FOURTH SECTION
DECISION
Application no. 44981/05
by Giovanni GIULIANI
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 23 October 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 6 December 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the formal declarations accepting a friendly settlement of the case.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Giovanni Giuliani, is an Italian national who was born in 1943 and lives in Chişinău. He is represented before the Court by Mr F. Nagacevschi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 December 2001 the applicant was arrested and placed in detention on suspicion of fraud and embezzlement. He was accused of having made false promises to seventy persons to assist them in obtaining Schengen visas in exchange for a fee.
On 24 April 2003 the applicant was convicted of illegally conducting business activities on the territory of Moldova and sentenced to one and a half year’s imprisonment. He was acquitted of the charges of fraud and embezzlement. The prosecution appealed against the judgment.
On 11 June 2003 the applicant was released because the term of his imprisonment had expired.
Shortly after his release the applicant left Moldova for an unknown destination.
On 11 November 2003 the Chişinău Court of Appeal examined the prosecutor’s appeal in the applicant’s absence but with the participation of an ex officio lawyer and upheld it. The applicant was found guilty of fraud and embezzlement and sentenced to fifteen years’ imprisonment. It appears from the judgment that the authorities did not know the applicant’s whereabouts at the time.
On 26 May 2005 the applicant was arrested on the territory of Bulgaria on the basis of an international arrest warrant. He was informed about his conviction by the judgment of the Chişinău Court of Appeal of 11 November 2003 and later extradited to Moldova. One of the conditions undertaken by the Moldovan authorities during the extradition procedure was to ensure that the applicant would have the right to retrial in accordance with Article 3 of the Second Additional Protocol to the European Convention on Extradition.
On 20 June 2005 the applicant lodged an appeal on points of law with the Supreme Court of Justice against the judgment of 11 November 2003. He complained inter alia that contrary to his right to be present during the criminal proceedings against him, the Court of Appeal had convicted him in absentia.
On 14 September 2005 the Supreme Court of Justice examined the applicant’s appeal on points of law in his absence and in the absence of his lawyer and dismissed it. It confirmed that after June 2003 the applicant’s whereabouts were unknown. However, it considered that since the authorities had made efforts to find him and had declared him to be a wanted person in the context of an international arrest warrant processed through Interpol, the Court of Appeal could be considered as having discharged its duty to inform him about the criminal proceedings against him.
Following the communication of the present case to the Government, on an unspecified date, the Prosecutor General initiated revision proceedings with the Supreme Court of Justice.
On 2 July 2007 the Supreme Court of Justice quashed its final judgment of 14 September 2005 and ordered the re-opening of the criminal proceedings.
COMPLAINT
The applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair because he had been tried and convicted by the Court of Appeal in absentia and had been refused the right to have a retrial.
THE LAW
On 19 July 2007 the Government informed the Court that on 18 July 2007 the parties had signed a friendly-settlement agreement. They submitted to the Court a copy of the agreement according to which the Government had undertaken to pay the applicant, within three months from the date of the adoption of a strike-out decision by the Court, 2,000 euros (EUR) in respect of any non-pecuniary damage suffered by the applicant and EUR 400 in respect of costs and expenses. In return, the applicant would withdraw his application and abandon any further claims against the Government in connection with the present case.
On 10 September 2007 the applicant confirmed that the above mentioned agreement had been signed by him and requested the Court to strike the case out of the list of cases.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy