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FOURTH
SECTION
CASE OF
RUSSU v. MOLDOVA
(Application
no. 7413/05)
JUDGMENT
STRASBOURG
13
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Russu v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7413/05) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Ms Alla Russu (“the
applicant”), on 7 February 2005.
- The
applicant, who had been granted legal aid, was represented by Mr V.
Zama, a lawyer practising in Chişinău. The Moldovan
Government (“the Government”) were represented by their
Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that her rights guaranteed under
Article 6 § 1 of the Convention had been breached as a
result of a court's failure to hear her in person before fining her.
- The
application was allocated to the Fourth Section of the Court. On
12 December 2006 it decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1957 and lives in Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant worked as a journalist for the national public audio-visual
institution, Teleradio-Moldova company (T.). According to the
applicant, on 27 July 2004 a spontaneous strike began amongst
T.'s staff in response to alleged censorship and disrespect for
democratic principles enforced within T. by the Communist Party. The
applicant was among a group of staff who occupied a room and refused
to vacate it until their demands were met. According to the
Government, this was an unauthorised demonstration.
- On
23 September 2004 the applicant, who was present in court, was found
guilty of breaching Article 174/1 § 4 of the Code of
Administrative Offences by actively participating in an unauthorised
demonstration. She was fined 180 Moldovan lei (MDL) (12 euros (EUR)
at the time).
- The applicant appealed, claiming that there was no
evidence of her active participation in the meeting and that the
meeting had been an unplanned strike which should be examined under
the relevant labour legislation.
- On 7 October 2004 the applicant was dismissed from her
position. She remains unemployed, having formally registered as such
on 8 January 2005.
- On
18 November 2004 the Chişinău Court of Appeal examined her
case in her absence. The court noted that the applicant had been
summoned. According to the applicant, she had not been summoned and
found out about the decision of the Court of Appeal only on 6 January
2005 when she inquired about her case at the court's registry.
- The
applicant paid her fine on 11 January 2005.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law has been set out in Ziliberberg v Moldova
no. 61821/00, §§ 22-25, 1 February 2005.
- In the judgment of 25 April 2007 in the civil case
2ra-460/07 the Supreme Court of Justice dismissed the claim that the
appellant had lodged his appeal outside the time-limit established by
law (fifteen days from the date when he had been informed of the
appealed judgment). The court found that although there was evidence
that the court had sent a copy of the judgment to the appellant,
there was no evidence in the case file to confirm the date of its
delivery. Accordingly, the appeal was considered as having been
lodged within the time-limit, despite the fact that it was lodged
twenty-six days after the court had sent the copy of the judgment to
the appellant.
THE LAW
- The
applicant complained under Article 6 § 1 of the Convention that
she had been convicted in her absence. The relevant part of Article 6
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
applicant also complained of a violation of her rights guaranteed
under Article 11 of the Convention, which reads:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
I. ADMISSIBILITY
- The
Court notes that in her observations of May 2007 the applicant asked
the Court not to examine her complaint made under Article 11 of the
Convention. Accordingly, the Court will not examine this complaint.
- The
Court considers that the applicant's complaint under Article 6
§ 1 of the Convention raises questions of law which are
sufficiently serious that their determination should depend on an
examination of the merits. No grounds for declaring this complaint
inadmissible have been established. The Court therefore declares it
admissible. In accordance with its decision to apply Article 29 §
3 of the Convention (see paragraph 4 above), the Court will
immediately consider the merits of this complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the Court of Appeal's failure to summon her
to the court hearing of 18 November 2004 had breached her rights
guaranteed under Article 6 § 1 of the Convention. There was no
evidence that a letter summoning her to the court hearing had indeed
been sent, nor any evidence that it had ever reached her. The
register of outgoing mail at the Court of Appeal did not mention the
address to which the summons had been sent, the person responsible
for sending it or any other detail.
- The
applicant submitted that the administrative fine imposed on her had
been of a punitive and deterrent nature. She relied on the judgment
in Ziliberberg v. Moldova no. 61821/00, §§
27-36, 1 February 2005.
- The
Government submitted that on 10 November 2004 the Court of Appeal had
properly summoned the applicant to its hearing of 18 November
2004. Unlike in the Ziliberberg case cited above, the
applicant had plenty of time to prepare for the hearing, but chose
not to attend and did not warn the court of her absence.
- The
Court reiterates that in the case of Ziliberberg (cited above,
§ 35) it found that Article 6 of the Convention was
applicable under its criminal head to proceedings concerning the
administrative offence provided for under Article 174/1 of the Code
of Administrative Offences. It sees no reason to depart from that
conclusion in the present case, which concerns the application of the
same provision of domestic law. Accordingly, Article 6 was applicable
to the proceedings in the applicant's case since they involved “the
determination of a criminal charge” against her.
- The
Court notes the Government's contention that the applicant was
summoned to the court hearing of 18 November 2004 but chose not to
attend. However, the only evidence that she had been summoned
submitted by the Government was the Court of Appeal's register of
outgoing mail. There is no evidence in the file that the summons
actually reached the applicant.
- In
this respect, the Court cannot but note that in practice the domestic
courts do not accept as sufficient evidence the sending of a letter
by a court and require proof of delivery (see paragraph 14 above).
- The
Court therefore finds that it has not been established that the
applicant was properly summoned to the court hearing of 18 November
2004.
- Article
6 of the Convention, read as a whole, guarantees the right of an
accused to participate effectively in his criminal trial. This
includes, inter alia, a right not only to be present, but also to
hear and follow the proceedings (see, for example, Stanford v. the
United Kingdom, 23 February 1994, § 26, Series A no.
282 A, and Barberà, Messegué and Jabardo v. Spain
6 December 1988, § 78, Series A no. 146). This right is implicit
in the very notion of an adversarial procedure and can also be
derived from the guarantees contained in sub-paragraphs (c), (d) and
(e) of paragraph 3 of Article 6 – “to defend himself
in person”, “to examine or have examined witnesses”,
and “to have the free assistance of an interpreter if he cannot
understand or speak the language used in court” (see Colozza
v. Italy, 12 February 1985, § 27, Series A no. 89). It
is difficult to see in the present case how the applicant could have
exercised these rights without being present.
- The
Court further refers to the principle according to which the presence
in person of the accused at a hearing of an appeal where only points
of law were considered was not crucial (see Hermi v. Italy
[GC], no. 18114/02, §§ 58-67, ECHR 2006 ...;
Sejdovic v. Italy [GC], no. 56581/00, §§ 81-85
and 91-95, ECHR 2006 ...; Kremzow v. Austria,
21 September 1993, Series A no. 268 B; and Kamasinski
v. Austria, 19 December 1989, Series A no. 168).
However, in the instant case, the Court notes that, having had no
prior notice of the hearing, the applicant was unable to organise her
defence and was not represented by a lawyer (see Ziliberberg,
cited above, § 41; compare and contrast Hermi, cited
above, § 102). Moreover, the applicant challenged factual
aspects of the case such as whether she had “actively
participated” in an unauthorised demonstration, and even
whether it had been a demonstration or a strike (see paragraph 9
above). Examining such issues, some of which were closely linked to
the applicant's personality and actions, would require the hearing of
the applicant in person, which was not the case in the hearing before
the Court of Appeal.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Non-pecuniary damage
- The
applicant claimed EUR 5,000 in compensation for the non-pecuniary
damage caused to her. She referred to the importance of the
proceedings against her, which had to be examined in the light of the
campaign against censorship at the national radio and television
company.
- The
Government considered that no compensation was due to the applicant
and that, in any event, the amount claimed was excessive and
unsubstantiated.
- The
Court considers that the proceedings against the applicant concerned
an issue of a certain importance to her, regarding as they did an
issue of great public interest (alleged censorship at the national
television and radio company), and in which she took risks in order
to voice a protest. It also notes that the applicant was dismissed
shortly after she had been found guilty by the first-instance court
and that she remained unemployed thereafter (see paragraph 10 above).
While the Court cannot speculate as to the outcome of the proceedings
against her had the Court of Appeal heard her in person, it considers
that the failure to give her the chance to state her position caused
her damage which cannot be compensated only by a finding of a
violation in the present case. Accordingly, and deciding on an
equitable basis, the Court awards the applicant EUR 1,000 on this
account.
B. Costs and expenses
- The
applicant claimed EUR 1,120 for costs and expenses. She relied on a
contract with her lawyer and an itemised list of hours spent by him
on the case (18 hours at an hourly rate of EUR 60, plus secretarial
expenses).
- The
Government contested the number of hours needed to work on the case,
which was fairly simple, and the hourly fee charged.
- The
Court notes that the applicant obtained legal aid from the Court in
the amount of EUR 850. It considers that this amount represents a
fair reflection of the lawyer's work in the case and that no
additional compensation is due on this account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
