CASE OF SANDU v. THE REPUBLIC OF MOLDOVA
Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1958 and lives in Chișinău. 6. At the time of the events the applicant was the manager of a State-owned veterinary clinic. 7. According to the official version of events, on 25 September 2006 a person (C.) came to the applicant’s office at around 9.10 a.m. and expressed his wish to have his dog vaccinated and to obtain a document required for travelling abroad with that dog. The applicant then told him that the process could last two to three months, but could be sped up. In exchange for 1,000 Moldovan lei (MDL, approximately 63 euros (EUR) at the time), the applicant said that he would issue C. with the relevant document without seeing the dog, knowing that it had not been vaccinated. 8. Immediately after that, C. went to Rîşcani police station in Chişinău and asked for help in catching the applicant in the act of receiving the bribe. In his report to the police made at that time, C. noted that he had asked for vaccination documents for his six-month old dog called “Ghera”, which was a variety of terrier. 9. In response to C.’s report, a number of procedural acts were carried out that same morning: (i) V., an officer at Rîşcani police station, issued an order to initiate a criminal investigation, which was countersigned by a prosecutor on the same day at 4.40 p.m.; (ii) a prosecutor from the Rîşcani prosecutor’s office issued an order giving subject-matter jurisdiction over the investigation of the case to Rîşcani police station, while noting that jurisdiction to handle such cases normally lay with the Centre for Fighting Economic Crime and Corruption.; (iii) the Prosecutor General’s Office issued an order giving territorial jurisdiction to Rîşcani police station; (iv) V. issued a search warrant for the applicant’s office (countersigned by the Rîşcani District Court’s investigating judge on 26 September 2006); (v) V. issued a second order to trace the source of the money paid as a bribe; (vi) a third order was issued by V., pursuant to which the money to be given as a bribe was to be marked with a special substance; and (vii) MDL 1,000 in five banknotes of MDL 200 each was marked by V. in the presence of C. and a specialist at 11 a.m. and a record of this was drawn up. 10. At approximately 11.30 a.m. on the same day C. entered the applicant’s office and told him that he only had MDL 400. The applicant took the money, stamped and made the relevant notes in the dog’s passport. At around 12.30 p.m. officers from Rîşcani police station entered the applicant’s office and discovered MDL 400 in his pocket. The money was subsequently confirmed as bearing the specific mark made earlier for the purpose of proving the act of bribe taking. 11. On 27 September 2006 the applicant was released against an undertaking not to leave the city. 12. In the record of an interrogation made on 29 November 2006, it is recorded that the applicant declared that there were individuals who, for a long time, had wanted to frame him due to his past conflicts with them. He also mentioned a criminal complaint concerning an assassination attempt that took place on 4 April 2004 which had not been examined and which meant, in the applicant’s opinion, that someone had a motive for making a false accusation against him. 13. On 8 December 2006 the Rîşcani District Court transferred the case to the Botanica District Court in Chişinău for examination, as the latter court had territorial jurisdiction over the matter. 14. On 27 March 2007 the applicant’s lawyer asked the court to exclude all the evidence obtained as a result of the procedural acts of 25 September 2006, on the basis that it had been obtained in violation of territorial and subject-matter jurisdiction. The court twice postponed the hearing in order for the prosecution to submit evidence in this respect. 15. On 3 April 2007 the prosecution submitted the Prosecutor General’s order of 25 September 2006 (see paragraph 9 above) giving territorial jurisdiction to Rîşcani police station. The order had not been included in the file before that date. The applicant’s lawyer objected to the inclusion of that document in the file, stating that its existence had never previously been mentioned and that he had serious reasons for considering that it was backdated. According to the prosecution, the order had been mistakenly annexed to another file and had been discovered shortly before submitting it to the court. According to the Government, the applicant’s lawyer did not raise an objection during the hearing of 3 April 2007, but only did so in his final submissions to the court at a hearing on 5 April 2007. 16. On 17 April 2007 the Botanica District Court found the applicant guilty of soliciting and accepting a bribe. The court referred to such evidence as C.’s initial police report and subsequent statements, those of the officers at Rîşcani police station, and to the findings of the search at the applicant’s office on 25 September 2006, during which MDL 400 had been found in his pocket. The applicant was ordered to pay a criminal fine of MDL 60,000 (approximately EUR 3,550) and was prohibited from working as a veterinary surgeon for two years. 17. In respect of the allegation made by the applicant and his lawyer that the entire event had been the result of police entrapment, the court found as follows: “The submission that the charges of bribe taking brought against [the applicant] were based on police entrapment is unsubstantiated, because [C.] declared under oath both during the criminal investigation and before the court that [the applicant] had solicited money from him in order to speed up his dog’s vaccination. Moreover, upon his arrest the accused took the money out of his pocket, which proves his intentional actions and [shows that it was] not entrapment”. 18. The applicant appealed. He noted the various procedural shortcomings concerning the timing of the issuance of the orders on 25 September 2006 and claimed that the investigative actions had taken place before the initiation of the investigation itself. He further submitted that it was strange that C. had gone to Rîşcani police station and not to the police station situated in the Botanica district, which had territorial jurisdiction to deal with the alleged offence. Nor had he gone to the police station in the district where he lived. Furthermore, according to the documents in the file, the police had given money to C. for him to bribe the applicant with, yet of the MDL 1,000 given to C. only MDL 400 had been passed on to the applicant, the remainder having disappeared. The applicant submitted that C. had been “artificially involved in the operation of handing money to me, which constitutes incitement to bribe taking”. The applicant further claimed that C. had never had a dog and had therefore had no need to have a dog vaccinated for travel abroad. He referred to the inconsistency between C.’s description of his dog (stating initially that it was a type of terrier, but later that it was a type of pitbull, while the pet passport submitted to the court was for an English cocker spaniel dog, which, in addition, belonged to another person, G.V.). Moreover, according to the documents submitted to the court the dog had been born on 18 November 2004 and thus could not have been six months old on 25 September 2006, as stated by C. Furthermore, C. had refused to say whom he had wanted to visit abroad, even though he had previously stated that he had intended to visit friends, taking his dog with him. 19. On 31 May 2007 the Chişinău Court of Appeal upheld the lower court’s judgment. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower court word for word. 20. The applicant appealed on points of law, essentially repeating his arguments made before the lower courts. 21. On 24 October 2007 the Supreme Court of Justice upheld the lower courts’ judgments. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower courts word for word.