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TURCAN AND TURCAN v. MOLDOVA - 39835/05 [2007] ECHR 864 (23 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/864.html
Cite as:
[2007] ECHR 864
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FOURTH
SECTION
CASE OF
ŢURCAN AND ŢURCAN v. MOLDOVA
(Application
no. 39835/05)
JUDGMENT
STRASBOURG
23
October 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 Ţurcan and Ţurcan
v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 39835/05) 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 nationals of Moldova and Romania,
Mr Victor Ţurcan (“V.T.”)
and Mr Dorel Ţurcan (“D.T.”), on 4 November
2005. They were represented by Mr A. Tănase,
a lawyer practising in Chişinău.
The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr V. Pârlog.
The
applicants alleged, in particular, that the courts had not given
relevant and sufficient reasons for their detention; that D.T. had
had no access to the relevant parts of his criminal file in order to
challenge effectively his detention pending trial and that the courts
had refused to hear evidence from a witness regarding the reasons for
the repeated arrest of V.T.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 14 March 2006 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. Having
been invited to inform the Court whether they wished to exercise
their right to intervene in the case, the Romanian Government did not
submit any comments.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
V.T. was born in 1948; D.T. was born in 1952. Both live
in Chişinău.
The
facts of the case, as submitted by the parties, may be summarised as
follows. V.T. is the director of a commercial bank (“the
Bank”); D.T. is a lawyer working for the Bank; they are not
related. According to the Bank's Statute, the President is situated
below the Directing Committee in the Bank's organisational structure
and that Committee takes the final decision on whether or not to make
an important loan.
In
spring 2005 a private firm owned by N.A. and his brother applied for
a loan from the Bank. The loan application was accepted by the Bank's
Directing Committee on 27 September 2005.
1. Initial proceedings against the two applicants
On
12 October 2005 officers of the Centre for Fighting Economic Crime
and Corruption (“the CFECC”) arrested D.T., who was
receiving money from N.A., on suspicion of conspiring with V.T. to
attempt to take a bribe.
In
the arrest report filed an hour later, the officer described the
finding of “clear evidence of the crime” on D.T., which
was later explained to be 15,000 United States Dollars marked by
CFECC for the purposes of proving the bribe-taking from N.A.
At
the moment of his arrest, D.T. declared that N.A. had been repaying a
debt, as confirmed by a receipt.
When
signing the arrest report, D.T. wrote:
“[D]uring my arrest, between 18 and 22 hours on 12
October 2005, my briefcase ... was in the possession of the CFECC
officers and the following disappeared from it: USD 4,000 and a
receipt signed by N.A. confirming that he had borrowed money from me
in the amount of USD 15,800.”
On the same day and less than an hour after D.T.'s
arrest, V.T. was also arrested in another part of the city. The
reason given in the arrest report was: “a witness can testify
that this person has committed a crime”. It appears that no
member of the Bank's Directing Committee has been arrested or
questioned in relation with the present case. The prosecution later
gave details, according to which the money handed by N.A. to D.T. had
been specially marked to provide evidence of bribe taking. The money
was to be split between D.T. and V.T., but the latter did not obtain
his share because of D.T.'s arrest immediately after having received
the bribe.
On 14 October 2005 the Buiucani District Court issued
a warrant for the pre-trial detention of V.T. The reasons given were:
“V.T. is suspected of having committed a serious
crime which is punishable by more than two years' imprisonment; the
evidence submitted was obtained lawfully. In view of the gravity of
the deed of which the suspect, who presents a high social risk, is
accused, the need to protect public order, the risk of his putting
pressure on witnesses who will give evidence in the case and who are
employees of the bank and subordinates of the accused, the need to
prevent the two accused from agreeing on a common position, to
exclude the possibility of fabricating evidence, which obviously
exists at the beginning of the criminal investigation, as well as the
risk of the accused's absconding, which would prevent the normal flow
of the investigation, the suspect's isolation is necessary”.
In the case of D.T. on the same date, the court gave
almost identical reasons for detention, the differences amounting to
a finding of a general risk of influencing witnesses and to a risk of
absconding to territories outside the control of the State.
Both applicants appealed, invoking the insufficient
reasons given by the Buiucani District Court for their detention.
They offered to hand in their passports to assure the court of their
intention not to leave the country and submitted that they had no
criminal records, had permanent addresses and places of work and had
good reputations, V.T. having received several State decorations. In
his appeal, D.T. wrote that, from the moment of his arrest, he had
not been interviewed, even though he had offered to give
explanations; that he had declared since his arrest that N.A. had
been repaying his debt when the arrest took place, as confirmed by
the receipt signed by N.A.; and that the receipt had disappeared from
his brief-case thereafter.
On 21 October 2005 the Chişinău Court of
Appeal rejected their appeals, confirming the Buiucani District
Court's finding of a risk of their influencing witnesses working at
the Bank, of agreeing on a common position and of destroying or
fabricating evidence.
On 22 October 2005 a prosecutor drew up the charges
against both applicants. In the absence of a request for prolonging
his pre-trial detention, V.T. was released on the same day with the
obligation not to leave the country.
2. Further proceedings against V.T.
On 18 November 2005 the newspaper Timpul
published an interview with V.T. in which he stated, inter alia,
that he had found out that one of his discussions with D.T., N.A. and
C.N., an employee at the Bank, regarding the loan had been secretly
filmed by N.A. and that C.N. had been shown the film and had been
questioned about the loan. He also stated that a powerful private
interest was trying to take over the Bank and had organised the
set-up for that purpose.
Based
on that interview, the prosecutor questioned C.N. about whether she
had talked to V.T. or anybody else about her previous witness
statements. She declared that she did not remember whether she had
done so, but stated that she had not discussed this with V.T. and had
not spoken to him, except for having once greeted him in the hall of
the bank. The prosecutor then requested V.T.'s house arrest.
On 22 November 2005 the Buiucani District Court
ordered V.T.'s house arrest for 10 days. The court gave the following
reasons:
“[T]he court finds that the criminal investigation
in the present case is close to an end, but there are still a number
of investigative measures which need to be completed, including the
questioning of a number of persons. Having analysed the minutes of
C.N.'s interview and [V.T.]'s interview in the Timpul
newspaper, the court shall not enter into questions of guilt but,
having verified all the evidence, finds the presence of certain
indicators that the accused may in the future again attempt to
prevent the establishment of the truth and the smooth running of the
criminal proceedings. This ground for pre-trial detention is
expressly mentioned in Article 176 (1) [of the Code of Criminal
Procedure]. At the moment, V.T. is the president of [the Bank] and
recently a need arose to question some of his subordinates, there
being a real probability of pressure on them.”
V.T. claimed, before the Buiucani District Court, that
his information had come from other sources and requested that C.N.
give evidence in order to prove that she had not talked to him about
the investigation and had not been influenced by him. He argued that
hearing evidence from that witness was crucial, since the only ground
invoked for his latest detention was his alleged pressure on C.N.
following his release on 22 October 2005. The court did not
react in any way.
On 25 November 2005 the Chişinău Court of
Appeal quashed the decision of the lower court on procedural grounds
and ordered V.T. not to leave the city for thirty days.
3. Further proceedings in respect of D.T.
On 22 October 2005 the prosecutor asked for the
prolongation of D.T.'s detention. He relied, inter alia, on
the fact that witnesses had still to be heard. On the same day the
Buiucani District Court ordered the prolongation of D.T.'s detention
for twenty days, giving the following reasons:
“[D.T.] is accused of a serious crime, the
evidence submitted was obtained lawfully, there is a risk of his
influencing witnesses, who have not yet given evidence because the
accused has not provided information about them; there is an ongoing
need to verify all aspects of the accused's statements; there is a
risk of his fabricating evidence and of agreeing on a common position
with the co-accused. The danger of his absconding from the law
enforcement authorities persists for the reasons invoked when first
ordering the pre-trial detention.”
On 28 October 2005 the Chişinău Court of
Appeal rejected D.T.'s appeal, giving reasons similar to those in its
decision of 21 October 2005.
On 8 November 2005 the court extended D.T.'s pre-trial
detention by another twenty days, giving essentially the same reasons
as before. The court found, inter alia, that
“there exists a risk that the accused will
influence witnesses who have not yet been interviewed because, even
though he referred to them during his interview of 22 October
2005, the accused refuses to identify them; there is a need to verify
the accused's statements, including the possible existence of a
receipt to which he refers, without identifying the place where it
could be found, and thus there is a risk of his fabricating evidence.
The danger of his absconding from the law enforcement authorities
persists for the reasons invoked when ordering the detention. A
sufficient ground for prolonging the detention consists of his
insistence that there is evidence to exonerate him without offering
the possibility for the prosecution or the defence to establish
whether that is true.”
D.T. appealed, invoking, inter alia, his right
to remain silent and to refuse to divulge information about defence
witnesses or other evidence until the trial, as well as the fact that
the other co-accused (V.T.) had been released under an obligation not
to leave the country. He also complained about a lack of access to
most of the materials in the criminal file against him and about a
lack of reaction by the prosecution to press coverage of alleged
threats made to V.T. by a private person, according to which the
latter had promised to organise a set-up and was actually a friend of
N.A., the alleged bribe-giver. He finally requested, instead of
detention, any other preventive measure which would satisfy the
lawful aims of the prosecution but would protect him from illegal
pressure while in detention.
On 14 November 2005 the Chişinău Court of
Appeal rejected D.T.'s appeal, finding that
“at the moment there is a risk of his destroying
evidence, because of the nature of the crime (the seriousness of the
crime of bribe-taking) and because of the extremely difficult
character of the proceedings”.
On 28 November 2005 the Buiucani District Court
prolonged D.T.'s detention for another twenty days. The court gave
the following reasons:
“Having analysed the factual situation at the
prosecution's request, the court finds that the criminal
investigation in the present case is close to an end, but there are
still a number of investigative measures which need to be finished
before the case is submitted to the trial court. The court emphasises
that, according to Article 20 (3) of the Code of Criminal Procedure,
'the criminal prosecution and the trial of criminal cases in which a
suspect or accused is detained on remand shall be performed urgently
and with priority'. At the same time, weighing all the circumstances
in favour of and against prolonging detention, noting the
prosecutor's opinion that detention is absolutely necessary and the
position of the defence lawyer, the court considers that the grounds
which were invoked when pre-trial detention was ordered persist. D.T.
is accused of a serious crime which is punishable by over two years'
imprisonment, the case is an exceptional one due to the seriousness
of the alleged deed. At the moment there persists the danger of his
influencing witnesses, destroying evidence and even absconding.”
D.T. appealed, submitting, inter alia, that the
criminal investigation was being unnecessarily protracted despite the
prosecutor's declaration that it was close to an end and would be
finished by 1 December 2005. He further claimed that he did not have
access to most materials in the criminal file in order to challenge
his continued detention.
On 6 December 2005 the Chişinău Court of
Appeal adopted two decisions. In the first it found that, contrary to
Article 308 of the Code of Criminal Procedure, the prosecutor had not
submitted to the Buiucani District Court the required materials from
the criminal file to substantiate the request for prolonging D.T.'s
detention on 28 November 2005. In the second decision, the court
rejected D.T.'s appeal, finding that
“the [Buiucani District] Court correctly concluded
that the circumstances which initially served as grounds for
detaining [D.T.] persist. Notwithstanding that the criminal
investigation started on 12 October 2005, there persists a danger of
his destroying evidence due to the nature of the crime and the
extremely complex nature of the proceedings.”
On 21 December 2005 the Buiucani District Court
prolonged D.T.'s detention for another twenty-five days, giving
reasons similar to those in its decision of 28 November 2005.
On
appeal, D.T. complained about the length of the investigation during
which almost no investigation measure had been taken with his
participation, as well as his detention in a solitary cell for the
entire period. He also complained about psychological harassment by
CFECC officers in order to obtain his confession, as well as their
harassment of his daughter on 16 December 2005, following her
visit to him.
On 28 December 2005 the Chişinău Court of
Appeal rejected his appeal, finding that the grounds for keeping him
in detention persisted.
On 13 January 2006 the Buiucani District Court
prolonged D.T.'s detention for twenty days, giving essentially the
same reasons as before and adding that the results of a chemical
analysis had not yet been received, based on which further
investigative measures could become necessary.
On appeal, D.T. argued that the prosecution had not
submitted to the court and to the defence any materials
substantiating the continued need to detain him. On 18 January 2006
the Court of Appeal rejected that appeal for the same reasons as
before.
On 3 February 2006 the Buiucani District Court
prolonged D.T.'s detention for twenty days, giving similar reasons to
those given before.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law and practice have been set out in Boicenco
v. Moldova (no. 41088/05, § 64-71, 11 July 2006).
In addition, the relevant Articles of the Code of
Criminal Procedure read as follows:
“Article 176
(1) Preventive measures may be applied by the
prosecuting authority or by the court only in those cases where there
are sufficient reasonable grounds for believing that an accused ...
will abscond, obstruct the establishment of the truth during the
criminal proceedings or re-offend, or they can be applied by the
court in order to ensure the enforcement of a sentence.
...
(3) In deciding on the necessity of applying
preventive measures, the prosecuting authority and the court will
take into consideration the following additional criteria:
1) the character and degree of harm caused by
the offence,
2) the character of the ... accused,
3) his/her age and state of health,
4) his/her occupation,
5) his/her family status and existence of any
dependants,
6) his/her economic status,
7) the existence of a permanent place of
abode,
8) other essential circumstances.”
“Article 186
...
(6) Should a necessity arise to extend the period of
pre-trial detention of an accused, the prosecutor shall submit to the
investigating judge, not later than five days before the expiry of
the detention period, a request for the extension of that period.”
THE LAW
The
applicants complained under Article 3 of the Convention about the
conditions of detention at the CFECC detention centre. Article 3
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
They
also complained about their unlawful detention in the absence of a
reasonable suspicion of having committed a crime, contrary to Article
5 § 1 (c) of the Convention, which reads:
“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;”.
The
applicants complained under Article 5 § 3 of the Convention that
their detention pending trial had not been based on “relevant
and sufficient” reasons. The relevant part of Article 5 § 3
reads:
“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.”
D.T.
also complained under Article 5 § 4 of the Convention about the
failure of the authorities to give him and his lawyer access to the
relevant parts of the criminal file in order to challenge his remand.
V.T. complained, under the same Article, about the refusal of the
courts to hear a witness in respect of the grounds for his second
detention.
Article
5 § 4 reads:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
I. ADMISSIBILITY
In
their initial application, the applicants submitted complaints under
Articles 3 and 5 § 1 of the Convention. However, in their
observations on the admissibility and merits they asked the Court not
to proceed with the examination of these complaints. The Court finds
no reason to examine them.
The
Court considers that the applicants' complaints under Article 5
§ 3 and 4 of the Convention raise questions of fact and law
which are sufficiently serious that their determination should depend
on an examination of the merits, and no other grounds for declaring
them inadmissible have been established. The Court therefore declares
these complaints 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 these
complaints.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
A. The submissions of the parties
The applicants complained that the courts had not
given “relevant and sufficient reasons” for their orders
to detain them pending trial. In particular, the courts had failed to
give any details or evidence supporting their findings regarding the
alleged dangers posed by the applicants' release. The applicants had
submitted arguments in respect of each ground on which the domestic
courts had relied in a general manner, but the courts had not
responded in any way.
The Government disagreed, finding that the courts had
given relevant and sufficient reasons based on the case file before
them. They added that the reasons for detention pending trial need
not be so detailed as to prove a suspect's guilt. The Government also
noted that the second order for V.T.'s detention (house arrest)
ordered on 22 November 2005 had been annulled on 25 November 2005 and
thus had not had any effects on him.
B. The Court's assessment
The
Court recalls the general principles established in its case-law
under Article 5 § 3 of the Convention in respect of the
requirement to give relevant and sufficient reasons for pre-trial
detention (see, for instance, Sarban v. Moldova, no. 3456/05,
§§ 95-99, 4 October 2005), failing which the detention may
be regarded as arbitrary. It further recalls, in this connection,
that justification for any period of detention, no matter how short,
must be convincingly demonstrated by the authorities (Belchev
v. Bulgaria, no. 39270/98, § 82, 8 April 2004, and
Castravet v. Moldova, no. 23393/05, § 33,
13 March 2007). In respect of an impugned period of detention,
the Court has also found a breach of Article 5 § 1 of the
Convention (see Ambruszkiewicz v. Poland, no. 38797/03,
§ 33, 4 May 2006, and Belevitskiy v. Russia,
no. 72967/01, § 91, 1 March 2007) on the ground that
the authorities had failed to justify the deprivation of liberty.
The
Court considers that the facts of the present case raise issues which
are more appropriately examined under Article 5 § 1 of the
Convention. However, it notes the applicants' withdrawal of their
complaint under Article 5 § 1. In the particular circumstances
of the present application, the Court will therefore examine the case
from the perspective of Article 5 § 3 of the Convention.
The Court notes that the reasons relied upon by the
domestic courts in their decisions to remand the applicants in
custody and to prolong D.T.'s detention (see paragraphs 12, 13, 15,
20-23, 25, 26, 28, 29 and 31-34 above) were similar to the reasons
used by the domestic courts to remand the applicant in Sarban
(cited above, at §§ 11 and 14). As in Sarban,
the domestic courts limited themselves to paraphrasing the reasons
for detention provided for by the Code of Criminal Procedure, without
explaining how they applied in the applicants' case.
In
the case of V.T., the courts relied on his position as President of
the bank in which some of the witnesses worked and his resulting
ability to influence them, as well as on the possibility of agreeing
with D.T. about a common defence position. However, the Court notes
that, on 22 October 2005 when V.T. was released, the prosecution
invoked the need to hear witnesses as one of the reasons for further
detaining D.T. (see paragraph 21 above), witnesses who were never
identified but were presumably common for both of the accused. It is
unclear why the courts ordered V.T.'s detention partly because of the
possibility to influence witnesses while a few days later and before
those witnesses were heard he was released, apparently in the absence
of any danger of such unlawful pressure on witnesses.
Moreover,
on 21 October 2005 the Chişinău Court of Appeal found the
persistence of a danger to the investigation if V.T. were to be
released, while it was aware of the fact that the prosecution had not
made a request for the prolongation of his pre-trial detention, due
to expire on the next day (see paragraph 16 above). It follows that
the prosecution itself was not convinced that V.T. presented a danger
of interference with the investigation, since already on 17 October
2005 (five days before the expiry of V.T.'s initial detention order,
see paragraph 36 above) it decided not to seek an extension of his
detention.
In
addition, none of the elements in favour of V.T.'s release was
examined, despite an express requirement to do so under Article 176
(3) of the Code of Criminal Procedure (see paragraph 36 above) and
V.T.'s reference to several prima facie relevant reasons against
detention (see paragraph 14 above; see also Ambruszkiewicz v.
Poland, cited above, § 33).
The
Court is particularly struck by the reasons for D.T.'s detention
starting on 8 November 2005 (see paragraphs 23 et seq. above), namely
that he refused to disclose to the prosecution the names of witnesses
who could prove his innocence at trial. It considers that this not
only cannot constitute a ground for detaining a person, but it is in
breach of the accused's right to remain silent as guaranteed by
Article 6 the Convention (see, among many other authorities,
Jalloh v. Germany [GC], no. 54810/00, § 100,
ECHR 2006 ...).
The
Court notes with serious concern that despite the insufficiency of
the initial reasons for detention and the lack of any new ones,
D.T.'s detention was prolonged on numerous occasions, sometimes even
when the domestic court did not have the materials of the case file
in front of it (see paragraph 28 above). Nor did any of the courts
envisage the possibility of applying alternative measures such as
house arrest, despite being asked to do so by D.T. This, in addition
to the lack of reasons for his detention, could cast doubt on the
lawfulness of his detention as a whole as required by Article 5 §
1 of the Convention (see Ambruszkiewicz, cited above, § 33).
In
the light of the above, the Court does not consider that the instant
case can be distinguished from Sarban in what concerns the
relevancy and sufficiency of reasons for detention.
There
has accordingly been a violation of Article 5 § 3 of the
Convention in respect of both applicants.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
A. Access to the case file
1. The parties' submissions
The
Government submitted that neither D.T. nor his lawyer had ever
complained about the failure to give them access to any part of the
criminal file. Moreover, the courts could not examine a request to
prolong his detention or any of his habeas corpus requests without
having the file. As to the finding by the Court of Appeal that no
relevant materials were submitted to the lower court (see paragraph 28
above), this was only one occasion and it had thereafter been
remedied by the prosecution.
D.T.
referred to his complaints made before the domestic courts (see
paragraphs 24 and 27 above) and the finding of the Court of Appeal of
6 December 2005 (see paragraph 28 above). He submitted that
there was an administrative practice not to give the defence access
to any part of the criminal file (except a few pages including the
charges and minutes of arrest, already known to the defence) before
court hearings regarding the application or prolongation of remand.
D.T. finally emphasised that the domestic courts had repeatedly
relied on the fact that the grounds for his initial detention
remained valid, while he was never able to see any of the materials
on which the courts relied in order to challenge that finding.
2. The Court's assessment
(a) General principles
The
Court reiterates that a court examining an appeal against detention
must provide guarantees of a judicial procedure. The proceedings must
be adversarial and must always ensure “equality of arms”
between the parties, the prosecutor and the detained person.
In
the case of a person whose detention falls within the ambit of
Article 5 § 1 (c), a hearing is required. In view of
the dramatic impact of deprivation of liberty on the fundamental
rights of the person concerned, proceedings conducted under Article 5
§ 4 of the Convention should in principle meet, to the largest
extent possible under the circumstances of an ongoing investigation,
the basic requirements of a fair trial (Shishkov v. Bulgaria,
no. 38822/97, § 77, ECHR 2003 I (extracts)).
Equality
of arms is not ensured if counsel is denied access to those documents
in the investigation file which are essential in order to challenge
effectively the lawfulness, in the sense of the Convention, of his
client's detention. The concept of lawfulness of detention is not
limited to compliance with the procedural requirements set out in
domestic law but also concerns the reasonableness of the suspicion
grounding the arrest, the legitimacy of the purpose pursued by the
arrest and the justification of the ensuing detention.
The
Court acknowledges the need for criminal investigations to be
conducted efficiently, which may imply that part of the information
collected during them is to be kept secret in order to prevent
suspects from tampering with evidence and undermining the course of
justice. However, this legitimate goal cannot be pursued at the
expense of substantial restrictions on the rights of the defence.
Therefore, information which is essential for the assessment of the
lawfulness of a detention should be made available in an appropriate
manner to the suspect's lawyer (see, among other authorities, Lamy
v. Belgium, judgment of 30 March 1989, Series A no. 151,
pp. 16-17, § 29, and Garcia Alva v. Germany, no.
23541/94, §§ 39-43, 13 February 2001).
(b) Application of those principles to the
present case
In
the present case, it is disputed between the parties whether D.T. or
his lawyer asked for access to parts of the investigation file and
were refused such access. The Court notes, however, that D.T.
repeatedly complained about the failure to give him access to the
file, and that the courts did not react in any manner to these
complaints. The only exception was the decision of the Court of
Appeal of 6 December 2005 to which the parties referred and which, in
the Court's opinion, confirms once more that D.T. was indeed denied
access to the parts of the file containing the grounds for his
detention.
The
Court notes that no reasons were given for such withholding of
information and that D.T. was unable to properly challenge the
reasons for his detention. In such circumstances, it could not be
said that the principle of “equality of arms”, within the
meaning of Article 5 § 4 of the Convention, was observed in the
present case.
The
Court also considers that the practice of not disclosing materials of
the file concerning the grounds for detention, when coupled with the
failure of the courts to give sufficient reasons for detention,
legitimately reinforces the accused's impression that his detention
was arbitrary.
There
has, accordingly, been a violation of Article 5 § 4 of the
Convention in respect of D.T.
B. The failure to hear evidence from a witness
1. Submissions of the parties
The
Government submitted that the failure to hear evidence from witness
C.N. by the Buiucani District Court on 22 November 2005 (see
paragraphs 18 and 19 above) had not affected V.T.'s rights in any
manner since his house arrest ordered by that court was annulled on
appeal and he had not been detained in the meantime.
V.T.
submitted that, following the Buiucani District Court's decision of
22 November 2005, he had spent three days under house arrest.
Moreover, in its decision of 25 November 2005 the Court of Appeal
annulled the lower court's decision on procedural grounds without any
reference to the request to hear evidence from witness C.N. It
therefore did not remedy the failure to hear evidence from the
witness or the three days of arbitrary detention.
2. The Court's assessment
The
Court refers to the relevant general principles established in its
jurisprudence (see, among other authorities, Becciev v.
Moldova, no. 9190/03, §§ 68-72, 4 October 2005).
It reiterates, in particular, that where there is evidence which
prima facie appears to have a material bearing on the issue of
the continuing lawfulness of the detention, it is essential, for
compliance with Article 5 § 4, that the domestic courts examine
and assess it (see mutatis mutandis, Chahal v. the
United Kingdom, judgment of 15 November 1996, Reports of
Judgments and Decisions 1996 V, pp.1866-67, §§ 130-131,
and Hussain v. the United Kingdom, judgment of 21 February
1996, Reports 1996 I, p.271, § 60).
In
the present case, it was undisputed that the only ground for V.T.'s
house arrest ordered on 22 November 2005 was his alleged pressure on
witness C.N. (see paragraph 18 above). The Court considers that
C.N.'s statements were therefore an important element in determining
whether V.T. had pressured her and thus needed to be detained again.
The failure to hear evidence from her deprived the defence of its
only chance of convincing the investigating judge of the absence of
any reasons for his arrest.
The
Court also notes that in C.N.'s statement made to the prosecution
following the publication of the material about her in the newspaper,
she made it explicit that she had not been approached in any manner
by V.T. and, aside from once greeting him in the Bank's hall, she had
had no conversations with him (see paragraph 17 above). According to
V.T., her statement had been grossly misconstrued by the prosecution
in order to secure his detention. The Court recalls that although it
is primarily for the national courts to assess the admissibility,
relevance and weight of evidence in a case, it was precisely in order
to avoid the danger of misinterpretation of witness statements, and
in order to avoid ordering detention without a proper basis, that
C.N. should have given evidence before the court.
In
the light of the above, the Court considers that by refusing, without
giving any explanation, to have C.N. questioned as a witness at the
hearing of 22 November 2005, the Buiucani District Court
breached V.T.'s rights guaranteed by Article 5 § 4 of the
Convention.
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. Non-pecuniary damage
V.T.
claimed 5,000 euros (EUR) for non-pecuniary damage and D.T. claimed
EUR 7,000. They referred to the stress and anguish which they had
experienced as a result of their detention without any reasons. As a
result they did not know whether and when to expect an end to their
detention and felt helpless for being unable to challenge it in any
meaningful way.
The
Government submitted that the applicants had not adduced any evidence
of non-pecuniary damage and that in any event the claims were
excessive.
The
Court considers that the applicants must have been caused a certain
amount of stress and anxiety as a result of the violations of their
right to liberty and security under Articles 5 § 3 and 5 §
4 of the Convention, the more so in view of the fact that the case
was of a high-profile nature and had received much media attention.
D.T.'s suffering must have been intensified by the length of his
unjustified detention and by the fact that he was detained because he
had exercised his right to silence.
Deciding
on an equitable basis, it awards the total sum of EUR 4,000 to
Mr Dorel Ţurcan and EUR
3,000 to Mr Victor Ţurcan for
non-pecuniary damage.
B. Costs and expenses
The
applicants claimed EUR 8,520 for costs and expenses incurred before
the Court. They relied on a timesheet showing the number of hours
spent by their lawyer on the case (75.4 hours) at a variable hourly
rate of EUR 60-100.
The
Government did not agree with the amount claimed, stating that it was
excessive. According to them, the amount claimed by the applicants
was too high in the light of the average monthly wage in Moldova. The
Government also contested the number of hours spent by the
applicants' representative on the case.
The
Court recalls that in order for costs and expenses to be included in
an award under Article 41 of the Convention, it must be established
that they were actually and necessarily incurred and are reasonable
as to quantum (see, for example, Becciev, cited above, §
88).
In
the present case, regard being had to the itemised list submitted by
the applicants, the above criteria and the complexity of the case,
the Court awards the applicants jointly EUR 2,000.
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 5 § 3 of the Convention in respect of both
applicants;
Holds that there has been a violation of
Article 5 § 4 of the Convention in respect of Mr Dorel
Ţurcan;
Holds that there has been a violation of
Article 5 § 4 of the Convention in respect of Mr Victor
Ţurcan;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 4,000 (four thousand euros) to Mr Dorel Ţurcan
and EUR 3,000 (three thousand euros) to Mr Victor Ţurcan
in respect of non-pecuniary damage, and EUR 2,000 (two thousand
euros) jointly 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
