SECOND SECTION
CASE OF BELCENCOV v. THE REPUBLIC OF MOLDOVA
(Application no. 4457/09)
JUDGMENT
STRASBOURG
18 June 2019
This judgment is final but it may be subject to editorial revision.
In the case of Belcencov 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. 4457/09) 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 Efim Belcencov (“the applicant”), on 6 January 2009.
2. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr L. Apostol.
3. The applicant alleged, in particular, that the criminal proceedings against him were not fair under Article 6 § 1 of the Convention.
4. On 21 February 2013 notice of the application was given to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1965 and lives in Ștefan-Vodă.
6. In 2007 the applicant was charged with trafficking in human beings, together with another co-accused, B. In particular, he was charged with the attempt to organise the transfer of S. to a foreign country for the purpose of sexual exploitation.
7. On 8 June 2007 the Ștefan-Vodă District Court found the applicant guilty on the strength of the statements made by B. (a co-accused), S. (a victim), and C.E. and C.T., who were witnesses.
8. The applicant never admitted his guilt and stated that his involvement had been limited to driving S. to an apartment in Slobozia as requested by B. to pick up her passport without knowing the purpose of this action.
9. B. admitted her guilt and declared that she had had an arrangement with the applicant to transfer S. to Turkey for the purpose of sexual exploitation. She said that S.’s passport had been kept by the applicant so that he could prepare the documents necessary for S.’s transfer. She said the applicant had promised her money for this and that she had received an advance payment.
10. S. declared that she had met only B., who had promised to find her employment in Russia; that B. had arranged accommodation for her in the apartment she had been renting in Slobozia; that B. had taken her passport and that another roommate, C.T., had informed her about B.’s intention to transfer her to Cyprus for the purpose of sexual exploitation. It had been upon learning this that she had gone to the police.
11. C.E. stated that she had been the landlord who had rented her apartment to B. and that S. and C.T. had also lived in that apartment. She said that B. had told her about her arrangement with the applicant to transfer S. to Turkey, that the applicant had intended to take care of all the formalities and that he had promised a reward for each woman she had found who could be moved to Turkey for the purpose of prostitution.
12. C.T., a witness, declared that she had shared the apartment with B. and that the latter had not told her about any intention to transfer S. to Turkey, but that she had intended to find employment for S. in Russia or Ukraine. During the court proceedings, she denied having told S. about B.’s criminal intentions. The court noted that C. had changed her depositions given during criminal investigation, in which she had stated that B. had revealed her criminal intentions, and had chosen to rely on those initial depositions.
13. The District Court convicted both B. and the applicant on all counts, sentencing B. to seven years’ imprisonment, but absolving her from the execution of the sentence because she was infected with HIV, and sentencing the applicant to eight years’ imprisonment. The prosecutor and the applicant appealed against this judgment.
14. On 6 December 2007 after having heard the prosecutor, the applicant and the victim, the Bender Court of Appeal concluded that the prosecution had failed to provide reliable evidence in support of the contention that the applicant had indeed acted together with B. and that the first-instance court had based its findings essentially on B.’s statements. The Court of Appeal noted that B.’s statements alone had been unreliable if unsupported by other witness statements and evidence. According to the court, the evidence gathered by the prosecution had been insufficient to determine the applicant’s guilt beyond reasonable doubt. The court therefore allowed the applicant’s appeal, acquitted him of all charges and released him. The court upheld B.’s conviction and ordered that she serve her sentence only after her child had turned eight years of age. The prosecutor appealed against this judgment.
15. On 1 April 2008 the Supreme Court of Justice held a hearing at which the applicant and his lawyer were absent. It appears from the material in the domestic case file that a summons was sent to the applicant’s address on an unknown date; however, the post office did not deliver it and returned it with a note to the effect that that the applicant did not live on that address. During the proceedings the applicant was represented by a pro bono lawyer and no witnesses gave evidence. According to the applicant, his chosen representative never received a summons for this hearing. The court quashed the judgment of the Bender Court of Appeal, upheld the applicant’s conviction by the first-instance court and ordered a fresh examination of the case in respect of B. It did not examine directly any evidence and based its findings on the case file as established by the lower courts. On the basis of the case-file material, it found the testimonies of B., S. and E. to be reliable and directly incriminating in respect of the applicant and to be sufficient to prove his guilt. The Supreme Court concluded that the Court of Appeal had reached incorrect conclusions on the basis of the file.
