Communicated on 18 November 2014
THIRD SECTION
Application no. 26632/11
Anatolie NEAGU
against the Republic of Moldova
lodged on 13 April 2011
STATEMENT OF FACTS
The applicant, Mr Anatolie Neagu, is a Moldovan national, who was born in 1961 and lives in Chișinău. He is represented before the Court by Mr G. Ulianovschi, a lawyer practising in Chișinău.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 23 November 2009 the applicant was indicted with the offence of swindle. In particular, he was accused that he promised to the wife (victim) of a person under criminal investigation to arrange the termination of the investigation in exchange for money. However, by a decision of the prosecutor in charge of the case of 30 March 2010, the applicant was discharged because the evidence gathered during investigation did not prove his guilt in committing the offences imputed to him.
On 4 June 2010, the victim challenged the decision of 30 March 2010 before the hierarchically superior prosecutor. The complaint was dismissed on 10 June 2010.
The victim was informed about the above decision on 14 July 2010 and, on 28 July 2010, challenged it before an investigation judge of the Centru District Court. She expressed the view that the prosecutors failed to properly assess the evidence and reached wrong conclusions.
On 16 August 2010 an investigation judge from the Centru District Court, in a secret hearing where only the victim and the prosecutor were present, upheld the above complaint and quashed the decision of 30 March 2010. The judge found that in adopting the decision of 30 March 2010, the prosecutor failed to conduct a proper investigation of the case because not all the witnesses were heard. The applicant was presented with a copy of the above decision on 2 November 2010.
Also on 2 November 2010 the prosecutor in charge of the case indicted the applicant with the offence of influence peddling on the basis of the same facts and sent the case-file to a competent court.
The Court is not aware about the outcome of the proceedings.
B. Relevant domestic law and practice
According to Article 287 § 4 of the Criminal Procedure Code, as interpreted in the light of the Explanatory Judgment of the Plenary Supreme Court of Justice No. 7 of 4 July 2005, the reopening of criminal investigation after its closing by a prosecutor can take place at any time before the liability for the offence has become time-barred if new or recently discovered facts are revealed, or within one year in case of fundamental procedural flows in the investigation. The explanatory decision of the Supreme Court sets out what is understood by “new or recently discovered facts”; however, there is no explanation as to the meaning of “fundamental procedural flows”.
The complaints against decisions discontinuing criminal investigation shall be lodged with the hierarchically superior prosecutor. There is no time-limit for lodging such complaints. The decisions adopted by the hierarchically superior prosecutor can be further challenged before an investigating judge within ten days from the moment when the interested party learned about them. The investigation judge adopts a decision after holding a hearing to which only the person who lodged the complaint and the prosecutor is summoned. The summoning of the accused person is not provided by Article 313 § 4 of the Criminal Procedure Code.
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 3 of the Convention that the decision of 30 March 2010 by which the charges against him were dropped, was quashed. He argues in the first place that there were no legal provisions instituting a time-limit for challenging it before the hierarchically superior prosecutor and, secondly, that the ten-day’ time-limit to challenge it before the investigation judge was not respected. Moreover, the applicant argues that he was not summoned to the hearing before the investigation judge and that the decision to reopen the investigation was not based either on “new or recently discovered facts” or on “fundamental procedural flows”.
QUESTION TO THE PARTIES
Did the applicant have a fair trial in the determination of the criminal charges against him, as guaranteed by Article 6 § 1 of the Convention?
The Government are requested to submit a full copy of the case-file in the criminal proceedings against the applicant.
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