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GOREA v. MOLDOVA - 21984/05 [2007] ECHR 618 (17 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/618.html
Cite as:
[2007] ECHR 618
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FOURTH
SECTION
CASE OF
GOREA v. MOLDOVA
(Application
no. 21984/05)
JUDGMENT
STRASBOURG
17
July 2007
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 Gorea v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 21984/05) 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, Mr Grigore Gorea (“the
applicant”), on 7 June 2005.
The
applicant was represented by Mr A. Tănase
and Mr V. Nicoară, lawyers practising
in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Pârlog.
The
applicant alleged, in particular, that he had been held in inhuman
and degrading conditions, that he had been unlawfully detained and
that the courts had not given relevant and sufficient reasons for his
detention.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
On
25 October 2005 a Chamber of that Section 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 1971 and lives in Chişinău.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Events prior to the applicant's arrest
The
applicant worked as a deputy Head of the Botanica Police Section in
Chişinău. On 13 November 2001 an investigation was
initiated against him for unlawfully releasing two suspects from
detention on remand.
On
12 March 2002 the Chişinău Prosecutor's Office discontinued
the investigation, finding that the charges had been based solely on
the statements of two witnesses who had subsequently withdrawn them,
declaring that they had made the statements as a result of
ill-treatment by the police. Their statements were not supported by
other evidence. On the same day the prosecutor informed the applicant
of the decision by sending a letter to apartment no. 140, to where
the applicant had recently moved. He sent a copy of his decision to
the Chişinău head prosecutor “for information and
control”. However, the applicant was dismissed from his
position.
The
applicant initiated court proceedings seeking his reinstatement and
the payment of salary arrears for the entire period of his
involuntary absence from work. On 25 April 2002 the Court of Appeal
accepted his claim. The court found that the criminal investigation
against the applicant had not established his guilt and had been
discontinued. It also found that the applicant had not prejudiced the
proceedings against the released prisoners, one of whom was later
found not to have committed any crime and the other re-arrested. His
case is still pending.
On
13 October 2003 the applicant was employed as an officer of the
Centre for Fighting Economic Crime and Corruption (CFECC).
On
19 November 2004 he was allegedly summoned by his superiors and
pressured into arresting Mr Sarban, the secretary of the Chişinău
Municipality. On the same day the applicant arrested Mr Sarban.
On
20 December 2004 a video recording of the applicant's statement in
connection with Mr Sarban's arrest was broadcast on television. The
applicant stated that the criminal investigation against Mr Sarban
had been invented for political purposes and that there had been no
lawful reason for initiating it (see Sarban v.
Moldova, no. 3456/05, § 18, 4 October 2005).
According
to the applicant, on 21 December 2004 the Head of the Internal
Security Department of the Prosecutor General's Office requested the
Chişinău Prosecutor to forward the criminal case file
against him.
On
29 December 2004 the Prosecutor General re-opened the criminal
investigation, finding that its discontinuation in March 2002 had
been unlawful because it had not been based on a proper assessment of
all the circumstances, that discrepancies in the evidence had not
been entirely resolved and that the alleged facts had not been shown
to be true. No order was given to open an investigation against the
officer who had discontinued the investigation against the applicant.
On
8 February 2005 the applicant was requested to appear as a suspect
before a prosecutor at the Prosecutor General's Office. The relevant
letter was sent to apartment no. 121, where the applicant had not
lived since early 2002. On 14 February 2005 a prosecutor reported
that it had been impossible to serve the summons on the applicant
since nobody had been at home, so it had had to be pinned to the
front door. On 13 April 2005 another summons was issued and on 14
April 2005 a similar report was drawn up, both in respect of
apartment no. 121.
On
18 April 2005 the prosecutor ordered that the applicant be brought
before him, by force if necessary. On 25 April 2005 another report
confirmed the absence of the applicant from apartment no. 121.
On
25 April 2005 the prosecutor brought charges against the applicant.
No mention was made of his failure to appear before him during the
investigation.
On
26 April 2005 the Râşcani
District Court issued a warrant for the applicant's arrest and
detention for 30 days, finding that he had been absconding from the
investigation, was obstructing the establishment of the facts, could
re-offend and was a wanted person.
On
11 May 2005 the prosecutor sent the relevant documents to the
Buiucani Police Section in order to have the applicant declared a
wanted person.
2. Events after the applicant's arrest
On
18 May 2005 the applicant was arrested in the street and was told of
the warrant for his arrest issued on 26 April 2005. On 19 May 2005 he
was brought before a judge who informed him of the decision of 26
April 2005. The applicant appealed, complaining that he had not been
notified of the investigation and that it was therefore unjust to
accuse him of absconding from it. He argued that he had a permanent
residence, a job and a family with two children to support. He had no
criminal record, and had he intended either to abscond from the
investigation or to interfere with it, he could have done so earlier.
He also underlined that the criminal investigation against him had
been discontinued in 2002. He invoked Article 5 of the
Convention and asked for his release pending trial, promising not to
leave the city.
On
24 May 2005 the Chişinău Court of Appeal rejected his
appeal, finding that the lower court had “given proper reasons
for the application of the preventive measure and [had] not
commit[ed] any procedural violation”.
On
30 May 2005 the prosecution formulated the final charges and on
1 June 2005 the case was submitted to the trial court.
According
to the Government, the trial court set the date for the first
preliminary hearing for 24 June 2005. On that date the
Prosecutor General designated another prosecutor to the case and the
hearing was accordingly adjourned to 28 June 2005. Since this new
prosecutor already had a case scheduled for that date there was
another adjournment. On 4 July 2005 the prosecutor asked for the case
to be transferred to another court, a request which was eventually
rejected by the Supreme Court of Justice on an unknown date. A new
date for the preliminary hearing was set for 26 August 2005 but
the hearing was adjourned due to the absence of witnesses. According
to the applicant, he made habeas corpus requests at each
hearing but none was examined because of the adjournments, and no
formal decision was ever adopted. The Government have not denied
this.
On
30 August 2005 the applicant made a written request for the
replacement of detention by a different preventive measure. He
complained that the summons had been deliberately sent to the
incorrect address and that the examination of his case was being
delayed without reason.
On
2 September 2005 the Botanica District Court rejected that request,
principally because it found that the applicant had absconded from
the criminal investigation. The court noted that the applicant had
twice been served summonses at “... apartment no. 121, where,
according to his personal file, he [is] registered” but had not
appeared before the prosecutor and could not be brought by force as
he was not found at the address. The court concluded that the grounds
on which the detention on remand had been ordered remained valid as
the applicant could abscond or interfere with the investigation. In
rejecting the habeas corpus request the court decided that
“the measure of detention on remand should be maintained”.
On
3 November 2005 the applicant made another habeas corpus request,
complaining of unnecessary delays in his case. The prosecutor partly
agreed and asked the court to release the applicant and to place him
under house arrest because no witnesses had been heard by that stage.
On the same day, the Botanica District Court accepted the request and
ordered the applicant's house arrest, prohibiting him from leaving
his apartment, talking to prosecution witnesses or using the
telephone. Based on the annex to his identity card stating his
permanent address as apartment no. 140, the court ordered the
applicant's house arrest at that address. On 15 December 2005
the applicant's house arrest was replaced by an undertaking not to
leave the city.
In December 2006 the applicant asked the trial court
to annul the Prosecutor General's decision of 29 December 2004 to
re-open the criminal investigation into his case and to discontinue
the investigation. He argued that the re-opening had violated both
his right not to be prosecuted twice for the same act and the
principle of legal certainty, contrary to Articles 22 and 287 of the
Code of Criminal Procedure and Article 5 § 1 of the Convention.
In
its judgment of 13 December 2006 the Buiucani District Court cited
Articles 22 and 287 of the Code of Criminal Procedure (“the
CCP”) and found that:
“...
Having examined all the evidence during the hearing, the
court considers it necessary to discontinue the case due to the
existence of circumstances which prevent the initiation of
proceedings and the pursuance of criminal charges, namely the
prohibition on repeated charges being brought against the same person
for the same offence.
During the court hearing, it was established that the
criminal proceedings in the case of Gorea Grigore were initiated on
the basis of the criminal proceedings initiation order of
13.11.2001(vol I/fd I).
According to the order of the senior investigator at the
Prosecution Office of the Town of Chisinau, I. Batalai, of
12.03.2002, the criminal case against Gorea Grigore was dropped due
to lack of constitutive elements for the offence (vol II/71).
By order of the Prosecutor General of the Republic of
Moldova dated 29.12.2004, the order of 12.02.2002 which had
discontinued the proceedings was cancelled and the criminal
proceedings were resumed. The reason given was the illegality of the
order which dismissed the trial, which ran counter to the evidence
gathered during the investigation, the [fact that the] circumstances
allowing such a dismissal did not exist and that the contradictions
between the statements of Gorea G. and those of the witnesses have
not been explained and that no procedures had been carried out in
order to establish the identity of the persons who had inserted the
information in the record registers and statistics cards (vol II/75).
The court finds that the above conclusion is contrary to
the evidence in the file.
In the order of dismissal of the criminal case, dated 12
March 2002, the evidence is described in detail and analysed and a
conclusion is drawn. In the order of annulment of 29 December 2004,
however, there is no analysis of the circumstances and the reasons
for rejecting the conclusion regarding the lack of constitutive
elements of the offence. A simple statement pointing to the
illegality of this procedural act cannot serve as a legal ground to
resume legal proceedings.
Therefore, the court reaches the conclusion that the
order of dismissal of the criminal trial of 12 March 2002 was
determined on the basis of the evidence in the file and issued in
accordance with current legislation.
Therefore, in accordance with Art 287 CPP, the
conditions necessary for resuming the criminal proceedings are not
met; [this situation also gives rise to] a case of a person being
tried twice for the same offence, which excludes the resumption of
the criminal investigation and the charging of Gorea Grigore.
...
In accordance with Art 391, Code of Penal Procedure, the
court decides:
CESSATION OF PROCEDURE
The criminal proceedings are discontinued against [the
applicant] ... owing to the existence of circumstances which exclude
the initiation of criminal proceedings and the charging of a person,
namely the prohibition on repeatedly charging a person with having
committed the same offence.”
This
judgment was upheld by the Chişinău Court of Appeal on
12 February 2007. No appeal was lodged and the judgment became
final.
3. Conditions of detention between 18 May and 8 June
2005
According to the applicant, he was detained at the
remand centre of the Police Inspectorate in inhuman and degrading
conditions. In particular, there was very limited access to daylight
and no exercise outside the cell; poor quality food; overcrowding
(three men in a 6 m2 cell, part of which was taken up by a
toilet which was not separated from the rest of the cell); heat and
humidity; irregular artificial ventilation for short periods despite
the fact that the other detainees were smoking in the cell, which
created breathing problems for the applicant; a lack of any kind of
bedding; and access to a shower only once a week. He was not allowed
to receive any visits from his wife and was placed in a cell with
convicted criminals even though he was a former criminal investigator
(see paragraph 38 below). He submitted a video recording of an
interview with one of the persons with whom he had shared the cell.
In that recording the person interviewed confirmed the description
given above of the conditions of detention. The Government have not
commented on this interview.
The applicant claimed that his health had seriously
deteriorated, that he suffered from headaches while in detention and
that the medical treatment given to him was not effective. He was
refused a specialist medical examination to determine what was wrong
with him and how best to treat him.
According to the Government, the applicant was held in
three different cells in which each detainee had at least 4m2
of space. One of the cells in which the applicant was detained (no.
22) measured 12.8m2 and the applicant shared it with three
others (including A.M. and G.A.). There was sufficient ventilation
and access to daylight, unlimited access to tap water and the toilet
was separated from the rest of the cell by a lateral partition. The
food was of adequate quantity and quality and was cooked by staff at
a university, as confirmed by the relevant receipts. Moreover, the
applicant was allowed to receive bedding from his wife. The
applicant's detention was short and in June 2005 he was transferred
to another remand centre.
In order to show the changes in the conditions of
detention in Moldovan prisons, the Government referred to several
documents concerning programmes designed to improve the conditions of
detention in Moldovan prisons (see paragraph 39 below).
In the Government's opinion, the applicant was given
sufficient medical assistance, as demonstrated by his personal
medical file submitted to the Court. All his requests were properly
registered and he had been seen by a variety of specialists who
recommended treatment, which he had received. In particular, the
applicant was subjected to an in-depth (NMR) analysis which had not
revealed any change in his earlier, satisfactory, state of health.
Moreover, the applicant refused to submit the results of his
pre-detention medical examinations which meant that there was no
medical basis for an additional NMR scan, as confirmed by the prison
doctors. The applicant had not been detained along with previously
convicted persons, as proved by a letter from the Minister of
Justice.
II. Relevant non-Convention material
1. Reports by the Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT)
The relevant findings of the CPT read as follows:
Visit to Moldova of 20-30 September 2004
“11. ... It appears from the findings of the CPT
delegation that in 2004 the practice of detaining suspects for
prolonged periods – sometimes months – in EDPs is still
largely followed. Yet the visit has confirmed that EDPs of the
Ministry of Internal Affairs will never be able to offer suitable
detention conditions adapted to the needs of persons remanded in
custody for prolonged periods.
4. Conditions of detention.
a. Institutions of the Ministry of Internal
Affairs
41. Since 1998, when it first visited
Moldova, the CPT has had serious concern about the conditions of
detention in the institutions of the Ministry of Internal Affairs.
42. Whether one refers to the police stations
or EDPs visited, the material conditions are invariably subject to
the same criticism as in the past. Detention cells had no access to
daylight or a very limited such access; artificial light – with
rare exceptions – was mediocre. Nowhere did persons obliged to
spend the night in detention receive mattresses and blankets, even
those detained for prolonged periods. Those who had such items could
only have obtained them from their relatives...
47. In sum, the material conditions remain
problematic in the police stations; they remain disastrous in EDPs,
continuing in many respects to amount, for the detainees, to inhuman
and degrading treatment.”
The
relevant provisions of the CPT standards (CPT/Inf/E (2002) 1,
Rev. 2004) read as follows:
“The duty of care which is owed by the police to
persons in their custody includes the responsibility to ensure their
safety and physical integrity. It follows that the proper
monitoring of custody areas is an integral component of the duty of
care assumed by the police. Appropriate steps must be taken to ensure
that persons in police custody are always in a position to readily
enter into contact with custodial staff.”
2. Relevant domestic law and practice
The
relevant domestic law has been set out in this Court's judgment in
the case of Sarban v. Moldova (cited above, § 51 et
seq.). In addition, the following provisions are relevant to the
present case:
The
relevant provisions of the Constitution provide:
“Article 4.
(1) Constitutional provisions for human
rights and freedoms shall be understood and implemented in accordance
with the Universal Declaration of Human Rights, and with other
conventions and treaties endorsed by the Republic of Moldova.
(2) Wherever disagreements appear between
conventions and treaties signed by the Republic of Moldova and her
own national laws, priority shall be given to international
regulations.
Article 25
(4) Detention takes place on the basis of a
warrant issued by a judge for a maximum period of 30 days. The
lawfulness of the warrant may be appealed, in accordance with the
law, to a hierarchically superior court. The period of detention may
be subject to extensions only by a court, in accordance with the law,
up to a total of twelve months.”
The relevant provisions of the Code of Criminal
Procedure provide:
“Article 22
(1) No one shall be prosecuted by the
investigating authorities, convicted or sentenced by a court several
times for the same deed.
...(3) The decision of the investigating
authority to drop the charges (scoaterea
persoanei de sub urmărire penală) or to
discontinue the criminal investigation (încetarea urmăririi
penale)... shall prevent the re-opening of the investigation ...,
except when new or recently discovered circumstances are discovered
or a fundamental flaw in the previous investigation affected that
decision.
Article 287
(1) The re-opening of an investigation after
its discontinuation, the dismissal of the investigation (clasarea
cauzei penale) or the dropping of charges is ordered by the
hierarchically superior prosecutor by means of a decision, if it is
thereafter discovered that there was no reason for taking the measure
or that the circumstance which had led to the discontinuation of the
investigation, its dismissal or the dropping of the charges has
disappeared.
...(4) Where a decision to discontinue the
investigation, to dismiss it or to drop the charges was adopted
lawfully, the investigation can only be re-opened if new or recently
discovered circumstances are revealed or if the decision was affected
by a fundamental flaw in the previous investigation. Where a
fundamental flaw in the investigation is discovered, the criminal
prosecution can be re-opened not later than one year following the
entry into force of the order discontinuing the criminal
investigation, dismissing the criminal case or dropping the criminal
charges.”
The relevant provisions of the Law no.1226-XIII on
Pre-trial Detention, in force at the time, provide:
“Article 14
(1) In placing the accused in cells the
following requirements shall be observed:
2) The following shall be detained separately
from other detainees:
... (f) persons who before their arrest
worked for the public authorities, including the courts, the
prosecution service, internal affairs, national security; ...”.
On 24 October 2003 the Parliament adopted decision
no. 415-XV regarding the National Plan of Action in the Sphere
of Human Rights for 2004-2008. The plan includes a number of
objectives for 2004-2008 aimed at improving the conditions of
detention, including the reduction of overcrowding, improvement of
medical treatment, involvement in work and reintegration of
detainees, as well as the training of personnel. Regular reports are
to be drawn up on the implementation of the Plan.
THE LAW
I. ADMISSIBILITY OF THE COMPLAINTS
A. Complaint under Article 3 of the Convention
The
applicant complained that the conditions of his detention in the
remand centre (EDP) of Chişinău Police Inspectorate,
including the lack of medical assistance and his placement along with
convicted criminals, amounted to inhuman and degrading treatment
contrary to Article 3 of the Convention, which provides as
follows:
“No one shall be subjected
to torture or to inhuman or degrading treatment or punishment.”
The applicant reiterated his earlier submissions (see
paragraphs 29 and 30 above) and noted that the Government had not
submitted any evidence that he had received medical assistance while
in detention in the remand centre of the Chişinău Police
Inspectorate. The conditions of detention and the medical assistance
available to him after his transfer to the remand centre of the
Ministry of Justice were, in his opinion, unsatisfactory, in
particular because some of his requests for an in-depth assessment of
his state of health had been refused for formal reasons despite a
recommendation by doctors and despite his constant complaints about
headaches and pain. He objected to the Government's claims that the
prison conditions in the remand centre were good, and noted that the
claims were contrary to the findings of the CPT (see paragraph 34
above).
Moreover,
on 25 May 2005 he was transferred to a cell with persons previously
convicted of various criminal offences, even though he was a former
investigator. He submitted copies of confirmations by the Ministry of
Internal Affairs which showed that each of the three detainees with
whom he shared a cell was accused of one or more serious crimes
(including murder, manufacturing and possession of firearms,
trafficking in drugs, fraud) and some had already been convicted of
similarly serious crimes.
The Government submitted that the applicant had not
exhausted all the domestic remedies available to him.
They
considered the applicant's conditions of detention to be in line with
Article 3 requirements (see paragraphs 31-33 above), considering the
short period of detention he had spent there. They argued that the
findings of the CPT during its visit in September 2004 did not
reflect the major changes which had taken place before May 2005 when
the applicant was placed in the relevant remand centre. They referred
to the initiatives taken by the authorities in this connection (see
paragraphs 32 and 39 above).
According
to the Government, the applicant was given full medical assistance
and the in-depth (NMR) analysis he had requested was not considered
necessary by the prison doctors in view of the earlier similar test
carried out and his refusal to cooperate fully (see paragraph 33
above).
As
confirmed by relevant receipts, the food served in the remand centre
was prepared by a local university's kitchen and was thus of good
quality. Moreover, at no time was the applicant detained with
previously convicted persons, since that would have been contrary to
the Law on Pre-trial Detention which prohibited such placement in
absolute terms (see paragraph 38 above).
The
Court notes that in the present case the applicant was detained in
the remand centre of the Police Inspectorate for 21 days, of which 14
days were spent in a cell with three other detainees and seven days
were spent in two different cells with, as alleged by the applicant,
previously convicted persons. In the Court's view, the cumulative
effect of overcrowding and the intentional placement of a person in a
cell with persons who may present a danger to him may in principle
raise an issue under Article 3 of the Convention (see the CPT
standards referred to in paragraph 34 above). However, the Court
notes that during his relatively short period of detention the
applicant did not complain that he was at any time threatened by his
cellmates. Furthermore, at no stage did he rely on the provisions of
Article 14 § 2(f) of the Law no.1226-XIII on Pre-trial
Detention (see paragraph 38 above) which prohibits in absolute terms
the detention of, inter alia, police officers in the same cell
as other categories of remand or convicted persons.
More
generally, the Court further notes that the applicant did not
substantiate his claim that his health had suffered as a result of
his detention in the conditions described by him. It is not convinced
that the applicant was systematically denied medical assistance,
since he was examined by a number of doctors and received treatment
in accordance with their recommendations. Although he requested an
additional scan to be carried out, it is to be noted that the doctors
who examined him did not consider this necessary (see paragraph 33
above). No information has been submitted to the Court which would
contradict that conclusion.
The
Court recalls that it must be satisfied, on the basis of the
materials before it, that the conditions of the applicant's detention
constituted treatment which exceeded the minimum threshold for
Article 3 of the Convention to apply. In that connection, it
notes that the applicant's detention in the impugned conditions was
relatively short. Even though the size of the cell which he shared
with three other prisoners could potentially raise an issue under
Article 3 of the Convention (see Ostrovar v. Moldova,
no. 35207/03, § 60, 13 September 2005), it is to be
observed that he was only confined there for a period of 14 days. The
applicant has not substantiated his argument that the material
conditions of his detention were such as to give rise to concern. The
Court also notes that the food provided to the applicant appears to
have been adequate and that there were no restrictions on his
spouse's visiting rights. While it is regrettable that it was the
applicant's spouse who had to provide him with bedding, he was at
least able to benefit thereby from a certain level of hygiene in his
cell.
The
Court would observe that the applicant's reliance on the findings of
the CPT (see paragraphs 34 and 41 above) does not of itself, and in
the absence of evidence of individual suffering of the intensity
required for a finding of a breach of Article 3, provide a basis for
a conclusion that there has been a breach of Article 3 of the
Convention in the applicant's case.
Accordingly,
the Court concludes that the complaint under Article 3 of the
Convention is manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention. For that reason, the Court is not
called upon to address the Government's argument that the applicant
failed to exhaust domestic remedies in respect of his complaint about
the material conditions of detention (see paragraph 43 above).
B. Complaints under Article 5 of the Convention
The
applicant alleged that his rights as guaranteed by Article 5 §§ 1
and 3 of the Convention had been violated because the investigation
against him could not have been lawfully re-opened, thus implying
that his detention had been unlawful, and because the courts had
given no relevant reasons for their decisions to detain him. He
further contended that he had been detained without a lawful basis
after 1 June 2005 and relied in this respect on Baranowski v.
Poland (no. 28358/95, ECHR 2000 III).
The
relevant parts of Article 5 provide:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
... (c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be ... entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial.”
1. Lawfulness of the re-opening of the investigation in
respect of the applicant
The
applicant complained under Article 5 § 1 about the lawfulness of
his detention because it had been ordered on the basis of an
improperly re-opened investigation.
(a) Arguments of the parties
The
applicant claimed that the criminal investigation against him which
had been discontinued in 2002 could not be re-opened by virtue of
Article 22 of the CCP (see paragraph 37 above). In any case it
could not be re-opened more than one year after its discontinuation
(Article 287(4) CCP, see paragraph 37 above). Since the re-opening of
the investigation was unlawful, his detention based on that
investigation was also unlawful. Moreover, the finding in 2002 that
he had not committed any crime excluded the existence, in 2004, of
any “reasonable suspicion” that he might have committed
the same crime. He submitted several press articles on the existence
in Moldova of a practice of using criminal investigations as a means
of blackmail or of securing obedience to the authorities, including a
practice of discontinuing investigations with the power to re-open
them whenever the person angered the authorities.
The
applicant rejected the Government's interpretation of Article 287
(4) CCP. He argued that that Article did not meet the requirements of
“quality of law” under Article 5 of the Convention and
that neither the prosecution nor the domestic courts had given any
details capable of clarifying the application of that law. Finally,
the applicant argued that decisions to re-open a criminal
investigation could not be appealed.
The
Government submitted that the applicant had not raised, even in
substance, this complaint before the domestic courts until December
2006. Moreover, the re-opening of the criminal investigation against
the applicant had been ordered by a hierarchically superior
prosecutor in full conformity with the law (Article 287(1) CCP).
They
argued that Article 287 (4) CCP was not applicable to the applicant's
case because that Article applied only to lawfully discontinued
investigations, while the Prosecutor General's order to re-open the
investigation had clearly found the discontinuation of the
applicant's prosecution to have been unlawful. They submitted that,
in practice, Article 287 (4) CCP was never applied by the
prosecution.
They
also argued that Article 22 CCP was not applicable since it covered
only the dropping of criminal charges and the discontinuation of an
investigation, but not the dismissal of the investigation (clasarea
cauzei penale), as was the case with the applicant.
(2) The Court's assessment
The
Court takes note of the new fact submitted by the parties, namely the
adoption of the judgments of 13 December 2006 and 12 February
2007 (see paragraph 28 above). These judgments annulled the
Prosecutor General's decision of 29 December 2004 as being contrary
to Articles 22 and 287 CCP and ordered the discontinuation of
the criminal investigation into the applicant's case, finding that
the unreasoned re-opening of a criminal investigation following its
lawful discontinuation amounted to a repeated accusation of the same
person for the same deed.
In
the Court's view, it is necessary first of all to determine whether
this new fact is such as to lead it to decide that it is no longer
justified to continue the examination of this complaint in
application of Article 37 § 1 (c) of the Convention,
which provides:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
...
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
The
Court recalls that it “enjoys a wide discretion in identifying
grounds capable of being relied upon in striking out an application
on this basis, it being understood, however, that such grounds must
reside in the particular circumstances of each case” (see
Association SOS Attentats and de Boery v.
France [GC], (dec.), no. 76642/01, § 37, ECHR 2006 ...
and the principles mentioned therein regarding the application of
Article 37 § 1 of the Convention).
In
the present case the Court notes that the criminal investigation in
respect of the applicant has been discontinued by a final court
judgment. He thus obtained redress from the domestic courts before
this Court adopted its judgment. Moreover, the Court notes that the
applicant's arguments regarding the violation of Article 5 § 1
of the Convention focused on the unlawfulness of the re-opening
of the investigation under domestic law, namely Articles 22 and 287
CCP. The courts confirmed that unlawfulness, relying precisely on
those Articles of the CCP (see paragraph 28 above). As soon as the
applicant expressly asked the courts to verify the lawfulness of the
re-opening of the proceedings in his
case, they accepted his claims.
It
is true that the applicant was not compensated for the seven months
of unlawful detention resulting from the re-opening
of his case. However, he did not ask the domestic courts to make an
award and it is still open to him to bring proceedings to obtain
compensation.
In
sum, the domestic courts' judgments in respect of this complaint and
their unequivocal condemnation of the re-opening of criminal
proceedings when no compelling reasons are given therefor, the
applicant's failure to raise this complaint at the outset of his
detention or to ask for compensation from the domestic courts when he
did complain are circumstances which, taken together, lead the Court
to consider that it is no longer justified to continue the
examination of this complaint within the meaning of Article 37 §
1 (c) of the Convention.
The
Court also considers that no other element regarding respect for
human rights as guaranteed by the Convention and its Protocols
requires that this complaint be examined further under Article 37 §
1 in fine. Accordingly, this part of the application should be
struck out of the list.
2. The lawfulness of the applicant's detention after 1
June 2005
The
Government submitted that in accordance with the principle of
subsidiarity it was primarily for the domestic courts to determine
the lawfulness of the applicant's detention. If he had been found by
the domestic courts to have been unlawfully detained, he could have
claimed damages in accordance with the law. Moreover, the courts had
the power to apply the Convention directly. The applicant disagreed.
The
Court has already found that there was a practice in Moldova of
detaining defendants without issuing a court order to that effect
following the submission of their case files to the trial court. It
recalls the respondent Government's and the domestic courts' position
in a number of recent cases (see Boicenco v. Moldova, no.
41088/05, § 146, 11 July 2006 and Holomiov v. Moldova,
no. 30649/05, § 123, 7 November 2006), in which the Government
considered the practice to be lawful and based on a number of
provisions of the Code of Criminal Procedure. They did not submit
examples of any departure by the domestic courts from the practice
described above. Indeed, the applicants in both the cases mentioned
above had expressly raised the issue before the domestic courts, but
their complaints were rejected.
In
view of the above, the Court considers that the applicant had no real
prospect of success in lodging a complaint regarding the lack of a
legal basis for his detention, given the general practice permitting
the authorities to detain him in the absence of an order issued by a
court.
In
view of the above, the Court concludes that the complaint under
Article 5 of the Convention regarding the lack of a legal basis for
the applicant's detention after 1 June 2005 cannot be declared
inadmissible for failure to exhaust domestic remedies. Accordingly
the Government's objection must be dismissed.
3. Conclusion regarding the Article 5 complaints
The
Court considers that the applicant's complaints under Article 5
§§ 1 and 3 of the Convention (except the complaint
about the lawfulness of the re-opening of the criminal investigation
in his respect) raise questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of the merits. It therefore declares these complaints
admissible. In accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 5 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
In
his letter of 19 October 2005 the applicant complained under Article
5 § 1 of the Convention about the lawfulness of his detention
following the submission of his case file to the trial court on 1
June 2005.
The
Government stated that, following the submission of the applicant's
case file to the trial court on 1 June 2005, it was for that court to
deal with any requests regarding his detention pending trial, as
clearly stipulated by the law. The Government relied on the same
legal provisions as those relied on in Boicenco (cited above,
§§ 64-71).
The Court recalls that it found a violation of Article
5 § 1 of the Convention in this respect in Baranowski v.
Poland (cited above, § 58); see also Boicenco
(cited above, § 154) and Holomiov (cited above, §
130). Having examined the material submitted to it, the Court
considers that the file does not contain any element which would
allow it to reach a different conclusion in the present case.