16. On 20 October 2008 the Chișinău Court of Appeal held a hearing in the absence of the applicant and of his representative. The court re‑examined and dismissed as ill-founded the applicant’s appeal against the judgment of Ștefan-Vodă District Court of 8 June 2007. It allowed the prosecutor’s appeal and sentenced B. to seven years’ imprisonment in a closed-type detention facility, without allowing any adjournment for serving the sentence.
17. On 27 November 2008 the applicant was arrested at his place of work and only then was he informed of the judgments of the Supreme Court of Justice of 1 April 2008 and of the Chișinău Court of Appeal of 20 October 2008. The applicant appealed against the latter, arguing, inter alia, that he had not been legally summonsed and that in his absence the court had adopted a decision relying on assumptions rather than on factual evidence.
18. On 28 April 2009 the Supreme Court of Justice held a hearing in the presence of the applicant, his representative, the victim and the prosecutor. The court allowed the applicant’s appeal and found that the Chișinău Court of Appeal had been entitled to examine the case in respect of B. only, because in respect of the applicant a final judgment had been delivered on 1 April 2008 by the Supreme Court of Justice. The court removed any reference to the applicant from the judgment of the Chișinău Court of Appeal of 20 October 2008 but did not change in any way the sentence in respect of him.
19. On 2 June 2009 the applicant submitted an extraordinary appeal to the Supreme Court of Justice, arguing, inter alia, that there had been a violation of Article 6 of the Convention as he had not been legally summonsed to the Supreme Court of Justice hearing of 1 April 2008 and to the Court of Appeal hearing of 20 October 2008, and complaining of the lack of evidence and reasons for his conviction. S., a victim, also submitted an extraordinary appeal, arguing that the proceedings had been unfair because she had also not been summoned and that because the applicant had been convicted unfairly because he was not guilty. On 28 October 2010 the Supreme Court of Justice rejected the appeals, noting, inter alia, that the applicant had not appeared in court despite the fact that he had been summoned to the hearing of 1 April 2008, and that the applicant had been represented at that hearing by a pro bono lawyer.
II. RELEVANT DOMESTIC LAW
20. Article 433 of the Code of Criminal Procedure in force at the material time provided that the examination of an appeal on points of law required the participation of, among other parties, the prosecutor, the accused, and the victim, whose interests are at stake given the arguments presented in the appeal. During the hearing, the parties are entitled to reply to the arguments presented before the courts.
21. Article 434 of the Code of Criminal Procedure provides that when examining an appeal on points of law against an appellate judgment, the court shall verify the lawfulness of that judgment on the basis of the material in the file.
22. Article 435 of the Code of Criminal Procedure reads:
“(1) Examining an appeal on points of law, the court shall adopt one of the following decisions:
...2) allows the appeal on points of law, quashes, partially or entirely, the appellate judgment and adopts one of the following solutions:
(a) upholds the first-instance judgment when the appeal was allowed incorrectly ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23. The applicant complained that the criminal proceedings against him had not been fair because in overturning his acquittal the Supreme Court of Justice had failed to summon him and to hear him, and the witnesses on the basis of whose testimonies it had found him guilty, in person. The applicant also argued that his conviction by the Supreme Court of Justice had not been based on evidence and that the judges had lacked independence and impartiality. 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 an independent and impartial tribunal established by law.”
A. Admissibility
24. The Court notes that the final judgment by which the applicant was convicted was the Supreme Court of Justice’s judgment of 1 April 2008. It also notes that the applicant lodged his application with the Court more than six months after that judgment. However, it appears that there was a procedural confusion resulting from the above judgment of the Supreme Court of Justice. In particular, the judgment appears to have upheld the first‑instance conviction in respect of the applicant but ordered a fresh examination in respect of the co-accused. The order was not expressed sufficiently clearly because the Court of Appeal reheard the case in respect of both the co-accused and the applicant. The applicant appealed against the judgment of the Court of Appeal and only a new judgment by the Supreme Court of Justice on 28 April 2009 clarified that the Court of Appeal had not been entitled to rehear the case in regard to the applicant and that his conviction had become final with the Supreme Court’s judgment of 1 April 2008. For these reasons, the Court considers that the six-month time-limit must be calculated from 28 April 2009, when the Supreme Court of Justice adopted its final decision, clarifying the procedural confusion.
