European Court of Human Rights

 

 

SECOND SECTION

CASE OF MURADU v. THE REPUBLIC OF MOLDOVA

(Application no. 26947/09)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

19 January 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Muradu v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Valeriu Griţco,
          Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 26947/09) 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 Iurie Muradu (“the applicant”), on 4 May 2009;

the decision to give notice of the application the Moldovan Government (“the Government”);

the parties’ observations;

Having deliberated in private on 15 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The present case concerns the applicant’s alleged ill-treatment during police detention and the insufficiency of its investigation, as well as the reasons for the applicant’s detention and the alleged lack of access to documents and to a lawyer of his own choosing.

THE FACTS

2.  The applicant was born in 1986 and lives in Tours. The applicant was represented by Mr V. Vieru, a lawyer practising in Chișinău.

3.  The Government were represented by their Agent, Mr O. Rotari.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

I.        General background of the case

5.  On 5 April 2009 general elections took place in Moldova. The preliminary results of those elections were announced on 6 April 2009. According to the published results, the ruling Communist Party of Moldova narrowly won the elections.

6.  On 6 April 2009 growing discontent was expressed with the results of the elections and with alleged electoral fraud, notably in various online fora. At 6 p.m. several hundred people, mostly young, gathered in front of the Stephen the Great (Ştefan cel Mare) monument in the centre of Chişinău. Half an hour later there were 3,000-4,000 people assembled who began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and the Parliament building and then returning to Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day.

7.  On 7 April 2009 the protest restarted with the participation of some 5,000‑6,000 people. While the demonstration was peaceful at the beginning, several hundred of the participants gradually became violent. As established by the subsequently-created parliamentary commission of inquiry tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”), two incidents of poorly planned intervention by a fire engine and the riot police brought the crowd to a point beyond which massive violent acts could no longer be prevented. Following violent attacks and stone throwing, which met very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and the Parliament building. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building, some of them breaking out after full control over the building had been restored by the authorities at around 11 p.m.

8.  At approximately 1 a.m. on 8 April 2009 various police and special forces units started a massive operation aimed at re-establishing public order. However, as established by the Commission, excessive force was used and all those still present in the main square were arrested, regardless of whether they had acted violently or not. The arrests continued for several days. The media reported cases and showed video footage of young people being arrested and/or being beaten by both uniformed and plain-clothed police officers in the city centre on 8 April and in the following days, long after the protests ended in the evening of 7 April 2009.

II.     The applicant’s arrest and alleged ill-treatment

9.  According to the applicant, on 7 April 2009 at approximately 4.15 p.m. he was arrested by the police and taken to Centru police station in Chișinău. He was allegedly not informed of the reasons for his arrest, nor was he allowed to call his parents or to hire a lawyer of his own choosing. The arrest report, drawn up at 11 p.m., did not mention the precise time of the applicant’s arrest. It did not indicate what specifically the applicant had done which had led to his arrest, except to indicate that he was suspected of having committed the offence provided for in Section 187 of the Criminal Code (which defines the crime of robbery).

10.  At the police station the applicant was allegedly forced to pose for photographs with a police riot shield in his hand and with a black T-shirt over his head, partly masking his face. During all this time he was hit and verbally assaulted by the officers, and burned with lit cigarettes.

11.  The applicant was then placed in a cell which had no furniture except for a chair, where he spent nine hours without food or water and without access to a toilet or the possibility to rest.

12.  At approximately 1 a.m. on 8 April 2009 he was brought before a prosecutor and a lawyer was appointed as his counsel. His request to call his parents and to hire his own lawyer was rejected without any reason being given.

13.  The applicant was asked to sign several documents, without being able to read them. Whenever he tried to read what he was signing, the police officers would hit him.

14.  During his detention the applicant was regularly ill-treated by various police officers, even in front of the investigator. The latter told the applicant on 8 April 2009 that if he failed to cooperate, and sign every document he was asked to sign, he would be tortured. Having seen young men in the cell showing very severe signs of ill-treatment, he knew that the threat was serious and signed all the documents.

