SECOND SECTION

DECISION

Application no. 26632/11 Anatolie NEAGU against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 11 June 2019 as a Committee composed of:

Egidijus Kūris , President, Valeriu Griţco , Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 13 April 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 Anatolie Neagu , is a Moldovan national, who was born in 1961 and lives in Chişinău . He was represented before the Court by Mr G. Ulianovschi , a lawyer practising in Chişinău .

The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

The facts of the case, as submitted by the parties, 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.

On 30 March 2010 the prosecuting authorities decided to discontinue the investigation given that there was insufficient evidence to commit him for trial.

On 4 June 2010, the victim of the alleged crime 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.

On 28 July 2010, the victim challenged the decision of non-prosecution before an investigation judge of the Centru District Court. She complained that the prosecutors had failed to properly assess the evidence and had 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 had failed to conduct a proper investigation into the case because he had not heard all witnesses. The applicant was given a copy of the above decision on 2 November 2010.

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.

On an unspecified date the applicant introduced an extraordinary appeal against the Centru District Court ’ s decision of 16 August 2010.

On 19 January 2012 the Supreme Court of Justice dismissed the appeal considering that, under Article 297 § 4 of the Code of Criminal Procedure, it was open to the applicant to complain before the court examining the merits of the case about the actions of prosecutor during the investigating phase of the proceedings.

On 11 May 2012 the Buiucani District Court found the applicant guilty as charged and convicted him, but suspended the execution of the sentence of three years ’ imprisonment. The applicant did not challenge this judgment and it became final.

According to Article 297 § 4 of the Code of Criminal procedure, as in force at the material time, after a case was sent for trial before a competent court, all objections, request and complaints shall be addressed to the court dealing with the merits of the case.

COMPLAINTS

The applicant complained under Article 6 §§ 1 and 3 of the Convention that the decision of 30 March 2010 by which the charges against him had been dropped, had been quashed. He argued in the first place that there had been 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 had not been respected. Moreover, the applicant argued that he had not been summoned to the hearing before the investigation judge and that the decision to re-open the investigation had not been based either on “new or recently discovered facts” or on “fundamental procedural flows”.

THE LAW

The applicant complained that there had been a breach of his rights under Article 6 §§ 1 and 3 of the Convention which provide, in so far as relevant, as follows:

Article 6 § 1:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 6 § 3 :

“3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The Government disputed the applicant ’ s allegations and argued that the application should be declared inadmissible.

The Court notes that the applicant did not challenge the Buiucani District Court ’ s judgment of 11 May 2012 by which he had been found guilty .

The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova , 44746/08, ( dec. ), 24 January 2012).

The Court notes that the Supreme Court ruled in its judgment of 19 January 2012 that it was open to the applicant to raise the issues which he complained about in the course of the criminal proceedings against him, i.e. before the courts which examined the merits of the case. Since the applicant failed to do so, his complaints must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court

Declares the application inadmissible.

Done in English and notified in writing on 4 July 2019 .

Hasan Bakırcı Egidijus Kūris Deputy Registrar President