{"id":17642,"date":"2021-12-14T23:00:16","date_gmt":"2021-12-14T23:00:16","guid":{"rendered":"https:\/\/laweuro.com\/?p=17642"},"modified":"2021-12-14T23:00:16","modified_gmt":"2021-12-14T23:00:16","slug":"case-of-bogaticov-v-the-republic-of-moldova-european-court-of-human-rights-48833-16","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=17642","title":{"rendered":"CASE OF BOGATICOV v. THE REPUBLIC OF MOLDOVA (European Court of Human Rights) 48833\/16"},"content":{"rendered":"

SECOND SECTION
\nCASE OF BOGATICOV v. THE REPUBLIC OF MOLDOVA<\/strong>
\n(Application no. 48833\/16)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n14 December 2021<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Bogaticov v. the Republic of Moldova,<\/strong><\/p>\n

The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n

Carlo Ranzoni, President,
\nValeriu Gri\u0163co,
\nMarko Bo\u0161njak, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the application (no.\u00a048833\/16) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 5 August 2016 by a Moldovan national, Mr Maxim Bogaticov, born in 1981 and living in Chi\u0219in\u0103u (\u201cthe applicant\u201d) who was represented by Mr L. Luca, a lawyer practising in Chi\u0219in\u0103u;<\/p>\n

the decision to give notice of the application to the Moldovan Government (\u201cthe Government\u201d), represented by their Agent, Mr O. Rotari;<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 23 November 2021,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n

1. The case concerns the reversal of a judgment of a first instance court by which the applicant was acquitted and his conviction on appeal without examining anew any evidence or hearing witnesses.<\/p>\n

2. While driving late in the evening, the applicant run over with his car a person who was lying on the road. The doctors from an ambulance which arrived at the scene of the accident shortly after found that the victim was dead.<\/p>\n

3. After examining the expert reports and hearing the experts and the witnesses, the first instance court acquitted the applicant. It found that he was not responsible of the victim\u2019s death because the reduced visibility did not allow him to brake in time and avoid collision with the victim who was lying on the road. Moreover, the expert reports found that the victim\u2019s body presented two types of injuries: antemortem and post-mortem, meaning that most probably he had been already dead at the moment of the impact with the applicant\u2019s car.<\/p>\n

4. The Chi\u0219in\u0103u Court of Appeal reversed the above judgment and found the applicant guilty as charged. In so doing, it did not hear anew the witnesses or the experts but merely read out their statements from the case\u2011file. The hearing of the witnesses was sought by the prosecution. The applicant lodged an appeal on points of law arguing inter alia that in reversing his acquittal, the Court of Appeal had failed to conduct a fully-fledged hearing and had not heard anew all witnesses and experts as required by the Code of Criminal Procedure.<\/p>\n

5. The Supreme Court of Justice dismissed the applicant\u2019s appeal on points of law and upheld the above judgment. One of members of the panel of the Supreme Court of Justice wrote a dissenting opinion and expressed the view that the applicant should have been acquitted.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n

6. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.<\/p>\n

7. The general principles concerning the fairness of criminal proceedings on appeal after the applicant\u2019s acquittal at first instance have been summarized in Dan v. Moldova (no. 8999\/07, \u00a7 30, 5 July 2011); Covalenco v.\u00a0the Republic of Moldova (no. 72164\/14, \u00a7\u00a7 19-24, 16 June 2020) and Dan v.\u00a0the Republic of Moldova (no. 2) (no. 57575\/14, \u00a7\u00a7 47-56, 10 November 2020).<\/p>\n

8. The Government submitted that the applicant did not seek the hearing of the witnesses by the Chi\u0219in\u0103u Court of Appeal. Therefore, he was prevented from relying on this argument before the Court. Moreover, two of the witnesses had changed their addresses and, therefore they could not be cited.<\/p>\n

9. The Court notes that the prosecutor requested that the accusation witnesses be present and heard during the proceedings. Thus, there was no need for the applicants to request the same thing too. Moreover, the Government did not provide the Court with any evidence to prove that all reasonable efforts were made to secure those witnesses\u2019 attendance before the Court of Appeal.<\/p>\n

10. Having regard to the circumstances of the case and to the materials of the case-file, the Court considers that the issues to be determined by the Court of Appeal when convicting and sentencing the applicant – and, in doing so, overturning the decision of the first-instance court by which he was acquitted – could not, as a matter of fair trial, have been properly examined without a direct assessment of the evidence given by the witnesses and the experts.<\/p>\n

11. There has accordingly been a violation of Article\u00a06 \u00a7 1 of the Convention.<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

12. The applicant claimed 1,882 euros (EUR) in respect of pecuniary damage and EUR 3,000 in respect of non-pecuniary damage.<\/p>\n

13. The Government contested the above amounts claimed by the applicant, alleging that they were excessive.<\/p>\n

14. The Court cannot speculate as to whether the applicant would have suffered any pecuniary damage had the breach of Article 6 \u00a7 1 not taken place; it therefore rejects that claim. However, the Court awards the applicant the entire amount sought for non-pecuniary damage.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the application admissible;<\/p>\n

2. Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n

3. Holds<\/p>\n

(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros) plus any tax that maybe chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

4. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 14 December 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Hasan Bak\u0131rc\u0131 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Carlo Ranzoni
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

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SECOND SECTION CASE OF BOGATICOV v. THE REPUBLIC OF MOLDOVA (Application no. 48833\/16) JUDGMENT STRASBOURG 14 December 2021 This judgment is final but it may be subject to editorial revision. In the case of Bogaticov v. the Republic of Moldova,…<\/p>\n

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