15.  According to the Government, on 9 April 2009 the applicant was examined by a doctor on the premises of the General Police Department. The doctor found a bruise on his forehead and no other injuries.

16.  On 16 April 2009, on the day of his release from detention, he was examined at the Memoria Rehabilitation Centre for Torture Victims, a non‑governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). On 31 July 2009 it issued an “Extract from the medical file” (Extras din Fişa Medicală) concerning the applicant’s examination. He appears to have undergone detailed medical tests and examinations by various medical specialists. According to the document, the doctors found three signs of burns on the applicant’s left hand. He was also suffering from, inter alia, the consequences of a head injury, which included intracranial hypertension syndrome and post‑traumatic stress disorder, as well as a post-traumatic ear condition. The doctors concluded that the medical and psychological evidence supported the applicant’s statements concerning his ill-treatment. The same institution found, on 30 December 2019, the persistence of the applicant’s post‑traumatic stress disorder.

III.  Conditions of detention

17.  On 8 April 2009 the applicant was taken to a cell at Centru police station measuring 12 sq. m. and hosting twenty-four or twenty-five detainees. Except for a chair, there was no furniture. There was insufficient fresh air and no toilet in the cell; the detainees had to ask for permission to go to the toilet, which was often refused. No food was provided and his medical condition (a stomach disease) worsened as a result. He could not rest or sleep. He spent two days in those conditions.

18.  On 10 April 2009 the applicant was moved to the general police headquarters, where he was detained in a cell measuring 12 sq. m together with nine other people. The cell was not equipped with beds. A water tap with a hole underneath served as a toilet and was not separated from the rest of the room. A small window and an artificial light, which was on constantly, provided little illumination.

19.  On 11 April 2009 he was transferred to Prison no. 13. In his cell there were six beds and the seven detainees had to take turns to sleep.

20.  In a reply to a complaint made by another person detained at Centru police station, on 10 July 2008 the head of that station wrote that his institution did not have the status of a detention facility. Accordingly, a person could be detained there only for short periods of time, before being transferred to the general police headquarters or Prison no. 13 by the end of the day of arrest. In view of this limitation of the duration of detention at that station, no beds, bed linen or food were provided.

IV.  Proceedings against the applicant and the legal assistance given to him

21.  During the interview of 8 April 2009 the applicant was assisted by a lawyer appointed by the State (V.R.), despite his request to hire his own lawyer. He did not know the name of the lawyer and could not consult with him. That lawyer simply attended and signed documents, not defending the applicant’s rights in any manner.

22.  On 9 April 2009 the applicant was brought before the investigating judge on the premises of the police station. He was allegedly not informed of the nature of the meeting he was to attend and was not given a copy of the prosecutor’s application to order the applicant’s detention pending trial or of any other document in the file. V.R. did nothing either to inform him of his rights or to defend him.

23.  According to the applicant, the hearing lasted about five minutes, the judge having asked the applicant a single question, while looking at the photos of him with the police shield: “Did you also throw stones [at the police officers]?”. Afterwards he was taken out of the room and was brought back again with five other people, the judge informing each of them of the length of pre-trial detention ordered. In the applicant’s case the judge ordered twenty days’ detention.

24.  According to the minutes of the hearing, submitted by the Government, during the hearing the applicant acknowledged his guilt.

25.  The relevant part of the decision read as follows:

“[The applicant] is accused of having committed the crimes provided for in Section 187(2b) and 287(2b) of the Criminal Code.

... there is a reasonable suspicion that a crime has been committed for which the law provides imprisonment of more than two years, there is a risk that [the applicant] may agree on a common line with other accused and with other persons accused of having committed the crimes of which [the applicant] is accused, which might prejudice the criminal investigation, which is in its initial phase and not all the circumstances which contributed to the commission of the crimes have been established.

[The applicant’s] arrest is determined by the need to protect public order, taking into consideration the shock and stress produced in society as a result of the actions of which [the applicant] is accused, which are considered crimes against public order ...”

The applicant was not given a copy of the judge’s decision at the time.

