JOINT CONCURRING OPINION OF JUDGES GARLICKI AND Å IKUTA

While we agree that there has been a violation of Article 6 § 1 of the Convention, we a re of the opinion that the violation results from the very fact that the retrial of G. took place after his death.

We can accept that, in some situations, there may be a need for judicial examination of criminal charges even in respect of a deceased person. This may be so, in particular, in the case of so-called rehabilitation proceedings whose purpose is to correct a wrongful conviction.

Moldovan law appears to be in line with the above when it states, in Article 5 (8) of the Code of Criminal Procedure: “ Criminal proceedings cannot be instituted, and those already instituted, shall be discontinued:....against a deceased person, with the exception of those cases, where the proceedings are necessary for the rehabilitation of deceased.... ”.

However, we consider that the continuation of the criminal proceedings in respect of G. in the present case could not be considered as true “rehabilitation” proceedings, for the following reasons.

First, rehabilitation proceedings can take place only in a situation where there was a prior conviction. In the absence of such prior conviction, the presumption of innocence applies and there is no room for any rehabilitation. In the present case, G. had not been convicted by any court before his death and therefore the presum p tion of innocence applied in his case.

Second, rehabilitation means restoring , repair ing broken reputation. Rehabilitation p rocesses are processes separate from those leading to a person ’ s conviction. Rehabilitation processes often concern situations where , under a previous totalitarian regime, a person i s convicted based on non-democratic rules. Such re habilitation proceedings lead to verdict s rehabilitating a person and discharging him or her of all accusations , restoring his or her reputation as a person without a criminal record . Proceedings in question in the instant case cannot be considered as rehabilitation proceedings . Rather, they appear to have been geared to wards finish ing those criminal proceedings which had been instituted against G. before his death .

Finally, a ny posthumous continuation of a criminal trial carries inherent risks of unfairness, since the accused person cannot exercise the right to defend himself. Resurrections do not come into the province of criminal trials. Thus, when a trial ends with the conviction of a person who – at the time of his death – enjoyed the benefit of being presumed innocent, it is per se incompatible with the ensemble of guarantees afforded by Ar ticle 6 § 1 of the Convention.

It is true that G. ’ s trial took place as a result of an express wish of his widow, and that a confirmation of his acquittal could have entitled her to compensation. But if the only way to obtain such entitlement was to try a dead person, it cannot legitimise such a trial and it simply shows the deficiency of the system of domestic remedies.

DISSENTING OPINION OF JUDGE BRATZA JOINED BY JUDGE PAVLOVSCHI

1. I regret that I am unable to agree with the majority of the Chamber that the application is admissible and that the applicant ’ s rights under Article 6 have been violated. In my view, the case should have been declared inadmissible, not on the grounds that the applicant could not claim to be a victim – a point which, for the reasons given below, I would prefer to leave open – but on the grounds that the complaint is essentially of a “fourth instance” nature, the applicant being unable to show that the determination of the criminal charge against her husband, G., was vitiated by unfairness or that, on the material before the Court, his conviction can be qualified as arbitrary or unreasonable.

(i) Victim status

2. At the time of his death in June 1999, G. and his two co-defendants (D.C. and G.C.) had been acquitted of the murder of D. by the Chisinau Regional Court and this acquittal had been upheld by the Court of Appeal. In January 1999, the Supreme Court had quashed the lower courts ’ judgments and ordered a full rehearing of the case. G. ’ s death would, in principle, have meant that the proceedings against him were discontinued under section 5 (8) of the Code of Criminal Procedure. However, apparently on the insistence of his widow (the applicant), G. was re-tried, together with the two C. brothers. It appears that the applicant was recognised by the Regional Court as G. ’ s “legal representative” in the criminal proceedings and that she was permitted to make submissions to the various courts which heard the matter, in addition to those made by the lawyer whom she had appointed.

3 . Having on the retrial been acquitted at first instance by the Regional Court , G. was, on 31 January 2000, found guilty by the Court of Appeal and this finding was upheld by the Supreme Court on 30 May 2000. In its judgment, the Court of Appeal, in finding G. guilty of the offences of which he had been charged, discontinued the proceedings against him under section 5 (8) of the Code of Criminal Procedure on the grounds of his death.

