SECOND SECTION
DECISION
Application no. 57574/13
Pavel LEVINȚA and Vitalie LEVINȚA
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 8 September 2020 as a Committee composed of:
Arnfinn Bårdsen, President,
Valeriu Griţco,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Setion Registrar,
Having regard to the above application lodged on 10 August 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Pavel Levința and Mr Vitalie Levința, are Moldovan nationals who were born in 1974 and 1971, respectively, and live in Chişinău. They were represented before the Court by Mr V. Ţurcan and Mr M. Belinschi, lawyers practising in Chişinău.
The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 April 2002 the Court of Appeal, acting as a first-instance court, found the applicants guilty of seven different criminal acts (murder and attempted murder), typically assisting others to commit the crimes (driving getaway cars, supplying weapons and uniforms, and so on). The applicants were also found guilty of being members of a criminal organisation and of illegal possession of weapons. Each applicant was sentenced to twenty years’ imprisonment. The evidence relied upon by the Court of Appeal included the applicants’ self-incriminating statements made at the time of the criminal investigation on 4 November 2000 and the statements made by several other co-accused. That decision was upheld by the Supreme Court of Justice.
In its judgment in the case of Levinţa v. Moldova (no. 17332/03, 16 December 2008) the Court found, inter alia, that the applicants had been subjected to torture on 4 November 2000 and that, therefore, their self‑incriminating statements made on that date amounted to statements obtained under torture. It also found that, after the applicants had been subjected to torture on 4 November 2000, they had reasonable grounds to be afraid of possible further ill-treatment by the same officers, who retained control of the case and of them. Thus, the failure to transfer the applicants to a safe place on 4 November 2000 was considered as a continuation of the ill‑treatment to which they had been subjected. The Court found, therefore, inter alia, that the criminal proceedings against the applicants had been unfair under Article 6 § 1 of the Convention because their conviction had been based on evidence obtained by means of torture.
The criminal proceedings against the applicants were re-opened and on 7 November 2012 the Court of Appeal convicted the applicants again as charged and sentenced them to sixteen and fifteen years’ imprisonment respectively. In reaching its decision the Court of Appeal relied again on self-incriminating statements made by the applicants on another date during the criminal investigation when they still were under the control of the officers who had subjected them to torture on 4 November 2000, but also on statements made by other accused persons in respect of whom the case had been disjoined.
The applicants appealed and argued that the Court of Appeal had relied again on self-incriminating statements obtained by means of torture and that some of the other co-accused had been acquitted in the disjoined proceedings of charges identical to those of which they had been found guilty.
On 2 May 2013 the Supreme Court of Justice partly upheld the applicant’s appeal and declared inadmissible their self-incriminating evidence because it had been obtained by means of torture. Nevertheless, the court found the applicants guilty as charged on the strength of the other evidence in the case file, in particular the statements of other co-accused made during the phase of the criminal investigation. The applicants’ co‑accused also submitted during the proceedings that their statements during the investigation had been obtained under torture. However, the court considered those submissions unsubstantiated due to lack of evidence of ill‑treatment.
The Supreme Court also dismissed the second applicant’s argument that the co-accused had been acquitted in the disjoined proceedings of charges identical to those of which the applicants had been found guilty. It found that the judgment by which the co-accused had been acquitted had subsequently been quashed and that the proceedings against them were still pending.
COMPLAINTS
The applicants complained under Article 6 of the Convention that the proceedings against them had been unfair because they had been convicted, inter alia, on the strength of evidence obtained by way of torture and because the other co-accused had been acquitted in the disjoined proceedings of accusations based on identical facts.
THE LAW
The applicants submitted that they had been convicted as a result of criminal proceedings which were conducted in breach of the requirements of Article 6 § 1 of the Convention which, 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 ...”
The Government disputed the applicant’s allegations and argued that the application should be declared inadmissible.
The Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV; and Heglas v. the Czech Republic, no. 5935/02, § 84, 1 March 2007).
It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002‑IX).
As to the examination of the nature of the Convention violation found, the Court reiterates that particular considerations apply in respect of the use in criminal proceedings of evidence recovered by a measure found to be in breach of Article 3. The use of such evidence, obtained as a result of a violation of one of the core rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings (see, Jalloh v. Germany [GC], no. 54810/00, §§ 99 and 104, ECHR 2006‑...; Göçmen v. Turkey, no. 72000/01, § 73, 17 October 2006; and Harutyunyan v. Armenia, no. 36549/03, § 63, ECHR 2007-...).
In particular, the Court has found that the use as part of the evidence in the criminal proceedings of statements obtained as a result of torture rendered the proceedings as a whole unfair, irrespective of whether the admission of the evidence was decisive in securing the applicant’s conviction (see Harutyunyan, cited above, §§ 63 and 66). Relying on evidence obtained as a result of acts of torture “serves to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe or, in other words, to ‘afford brutality the cloak of law’” (see Jalloh, cited above, § 105).
The Court also recalls that in determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Allan, cited above, § 43).
Turning to the facts of the present case, the Court notes that indeed, in convicting the applicants, the Court of Appeal relied on self-incriminating statements made by them during a period when they were under the control of officers who had ill-treated them earlier. Therefore, the applicants’ allegation that the Court of Appeal’s judgment was based, inter alia, on statements obtained as a result of ill‑treatment is well founded. However, the Court observes that the applicants availed themselves of the opportunity to challenge the admission of those self-incriminating statements and that the Supreme Court of Justice had excluded them. Therefore, the applicants’ defence rights were not disregarded in this respect and the Supreme Court of Justice corrected the mistake committed by the Court of Appeal by eliminating the self‑incriminating statements from the mass of evidence. The Supreme Court based the applicants’ conviction on other evidence, namely on statements given by other co-accused. The applicants’ submission to the effect that those statements too were obtained by means of ill-treatment is not substantiated. The Court therefore finds that the privilege against self-incrimination was complied with in the proceedings against the applicants and that the applicants were not convicted on the basis of evidence obtained as a result of ill-treatment.
The applicants also complain that other co-accused had been acquitted in the disjoined proceedings of accusations based on identical facts. It appears that the judgment to which the applicants made reference in their application had not been final and had subsequently been quashed.
In the light of the above, the Court finds the trial as a whole cannot be considered to have been unfair and considers the complaint under Article 6 § 1 of the Convention to be manifestly ill-founded. It therefore rejects it under Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 October 2020.
Hasan BakırcıArnfinn Bårdsen
Deputy RegistrarPresident
Full & Egal Universal Law Academy