CASE OF PARENIUC v. THE REPUBLIC OF MOLDOVA

THIRD SECTION

CASE OF PARENIUC v. THE REPUBLIC OF MOLDOVA

(Application no. 17953/08)

JUDGMENT

STRASBOURG

1 July 2014

FINAL

01/10/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

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

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Dragoljub Popović,
Luis López Guerra,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 10 June 2014,

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

PROCEDURE

1. The case originated in an application (no. 17953/08) 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, Mrs Vera Pareniuc (“the applicant”), on 11 March 2008.

2. The applicant was represented by Mr V. Nagacevschi, 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 she had been the victim of entrapment, as a result of which she had committed a criminal offence.

4. On 24 May 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1955 and lives in Edineț. At the time of the events the applicant was working as a tax inspector at the Edineț tax authority.

6. On 17 February 2004 Z., the owner of a small shop, lodged a criminal complaint against the applicant. He stated that on an unspecified date he had visited the applicant for the purpose of de-registering his till and closing down his shop. When the applicant compared data in the till’s memory with the shop owner’s books, she found a discrepancy in the figures and told him that he risked incurring a fine. According to Z., the applicant implied to him that the matter could be resolved if he agreed to pay her an amount of money which she wrote on a piece of paper. Z. understood that the applicant was asking for a bribe.

7. On 17 February 2004, the police organised an undercover operation. They fitted Z. with a wire and instructed him to meet the applicant in her office and give her banknotes marked with special powder.

8. According to the transcript of the conversation between Z. and the applicant during the police operation, Z. was grateful to the applicant for helping him and offered her a reward, but the applicant refused to accept it. He insisted and asked the applicant “How much?” to which she answered “Nothing”. Z. continued to insist, and said “I do not want you to worry about this. How much?” The applicant did not answer. Z. insisted: “One, two hundred?” but the applicant refused again. Z. then said “At least fifty, please”. The applicant conceded, saying “It’s up to you”. Z. said “If it’s up to me, then at least fifty more”. The applicant said “A painting would be nice”. Z. asked “What painting?” The rest of the conversation is not clear because only Z.’s words are recorded in the transcript, while there is a blank space in respect of the applicant. However, it would appear from Z.’s statements that the applicant finally agreed to accept the money offered by him in order to buy a painting.

9. Immediately after that, police officers entered and arrested the applicant. They found 200 lei (MDL) (the equivalent of approximately 11 euros (EUR)) marked with special powder in the pocket of her coat, which was hanging in the next office.

10. In her statements to the police the applicant submitted that on 13 February 2004 Z. had gone to her office for the purpose of de-registering his till. She noted that the last entry in the till’s memory had not been reflected in the shop owner’s books and helped him solve the problem by asking a technician to remove the last entry from the till’s memory. On 17 February 2004 Z. went to her office and offered to pay for her help. She refused but as he kept insisting she eventually agreed to accept from him a painting for the office. After he left she saw MDL 200 on her table and ran after him to give them back; however, she could not find him. She returned to the office to call him on his mobile phone when police officers entered and arrested her. Subsequently, she changed her statements to the effect that after she had refused to take money from Z., on his way out Z. had placed the money in the pocket of her coat, which had been hanging in the next office. She also argued that she had been set up by the police.

11. In his statements to the police, Z. submitted that he had had a problem with his accounting because he had forgotten to reflect the last entry in the till in the books. Z. told the applicant that he was prepared to reward her for her help, to which she replied that she was afraid of accepting payment because she had already been suspected of bribe taking. Nevertheless, she accepted to help him. Z. left the till with her and sometime later a technician solved the problem. On 17 February 2004 Z. complained to the police and an undercover operation was organised. He then went to the applicant’s office wearing a wire and offered her money. At first she declined his proposal but eventually she accepted to receive a painting for her new office. Z. put MDL 200 on her table but she returned MDL 100 to him. Z. then told her to buy a nice painting and gave her back the MDL 100. She took the money and asked him to accompany her to the market to buy the painting. However, he refused to do so, claiming that he was busy, and left the office. Subsequently, Z. changed his statement to the effect that he had placed the money in the pocket of the applicant’s coat, which had been hanging in another office, and that he did not know whether she had been aware that he had placed the money there.

12. Four more counts of bribe taking, which had allegedly taken place between 1999 and 2003, were added to the criminal charge against the applicant. They were all based solely on statements of the alleged victims made after the undercover operation of 17 February 2004.

13. On 28 January 2005 the prosecutor in charge of the criminal case against her stated in an interview to a newspaper that the applicant had accepted a bribe.

14. During the court proceedings the applicant argued, inter alia, that she had been a victim of police entrapment.

15. On 9 March 2005 the Edinet District Court convicted the applicant of bribe taking in respect of the incident of 17 February 2004 and fined her some EUR 300. In convicting the applicant the court found that Z. had visited her in her office and had placed money in the pocket of her coat, which had been hanging on a coat rack, in exchange for services concerning a till. The court did not examine the applicant’s allegation that she had been the victim of incitement. At the same time the court acquitted the applicant of the other counts of alleged bribe taking. The court found the incriminating statements in respect of those incidents unfounded and/or that they had been extracted by way of pressure by the prosecuting authorities.

