SECOND SECTION
DECISION
Application no. 74444/11
Andrei NĂSTASE
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 4 December 2018 as a Committee composed of:
Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 10 November 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andrei Năstase, is a Moldovan national, who was born in 1982 and lives in Hâncești. He was represented before the Court by Mr A. Beruceaşvili, a lawyer practising in Chișinău.
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 28 May 2007 the applicant was involved in a fight with a group of people as a result of which a person died.
On 12 September 2007 the applicant was indicted with the offence of causing severe bodily injuries leading to the death of a person. On the same date the obligation not to leave his village for a period of thirty days was imposed on the applicant. Both the applicant and his chosen lawyer signed the document confirming that the applicant had understood what was expected of him.
On different dates the applicant was summoned to appear before the court which examined his case, however, he did not comply.
On 16 January 2008 the Hâncești Police Station informed the Hâncești District Court that the applicant could not be located and that, according to information from the customs authority, he had left the country on 4 October 2007.
On 23 January 2008 the Hâncești District Court ordered the applicant’s remand in custody.
On 29 October 2009, following a trial held in the applicant’s absence, he was found guilty as charged and sentenced to ten years’ imprisonment.
The applicant’s lawyer appealed against the judgment arguing that the applicant’s deeds should have been examined under a different provision of the Criminal Code and challenged the sentence imposed on him.
On 20 June 2010 the applicant was arrested in the Russian Federation.
On 28 June 2010 the Russian authorities informed the Moldovan Ministry of Justice about the applicant’s arrest. It is not clear from the materials submitted by the parties to the case when this information was received by the Moldovan authorities.
On 29 June 2010 the Chisinau Court of Appeal upheld the appeal lodged by the applicant’s lawyer and reduced his sentence to seven years’ imprisonment.
On 22 September 2010 the applicant’s lawyer lodged an appeal on points of law against the above judgment, essentially raising the same issues as in his appeal.
On 11 May 2011 the Supreme Court of Justice dismissed the appeal on points of law.
On an unspecified date the applicant changed his lawyer and, on 10 November 2011, the applicant’s new lawyer lodged an extraordinary appeal against the decision of the Supreme Court of Justice of 11 May 2011 arguing for the first time that the applicant had been tried in absentia and requesting a re-trial. In particular, the applicant’s new lawyer claimed that the Court of Appeal should have adjourned the examination of the applicant’s appeal on 29 June 2010, because the Moldovan authorities were aware of the applicant’s arrest in Russia as from 28 June 2010. He further alleged that the failure to postpone the examination of the appeal was contrary to Article 321 of the Code of Criminal Procedure.
On 23 January 2012 the Supreme Court of Justice upheld the applicant’s extraordinary appeal, quashed the judgment of the Supreme Court of 11 May 2011 and ordered a re-examination of the appeal on points of law.
On 4 April 2012 the Supreme Court of Justice examined again the appeal on points of law against the decision of the Court of Appeal of 29 June 2010 and dismissed it. The Supreme Court found that the applicant had waived his right to be present during the criminal proceedings by absconding from the authorities. The first instance court made all the necessary efforts to bring the applicant before it while the Court of Appeal was not aware about the applicant’s arrest in the Russian Federation at the time when it examined his appeal. Moreover, the applicant was represented throughout the proceedings by a lawyer of his own choice.
COMPLAINT
The applicant complained under Article 6 of the Convention that the criminal proceedings against him had not been fair because they took place in his absence.
THE LAW
The applicant argued that his right to be present and defend himself in person had been breached both during the investigation stage of the proceedings and at the stage of examination of his appeal by the Chisinau Court of Appeal on 29 June 2010. In so far as the investigation stage of the proceedings was concerned, the applicant contended that the prosecutor in charge of the case had an obligation to suspend the proceedings during his absence. As to the proceedings before the Court of Appeal, the applicant argued that one day before the hearing at the Court of Appeal, the Russian authorities had informed the Moldovan Ministry of Justice about his arrest. Therefore, instead of conducting the hearing, the Court of Appeal should have adjourned it so that the applicant could have had an opportunity to be present. In any event, the applicant contended that his leaving the country contrary to the undertaking not to leave his village did not amount to a waiver of his right to be present and defend himself in person.
The Government submitted that the applicant had waived his right to defend himself in person by absconding from the authorities. He was aware of the charges against him, the proceedings and the dates of the hearings and he was represented by a lawyer of his own choice with whom he kept contact. His lawyer did not object to the examination of the case in the applicant’s absence. The Government contested the applicant’s argument according to which the Chisinau Court of Appeal had examined his appeal on 29 June 2010 in spite of being aware of his apprehension in Russia. According to the Government, the Court of Appeal did not have that information at the material time. After returning to Moldova, the applicant lodged an appeal on points of law in which he did not raise the issue concerning the examination of the case in his absence. It was only later in the extraordinary appeals that the applicant made that complaint for the first time.
The Court recalls that although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to “everyone charged with a criminal offence” the right “to defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”, and it is difficult to see how he could exercise these rights without being present (see Colozza, cited above, § 27; T. v. Italy, cited above, § 26; F.C.B. v. Italy, cited above, § 33; and Belziuk v. Poland, 25 March 1998, § 37, Reports 1998-II).
Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol, cited above, § 31). Furthermore, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A).
Turning to the facts of the present case, the Court notes that the applicant was well aware about the criminal proceedings against him (see, a contrario, Sejdovic v. Italy [GC], no. 56581/00, § 101, ECHR 2006‑II). Three weeks after being indicted and being imposed the obligation not to leave his village the applicant left the country and did not return until being apprehended by the authorities of the Russian Federation, almost three years later. It is not disputed by the applicant that he had employed a lawyer who represented him both during the investigation stage and during the court proceedings and with whom he kept contact, being thus aware of the progress of the proceedings. In that context it is noted that the applicant’s lawyer acted on his behalf and obtained a reduction of the sentence by the Court of Appeal from ten years to seven years’ imprisonment.
The applicant submitted that, when examining his appeal on 29 June 2010, the Chisinau Court of Appeal should have been aware about his arrest by the Russian authorities and should have adjourned the hearing. The Court notes that there is no evidence in the case-file supporting this submission. Moreover, it does not appear that the applicant’s lawyer informed the Court of Appeal about his apprehension and that he had requested an adjournment of the case. Not only did the applicant’s lawyer fail to inform the Court of Appeal about the arrest of his client, but he also failed to raise the issue in his subsequent appeal on points of law before the Supreme Court of Justice.
In such circumstances, the Court considers that the applicant had largely contributed to bringing about a situation that prevented him from appearing before the courts and that it can thus be assumed from the applicant’s behavior that he has waived his right to defend himself in person (see Medenica v. Switzerland, no. 20491/92, § 58, ECHR 2001‑VI).
In the light of the foregoing, and since the instant case did not concern a defendant who had not received the summons to appear (see, for instance, Colozza v. Italy, 12 February 1985, § 28, Series A no. 89, or who had been denied the assistance of a lawyer (see, for example, Poitrimol v. France, 23 November 1993, §§ 32-38, Series A no. 277‑A) the Court considers that, regard being had to the margin of appreciation allowed to the Moldovan authorities, the applicant’s conviction in absentia and the refusal to grant him a retrial at which he would be present did not amount to a disproportionate penalty (see Medenica, cited above, § 59) .
The application is therefore manifestly ill-founded and inadmissible within the meaning of 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 17 January 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy