THIRD SECTION

Application no. 46182/08 Anatolie LAZU against the Republic of Moldova lodged on 10 September 2008

STATEMENT OF FACTS

The applicant, Mr Anatolie Lazu , is a Moldovan national, who was born in 1954 and lives in Chisinau. At the time of the events, he was a bank armoured car driver.

A. The circumstances of the case

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

On 12 August 2005 at around 10.55 a.m., while driving an armoured car, the applicant went around an irregularly stationed bus. While the applicant completed the manoeuvre, the bus started moving and, in order to prevent an accident with the armoured car, abruptly stopped. As a result of the sudden stop, a bus passenger, E., fell and got injuries of intermediate severity.

On 7 October 2005 the bus driver, G., and the applicant were charged with violation of traffic rules, resulting in E. ’ s injury.

On 10 October 2005 the prosecutor discontinued the criminal proceedings against G. for lack of evidence.

1. The applicant ’ s acquittal

During the course of proceedings the Botanica District Court heard the applicant, the victim E., the bus driver G., one witness who was sitting in the applicant ’ s car and two witnesses who were passengers on the bus. The court also examined a scene investigation report and the scheme of the traffic incident, both drawn up at 12.20 in the presence only of G.

The court considered the testimonies of E. and of the two passengers who claimed that the applicant had performed a sudden manoeuvre which obliged G. to suddenly stop the bus to be unreliable. The court considered that these two witnesses did not see by themselves any of the events and that their impression of the applicant ’ s guilt was determined by the bus driver, G., who blamed the applicant. The court noted that the same charges had been brought against G., that on 10 October 2005 a cross-examination took place between G. and the applicant and that the prosecution in respect of the applicant further relied on G. ’ s testimony made on 21 October 2005, after the criminal proceedings had been discontinued in his respect. For these reasons, the court considered that G. ’ s testimony was also unreliable. The court also noted that the scene investigation report and the scheme were not drawn up immediately after the incident because both the applicant and G. continued their way and only G. was present when the police came; the applicant ’ s objections were never reflected in these documents; the scheme did not correspond to the testimonies of witnesses.

In a judgment of 27 March 2006, relying on the above reasons, the Botanica District Court acquitted the applicant. It concluded that the prosecution had failed to provide reliable evidence in support of the contention that the applicant ’ s actions had obliged G. to suddenly stop the bus. The prosecutor appealed this judgment.

2 . The applicant ’ s conviction

On 23 May 2006 the Chișinău Court of Appeal dismissed the prosecutor ’ s appeal and upheld the first-instance judgement. The court noted that the first-instance judgment had correctly scrutinized all evidence and provided reasons supporting the findings about the unreliability of witness testimonies, referring to each testimony of the two passengers. The prosecutor appealed this judgment.

On 17 October 2006 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor ’ s appeal on points of law, quashed the appellate judgment and ordered a rehearing of the case. The court found that the appellate court did not thoroughly express its position on the assessment of testimonies made by E., G. and by the two passengers, but merely relied on evidence in the applicant ’ s favour.

On 28 December 2006, after rehearing the case, the Chișinău Court of Appeal dismissed the prosecutor ’ s appeal and upheld the first-instance judgment. The court analyzed the witness testimonies, the scene investigation report and the accident scheme, providing reasons why this evidence was unreliable. The prosecutor appealed this judgment.

On 26 June 2007 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor ’ s appeal on points of law and ordered a rehearing of the case. The court provided similar reasons to its judgment of 17 October 2006.

On 27 October 2007, after rehearing the case, the Chișinău Court of Appeal upheld the prosecutor ’ s appeal, quashed the judgment of the Botanica District Court of 27 March 2006, declared the applicant guilty as charged but sentenced him to an administrative fine of MDL 3,000 (EUR 194) and obliged him to compensate the damages inflicted to E. in the amount of MDL 2,500 (EUR 162). The court only cited a list of evidence, among which the disputed testimonies of E., G. and of the two witnesses, without providing additional reasons. The applicant appealed this judgment and outlined, inter alia, the discrepancies in the testimonies of witnesses, which had been identified by the first-instance after hearing them and which had not been clarified by the appellate court.

On 13 February 2008 the Supreme Court of Justice examined the applicant ’ s appeal in the absence of parties and declared it inadmissible.

B. Relevant domestic law and practice

The explanatory judgment of the Plenary Supreme Court of Justice No. 22 of 12 December 2005, in so far as relevant, reads as follows:

“Bearing in mind the provisions of Article 6 of the European Convention on Human Rights, after an acquittal judgment pronounced by a first-instance court, the appeal court cannot order the conviction for the first time without hearing the accused and without the direct administration of the evidence.”

Article 424 of the Code of Criminal Procedure provides that the court examining an appeal on points of law examines only the reasons invoked in the appeal on points of law but is entitled to examine other aspects of the case which were not raised in the appeal without, however, worsening the situation of the convicted person.

Article 436 of the Code of Criminal Procedure provides that the procedure for rehearing a case after the appellate judgment was quashed by the cassation instance shall follow the general rules for the examination of a criminal case.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the criminal proceedings against him were not fair.

2. The applicant also complains under Article 1 of Protocol No. 1 to the Convention that he was obliged to pay damages, based on an unlawful conviction.

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? (see Dan v. Moldova, no. 8999/07, 5 July 2011)