4 . It is the proceedings before the two appellate courts which the applicant complains were unfair and in violation of her rights under Article 6 of the Convention. The central point at issue is whether she can claim to be “the victim of a violation” of her rights within the meaning of Article 34 of the Convention, that is, whether she can claim to have been personally affected by the alleged lack of fairness of the criminal proceedings against her deceased husband.

5 . Although having the status of “legal representative” of her husband in the domestic proceedings, the applicant was at no stage herself subject to a “criminal charge” for the purposes of Article 6 and cannot claim to have been directly affected by any alleged unfairness in the criminal proceedings. Nor, since G. had died before any application was lodged with the Court, can the applicant claim to be pursuing on behalf of her husband proceedings already commenced by him. As is noted in the judgment (§ 91), the Court has in this regard drawn a distinction between cases where relatives seek to continue with an application duly lodged by an applicant who died during the proceedings before the Court (as in the case of Dalban v. Romania [GC], no. 28114/95, ECHR 1999-VI) and those where the application itself has been lodged by the relatives after the death of the alleged victim (as in the cases of Biç and Others v. Turkey , No. 55955/00 and Fairfield and Others v. the United Kingdom (dec.) 24790/04, 8 March 2005). In the former case, the Court has normally acceded to a request by the relatives to pursue the proceedings before the Court, in the latter, with the exception of cases involving alleged violations of Articles 2 and 3 of the Convention, it has been the consistent practice of the Court to reject the application as inadmissible ratione personae , even in a case such as the present where the relatives have been granted standing in the domestic forum to act on behalf of the alleged victim (see, for example, the case of Fairfield and Others, cited above).

6 . In concluding that the applicant may claim to be a victim of Article 6 in the present case, the majority of the Chamber have relied on the civil rather than the criminal aspect of that Article. It is argued, in the first place, that the right to enjoy a good reputation is a civil right and that Article 6 may apply under its civil limb to proceedings which affect the reputation of an applicant, even if those proceedings involve a criminal charge against another person, in this case the applicant ’ s husband. Secondly, reliance is placed on the fact that the applicant, as G. ’ s widow, had a legitimate, moral and material interest in the proceedings against G., in that, had G. been found innocent, he would have been rehabilitated with important consequences for any civil law claims, in particular a claim for compensation and a public apology for G. ’ s unlawful detention and conviction. Two precedents are principally invoked in support of the majority ’ s reasoning – the Court ’ s decision declaring admissible the case of Kurzac v. Poland ((dec.), no. 31382/96, ECHR 2000-VI) and the Court ’ s judgment in the case of Nölkenbockhoff v. Germany (judgment of 25 August 1987, Series A no. 123).

7 . Despite the persuasive value of these authorities, I have considerable doubt whether they afford a sufficiently strong basis on which to found the victim status of the present applicant.

The Kur z ac case concerned the special provisions of a Polish law which expressly entitled close relatives of a deceased victim of political repression to seek a review of his criminal conviction on his behalf and under the same conditions as those laid down for the victim himself. As the Court observed,

the law “recognise[d] and protect[ e d] a right to obtain, retrospectively, the acquittal of a deceased member of one ’ s family if his conviction was in fact not the result of a lawful finding that he was guilty of a criminal offence but a form of State persecution for activities against the totalitarian system”. It is true that the Court went on to state that, even though the applicant, as a sibling of the deceased victim, was not entitled to any financial reparation as a result of any acquittal, his civil rights were affected since an acquittal allowed him “to clear his brother ’ s name” and “to restore the honour and reputation of his family which was for a long time inevitably disgraced and brought into disrepute by his brother ’ s wrongful conviction”. However, I consider that this statement must be read in the particular context in which it was made, involving proceedings brought for the specific purpose of rehabilitating victims of political repression. The Court ’ s statement cannot, in my view, be applied generally to confer victim status on a widow who alleges that her deceased husband was convicted of an offence after an unfair trial, let alone in a case such as the present where, at the time of his death, G. had not been convicted of any offence.

8 . The majority appear to consider the retrial proceedings in the present case to be rehabilitation proceedings (§ 96) and, in this respect, find support in the submissions of the respondent Government, where it is affirmed that the ultimate goal of the proceedings against G. after his death had been to establish the truth and that “had G. been proved innocent in those proceedings, he would have been fully rehabilitated, with important effects for any civil law claims” (§ 95). I share the doubts of Judges Garlicki and Šikuta in their Joint Concurring Opinion as to whether the proceedings against G. can, on any view, be regarded as rehabilitation proceedings, which as t he y correctly poin t out, apply only where there has been a prior conviction. There is, moreover, nothing in the judgments of the domestic courts to suggest that the proceedings against G. were viewed as rehabilitation proceedings and the fact that the Court of Appeal invoked section 5 (8) of the Code of Criminal Procedure to discontinue the proceedings against D. on the grounds that he had died, indeed suggests the contrary. I do not, therefore, find the Kur z ac decision to be of any real assistance in the present case.

9 . The same applies to the more recent authority of the Court in the case of Brudni c ka and Others v. Poland (no. 54723/00, ECHR 2005-II) which similarly gave rise to an issue of the victim status of the applicant parties to a special form of procedure. The applicants were the heirs of members of a crew who had died in a shipwreck and the proceedings in question took place before the maritime chambers, administrative bodies whose role, inter alia , was to establish the cause of the accident. The applicants took part in the proceedings in which members of the crew were criticised by the maritime chambers and found to have been partly to blame for the accident. As heirs of the deceased crew members, the applicants were held by the Court to have victim status under Article 6 to claim that the maritime chambers were not independent and impartial tribunals. Although, in reaching this conclusion, the Court again founded on the civil right of the applicants to defend their reputation and that of their deceased relatives, I do not consider that the Court ’ s reasoning can be extended beyond the particular context to cover criminal proceedings resulting in the conviction of the applicant ’ s relative.

10 . The Nölkenbockhoff judgment appears at first sight to be of greater assistance to the applicant, concerned as it was with the standing of a widow to complain of criminal proceedings against her husband. In the passage quoted in paragraph 94 of the current judgment the standing of the applicant as a widow to lodge proceedings in the Court is put on two bases – “the legitimate material interest” of the widow in her capacity as the deceased heir and “a moral interest, on behalf of herself and her family, in having her late husband exonerated from any finding of guilt”. However, this passage of the Court ’ s judgment must also be seen against the factual background of that case.

The applicant ’ s late husband had been found guilty of several charges of breach of trust, criminal bankruptcy and fraud and was given a prison sentence. He appealed but died before a decision was taken on his appeal. His widow applied to the Regional Court for an order that the Treasury should bear the cost incurred by her husband in connection with the proceedings leading to his conviction and, in the alternative, that a decision on her application should be adjourned until such time as judgment on the appeal of one of her husband ’ s co-defendants had been given. The Regional Court rejected her application and, in the course of its judgment, observed that “had her husband not died, he would almost certainly have been convicted or his conviction would almost certainly have been upheld”. The applicant appealed against the decision to the Court of Appeal, complaining that the Regional Court ’ s finding before the judgment against her husband had become final violated the Basic Law and the presumption of innocence. The Court of Appeal dismissed her appeal and the Constitutional Court refused to entertain the applicant ’ s constitutional complaint.

11 . In her Strasbourg proceedings, the applicant in the Nölkenbockhoff case complained of a number of violations of the Convention. These included a complaint that the criminal proceedings against her husband had been unfair and unduly lengthy in violation of Article 6 § 1 and that the refusal of the reimbursement of her husband ’ s costs and expenses had violated the principle of the presumption of innocence under Article 6 § 2 because they were based on the reasoning that her husband would have been, or would have remained, convicted. The former complaint was declared inadmissible, the Commission holding, inter alia , that

“ ... these complaints are closely linked with the applicant ’ s late husband personally and the applicant ... herself does not have a sufficient legal interest to justify their examination on her behalf.” (DR 50, page 187).

The complaint under Article 6 § 2 was declared admissible by the Commission on the grounds that

“ ... the close relatives of an accused, in particular his spouse and children have an interest of their own that the principle of presumption of innocence is respected in case the accused dies before a final conviction, as any statements violating this principle not only affect the accused ’ s reputation but to a certain extent also that of his family.” (ibid.)

It is this latter complaint alone which the Court was addressing in upholding the applicant ’ s victim status in the passage quoted.

12 . Despite the superficial similarity between the two cases, I am not persuaded that the Court ’ s reasoning in the Nölkenbockhoff case has any direct application to the present case. Although the judgment of the Chamber in the present case seems to assimilate the two by asserting that the applicant was seeking to protect her husband ’ s good name “in line with the presumption of innocence” (§ 101), Article 6 § 2 is not raised in the present case. The applicant ’ s complaint is not that the presumption of G. ’ s innocence was violated without his guilt having been proved but, on the contrary, that his guilt had been proved in a trial which was unfair, a complaint which was found to be inadmissible in the Nölkenbockhoff case itself. I have similar doubts as to the majority ’ s reliance on the applicant ’ s “legitimate material interest” as G. ’ s heir in proving the innocence of her husband, the argument being that in such an event she would have been entitled to claim compensation from the prosecution ’ s office for G. ’ s unlawful detention and conviction. Although, as noted above, the Government appear to concede that, if G. had been acquitted, this would have had “important effects for any civil law claim”, I remain sceptical whether this is so. In the Nölkenbockhoff case the final acquittal of the applicant ’ s husband would have entitled her to recover the costs and expenses incurred by her husband in defending the proceedings; in the present case, it is far from clear to me that the acquittal of G. on his retrial would have entitled him or his heirs to pecuniary or non-pecuniary damage under Act No. 1545, such award being confined to cases where the detention or conviction was “unlawful”.

13 . The speculative nature of any pecuniary interest which the applicant may have had in the outcome of the retrial of her husband serves to distinguish the case also from that of Ressegatti v. Switzerland (no. 17671/02, judgment of 13 July 2006), in which a Chamber held that the heirs of a plaintiff, who had died after unsuccessfully claiming a share in the profits from the exploitation of a boating marina in legal proceedings, could claim to be victims of a violation of Article 6 on the grounds that the proceedings had a direct effect on their inheritance rights, given that they were bound by the judgment and could not, in view of the rule of res judicata , seek to obtain a different result.

14 . For these reasons, I am very doubtful whether, despite the unusual features of the procedure followed in the present case, the circumstances are such as to justify the Court in departing from its consistent case-law, rejecting applications lodged by relatives of alleged victims of a violation of Article 6 who have died. I note, however, that the Government have not only failed to raise any objection to the applicant ’ s victim status but appear even to have encouraged the Court to accept that she enjoys such status. This being so, I would prefer in the end to leave the question open and to base my decision as to the admissibility of the complaint on substantive grounds.

( ii ) Fairness of the proceedings

15 . I should say at the outset that I have some sympathy with the view of Judge s Garlicki and Šikuta in their Joint Concurring Opinion that the criminal trial of an individual who has died is of its very nature unfair and a breach of Article 6 of the Convention. However, I do not feel able to follow their approach in the present case, since this is not the nature of the applicant ’ s complaint; nor could it be, since it was on the applicant ’ s own insistence that her husband was retried.

16 . In concluding that Article 6 was violated, the other members of the Chamber making up the majority rely on the inadequacy of the reasons given by the appellate courts to convict G., with the consequence that, in their view, the proceedings did not satisfy the requirements of fairness.

17 . I have no quarrel with the statement of the general principles concerning the giving of reasons which is contained in paragraph s 107 and 108 of the judgment. In particular, I accept that Article 6 §1 has been interpreted as obliging courts and tribunals to give reasons for their decisions. However, as is correctly emphasised in the judgment, the Article cannot be understood as requiring a detailed answer to every argument. Equally importantly, the extent to which the duty to give reasons applies will inevitably vary according to the nature of the decision in question and the particular circumstances of the case. Moreover, while fairness requires that a tribunal conduct a proper examination of the submissions, arguments and evidence before it, it is for the tribunal to assess the extent to which they are relevant for its decision and the Court will in principle interfere only in a case where that assessment is manifestly arbitrary or unreasonable.