The Court finds, for the reasons given in the cases
cited above, that the applicant's detention pending trial after 1
June 2005, when the court order for his had detention expired, was
not based on any legal provision.
There has, accordingly, been a violation of Article 5
§ 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained under Article 5 § 3 of the Convention of
the lack of reasons for his detention pending trial.
The
Court does not consider it necessary to examine separately this
complaint in view of its finding (see paragraph 75 above) that the
applicant's detention lacked any legal basis as from 1 June 2005 (see
also Sarban, cited above, § 104).
IV. 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. Damage
The
applicant claimed 23,000 euros (EUR) for the non-pecuniary damage
suffered as a result of the violation of his rights under the
Convention: EUR 8,000 for the violation of Article 3, EUR 10,000 for
the violation of Article 5 § 1 and EUR 5,000 for the violation
of Article 5 § 3. He cited the Court's case-law to prove that
comparable amounts had been awarded for violations of these Articles.
The
Government disagreed with the amount claimed by the applicant,
arguing that it was excessive in light of the Court's case-law. They
submitted that the case-law cited by the applicant dealt with
situations which had nothing in common with his case in terms of the
nature and seriousness of the alleged violations, the effects on the
applicant and the attitude of the State authorities. The authorities
had taken all measures to accommodate the applicant's needs and his
treatment did not reach the minimum threshold under Article 3 of the
Convention. Any finding of a violation of Article 5 of the Convention
should constitute of itself just satisfaction.
The
Court recalls that it has found no breach of Article 3 of the
Convention in this case. It considers that the applicant must have
been caused a certain amount of stress and anxiety as a consequence
of the authorities' failure to respect his rights guaranteed by
Article 5, namely his detention without any legal basis for over six
months. It awards the applicant the total sum of EUR 9,000 for
non-pecuniary damage (see Baranowski, cited above, § 82
and Ječius v. Lithuania, no. 34578/97,
§ 109, ECHR 2000 IX).
B. Costs and expenses
The
applicant claimed a further EUR 10,212 for legal costs and expenses.
He submitted a list of hours worked in preparing the case (amounting
to 105 hours) and the hourly fee for each type of activity, including
the preparation of additional observations requested by the Court
regarding domestic practice. He also submitted a decision of the
Moldovan Bar Association, adopted on 29 December 2005, which
recommended the level of remuneration for lawyers representing
applicants before international courts.
The
Government considered these claims to be unjustified, given the
economic realities of life in Moldova. They argued that the applicant
had not submitted a copy of any contract for his representation. They
questioned the need to spend 105 hours researching the Court's
case-law and the number of hours spent on drafting the applicant's
observations.
The
Court recalls that in order for costs and expenses to be reimbursed
under Article 41, it must be established that they were actually and
necessarily incurred and were reasonable as to quantum (see Sarban,
cited above, § 139). According to Rule 60 § 2 of the Rules
of Court, itemised particulars of claims made are to be submitted,
failing which the Chamber may reject the claim in whole or in part.
In
the present case, the Court notes that, while the applicant has not
submitted a copy of a contract with his lawyers, he properly
authorised them to represent him in the proceedings before this Court
and agreed upon the list of hours worked in preparing his case. It is
also clear that a certain amount of work has been done, considering
the quality of the submissions. However, the amount requested is
excessive and should only partly be accepted. Regard being had to the
itemised list of hours worked, the number and complexity of issues
dealt with, and to the fact that it has only found a breach of
Article 5 of the Convention, the Court awards the applicant EUR 2,500
for legal costs and expenses (cf. Sarban, cited above, §
139).
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
Decides to strike the application out of its
list of cases in so far as it relates to the applicant's complaint
under Article 5 § 1 of the Convention concerning his detention
between 18 May 2005 and 1 June 2005 following the re-opening of
the criminal investigation;
Declares admissible the complaint under Article
5 § 1 insofar as it concerns the applicant's detention without a
legal basis and under Article 5 § 3 of the Convention, and
the remainder of the application inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant's detention
without a legal basis after 1 June 2005;
Holds that there is no need to examine
separately the complaint under Article 5 § 3 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
according to Article 44 § 2 of the Convention, EUR 9,000
(nine thousand euros) for non-pecuniary damage
and EUR 2,500 (two thousand five hundred euros) for costs and
expenses, 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 amounts 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 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas
Bratza
Registrar President