16. The applicant appealed against that judgment and argued, inter alia, that she had been a victim of entrapment. She also argued that the transcript of the conversation between her and Z. had been tampered with because the last part of the recording in which Z. told a police officer that he had planted the money did not appear in the transcript. The prosecutor also appealed, claiming that the penalty was too mild.

17. On 1 July 2005 the Balti Court of Appeal dismissed the applicant’s appeal without considering her allegation of entrapment. At the same time the court allowed the appeal lodged by the prosecutor’s office and changed the penalty to a criminal fine of EUR 1,200 and a three-year suspended sentence.

18. The applicant lodged an appeal on points of law with the Supreme Court of Justice, arguing, inter alia, that she had been the victim of entrapment.

19. On 6 December 2005 the Supreme Court of Justice dismissed the applicant’s appeal. The applicant then lodged an extraordinary appeal, which was allowed by the Supreme Court on 3 April 2006. The Supreme Court of Justice found that no confrontation had been carried out between the applicant and Z. during the proceedings. It therefore set aside its decision of 6 December 2005, quashed the decision of the Balti Court of Appeal of 1 July 2005 and ordered a fresh hearing of the case by the Balti Court of Appeal.

20. On 20 September 2006 the Balti Court of Appeal allowed the applicant’s appeal against the judgment of the Edineț District Court of 9 March 2005 and acquitted her on the grounds, inter alia, that there were inconsistencies in Z.’s statements and that there was no evidence to support the allegation that she had been aware that money had been placed in her coat pocket. The court also referred to the transcript of the recording of the encounter between the applicant and Z. and found that the latter had acted as an agent provocateur.

21. On 16 January 2007 the Supreme Court of Justice allowed an appeal on points of law lodged by the prosecutor, quashed the decision of the Balti Court of Appeal of 20 September 2006 and ordered it to re-examine the appeals against the judgment of 9 March 2005.

22. On 21 March 2007 the Balti Court of Appeal dismissed the applicant’s appeal against the judgment of 9 March 2005 and allowed the appeal lodged by the prosecutor. The court considered that the evidence in its possession indicated the applicant’s guilt “even if the applicant had been provoked by Z”. In particular, the court dismissed the applicant’s contention that she had not been aware that Z. had put money in her coat pocket by referring to the fact that traces of special powder had been found on her hands. The court increased the penalty to a fine of EUR 1,200 and a suspended sentence of three years’ imprisonment. The applicant was also banned from working for the tax authority for a period of three years.

23. The applicant lodged an appeal on points of law, arguing, inter alia, that Z. had acted as an agent provocateur and that she had been the victim of entrapment. She also argued that the transcript of her conversation with Z. had been tampered with and submitted that, in view of the absence of the original recording, her conviction could not be based on it.

24. On 12 September 2007 the Supreme Court of Justice dismissed the applicant’s appeal on points of law without considering her claim of entrapment.

II. RELEVANT DOMESTIC LAW

25. Until 2012 the Moldovan Code of Criminal Procedure did not contain any formal ban on the use of evidence obtained by way of entrapment or incitement.

26. The offence of which the applicant was found guilty is provided by by Article 330 of the Criminal Code, is called “unlawful enrichment” and is punished with fine of up to 7,000 Moldovan lei or to imprisonment of up to seven years.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

27. The applicant complained that she had been incited to commit the crime of accepting a bribe and that the domestic courts had not given sufficient reasons in their decisions. She also complained that her right to be presumed innocent had been breached by the prosecutor in charge of the case, who had stated in an interview that she had accepted a bribe. She relied on Article 6 of the Convention, the relevant parts of which read as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

28. 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

1. The parties’ submissions

29. The applicant alleged that she had been a victim of entrapment by the police and that Z. had acted on instructions received from them. Z. did not confine himself to observing criminal activity in a passive manner but exerted direct influence on her so as to incite her to commit an offence. The transcript of her conversation with Z. proved that he had incited her. Moreover, the transcript did not prove that the applicant had accepted the money offered by Z.

30. The applicant further submitted that she had pleaded before the domestic courts that she had been a victim of incitement, but that the courts had failed to examine her plea. Only the Balti Court of Appeal took account of that argument in its decision of 20 September 2006 and concluded that the applicant had been incited to commit the imputed offence. However, that decision was later quashed.

31. Lastly, the applicant submitted that the courts had failed to address her arguments during the proceedings and had issued unreasoned judgments.

32. The Government contended that the applicant had not been a victim of incitement and that she had failed to prove her allegations of incitement in the proceedings before both the domestic courts and the Court. In the Government’s view, the applicant had failed properly to substantiate her allegations of incitement before the domestic courts. She merely stated that she had been incited by Z., without giving any details. As a result, the domestic courts had not been obliged to examine her allegation. Moreover, the domestic courts addressed all the important arguments raised by the applicant in her defence.

