CASE OF GALUSCHIN v. MOLDOVA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
1. The applicant was born in 1975 and lives in Brăneşti. He was represented before the Court by Mr S. Burduja, a lawyer practicing in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. The applicant was charged with indecent acts committed on a fiveyear old girl, following a report made by her mother on 7 April 2003. On 30 October 2003 the Criuleni District Court acquitted him of all charges, finding that there had been no evidence that he had committed an offence. The court noted that the girl’s mother had testified before it that she had had a dispute with the applicant on the morning in question and had filed the complaint against him in revenge, and not because he had in fact committed any offence. She had also coached her daughter on how to testify in order to incriminate the applicant. However, the court noted that both mother and daughter had later withdrawn their statements. 3. The judgment was upheld by the Chişinău Court of Appeal on 26 February 2004. The court noted the discrepancies between the statements made on 7 April 2003 by the child and her mother and the subsequent change to their statements. It also noted that a psychiatric report on the girl had shown that she was prone to adult influence, while the testimony given by the girl to the investigating authority had ended after a teacher assisting the girl had noted her difficulty in formulating phrases and logically explaining her thoughts, which had made the continuation of the interview pointless. Statements made by two witnesses during the investigation had confirmed the girl’s tendency to be influenced by adults, but the prosecutor had not asked for their presence at the court hearing and they had therefore not been able to be questioned about their statements. 4. On 1 June 2004 the Supreme Court of Justice quashed the judgment of 26 February 2004 and ordered a rehearing of the case by the Chişinău Court of Appeal. The reason for the rehearing was that the lower court had failed to directly examine all the relevant evidence, such as hearing from the victim, her representative and other witnesses, but rather had simply relied on the documents in the case file. 5. The victim and her mother were summoned to the hearing at the Chişinău Court of Appeal on 22 September 2004, but they did not appear. In the meantime, on 9 September 2004, the mother sent a letter to the court stating that she fully supported her statements and those made by her child during the investigation. She did not ask for the case to be tried in her absence. 6. On 22 September 2004 the Chişinău Court of Appeal found the applicant guilty of the crime with which he had been charged. The applicant was absent from the hearing, even though he had been summoned to attend it. He claims that he never received the summons. A court-appointed defence lawyer was present. 7. The court did not hear any witnesses, including the girl and her mother. After the applicant’s conviction, the mother wrote to the Supreme Court of Justice stating that she had never received a summons for the hearing of 22 September 2004 and that she withdrew her declaration of 9 September 2004. The applicant claimed that the letter of 9 September 2004 had been written by someone else, because the mother could not write in Latin script, yet the letter had been written in Latin script. No expert report to verify whether she had written the letter was ordered. 8. On 6 December 2004 the lawyer appointed by the applicant lodged an appeal on points of law. In his appeal, the lawyer drew the court’s attention to the reason for which the Supreme Court of Justice had sent the case for a rehearing on 1 June 2004, namely the failure of the Court of Appeal to directly examine all the evidence. However, that court had allowed the same irregularity to occur in convicting the applicant. He also submitted that the absence of the victim, the mother and other witnesses, as well as the applicant, from the court hearing of 22 September 2004 had prevented the defence from properly challenging the prosecutor’s evidence. The prosecutor had simply read out the statements made by various individuals during the investigation, and the court had ignored the statements made by the mother and daughter before the first-instance court rejecting their previously made statements. The lawyer questioned the authorship of the letter of 9 September 2004. He finally relied on Article 6 of the Convention. 9. On 1 February 2006 the Supreme Court of Justice upheld the judgment adopted by the lower court, finding that it had fully examined the case. The court referred to the same evidence as that examined by the Court of Appeal on 22 September 2004. The parties had been summoned but had failed to appear. However, their absence from the hearing had not prevented the court from continuing to examine the case. Moreover, the mother had signed a declaration in Latin script on 16 April 2003, which proved that she could write in that script and thus could have been the author of the letter of 9 September 2004. 10. On 12 June 2008 the applicant was conditionally released from prison, 17 months and 17 days before the expiry of his prison term. 11. After communication of the present application to the respondent Government, on 10 April 2009 the Prosecutor General’s Office asked the Supreme Court of Justice to reopen the proceedings in the applicant’s case. 12. On 11 May 2009 the Supreme Court of Justice accepted that request. It found that the Chişinău Court of Appeal and the Supreme Court of Justice in their judgments of 22 September 2004 and 1 February 2006 respectively had breached the applicant’s rights guaranteed under Article 6 of the Convention, as well as under domestic law, by failing to directly examine witnesses and evidence before overturning the first-instance court’s judgment. Moreover, they had examined the case in the applicant’s absence despite the absence of evidence that he had been properly summoned and all reasonable measures had been taken to ensure his presence in court, and had done so in the absence of a clear waiver of the applicant’s right to be heard by the courts. Moreover, the Court of Appeal had failed to follow the indications made by the Supreme Court of Justice in its decision of 1 June 2004, which had been aimed precisely at ensuring the observance of procedural rules and at preserving the rights of the accused to a fair trial. The court therefore annulled the judgments of 22 September 2004 and 1 February 2006 and ordered a rehearing of the case. 13. On 10 November 2009 the Chişinău Court of Appeal found the applicant guilty as charged. In reaching this conclusion, the court heard the applicant and his lawyer, the victim and her mother, as well as a teacher and has examined the psychiatric report made on the victim’s intellectual development. In view of the expiry of the limitation period for the offence he had committed, the court did not impose any sanction on the applicant. 14. By the final judgment of the Supreme Court of Justice adopted on 18 January 2011, the applicant’s appeal was declared inadmissible due to his failure to lodge it within the statutory time-limit of two months from the date of adoption of the lower court’s judgment. 15. The relevant domestic law has been set out in Popovici v. Moldova (nos. 289/04 and 41194/04, §§ 34 and 35, 27 November 2007). 16. In a series of its judgments, the Supreme Court of Justice awarded compensation to persons whose cases had been communicated to the respondent Government and in which the latter acknowledged a violation of Convention rights (see Ungureanu v. Moldova (dec.), no. 78077/01, 3 October 2006; Diviza and Others v. Moldova (dec.), no. 24316/02, 21 November 2006; Grosu and Others v. Moldova (dec.), no. 21118/03, 13 March 2007; Cumatrenco v. Moldova (dec.), no. 28209/03, 20 March 2007; and Guranda v. Moldova (dec.), no. 28412/03, 20 March 2007). In adopting these judgments, the Supreme Court of Justice expressly relied on the Convention as the legal basis for awarding compensation. The Court accepted that that the amounts awarded had been consistent with those it had made in similar cases in respect of Moldova and thus struck those cases out of its list of cases.