The conviction based on contradictory testimonies of witnesses, a lost video and a witness who was not examined in the Court of Appeals violated the fair trial!
JUDGMENT
Dan v. Democracy of Moldova 10.11.2020 (no. 2) (app. no. 57575/14)
SUMMARY
Evidence, contradictory testimonies of witnesses, non-examination of a key witness, compensatory factors in the lack of evidence and a fair trial.
The applicant was acquitted a second time by the the Court in the same case, which concerned his conviction for bribery.
He was sentenced by an irrevocable decision to 5 years in prison for ribery. The ECtHR ruled in its first appeal that his rights to a fair trial had been violated. Following the conviction, the procedure was repeated in the domestic courts.
In the reopening of the proceedings, the domestic courts failed to examine a key witness and based their decision on a lost video and on a contradictory testimony of three witnesses who testified partially differently in 2006 and 2013. The applicant again appealed to the ECtHR for violation of the fair trial.
The Court recalled that: (a) it is the duty of the national court under Article 6 of the ECHR to properly examine the allegations, arguments and evidence of the parties, subject to their assessment of whether they are relevant; and (b) Before an accused can be convicted, all the evidence against him must be presented in his presence at a public hearing.
In the present case, the ECtHR found that the appellate court had not paid due diligence to ensure the participation of a key witness in the trial. In addition, he based his judgment on contradictory witness statements and a “lost” video that allegedly filmed the incident in question, and there were insufficient compensatory factors, such as corroborative evidence, to compensate for the lack of evidence.
The ECtHR found a violation of the fair trial (Article 6§1 of the ECHR) and awarded an amount of 2,000 euros for non-pecuniary damage.
PROVISION
Άρθρο 6§1
PRINCIPAL FACTS
The applicant, Mihail Dan, is a Moldovan national who was born in 1960 and lives in Chişinău.
The case concerned criminal proceedings against him for accepting a bribe which had been
reopened as a result of a judgment by the European Court of Human Rights (Dan v. Moldova,
no. 8999/07).
In its principal judgment of 2011 the Court held that there had been a violation of Article 6 § 1 (right
to a fair trial) of the European Convention as concerned the criminal proceedings brought against
the applicant, the principal of a secondary school in Chişinău, for requesting and receiving a bribe in
exchange for accepting a pupil’s transfer to his school. The Moldovan courts had found him guilty as
charged in 2006 and sentenced him to a five-year suspended prison sentence and a fine. The Court
ruled in particular that the proceedings had not been fair because the applicant’s initial acquittal had
been overturned on appeal without the witnesses for the prosecution being reheard.
Following the Court’s judgment, the Moldovan courts ordered a retrial. In 2013 the Court of Appeal
found the applicant guilty again, relying on statements by three out of the seven witnesses who had
originally been heard by the first-instance court in 2006 and a video recording of the applicant’s
apprehension in an undercover police operation.
The applicant appealed on points of law, arguing that all seven witnesses were unreliable as they
were police officers and that the three who had been heard again had contradicted the statements
they had made in the original proceedings. He also argued that the court had relied on the video of
the police operation without even seeing it as it had been lost. The Supreme Court dismissed his
appeal on points of law in 2014, ruling that not hearing all of the initial seven witnesses was not
problematic as one of them in the meantime had died and another had left the police force and his
address was unknown.
Relying on Article 6 § 1 of the Convention, the applicant alleged a fresh violation of his right to a fair
trial in the reopened proceedings against him with regard to the examination of the evidence and
the hearing of witnesses.
THE DECISION OF THE COURT….
The Court notes that the right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes the right of the parties to the trial to submit any observations that they consider relevant to their case. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant
The Court also recalls that in the context of Article 6 § 3 (d) it has established the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument.
Where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place.
The Court notes from the outset the Government’s argument that the applicant had agreed to the reading out of the statements of the absent witnesses during the hearing. The Court notes that indeed the applicant, who had been acquitted at first instance, did not object to the reading out of those statements. Nevertheless, it considers that if the Court of Appeal was to ensure a fair trial under these circumstances, it was under a duty to take positive measures in order to rehear the absent witnesses, notwithstanding the fact that the applicant did not ask for a rehearing.
The Court notes further that the three witnesses heard by the Chişinău Court of Appeal in the reopened appeal proceedings made statements which, at a first glance, did not appear to be inconsistent with the version of events as presented by the alleged bribe-giver, C. Nevertheless, upon closer examination, the Court finds these statements to present serious problems.
Thus, the three witnesses who, it should be recalled, were all police officers involved in the police operation conducted against the applicant, appeared to have remembered in 2013 new facts which they did not appear to have witnessed back in 2006.
The three witnesses did not declare that they intended to change their initial statements but stated that they maintained them, the result being that their consolidated statements contradicted each other in parts. For instance, witness C.C. stated both that he had been in charge of filming the operation and that he had not known who had filmed it .
Faced with the above situation, the Chişinău Court of Appeal did not consider it necessary to seek explanations and reconcile the problematic issues and inconsistencies in those statements in its judgment but merely considered the applicant’s guilt proven and convicted him on the strength of them, without explaining whether it relied on the statements given back in 2006 or on the new statements and for which reasons it found one set of statements more credible than the other. In such circumstances, the Court cannot but find that the Court of Appeal did not give sufficient reasons in its judgment finding the applicant guilty .
The Court further notes that four of the seven witnesses heard at first instance were not heard by the Court of Appeal in the reopened proceedings. In view of that finding, the Court must examine whether the failure to examine four out of seven witnesses was compatible with the right to a fair hearing.
As to C., who was the main accusation witness, it is noted that he had died before the reopening of the proceedings and that, therefore, he could not be heard anew. In so far as B. and V. are concerned, it is noted that they had not declared seeing the moment when the money was passed to the applicant in the proceedings before the first instance court. However, things are different in respect of witness M., whose statements before the first instance court were the only ones corroborating C.’s version of the events . The Court considers therefore that his statements amounted to “decisive evidence”. Having examined the materials of the case file and the Government’s submissions, the Court is not persuaded that all reasonable efforts were made to secure his attendance at the applicant’s trial before the Court of Appeal.
The Court must also consider whether there were sufficient counterbalancing factors, such as corroborating evidence, to compensate for the handicaps caused to the defence as a result of the admission of C.’s and M.’s statements. Finally, with regard to their allegation of a breach of Article 18 for a breach of a purpose not specified in the Convention, the ECtHR held that there had been no breach of Article 18 of the ECHR as it did not find that their detention was based on a non-contractual purpose. The fact that the applicant was able to examine the absent witnesses during the first trial is not sufficient to change this conclusion, given the significant changes in the testimonies of the three witnesses who were reheard.
The Court finally notes that in finding the applicant guilty, the Court of Appeal relied on the lost video of the special operation concerning the applicant’s apprehension. Since the crucial moment – the passing of the money – had not been filmed anyway, this, in the Court’s view, exacerbated the deficiencies in the overall assessment of the evidence.
In the light of the above considerations the Court concludes that the proceedings were not fair and that, accordingly, there has been a violation of Article 6 § 1 of the Convention. In the circumstances, it does not consider it necessary to examine, additionally, the compliance of other aspects of the proceedings with that provision.