2. The Court’s assessment

33. The Court reiterates that as a general rule the admissibility and assessment of evidence is a matter for regulation by national law and appreciation by the domestic courts (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997-III). Nevertheless, the admission of some evidence can render a trial unfair. Such has been found to be the case, for instance, of evidence obtained as a result of ill-treatment with the aim of extracting a confession (see Jalloh v. Germany [GC], no. 54810/00, § 99, ECHR 2006‑IX) or of evidence obtained by way of police incitement or entrapment (see Teixeira de Castro v. Portugal, 9 June 1998, Reports, § 38, 1998-IV).

34. In so far as police incitement is concerned, the Court held in Teixeira de Castro (cited above) that the right to a fair trial would be violated where police officers had stepped beyond an essentially passive investigation of a suspect’s criminal activities and had exercised an influence such as to incite the commission of an offence that would otherwise not have been committed. In Vanyan v. Russia (no. 53203/99, §§ 45-50, 15 December 2005) the Court went further and considered that the issue of entrapment or incitement could be relevant even where the operation was carried out by a private individual acting as an undercover agent, when it had actually been organised and supervised by the police.

35. In view of the importance of the above principles, the Court held in Ramanauskas v. Lithuania ([GC], no. 74420/01, § 60, ECHR 2008) that where an accused asserted that he had been incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police entrapment must be excluded. This was especially true where the police operation had taken place without a sufficient legal framework or adequate safeguards.

36. Lastly, where the information disclosed by the prosecution authorities does not enable the Court to conclude whether the applicant was subjected to police incitement, it is essential that the Court examine the procedure whereby the plea of incitement was determined in each case in order to ensure that the rights of the defence were adequately protected, in particular the right to adversarial proceedings and to equality of arms (see Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004‑X). For more general principles concerning the problem of entrapment see Bannikova v. Russia (no. 18757/06, §§ 33-65, 4 November 2010).

37. Turning to the facts of the present case, the Court notes that the applicant was convicted on the strength of evidence obtained during the undercover operation of 17 February 2004, when Z., after having been wired by the police, gave her money.

38. It does not appear from the materials of the case that before 17 February 2004 the authorities had knowledge of or any objective evidence that the applicant had previously been involved in taking bribes. It is true that several other counts of bribe taking were added later to the charge against her (see paragraph 12 above); however, there is no indication in the case materials, and the Government have not argued, that information or evidence about those incidents had been obtained by the police prior to the commencement of the criminal investigation against the applicant.

39. In his complaint to the police of 17 February 2004, Z. alleged that the applicant had asked him for a specific sum of money. However, the transcript of the discussion between him and the applicant, during the undercover operation, indicates the contrary. Z. asked the applicant how much money to give her and, after receiving several clear refusals, insisted on giving her the money until she conceded (see paragraph 8 above). This, in the Court’s opinion, clearly demonstrates that the applicant was subjected to blatant prompting and incitement to engage in the criminal activity of which she was convicted, in the absence of any indication that the offence would have been committed without such intervention.

40. Against this background the Court notes that throughout the proceedings the applicant maintained that she had been a victim of police entrapment. The Government argued that she had not been sufficiently explicit in her submissions; however, the Court does not share that point of view. Not only did the applicant clearly indicate the allegation of incitement in her submissions, but also some of the courts clearly heard her contention. The Balti Court of Appeal acquitted the applicant in its decision of 20 September 2006 precisely on the ground of incitement, whereas in its final decision of 21 March 2007 it considered the allegation of incitement raised by her as irrelevant (see paragraphs 20 and 22). The Supreme Court of Justice chose not to take into account the argument raised by the applicant in her defence.

41. In the light of the above, the Court considers that the criminal proceedings against the applicant were not fair and 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 complied with that provision.

42. There has therefore been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. The applicant claimed 15,000 euros (EUR) for non-pecuniary damage resulting from the anguish and humiliation of being unlawfully convicted for a criminal offence which she had not committed.

45. The Government disagreed and asked the Court to reject this claim as unsubstantiated.

46. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of her right to a fair trial. Making its assessment on an equitable basis, it awards the applicant EUR 3,500 for non-pecuniary damage.

B. Costs and expenses

47. The applicant also claimed EUR 2,440 for the costs and expenses incurred before the Court. She submitted a detailed time-sheet.

48. The Government contested this amount and argued that it was excessive and unsubstantiated.

49. The Court awards the entire amount claimed for costs and expenses.

C . Default interest

50. 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 in respect of the complaint concerning incitement;

3. Holds that there is no need to examine the remainder of the complaints under Article 6 of the Convention;

4. 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 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 2,440 (two thousand four hundred and forty 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Santiago QuesadaJosep Casadevall
RegistrarPresident

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