I correctly predicted that there was a violation of human rights in MANOLI v. MOLDOVA.

Judgment

SECOND SECTION

CASE OF MANOLI v. THE REPUBLIC OF MOLDOVA

(Application no. 56875/11)

JUDGMENT

STRASBOURG

28 February 2017

FINAL

28/05/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Manoli v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Işıl Karakaş, President,Julia Laffranque,Nebojša Vučinić,Paul Lemmens,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro, judges,and Stanley Naismith, Section Registrar,
Having deliberated in private on 31 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 56875/11) 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 a Moldovan national, Mr Radu Manoli (“the applicant”), on 17 August 2011. 2. The applicant was represented by Mr I. Bosîi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3. The applicant alleged, in particular, that the criminal proceedings against him had not been fair, within the meaning of Article 6 § 1 of the Convention. 4. On 10 April 2012 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1984 and lives in Boscana. 6. At the time of the events the applicant was a police officer. In December 2006 he and another police officer, V.G., arrested two suspects (A.C. and A.V.) on the street and took them to a police station. Since one of the suspects resisted arrest, the police officers used force to make him get into their car. At the police station one of the police officers allegedly kicked one of the suspects in the chest. Both police officers were charged with the offence of ill-treating the suspects. 7. According to the statements made by the victims to prosecutors, only officer V.G. ill-treated A.C. at the police station by kicking him in the chest. Therefore, on 10 August 2007 the charges against the applicant were dropped. However, on 24 September 2007 that decision was annulled and the applicant was again charged with ill-treating one of the victims during the arrest. 8. During the court proceedings, the two victims submitted that they had been approached by the two police officers on the street and had been asked to accompany them to the police station. As one of the victims (A.V.) had resisted, the officers had struggled with him and forced him into the car. According to the statements of several witnesses, the two victims were intoxicated. One of the witnesses stated that A.V., who was tall and well‐built, had refused to get into the car. The police officers had handcuffed him and had had to punch him in the stomach to make him bend over and enter the vehicle. It does not appear that A.V. suffered any injuries. A.V. submitted that the police officers had continued beating both of them, even after they had got into the police car. A.C. did not confirm that statement. According to the victims, the police officers had taken some personal items off them, including their wallets, immediately after the arrest. 9. At the police station, the personal items were returned to the victims. According to A.C., he noticed after checking his wallet that his money was missing. He asked V.G. where the money was and, instead of receiving an answer, he received a kick in the chest. V.G. then kicked A.V. as well. A.C. later discovered that he had suffered a fractured rib from the kick. 10. A.V. made two different and contradictory statements during the court proceedings. He at first submitted that both the applicant and V.G. had kicked him at the police station after he had asked where his wallet and documents were, but later submitted that only V.G. had hit him, using a machine gun for that purpose. Moreover, he submitted that he had not lodged a formal criminal complaint about the alleged ill-treatment and was only involved as a witness in the proceedings. He also stated that he did not have a clear memory of what had happened because of his acute state of intoxication. 11. In a judgment of 21 May 2009 the Buiucani District Court found that the police officers had used force during the arrest but that the force had not been disproportionate in the circumstances. It acquitted both the applicant and V.G. in respect of that episode. As far as the ill-treatment at the police station was concerned, the court acquitted the applicant and found V.G. guilty of kicking A.C. in the chest. It based its conclusion on the statements of the victims, the accused and witnesses and on medical documents. The Prosecutor’s Office appealed. 12. On 18 January 2010 the Chişinău Court of Appeal upheld the appeal lodged by the Prosecutor’s Office and reversed the judgment of the first‐instance court. The applicant was convicted as charged and given a three-year suspended prison sentence. In the process of examination of the appeal, the Court of Appeal did not question the suspects, victims or witnesses again, but only cited some of the statements they had made before the first-instance court. In particular, the Court of Appeal cited the part of A.V.’s statement where he had accused both police officers of ill-treating him at the police station. The rest of his statement was not mentioned. The suspects and the victims were also asked to state whether or not they agreed with the appeal by the Prosecutor’s Office against the judgment of the first‐instance court. 13. The applicant lodged an appeal on points of law. In his submissions to the Supreme Court of Justice the applicant’s lawyer argued, inter alia, that the applicant’s conviction had been contrary to Article 6 § 1 of the Convention because the Court of Appeal had neither examined the case file nor heard him, the victims or witnesses in person. 