THIRD SECTION

Application no. 4457/09 Efim BELCENCOV against the Republic of Moldova lodged on 6 January 2009

STATEMENT OF FACTS

The applicant, Mr Efim Belcencov , is a Moldovan national, who was born in 1965 and lives in Leova .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 2007 the applicant was charged with trafficking in human beings, together with another co-accused, B. In particular, he was charged with organizing the transfer of the victim, S., to Turkey for the purpose of sexual exploitation.

During the course of proceedings, the Ș tefan-Vodă District Court heard the applicant, co-accused B., victim S., victim ’ s mother S.I., two witnesses, two police officers and one pedagogue who assisted at the hearing of a minor witness in the course of the criminal investigation.

The court found that the applicant had never admitted his guilt and that his involvement was limited to driving S. to an apartment in Slobozia , upon B. ’ s request, to pick up her passport without knowing the purpose of this action.

B. admitted her guilt and declared that she had an arrangement with the applicant of transferring S. to Turkey for the purpose of sexual exploitation. She said that S. ’ s passport was kept by the applicant so that he could prepare the documents necessary for S. ’ s transfer. She said the applicant had promised her money for this and that she had received an advance instalment.

S. declared that she met only B. who promised to find her employment in Russia; that B. arranged for her accommodation in Slobozia , that B. took her passport and that another person, witness C., informed her about B. ’ s intention to transfer her to Cyprus for the purpose of sexual exploitation.

Witness S.I. declared that she saw S. accompanied by B. when she came home to take her passport and that when S. returned she was very frightened because she had learned that B. intended to transfer her abroad for the purpose of exploitation.

Witness E. declared that she found S. in the apartment she rented out to B. and to witness C. and that B. had told her about her agreement with the applicant to transfer S. to Turkey, that the applicant was to take care of all formalities and that the applicant had promised a 100-dollar reward for each girl she would find to be moved to Turkey for the purpose of prostitution.

Witness C. declared that B. had not told her about any intention to transfer S. to Turkey , but that she intended to find for S. employment in Russia or Ukraine . During the court proceedings, she denied having told S. about B. ’ s criminal intention. The court noticed that C. had changed her depositions given at the stage of criminal investigation, in which she declared that B. had revealed her criminal intentions, and chose to rely on the first depositions, arguing that C. was under no pressure when initially interviewed as confirmed by the statements of the police officer D. who interviewed C. and of the pedagogue who assisted at C. ’ s interview at that stage of the proceedings.

The second police officer stated that when he had interviewed B. at the stage of criminal investigation, she had confirmed having S. ’ s passport but that she did not remember where she put it. Several days later she submitted S. ’ s passport to the police, declaring that she had found it at home.

Based on these testimonies, on 8 June 2007 the district court convicted both B. and the applicant on all charges, sentenced B. to seven years of imprisonment, but absolved her from the execution of the sentence because she had AIDS, and sentenced the applicant to eight years of imprisonment in a closed-type penitentiary.

The prosecutor and the applicant appealed this judgment.

Hearing the prosecutor, the applicant and the victim, on 6 December 2007, the Bender Court of Appeal concluded that the prosecution failed to provide reliable evidence in support of the contention that the applicant had indeed acted together with B. and that the first-instance court based its findings essentially on B. ’ s statements, which were unreliable and contradicted by the other witness testimonies. The court admitted the applicant ’ s appeal, acquitted him of all charges and released him from the courtroom. The court upheld B. ’ s conviction and ordered that she serve her sentence only after her child turned eight years of age. The prosecutor appealed this judgment.

On 1 April 2008 the Supreme Court of Justice held a hearing f rom which the applicant was absent, being represented by a pro bono lawyer, and at which no witnesses were heard. According to the applicant, he and his chosen representative never received summons for this hearing. The court quashed the appellate judgment, upheld the applicant ’ s conviction by the first-instance court and ordered a re-hearing of the case in respect of B. It did not examine directly any evidence and based its findings on the case file as established by the lower courts. It found the testimonies of B., S. and E. to be directly incriminating the applicant and to be sufficient to prove the applicant ’ s guilt and concluded that the appellate court had reached incorrect conclusions on the basis of the file.

