I incorrectly predicted that there's no violation of human rights in MITITELU AND ANTONOVICI v. THE REPUBLIC OF MOLDOVA.

Judgment

SECOND SECTION

CASE OF MITITELU AND ANTONOVICI v. THE REPUBLIC OF MOLDOVA
(Application no. 15989/11)

JUDGMENT
STRASBOURG
2 July 2019

This judgment is final but it may be subject to editorial revision. In the case of Mititelu and Antonovici 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 2 July 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 15989/11) 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 two Moldovan nationals, Mr Lilian Mititelu and Mr Iulian Antonovici (“the applicants”), on 28 February 2011. 2. The applicants were represented by Mr G. Ionaş, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari. 3. The applicants alleged, in particular, that the criminal proceedings against them had not been fair under Article 6 § 1 of the Convention. 4. On 13 June 2018 notice of the application was given to the Government. THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1971 and 1976 and are detained in Lipcani. 6. In July 1999 the German police found the corpse of a Moldovan national in a river near Hamburg. The investigation led to a Moldovan national, A.B., who had shared a house with the victim. During questioning by the German police, A.B., who was a suspect, declared that the murder had been committed by the applicants who had beaten up the victim and strangled him. A.B. stated that he had only helped them to carry the victim’s dead body and that he had not seen the body being thrown into the river. He knew, however, that a concrete pole had been attached to the victim’s body before it immersion. The goal of the murder was allegedly to obtain the victim’s five thousand German marks, which he had deposited with a German family. According to A.B., after the murder, the applicants manipulated the German family into believing that the victim had been arrested by police in another part of Germany and that he needed the money. After obtaining the money, one of the applicants wired it to his family in Moldova. 7. During the court proceedings in Moldova, the competent court resorted to international legal assistance by summoning at least seven witnesses who lived in Germany, including A.B. All witnesses were summoned once through the intermediary of the Moldovan Ministry of Justice and the German authorities. However, none of them appeared before the Moldovan court and no reasons for failure to appear were given. The attempts to summon the witness were not repeated. 8. On 29 December 2008 the Botanica District Court acquitted the applicants of murder charges that had been brought against them. The court found that the only piece of evidence presented by the prosecutor in support of the accusation against the applicants was the statements made by A.B. to the German police. Since A.B. himself had been accused by the German police of the victim’s murder at the time of his questioning, he had a personal interest in accusing other persons. Moreover, his statements were not totally coherent and consistent. In particular, he had stated to the German police that he had not been present when the victim’s body had been thrown into the river. However, somehow he knew that a concrete pole had been attached to the corpse. Lastly, the Moldovan authorities had been unable to bring A.B. to Moldova, and the applicants had not been present during the interview with the German police and had therefore been unable to put questions to A.B. For all the above reasons the evidence was excluded from the file. However, the applicants were found guilty of fraud as a result of the fact that they had manipulated the German family with whom the victim’s money had been deposited, and had appropriated the money. 9. On 25 February 2010 the Chişinău Court of Appeal allowed an appeal by the prosecutor and reversed the judgment of the lower court in so far as it concerned the murder charges. The court admitted A.B.’s statements given before the German police in evidence and found the applicants guilty of murder. The court found A.B.’s statements to be reliable because they had been made before an investigating judge. The applicants were sentenced to ten years’ imprisonment. At the same time, the applicants were cleared of the charge of fraud on account of the Statute of Limitations. 10. The applicants lodged an appeal on points of law before the Supreme Court of Justice in which they argued, inter alia, that the statements made by A.B. before the German authorities and read out during the hearing before the Court of Appeal could not be admitted in evidence unless they had had the opportunity to confront A.B. in a court hearing and address questions to him. Moreover, the applicants submitted that A.B. had a personal interest in accusing them because he was a suspect himself. 11. On 18 January 2011 the Supreme Court of Justice dismissed the applicants’ appeal and upheld the judgment of the Court of Appeal. The Supreme Court held that the fact that the applicants had not been present during A.B.’s questioning by the German authorities had been as a result of their own actions, because they had left Germany by that time. Two of the sitting judges (S.M. and V.T.) wrote a dissenting opinion in which they expressed the view that the applicants’ rights as guaranteed by Article 6 § 1 of the Convention had been breached by the fact that they had been unable to examine the only prosecution witness, A.B., on whose evidence their convictions had been based. THE LAW
12. The applicants complained that the criminal proceedings against them had been unfair and alleged that they had been convicted on the basis of statements made to the German police, without being given an opportunity to examine their accuser, A.B., or to have him examined. They relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him ...
...”