25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
26. The applicant submitted that the proceedings before the Supreme Court, which had ended with the judgment of 1 April 2008, had been unfair because he had not had the chance to appear in person before that court and because it had convicted him without hearing evidence from witnesses. He also complained that the domestic courts had lacked impartiality.
27. The Government disagreed and argued that the proceedings had been public and fair, and that the applicant had been represented by a lawyer. They contended that all the guarantees of Article 6 had been observed by the domestic courts in this case and submitted that the Supreme Court had not convicted the applicant for the first time but had merely disagreed with the decision taken by the Court of Appeal and had chosen to uphold the judgment given by the first-instance court.
28. The Court reiterates that the manner of application of Article 6 to proceedings before appellate courts 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 1996I). 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 Popovici v. Moldova, nos. 289/04 and 41194/04, § 68, 27 November 2007; Constantinescu v. Romania, no. 28871/95, § 55, ECHR 2000‑VIII; and Marcos Barrios v. Spain, no. 17122/07, § 32, 21 September 2010).
29. Turning to the facts of the present case, the Court notes that the main evidence against the applicant was the witness statements to the effect that he had been involved in a scheme to traffic women abroad with a view to their sexual exploitation. Therefore the witness testimonies and the weight given to them were of great importance for the determination of the case. The Court of Appeal acquitted the applicant because, after having heard evidence from the applicant and the victim, it considered that there was not enough weight in the evidence put forward by the prosecution to warrant a criminal conviction. In re-examining the case, the Supreme Court of Justice disagreed with the Court of Appeal as to the value of the evidence put forward by the prosecution and agreed with the first-instance court. In so doing the Supreme Court did not examine the applicant or any of the witnesses anew but merely relied on their statements as recorded in the file.
30. Moreover, the Supreme Court did not appear to make any genuine effort to inform the applicant of the proceedings. It appears that it did send a summons, but after it had been returned by the post-office it did not make any other attempts to contact him or his lawyer. In this connection, the Court notes that it was not argued by the Government that the applicant had attempted to abscond and or that he had intended to waive his right to be present at the hearing of the Supreme Court.
31. Having regard to what was at stake for the applicant, the Court is not convinced that the issues to be determined by the Supreme Court of Justice when convicting and sentencing the applicant – and, in doing so, overturning his acquittal by the Court of Appeal and upholding the judgment given by the first-instance court – could, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the prosecution witnesses and without giving the applicant the possibility to appear and defend himself in person.
32. In the light of the above, the Court considers that there has been a violation of Article 6 § 1. In the circumstances, it does not consider it necessary to examine, additionally, whether other aspects of the proceedings did or did not comply with that provision.
33. There has therefore been a violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34. The applicant also submitted complaints under Articles 5, 7, 8, 13, 17 of the Convention and Article 2 of Protocol No. 7.
35. However, having regard to the facts of the case, the submissions of the parties and its findings under Article 6 of the Convention, the Court considers that it has examined the main legal question raised in the present application, and that there is no need to give a separate ruling on the remaining complaints (see, among other authorities, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007; The Argeş College of Legal Advisers v. Romania, no. 2162/05, § 47, 8 March 2011).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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
37. The applicant claimed 132,000 euros (EUR) in respect of pecuniary damage and EUR 1 million in respect of non-pecuniary damage.
38. The Government considered that those amounts were excessive.
39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 5,000 in respect of non‑pecuniary damage.
B. Default interest
40. 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 complaint under Article 6 § 1 of the Convention admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that it is not necessary to examine the admissibility and merits of the remaining complaints;
4. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Egidijus Kūris
Deputy RegistrarPresident
Full & Egal Universal Law Academy