On 20 October 2008 the Chișinău Court of Appeal held a hearing in the absence of the applicant and of his representative. The court re-examined and dismissed as ill-founded the applicant ’ s appeal against the judgment of Ș tefan-Vodă District Court of 8 June 2007. It admitted the prosecutor ’ s appeal and sentenced B. to seven years of imprisonment in a closed-type penitentiary, without allowing any adjournment for serving the sentence.

According to the applicant, on 27 November 2008 he was arrested and only then he was informed about the judgments of the Supreme Court of Justice of 1 April 2008 and of the Chișinău Court of Appeal of 20 October 2008. The applicant appealed the latter, arguing, inter alia, that he was not legally summoned and that in his absence the court had adopted a decision relying on assumptions rather than on factual evidence.

On 28 April 2009 the Supreme Court of Justice held a hearing in the presence of the applicant, his representative, the victim and the prosecutor. The court admitted the applicant ’ s appeal and found that the Chișinău Court of Appeal was entitled to examine the case in respect of B. only, because in the respect of the applicant a final judgment had been delivered on 1 April 2008 by the Supreme Court of Justice. The court excluded any reference to the applicant from the judgment of the Chișinău Court of Appeal of 20 October 2008 and did not change in any way the sentence in his respect.

On 2 June 2009 the applicant submitted an extraordinary appeal to the Supreme Court of Justice, arguing, inter alia, the violation of Article 6 of the Convention about not being legally summoned at the Supreme Court of Justice hearing on 1 April 2008 and at the Court of Appeal hearing on 20 October 2008 and about the lack of evidence and reasons for his conviction. On 28 October 2010 the Supreme Court of Justice rejected the appeal, arguing, inter alia, that the applicant did not appear in court although he allegedly had been legally summoned to the hearing of 1 April 2008 and that the applicant was represented in that hearing by a pro bono lawyer.

B. Relevant domestic law

Article 433 of the Code of Criminal Procedure in force at the material time provided that the examination of an appeal on points of law required the participation of the prosecutor, the accused, the victim, [ ... ] whose interests are at stake given the arguments presented in the appeal. During the hearing, the parties are entitled to reply to the arguments presented during judicial debates.

Article 434 of the Code of Criminal Procedure provides that when examining the appeal on points of law against the appellate judgment, the court shall verify the lawfulness of this judgment on the basis of materials in the file.

Article 435 of the Code of Criminal Procedure reads:

“(1) Examining the appeal on points of law, the court adopts one of the following decisions:

...

2) accepts the appeal on points of law, quashes, partially or entirely, the appellate judgment and adopts one of the following solutions:

(a) upholds the first-instance judgment when the a ppeal was accepted incorrectly .. .”

COMPLAINTS

1. The applicant complains under Articles 5 of the Convention about his unlawful detention without giving further details.

2. The applicant complains under Article 6 § 1 of the Convention about an alleged lack of impartiality of the domestic courts.

3. The applicant complains in substance under the same provision about the unfairness of proceedings. He argues that the Supreme Court of Justice had reversed his acquittal and convicted him on the sole basis of the statements of his co-accused, at the end of a hearing from which both himself and his chosen representative were absent.

4. The applicant complains under Article 6 § 2 that he was convicted despite the absence of any evidence of his guilt .

5. The applicant complains under Article 6 § 3 (a) – (d) of the Convention that he was not legally summoned and represented in the hearing of the Supreme Court of Justice on 1 April 2008.

6. The applicant complains under Article 7 of the Convention that he was convicted contrary to the law.

7. The applicant complains under Article 8 of the Convention that his private and family life had been affected by his illegal conviction.

8. The applicant also complains under Articles 13 and 17 of the Convention without giving further details.

9. The applicant finally complains under Article 2 of Protocol No. 7 to the Convention that he was not represented by a lawyer in the proceedings before the Supreme Court of Justice.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, did the courts give sufficient reasons for their judgments (see Năvoloacă v. Moldova , no. 25236/02, 16 December 2008 and Vetrenko v. Moldova , no. 36552/02 , 18 May 2010) and has the applicant enjoyed the right to be heard in person by the Supreme Court of Justice at its hearing of 1 April 2008 (see Popovici v. Moldova , nos. 289/04 and 41194/04, 27 November 2007)?