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You are here: BAILII >> Databases >> European Court of Human Rights >> LITSCHAUER v. THE REPUBLIC OF MOLDOVA - 25092/15 (Judgment : Article 5 - Right to liberty and security : Second Section) [2018] ECHR 934 (13 November 2018)
URL: http://www.bailii.org/eu/cases/ECHR/2018/934.html
Cite as: [2018] ECHR 934
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SECOND SECTION
CASE OF LITSCHAUER v. THE REPUBLIC OF MOLDOVA
(Application no. 25092/15)
JUDGMENT
STRASBOURG
13 November 2018
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 Litschauer v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano,
President,
Julia Laffranque,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
judges,
and Stanley Naismith,
Section Registrar,
PROCEDURE
1. The case originated in an application (no. 25092/15) 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 an Austrian national, Mr Martin Litschauer ("the applicant"), on 12 May 2015. 2. The applicant was represented by Mr A. Bivol and Ms E. Munteanu lawyers practising in Chișinău. The Moldovan Government ("the Government") were represented by their Agent, Mr O. Rotari. 3. The applicant alleged, in particular, that he had been remanded in custody in the absence of reasonable suspicion that he had committed a criminal offence and that his detention had been unlawful under domestic law. He also alleged that his detention had not been based on relevant and sufficient reasons. He relied on Article 5 §§ 1 and 3 of the Convention. 4. On 12 July 2017 the application was communicated to the Government. On the same date the Austrian Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1(b), but they did not express a wish to avail themselves of this right.THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1979 and lives in Chișinău. 6. At the time of the events the applicant was the owner of a company, incorporated in Moldova, which ran an erotic video-chat business in Chișinău. It employed young female models who provided erotic shows via webcam to customers outside Moldova in exchange for payment. 7. On 3 March 2015 the applicant was arrested and accused of pimping ( proxenetism ). 8. On 7 March 2015, at the request of a public prosecutor, the Centru District Court ordered that the applicant be remanded in custody for a period of thirty days. The applicant appealed against the order and argued that his detention had not been based on a reasonable suspicion that he had committed an offence. He submitted that he could not be accused of pimping, in that the female models employed by him had not been engaged in prostitution. He argued that the prosecutor and the court which had ordered his detention had applied an extensive interpretation of the provisions of the Criminal Code concerning the offence of pimping. He also argued that the existing case-law of the domestic courts did not contain anything which would enable erotic video-chat activity to be assimilated with prostitution and pimping. The applicant also contended that there were no relevant and sufficient reasons for remanding him in custody. 9. On 16 March 2015 the Chișinău Court of Appeal dismissed the applicant's appeal and held that there had been grounds to believe that he might abscond or interfere with the investigation. The court did not respond to the applicant's argument about a lack of reasonable suspicion and the allegation of extensive interpretation of the criminal law. 10. On 31 March 2015 the Centru District Court upheld a request by the Public Prosecutor and prolonged the applicant's detention for another thirty days. The applicant appealed on the same grounds as on the first occasion. However, his appeal was dismissed by the Court of Appeal on 7 April 2015. 11. On an unspecified date the applicant lodged a habeas corpus request, which was upheld by the Centru District Court on 27 April 2015; the applicant was released from detention. 12. During the proceedings the applicant explained that, prior to starting the video-chat business, he had consulted a lawyer to make sure that the activity was legal in Moldova, and he had been assured that it was not illegal. He also submitted that he had seen numerous similar businesses in Chișinău, which had strengthened his belief that the activity was not unlawful. 13. On 30 December 2016 the Centru District Court found the applicant guilty as charged but ordered that the criminal proceedings against him be terminated on the basis of an amnesty law. One of the conditions for applying the amnesty law was for the applicant to admit his guilt and express remorse. The applicant did not appeal against this decision. 14. In deciding the case, the court sought an opinion from the State Agency for the Protection of Morality as to whether the acts committed by the female models employed by the applicant could be qualified as prostitution and, thus, whether the applicant's activity could be qualified as pimping. The opinion of 21 October 2015, which was the key element in convicting the applicant and was subsequently used in other similar cases, stated that the actions of the female models employed by the applicant could be considered acts of prostitution, in that their clients could obtain sexual gratification as a result of the models' performance and because the models were paid for those acts. Thus, the fact that the applicant obtained revenue from the above activity could be considered pimping.II. RELEVANT DOMESTIC LAW AND PRACTICE
15. Prostitution is illegal in Moldova but it is not a criminal offence. It is considered to be a misdemeanour under Article 89 of the Code of Minor Offences (Codul Contravențional) , which reads as follows:Engaging in prostitution (Practicarea prostituției)
"(1) Engaging in prostitution shall be punishable by a fine of [800 - 1,200 Moldovan lei] or 20 to 40 hours of community work.
(2) An individual engaged in prostitution against his or her will shall not be held criminally liable."
16. At the same time, pimping is an offence incriminated under Article 220 of the Criminal Code and is punishable by up to ten years' imprisonment. It is defined as encouraging or inducing another person to engage in prostitution or obtaining revenue as a result of another person engaging in prostitution. 17. In the Commentary of the Criminal Code, edited in 2005 and written by senior judges and law professors, the chapter concerning the offence of pimping describes prostitution as engaging in sexual contacts (raporturi sexuale) in return for payment. 18. Article 3 of the Criminal Code, entitled "The Principle of Legality", reads as follows:"No one shall be declared guilty of having committed a criminal offence nor be subjected to a criminal punishment other than on the basis of a decision of a court and in strict compliance with the criminal law.
Extensive interpretation to the detriment of the accused and application of criminal law by analogy shall be prohibited".
19. On 18 June 2015 the Centru District Court adopted an acquittal judgment in criminal proceedings against Briscoe and Zagnitco (case no. 1-279/15); the defendants had been accused of pimping for running an erotic webcam business identical to that in the applicant's case. Some of the relevant parts of the court's judgment read as follows:"The criminal law of the Republic of Moldova lacks an official interpretation of the notion of prostitution ...
As in the case of prostitution, the Criminal Code does not contain a definition of the notion of "sexual contact" (act sexual) ...
Although the online broadcast of pornographic shows might procure sexual gratification, this cannot be considered a "sexual contact" which falls under the provisions of the Criminal Code ... An essential element of "sexual contact" is the physical contact between two bodies. However since no such thing occurred in the present case, the [actions of the webcam models] cannot be considered prostitution.
It follows that [the defendants] cannot be held liable for [pimping]."
20. On 30 October 2015 the Chișinău Court of Appeal overturned the above judgment, finding that the acts of the webcam models had been acts of prostitution, and convicted the defendants of pimping. In reaching its conclusion, the Court of Appeal relied on the same opinion of the State Agency for the Protection of Morality as that in the applicant's case. Both defendants were sentenced to two years and eight months' imprisonment, but the sentence was suspended in respect of one of them. The Supreme Court of Justice upheld the conviction in a final judgment of 21 June 2016. 21. On 14 July 2016 the Ciocana District Court adopted an acquittal judgment in the criminal proceedings against Isachi (case No. 1-449/15); the defendant was accused of pimping for running an erotic webcam business identical to that in the applicant's case. The court found that since no sexual intercourse had taken place between the webcam models and their clients, they had not committed an act of prostitution. Consequently, their employer, the defendant, could not be accused of pimping. 22. On 13 September 2016 the Chișinău Court of Appeal quashed the above judgment. It found the defendant guilty of pimping but ordered that the criminal proceedings against him be terminated on the basis of an amnesty law. 23. In decision no. 36 of 19 April 2018 the Constitutional Court of Moldova expressed an opinion similar to that in the commentary on the Criminal Code (see paragraph 17 above), namely that, in view of the lack of physical contact, the fact of engaging in erotic video-chat could not be considered prostitution. According to the Constitutional Court, such an act could be classified as the dissemination of pornography.THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
24. The applicant complained that his detention between 3 March and 27 April 2015 had not been lawful and/or based on a reasonable suspicion that he had committed a criminal offence or on relevant and sufficient reasons, as required by Article 5 §§ 1 and 3 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:"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:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
...
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.
..."A. Admissibility
25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits
1. The parties' submissions
26. The applicant argued that his detention had not been lawful and/or based on a reasonable suspicion that he had committed the offence of pimping. At the time that he operated his business there were no legal provisions in the Criminal Code making it clear that the provision of erotic video-chat services could be considered prostitution. The two cases relied upon by the Government came before the domestic courts one year later, so it had been impossible to foresee that his activity might be held to be criminal in nature. 27. The Government submitted that the notion of prostitution had no definition in domestic law and had therefore to be interpreted by the judges. In final judgments of 21 June 2016 and 13 September 2016 respectively, the Supreme Court and the Chișinău Court of Appeal had found in the cases of Briscoe and Zagnitco and Isachi that the activities of erotic video-chat models amounted to prostitution within the meaning of Article 89 of the Code of Minor Offences. Consequently, the fact that the applicant was earning revenue from the acts of prostitution committed by his employees amounted to pimping. Since the applicant did not deny the facts imputed to him, there had been a reasonable suspicion that he had committed the offence of pimping.2. The Court's assessment
28. Where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of "lawfulness" set by the Convention, a standard which requires that all law be sufficiently precise to allow the person - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Medvedyev and Others v. France [GC], no. 3394/03, § 80, ECHR 2010; Creangă v. Romania [GC], no. 29226/03, § 120, 23 February 2012; Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 92, 15 December 2016). 29. Turning to the facts of the present case, the Court notes that the applicant was detained for fifty-five days on suspicion of having committed the offence of pimping. The Court will first examine whether the acts imputed to him fell within a definition of a criminal offence which was sufficiently accessible and foreseeable. 30. The applicant's main defence argument during the remand proceedings and subsequent criminal proceedings was that he could not be held liable for pimping because the video-chat models employed by him were not engaged in prostitution. The main debate in the criminal proceedings thus concerned the question whether the selling of erotic shows over the internet could be construed as prostitution for the purposes of Article 89 of the Code of Minor Offences. The courts which conducted the remand proceedings did not consider it necessary to express a view on that issue and met the applicant's argument with silence. 31. It is not disputed between the parties that the domestic law does not contain a definition of prostitution and that it contains no provisions pertaining to erotic video-chat shows. It is, however, the Government's case that the consequences of the applicant's behaviour were foreseeable on the basis of the domestic courts' case-law. 32. The Court has examined the relevant domestic case-law and notes that the first case similar to the present one was that Briscoe and Zagnitco , which ended with the judgment of the Centru District Court of 18 June 2015 (see paragraphs 19 and 20 above), i.e. several months after the end of the remand proceedings in the present case. In that case, the court considered that selling erotic video-chat performances via the internet could not be considered prostitution in that no sexual contact took place between the models and their clients. The above decision was overturned by the Chișinău Court of Appeal in a judgment of 30 October 2015, on the basis of a different interpretation of the notion of sexual contact and prostitution by the State Authority for the Protection of Morals. On 21 June 2016 the Supreme Court upheld the decision of the Court of Appeal. 33. In the case of Isachi , on 14 July 2015 the Ciocana District Court adopted a similar approach in interpreting the notion of prostitution as the first-instance court had in the case of Briscoe and Zagnitco , and acquitted the accused (see paragraphs 21 and 22 above). The judgment was later reversed by the Chișinău Court of Appeal on 13 September 2016. As can be seen, both judgments were adopted after the remand proceedings in the present case had ended. 34. The debate concerning the interpretation of the notion of prostitution appears to be ongoing in Moldova, given the intervention of the Constitutional Court (see paragraph 23 above), which expressed a different opinion to the effect that, in the absence of physical contact, erotic video-chat performances could not be considered acts of prostitution. 35. In the light of the above considerations, the Court notes firstly that the facts of the present case pre-date the case-law relied upon by the Government in support of their position. Secondly, it appears that the issue of whether erotic video-chat performances amount to sexual contacts and thus to prostitution for the purposes of Article 89 of the Code of Minor Offences is still being debated. In such circumstances, the Court concludes that the relevant legal rules did not provide sufficient guidance and were not formulated with the degree of precision required by the Convention so as to satisfy the requirement of "lawfulness" set out by the Convention (see, a contrario , Steel and Others v. the United Kingdom , 23 September 1998, § 55, Reports of Judgments and Decisions 1998-VII). Thus, the applicant could not reasonably have been expected to foresee, even with appropriate legal advice, the consequences of his conduct. This being so, the Court comes to the conclusion that the applicant's detention was not lawful under domestic law and that there has been a breach of Article 5 § 1 of the Convention. 36. In view of the above findings the Court does not consider it necessary to examine separately whether the applicant's detention was based on a reasonable suspicion that he had committed an offence and, consequently, the applicant's complaint under Article 5 § 3 of the Convention.II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
37. 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
38. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. 39. The Government contested the amount of non-pecuniary damage claimed by the applicant, alleging that was excessive. 40. The Court considers that the applicant must have suffered stress and frustration as a result of the violation found and awards him EUR 8,000 in respect of non-pecuniary damage.B. Costs and expenses
41. The applicant also claimed EUR 2,000 in respect of the costs and expenses incurred before the Court. 42. The Government considered this amount excessive. 43. Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed in respect of costs and expenses.C. Default interest
44. The Court considers it appropriate that the default interest rate 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,
1. Declares , unanimously, the application admissible;
2. Holds , by five votes to two, that there has been a violation of Article 5 § 1 of the Convention;
3. Holds , unanimously, that there is no need to examine the complaint under Article 5 § 3 of the Convention;
4. Holds , by five votes to two,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses , unanimously, the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 13 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith
Robert Spano
Registrar
President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Spano and Kjølbro is annexed to this judgment.
R.S.
S.H.N.
JOINT DISSENTING OPINION
OF JUDGES SPANO AND KJØLBRO