18 . In concluding that insufficient reasons were given to convict G. four features of the decisions of the appellate courts are principally relied on: the failure of those courts to challenge the uncontradicted findings of the Regional Court that G. had been arrested on the basis of “a fabricated administrative offence” and had made self-incriminatory statements in the absence of procedural safeguards and that he had been unlawfully shown the video-recording of D.C. ’ s statement at the crime scene; the court ’ s failure to deal with the finding of the Regional Court that G. had an alibi for the presumed time of the crime and with the alleged unreliability of the expert reports; the lack of comment on the finding of the lower court that some of the witnesses ’ statements had been fabricated; and the failure to comment on “ a number of serious violations of the law noted by the lower court”.

19 . Although dissatisfied with the outcome of the appeal proceedings, the applicant does not complain about unfairness in the procedures before the Court of Appeal and the Supreme Court. All the defendants were legally represented in both courts and it is not suggested that there was any breach of the principle of equality of arms or that the applicant was unable through her counsel to present such arguments and submissions as she wished.

20 . It is unclear from the judgment of the Court of Appeal what weight, if any, was placed by the defendants on the various findings of the Regional Court referred to in paragraph 18 above. What is clear from the judgment is that the principal focus of the appeal in that court as well as in the Supreme Court related to the statements made by each of the applicants admitting their involvement in the murder of D., which were held by the Court of Appeal to be “the decisive evidence” in the case. In those statements, the defendants recounted in detail the events of the night of 15-16 September 1995 – the quarrel with D. in the bar in Comrat; the agreement with D. to meet again later that night; the forcible taking of D. by the defendants at the roundabout and his being driven in the police car to the forest of Feranpont; and the beating of D. and setting alight of his car in the forest.

21 . The Regional Court found that the defendants ’ statements had not been given voluntarily but had been taken under duress and were inadmissible in evidence. The Court of Appeal and the Supreme Court rejected this finding, concluding on the evidence before them that the three suspects had on several occasions made genuine and consistent confessions which had been lawfully obtained. In reaching this conclusion, the two appellate courts placed reliance in particular on a number of factors:

(i) G. and D.C. had first made statements accepting their guilt on 19 and 20 September 1995, D.C. ’ s confessions having been filmed. Their confessions had been repeated in their statements made in the presence of their lawyers on 9 October 1995. G.C., who had been arrested in Russia , had likewise confessed in statements made on 1 and 7 November 1995 in the presence of a lawyer and had written one of the confessions himself.

(ii) There was no evidence of any ill-treatment of the defendants. The seven officers who had questioned G. and D.C. and who had given evidence at the trial, but whose evidence had been excluded by the Regional Court on the grounds that they were interested persons, had all denied any such treatment. Moreover G. ’ s personal medical file following his admission to hospital did not disclose any evidence of ill-treatment. The applicant ’ s allegations of ill-treatment were not confirmed by Doctor P.O. who had been recalled to give evidence before the Cour t of Appeal. It was not until 6 March 1996 that the defendants had sought for the first time to withdraw their statements on the grounds that they had been obtained by ill-treatment.

(iii) The statements of the defendants as to the confrontation in the bar had been confirmed by the statements of several witnesses; other witnesses had given statements to the effect that they had seen the defendants driving in the direction of the roundabout at about 3.00 a . m . that D., having returned to the police station from the bar, had again left in the car shortly after 3.00 a . m .

(iv) The crime scene investigation had been conducted in the presence of witnesses and G. ’ s lawyer and was filmed. D.C. and G. had been able clearly to indicate the place and manner of D. ’ s killing.

(v) The evidence of D. ’ s wife confirmed that the defendants had often threatened her husband and family because of a criminal investigation which had been opened by her husband against G.C. The Court of Appeal confirmed that D. had opened such an investigation in June 1994.

22 . On the basis of the material before the Court, the unanimous conclusion of the appellate courts that G. ’ s confession to the crime was genuine and voluntary cannot in my view be said to be arbitrary or unreasonable. Moreover, contrary to the view of the majority of the Chamber, the reasons given by the appellate court were, I consider, sufficient to justify the conviction of G. While it is true that the Supreme Court did not specifically address each of the complaints made by the defendants ’ lawyers and while it might have been desirable that they should have done so, I am not persuaded that this failure gave rise to a violation of Article 6. The appellate courts having explained why they accepted the validity of the confessions made by the defendants, contrary to the view of the Regional Court , it was in my view unnecessary to address each of the other matters which had been relied on by the Regional Court and invoked by the defendants in the appeal proceedings .