14. On 25 February 2011 the Supreme Court of Justice dismissed the applicant’s appeal on points of law, finding, inter alia, that in the circumstances of the case it had not been necessary for the Court of Appeal to examine the witnesses again because their statements had not been contested by the defendants. As to the objection that the Court of Appeal had not heard the defendants or the victims in person, the Supreme Court considered that asking them whether they agreed with the appeal had been sufficient to ensure the fairness of the proceedings. Moreover, the Supreme Court argued that the parties had not wished to submit new evidence. 15. One of the members of the panel of judges of the Supreme Court wrote a dissenting opinion, expressing the view that a new examination of the victims and witnesses before the Court of Appeal had been imperative to ensure the fairness of the proceedings and concluding that the proceedings had not been fair within the meaning of Article 6 of the Convention. 16. The applicant also lodged an extraordinary appeal with the Supreme Court of Justice, arguing that there had been a breach of Article 6 of the Convention. However, on 27 October 2011, the Supreme Court of Justice dismissed the applicant’s appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE
17. Article 419 of the Code of Criminal Procedure provides that the procedure for rehearing a case on appeal must follow the general rules for the examination of a criminal case at first instance. 18. An explanatory judgment of the Plenary Supreme Court of Justice, No. 22 of 12 December 2005, reads, in so far as relevant, as follows:
“Bearing in mind the provisions of Article 6 of the European Convention on Human Rights, the appellate court, after an acquittal by a first-instance court, cannot order a conviction for the first time without hearing the accused or assessing the evidence directly.”
19. Article 4641 of the Code of Criminal Procedure provides for the possibility of reopening domestic proceedings where the Court has found a violation of an applicant’s fundamental rights and freedoms and where the consequences of the violation continue to have effect and can be redressed only by a review of the final judgment. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20. The applicant complained that the criminal proceedings against him had not been fair because the Court of Appeal had failed to hear the victims and witnesses before overturning his acquittal. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
21. The Government submitted that the complaint raised by the applicant before the Court had not been raised in an appeal or in his appeal on points of law. They therefore asked for the case to be declared inadmissible for non-exhaustion of domestic remedies. 22. The Court notes that the applicant did not lodge an appeal after the decision at first instance because he was acquitted. In so far as the proceedings before the Supreme Court are concerned, it is clear from the case file that the applicant’s lawyer expressly raised a complaint under Article 6 of the Convention in his submissions and that he received an answer to them in the judgments of the Supreme Court of Justice. The Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed. 23. 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
24. The applicant contended that the failure of the Chişinău Court of Appeal to rehear the victims and the accused before overturning his acquittal by the first-instance court had amounted to a breach of Article 6 § 1 of the Convention. 25. The Government disagreed and argued that the parties had been heard during the appeal proceedings and had had the chance to submit new evidence if they had so wanted. 26. The Court reiterates that the manner of applying Article 6 of the Convention to proceedings before courts of appeal depends on the special features of the proceedings involved: account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see Botten v. Norway, 19 February 1996, § 39, Reports of Judgments and Decisions 1996‐I). 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 (see Constantinescu v. Romania, no. 28871/95, § 55, ECHR 2000‐VIII ; Popovici v. Moldova, nos. 289/04 and 41194/04, § 68, 27 November 2007; and Marcos Barrios v. Spain, no. 17122/07, § 32, 21 September 2010). 27. Turning to the facts of the present case, the Court notes that the Court of Appeal found the applicant guilty of ill-treating A.V. during his arrest. The Court of Appeal came to that conclusion on the basis of the statements made by the victims, the accused and the witnesses during the proceedings before the first-instance court. 28. It appears from the case file that the victims first made the allegations about A.V.’s ill-treatment at the time of his arrest during the proceedings at first instance. No such allegations had been made at the investigation stage, leading to the charges against the applicant being dropped at one point (see paragraph 7 above). 29. It also appears that the victims’ statements before the first-instance court were not entirely consistent and that A.V.’s statements were incoherent. In particular, A.V. submitted that he had been ill-treated before and after getting into the police car, while A.C. did not confirm the ill‐treatment which had allegedly taken place in the police car (see paragraph 8 above). Moreover, at one point A.V. stated that he and A.C. had been kicked by both police officers at the police station, but he later submitted that only V.G. had hit him with a machine gun. He also submitted that he had not even lodged a criminal complaint against the police officers. It was on the basis of the above statements, the witness evidence which confirmed the fact that the police officers had used force against A.V. when he had resisted arrest, the statements of the accused, and the lack of injuries on A.V.’s body, that the first‐instance court concluded that the force used by the police officers during the arrest had not been disproportionate in the circumstances. 30. The Government submitted that the accused police officers and the victims had been questioned during the proceedings before the Court of Appeal. However, it appears from the case file that they were only asked whether or not they agreed with the appeal lodged against the first‐instance court’s judgment. The Court of Appeal did not carry out a fresh examination of the version of events submitted by the victims, the accused police officers or the witnesses. Instead, in reaching its conclusion on the applicant, it chose to rely only on the statements made by A.V. during the first‐instance proceedings in which he had accused the applicant of using unjustified force against him. The rest of A.V.’s statements was ignored. There is no explanation in the Court of Appeal’s judgment as to why it decided to believe that part of A.V.’s statements in particular. Similarly, there is no explanation for the inconsistency in A.C.’s and A.V.’s statements about the amount of force used by the police officers at the time of the arrest. 31. Against this background, the Court notes that the manner in which the Chișinău Court of Appeal conducted the proceedings appears to be at odds with the provisions of Article 419 of the Code of Criminal Procedure (see paragraph 17 above) and with the guidelines in the Plenary Supreme Court of Justice’s explanatory judgment (see paragraph 18 above). 32. Having regard to what was at stake for the applicant, the Court is not convinced that the issues that had to be determined by the Court of Appeal when convicting and sentencing the applicant - and, in doing so, overturning his acquittal by the first-instance court - could be properly examined, as a matter of fair trial, without a direct assessment of the evidence. The Court considers that those who have responsibility for deciding on the guilt or innocence of an accused ought, in principle, to be able to hear the victims, the accused and the witnesses in person and assess their trustworthiness (see, a contrario, Kashlev v. Estonia, no. 22574/08, §§ 48-50, 26 April 2016). The assessment of trustworthiness is a complex task which cannot usually be achieved merely by reading a record of their words, even more so when only some of the words are taken into consideration. Of course, there are cases where it is impossible to hear someone in person at the trial because, for example, he or she has died, or in order to protect the right of a witness not to incriminate himself or herself (see Craxi v. Italy (no. 1), no. 34896/97, § 86, 5 December 2002, and Dan v. Moldova, no. 8999/07, § 33, 5 July 2011). However, that was not the case here. 33. In the light of the above, the Court considers that the conviction of the applicant, without a re-examination of the victims, accused or witnesses, after he had been acquitted by the first-instance court, was contrary to the guarantees of a fair trial within the meaning of Article 6 § 1 of the Convention. 34. There has therefore been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
35. 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. Non-pecuniary damage
36. The applicant claimed 5,000 euros (EUR) in respect of non‐pecuniary damage resulting from the breach of his Convention rights. 37. The Government disagreed and asked the Court to reject the claim as unsubstantiated. 38. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of his right to a fair trial. Making its assessment on an equitable basis, it awards the applicant EUR 2,000 in respect of non-pecuniary damage. 39. Moreover, the Court reiterates that where a person, as in the instant case, is convicted in domestic proceedings which failed to comply with the requirements of a fair trial, a new trial or the reopening of the domestic proceedings at the request of the interested person represents an appropriate way to redress the violation (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, no. 40997/98, § 23, 29 January 2004). In this connection, it notes that Article 4641 of the Moldovan Code of Criminal Procedure provides for the possibility of a retrial or reopening of the domestic proceedings where the Court has found a violation of an applicant’s fundamental rights and freedoms (see Flueraş v. Romania, no. 17520/04, § 70, 9 April 2013, and Hanu v. Romania, no. 10890/04, § 50, 4 June 2013). B. Costs and expenses
40. The applicant also claimed EUR 2,807 for the costs and expenses incurred before the domestic courts and before the Court. He submitted a detailed time-sheet. 41. The Government contested that amount and argued that it was excessive and unsubstantiated. 42. According to the Court’s 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the entire amount claimed. C. Default interest
43. 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,
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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, 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 2,807 (two thousand eight hundred and seven 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrarPresident