAW

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

10.     The applicant complained that the annulment of the final judgment of 26 June 2009 had constituted a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal..."

A.     Admissibility

11.     The Court notes that the application 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.

B.     Merits

12.     The Government maintained that the quashing of the final judgment had been carried out in order to ensure the guarantees of a fair trial to the victim.

13.     The Court reiterates that legal certainty presupposes respect for the principle of res judicata , that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts ' power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character ( Ryabykh v. Russia , no. 52854/99, §   52 , ECHR   2003 - IX , and Roşca v. the Republic of Moldova , no 6267/02, §   25, 22   March 2005).

14 .     The Court has held that decisions to revise final judgments must be in accordance with the relevant statutory criteria; and the misuse of such a procedure may well be contrary to the Convention. The Court ' s task is to determine whether this procedure was applied in a manner which was compatible with Article 6 of the Convention, and thus ensured respect for the principle of legal certainty. In doing so, the Court must bear in mind that it is in the first place the responsibility of national courts to interpret provisions of national law (see Waite and Kennedy v. Germany [GC], no.   26083/94, § 54, ECHR 1999-I).

15.     Turning to the circumstances of the present case, the Court notes that the applicant had a final judgment in his favour dated 26 June 2009. That judgment was quashed by the Supreme Court when it allowed an extraordinary appeal lodged by the victim. The Court notes that the reason relied upon to justify the quashing of the judgment of 27 June 2009 was its alleged unlawfulness. Nevertheless, no explanation was given by the Supreme Court judges, who limited themselves to giving a new assessment of the findings of the first-instance court judge. In such circumstances, the Court considers that the review procedure in question was in fact an "appeal in disguise", the purpose of which was to obtain a fresh examination of the case, rather than a genuine review procedure such as that provided for by the relevant provisions of the Code of Criminal Procedure.

16.     The Court notes that the applicant in the present case was a party to the same proceedings as the applicant in Be ș liu v. the Republic of Moldova (no.   28178/10, 9 July 2013), where it found a violation of Article 6 § 1 on account of a misuse of review proceedings. In the present case, the Court finds no reasons to depart from its findings in the above-cited case.

17.     In the light of the above, the Court considers that the State authorities failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system.

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

II.     APPLICATION OF ARTICLE   41 OF THE CONVENTION

19.     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

20.     The applicant claimed 6,000 euros (EUR) in respect of non - pecuniary damage.

21.     The Government contested the amount claimed by the applicant and argued that it was excessive.

22.     Having regard to the violation found above, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000.

B.     Costs and expenses

23.     The applicant also claimed EUR 1,787.50 for the costs and expenses incurred before the Court.

24.     The Government argued that the amount claimed was excessive.

25.     Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed for costs and expenses.

C.     Default interest

26.     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.

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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i )     EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)     EUR 1,787.50 (one thousand seven hundred and eighty-seven euros and fifty cents), 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;

 

4.     Dismisses the remainder of the applicant claim for just satisfaction.

Done in English, and notified in writing on 18 June 2019 , pursuant to Rule   77   §§   2 and 3 of the Rules of Court.

Hasan Bakırcı Egidijus Kūris
Deputy Registrar President