Conviction of the accused under the new criminal provisions that were not foreseeable at the time of the act. Violation of the principle no punishment without law

JUDGMENT

Tristan v. the Republic of Moldova της 04.07.2023 (app. no. 13451/15)

see here

SUMMARY

The case concerned a former mayor who complained that she had been convicted of an offence with
which, in her submission, she could no longer be charged, following an amendment to the provisions
of the Criminal Code while the criminal proceedings against her were still pending. In other words,
she alleged that, unlike the criminal law in force at the relevant time, the offences of which she had
been accused were no longer punishable under the new law.

The Court noted that the only difference between the wording of the new and old versions of the
law was that the terms used to define the perpetrator had changed, the penalties having remained
the same. As such, the new definition of a “public official” delimited the group of persons liable to
be prosecuted for the offence with which the applicant had been charged. It was therefore a
constituent element of this offence, and the domestic courts should have been particularly careful
when specifying its scope. However, in the present case, this requirement had not been satisfied,
since the Chișinău Court of Appeal had not provided any explanation as to why the new definition
was equivalent to the former one, although the wording was substantially different, and had failed
to respond to the question of whether mayors, including the applicant, fell into one of the two
categories of persons set out in the new definition.

The Court therefore held that, after the entry into force of the new criminal law, the applicant could
not reasonably have foreseen that she would be prosecuted and convicted on the basis of
Article 328 § 3 (b) of the Criminal Code. It followed that the domestic courts’ findings had not been
reasonably foreseeable.

PRINCIPAL FACTS

The applicant, Tatiana Tristan, is a Moldovan national who was born in 1954. She lives in the
municipality of Valea Perjii, where she was mayor between 2003 and 2007.

In 2008 the applicant was charged with abuse of power committed by a “person holding a position
of responsibility”, an offence under Article 328 § 1 of the Criminal Code.

In 2011 the public prosecutor amended the charge against the applicant, classifying the acts of
which she was accused as abuse of power by a “person holding a high-level position of
responsibility”, an offence under Article 328 § 3 (b) of the Criminal Code as it stood at the relevant
time. In December of the same year, a new law (no. 245 of 2 December 2011) amended, inter alia,
the provisions of Article 328 § 3 (b) of the Criminal Code by, in particular, replacing the term “person
holding a high-level position of responsibility” with the term “public official”.

In 2012 the public prosecutor issued an order specifying that the applicant was accused of having
committed the offence provided for in Article 328 § 3 (b) of the Criminal Code, in its new wording.

The same year, the applicant was convicted of that offence.

In 2013 the appeal court dismissed the applicant’s appeal, considering that the new wording of the
law had replaced the former version. The Supreme Court of Justice rejected the applicant’s
subsequent appeal and upheld the appeal court’s judgment.

THE DECISION OF THE COURT…

Article 7

The Court noted that the domestic courts had applied the provisions of a criminal law which had
come into force after the events in issue. It also noted that the only difference between the wording
of the new and old versions of the law was that the terms used to define the perpetrator had
changed, the penalties having remained the same.

During her trial, the applicant had argued that she did not fulfil the criteria set out in the new
definition of the perpetrator. The Chișinău Court of Appeal had found that the new definition –
specifying the persons in a position to have committed the offence – had replaced the former, and
that they were equivalent.

The Court noted that the question whether these new criminal provisions were applicable to mayors
had been a new one, and that there had been no previous case-law on the matter. It further noted
that neither the domestic courts nor the parties to the proceedings before it had raised the question
of why the Moldovan legislature had decided to amend the wording of the criminal provisions
relevant to the present case. Nevertheless, the fact remained that the legislature had amended the
wording of Article 123 of the Criminal Code, making a distinction between the former definition – a
“person holding a high-level position of responsibility” – and the new definition – a “public official”.
Unlike the former definition, which covered only one category of persons, the new definition
referred to two. Furthermore, it no longer referred to the organic laws as the rules which regulated the manner in which the persons coming under its scope were elected. However, in contrast to the legislature, the Chișinău Court of Appeal had not distinguished between the two definitions in issue in the applicant’s case. The Court considered that the fact that the domestic courts, without
providing any justification, had not distinguished between these two concepts, although the
legislature had done so, could not be considered an interpretation that was in keeping with the
wording of the provisions in question. It also found that by interpreting the provisions in this way,
the appeal court had generated more uncertainty, whereas its task had been to dispel the ambiguity
surrounding the relevant criminal provisions.

The Court also noted that the new definition of a “public official” delimited the group of persons
liable to be prosecuted for the offence with which the applicant had been charged. It was therefore
a constituent element of this offence, and the domestic courts should have been particularly careful
when specifying its scope. However, in the present case, this requirement had not been met, in that
the Chișinău Court of Appeal had provided no explanation as to why the new definition was
equivalent to the former one, although the wording was substantially different, and had failed to
respond to the question whether mayors, including the applicant, fell into one of the two categories
of persons set out in the new definition.

Furthermore, after the applicant’s trial had ended, the contested provisions had been the subject of
further judicial interpretation. On the one hand, in its explanatory decisions, the Supreme Court of
Justice had interpreted the provisions in a manner which would have been favourable to the
applicant. On the other hand, when ruling on an extraordinary appeal by the applicant, the Supreme
Court of Justice had given yet another interpretation of the relevant provisions, and had dismissed
her appeal.

In addition, the ensuing case-law had also given rise to uncertainty, and did not apply the
interpretation given by the Chișinău Court of Appeal in the applicant’s criminal trial. Having regard to
the particular circumstances of the present case, the Court considered that this fact confirmed that
the Chișinău Court of Appeal’s interpretation of the provisions had not been foreseeable.

As to the Government’s argument that the applicant was in any event a public figure who had been
accountable under criminal law for acts performed in that capacity, the Court pointed out that abuse
of power committed by a public figure was an offence punishable under a different provision of the
Criminal Code, namely Article 328 § 1, and that the penalties provided for that offence were
substantially more lenient than those provided for in Article 328 § 3 (b) of the Criminal Code. The
Court also considered that the fact that the offences of which the applicant had been accused were
punishable under a different criminal-law provision had no bearing on its findings as set out above,
namely that, after the entry into force of the new criminal law, the applicant could not reasonably
have foreseen that she would be prosecuted and convicted on the basis of Article 328 § 3 (b) of the
Criminal Code.

It followed that the domestic courts’ findings had not been reasonably foreseeable, and that there
had been a violation of Article 7 § 1 of the Convention.

Other Articles

The Court considered that there was no need to examine separately the complaint under Article 6 of
the Convention.

Just satisfaction (Article 41)

The Court held that the Republic of Moldova was to pay the applicant 3,600 euros (EUR) in respect
of non-pecuniary damage, and EUR 2,500 in respect of costs and expenses.