13. 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. 14. The applicants stated that the only piece of evidence used to convict them was the testimony of A.B. given before the German police. The applicants argued that A.B., who was himself a suspect in the murder investigation conducted by the German police, had had a personal interest in accusing them. Relying on his declarations without giving them a chance to confront him, particularly in circumstances in which they had not been present during his questioning by the German police, had amounted to a breach of their right to a fair trial as guaranteed by Article 6 §§ 1 and 3 (d) of the Convention. 15. The Government submitted that the applicants had not requested that A.B. be examined before the courts. In any event, there had been other evidence that proved their involvement in the murder, such as the autopsy report, the report concerning the crime scene examination and other pieces of evidence. 16. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (Lucà v. Italy no. 33354/96, §§ 39-40, ECHR 2001‐II). 17. Moreover, having regard to the Court’s case-law, firstly, there must be a good reason for the non-attendance of a witness at the trial and, secondly, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, 15 December 2011, as refined in Schatschaschwili v. Germany [GC], no. 9154/10, §§ 107 and 118, 15 December 2015). 18. Where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (see Al-Khawaja and Tahery, cited above, § 147, and as further developed in Schatschaschwili, cited above, § 116). 19. Turning to the circumstances of the present case, the Court notes in the first place that the applicants did not waive their right to test A.B.’s declarations and that they stated clearly in their appeal on points of law that his statements as given to the German authorities could not be used as evidence unless he was examined in court. 20. The Court further notes that the Moldovan authorities’ attempted summoning A.B. on one occasion and that they gave up their attempts after A.B. did not comply with the summons. In spite of A.B.’s admitting before the German investigators having helped the applicants dispose of the victim’s body, the Moldovan authorities never considered the possibility of charging him with the offence of aiding and abetting murder and seeking his extradition by the German authorities. Nor does it appear that the Moldovan authorities took into consideration the possibility of having a video conference with him. Therefore, the Court is not persuaded that all reasonable efforts can be said to have been made to secure the attendance of the witness A.B. at the applicant’s trial. 21. The Court must further examine whether the evidence of the absent witness A.B. was the sole or decisive basis for the applicant’s conviction. Having examined the materials of the case-file, the Court is satisfied that the statements made by A.B. before the German authorities were the only evidence on the strength of which the applicants were found guilty and convicted by the Moldovan courts. The rest of the evidence to which the Government makes reference was indirect evidence which could not have led on its own to the applicants’ conviction. 22. Lastly, the Court must determine whether there were sufficient counterbalancing factors in place, including measures that permitted a fair and proper assessment of the reliability of the evidence of the absent witness to take place. The following elements are relevant in this context: the trial court’s approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to cross-examine directly the witnesses at the trial (see Schatschaschwili, cited above, §§ 125-131). 23. The Court notes that both the Court of Appeal and the Supreme Court did not give any reasons explaining why they reached a different conclusion concerning the evidentiary value of A.B.’s statements. All the evidence was simply listed as proof that the applicants had committed the offence, without any indication concerning the fact that A.B.’s statements had not been tested. The Court therefore finds that the Court of Appeal and the Supreme Court of Justice failed to examine the reliability of A.B.’s statements. The Court also notes that no procedural measures were taken to compensate for the applicants’ lack of opportunity to cross-examine A.B. at their trial and that the courts did not address in any relevant way the applicants’ objection concerning the reliability of A.B. statements. 24. The foregoing considerations are sufficient to enable the Court to conclude that the applicants were unreasonably restricted in their right to examine the witness A.B. whose testimony played a decisive role in securing their conviction. The applicants were, therefore, denied a fair trial and there has been a violation of Article 6 § 1 of the Convention. 25. 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.”
26. The applicants claimed 15,000 euros (EUR) each for non-pecuniary damage. 27. The Government considered the amounts claimed by the applicants to be excessively high. 28. The Court considers that the applicants must have been caused a certain amount of stress and frustration as a result of the breach of their right to a fair trial. Making its assessment on an equitable basis, it awards each applicant EUR 3,000 for non-pecuniary damage. 29. The applicants also claimed EUR 1,500 each for the costs and expenses incurred before the Court. They submitted detailed time-sheets. 30. The Government contested this amount and argued that it was excessive and unsubstantiated. 31. The Court awards the sum of EUR 1,500 to the applicants jointly for costs and expenses. 32. 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, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to each applicant;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, as a joint award 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;
Done in English, and notified in writing on 2 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Egidijus KūrisDeputy RegistrarPresident