European Court of Human Rights

 

SECOND SECTION

CASE OF GOLOVCHENKO v. THE REPUBLIC OF MOLDOVA

(Application no. 66418/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

21 March 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Golovchenko v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Jovan Ilievski, President,
          Lorraine Schembri Orland,
          Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 66418/14) 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”) on 26 September 2014 by a Russian national, Mr Alexei Golovchenko, born in 1967 and living in Moscow (“the applicant”), who was represented by Mr A. Beruceaşvili, a lawyer practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent at the time, Mr O. Rotari;

the fact that the Russian Government did not express the wish to intervene in the present case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court);

the parties’ observations;

Having deliberated in private on 28 February 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s alleged incitement by the authorities to commit a crime and his conviction, in breach of Article 6 § 1 of the Convention. It also concerns the courts’ failure to hear a key witness, contrary to the requirements of Article 6 § 3 (d) of the Convention.

2.  The applicant published an announcement in a Moldovan newspaper, offering assistance to persons interested in obtaining a Schengen visa. For a fee, he assisted them in contacting potential employers in Poland and filing in the paperwork for obtaining a Polish visa. When he was contacted by C., he helped him to obtain a visa, but was thereafter arrested. C. declared to the police that he had told the applicant of his real intention of going to Italy, as confirmed by a recording of their telephone conversation.

3.  The courts found the applicant guilty of “organising illegal migration”, rejecting his argument of entrapment since he had not submitted any evidence that he had been entrapped. Even assuming that C. was an agent provocateur, there was no evidence that he had incited the applicant to commit the crime: the applicant had published his newspaper announcement before C. intervened, which excluded incitement on C.’s part. The courts rejected the applicant’s argument that he offered lawful services, finding that when he had found out C.’s real intention of reaching Italy, he helped him to obtain a Polish visa under false pretence and thus unlawfully.

4.  The domestic courts had not heard C. in person as they had been unable to secure the attendance of that witness, who had left the country and whose address was unknown. The statements C. had made during the investigations were therefore read out at the trial.

5.  The applicant complained that he had been incited to commit a crime, in violation of Article 6 § 1 of the Convention. He also complained of the courts’ failure to hear the main witness for the prosecution, in violation of Article 6 § 3(d) of the Convention.

THE COURT’S ASSESSMENT

I.         ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

6.  The applicant complained of a breach of Article 6 § 1 as a result of entrapment.

7.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

8.  In the applicant’s submission, the domestic courts did not properly investigate his plausible allegations that C. was an agent provocateur. The Government argued that the applicant failed to make a plausible allegation of incitement as he denied having committed an offence.

9.  The general principles concerning police incitement or entrapment have been summarised in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 49-61, ECHR 2008; and Akbay and Others v. Germany, nos. 40495/15 and 2 others, §§ 111-124, 15 October 2020).

10.  When examining whether, in the present case, there has been police incitement, or entrapment (substantive test of incitement), the Court will attempt to establish, as a first step, whether there has been such incitement or entrapment. As regards the question whether C. was actually an undercover agent, the domestic courts, while generally finding that the applicant had failed to prove that C. was an undercover agent, did not give any particular consideration to such arguments submitted by him as: the fact that C. was throughout the relevant time (September 2009 - July 2010) subject to criminal investigation and thus in contact with the investigating authorities; that as a preventive measure since 2009 he had undertaken not to leave the country, meaning that in January 2010 when he called the applicant to obtain a visa he knew he could not use it to leave the country and thus had no real reason to contact the applicant (compare also Sandu v. the Republic of Moldova, no. 16463/08, §§ 32-39, 11 February 2014); that despite an express criminal complaint about C.’s forging official documents no criminal investigation in his respect had been started and instead he was given back his passport and allowed to leave the country.

11.  In fact, in responding to the argument of entrapment, the courts were ready to assume that C. was actually an undercover agent, but found that the applicant’s publication of his newspaper announcement proved his intention to commit the crime before C.’s involvement and that he had therefore not been incited to commit an offence that would not otherwise have been committed. The Court notes in this regard that the applicant was not known to the authorities for any criminal activity prior to his arrest. The domestic courts rejected the applicant’s argument that he offered lawful services by noting that he was aware of C.’s intention to actually reach Italy and not Poland, which made the entire application to the Polish authorities for a visa unlawful. However, this implies that the applicant’s services, as advertised in his newspaper announcement, were not unlawful as such and only become so after C.’s involvement, when he informed the applicant of his real intentions. The courts did not find any evidence that the applicant would have committed the offence had C. not approached him with the intention of reaching Italy by obtaining a Polish visa under false pretence.

12.  Given that the domestic courts did not investigate whether C. was actually an undercover agent, the Court is unable to conclude that there has been police incitement. However, the domestic courts, while presented with non-negligeable evidence and arguments concerning the applicant’s alleged incitement to commit the offence, failed to take the necessary steps to uncover the circumstances of that arguable plea of incitement (procedural test of incitement, compare Sandu, cited above, § 38, and Khudobin v. Russia, no. 59696/00, § 137, ECHR 2006-XII (extracts)).

13.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.      ALLEGED VIOLATION OF ARTICLE 6 § 3 of the Convention

14.  The applicant also complained of a breach of Article 6 § 3 (d) as a result of the domestic courts’ failure to hear C. as a key witness for the prosecution.

15.  This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

16.  As to whether the applicant’s trial complied with Article 6 §§ 1 and 3 (d), the applicant noted that C. had not been heard in court and had refused to answer all questions which the defence had asked him during the investigation stage. The Government submitted that the domestic courts had ordered C.’s forced appearance and that the applicant had been convicted also on the basis of other evidence, notably a recording of a telephone conversation between him and C. (see paragraph 2 above). Moreover, the applicant had been able to ask C. questions during the investigation stage.

17.  The general principles for assessing whether a defendant’s right to have examined witnesses against him under Article 6 §§ 1 and 3 (d) was complied with in case of an absent prosecution witness have been laid down in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-131, ECHR 2015). In order to assess the compatibility with Article 6 §§ 1 and 3(d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence the Court must examine (i)  whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statements as evidence; (ii)  whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction; and (iii)  whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid.).

18.  The Court finds, first, that there was no good reason for the non-attendance of C. There is no evidence that the domestic courts actively searched, also internationally, for the witness with the help of the domestic authorities (compare Schatschaschwili, cited above, § 121), which had allowed C. to leave the country without submitting any contact details for his destination abroad.

19.  Second, the statements made by C. at the investigation stage must be considered as the decisive basis for the applicant’s conviction. C. had been the only direct witness of the offence and the person who privately recorded the phone call used as evidence against the applicant.

20.  While the courts referred to other evidence, it mostly consisted of procedural measures taken by the state authorities, except for the recording of a telephone conversation between C. and the applicant. In the absence of the author of the recording (C.), the defence had no effective possibility of challenging its timing and authenticity, the circumstances leading to that recording and of raising other elements which could undermine in the eyes of the courts the value of that evidence.

21.  Third, there were no sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission of the decisive evidence of the absent witness. In particular, no consideration was given to the fact, expressly argued by the defence, that C. had refused to answer any questions which the applicant and his lawyer had asked him at the investigation stage. Therefore, the defence was deprived of the opportunity to test C.’s statements at any stage and no measure was taken to compensate for the lack of opportunity to directly cross-examine that witness at the trial.

22.  Accordingly, in the light of the foregoing, the absence of an opportunity for the applicant to examine or have examined C. (where C. would actually answer the questions of the defence) at any stage of the proceedings rendered the trial as a whole unfair (compare Schatschaschwili, cited above, § 164).

23.  There has accordingly been a violation of Article 6 §§ 1 and 3(d) of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage, EUR 500 for his costs and EUR 780 in respect of legal costs and expenses incurred before the Court.

25.  The Government argued that, even if a violation were to be found, the sum claimed was excessive in view of previous case-law in similar cases.

26.  The Court awards the applicant EUR 4,700 in respect of non-pecuniary damage, plus any tax that may be chargeable.

27.  Having regard to the documents in its possession, the Court further considers it reasonable to award EUR 1,000 for costs and expenses under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention on account of the way in which the domestic courts examined the applicant’s entrapment plea;

3.      Holds that there has been a violation of Article 6 §§ 1 and 3(d) of the Convention on account of the domestic courts’ failure to hear witness C.;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 4,700 (four thousand and seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President