26.  Starting from 10 April 2009 the applicant’s mother, who had found out in the meantime about his arrest, attempted to locate her son’s place of detention. She was sent from one institution to another, virtually sleeping on the steps of the police station for several nights, but was never allowed to see her son.

27.  On 11 April 2009 the applicant’s parents hired a lawyer (Ms V. Gașițoi). On the same day the lawyer tried to establish the applicant’s whereabouts, but the police refused to give her any information. On the same day, by telegram, she asked, the Chișinău prosecutor’s office and the head of Chișinău police that all procedural measures involving the applicant’s participation be carried out in her presence.

28.  On 12 April 2009 the lawyer again attempted to establish the applicant’s whereabouts and to meet with him, but she was again refused any information about her client. On the same day she repeated her request of the previous day by telegram to the Chișinău prosecutor’s office and the head of Chișinău police.

29.  On 13 April 2009 the applicant’s lawyer obtained access to the case file against the applicant and lodged a habeas corpus application. She noted, inter alia, that the applicant had been ill-treated by the police and was being held in inhuman conditions of detention. She also submitted that her client’s defence rights had been breached by preventing him from meeting with the lawyer hired by his parents. She added that, before the hearing at which his detention was ordered by the investigating judge, her client had not been given a copy of the prosecutor’s request for ordering detention and had not had “the time and facilities to prepare his defence”, while the hearing had taken him by surprise and without preparation. Moreover, neither she nor her client had access to the case file, which was shown only to the judge. The decision taken by that judge had not been properly reasoned, failing even to describe what the applicant had done, and did not refer to any evidence of the need to detain the applicant. She finally asked for the annulment of the decision of 9 April 2009 and for the court to deal with the issue of compensation for the breach of the applicant’s fundamental rights.

30.  On the same day she made a formal complaint to the Chișinău prosecutor’s office, where she described the refusal to allow her to meet with her client on 12 April 2009 or to inform her of where he was detained.

31.  On 16 April 2009 the Chișinău Court of Appeal allowed the application and ordered the applicant’s release on the spot, against an undertaking not to leave the city. Although the applicant’s lawyer had claimed compensation, the court did not award any. The court referred to the following circumstances which it found relevant for ordering his release: the absence of any criminal record; his good character; his permanent residence in Chișinău; that he had a job; that he was a citizen of the Republic of Moldova and that he had promised to appear before the authorities whenever summoned.

32.  The applicant was interviewed by the prosecutor in charge of the case against him on 25 May 2010, in the presence of his lawyer. He declared that he acknowledged his guilt, namely that on 7 April 2009 he had found and picked up a police riot shield, which he knew was the property of the police, with the intention of taking it home. On the same day, that prosecutor dropped the charge of hooliganism against the applicant as not proved. He also dropped the charge of robbery by a group of persons in view of the absence of evidence that he had acted together with other persons. At the same time he was charged with simple robbery.

33.  On 31 May 2010 the applicant concluded with the Ministry of the Interior a settlement agreement whereby they noted that the damage had been remedied by returning the riot shield to the police and that the Ministry had no further claims against the applicant. They thus asked for the discontinuation of the criminal proceedings against the applicant. On the same day the prosecutor in charge of the case discontinued the investigation.

V.     Complaints lodged by the applicant

34.  On 13 April 2009 the applicant explained, in a declaration addressed to the Prosecutor General’s Office, how he had been ill-treated during his arrest. He added that he did not have any complaints against the officers. On 21 April 2009 he made a further statement to a prosecutor about his ill‑treatment. He gave details, such as the ranks of several of the officers, the black colour of other officers’ uniforms, the floor and approximate location of offices where he had been taken and beaten. He gave the physical description of the investigating officer who had interviewed him on 8 April 2009, of three other officers who had hit him during and after that interview and of a female officer who had entered the office and asked for the ill‑treatment to stop. He noted that he could not remember other details owing to the shock of the events during his detention.

35.  On 14 April 2009 the applicant’s lawyer complained to the Chișinău prosecutor of the applicant’s ill-treatment by the police. She also described the conditions of his detention and the breaches of his defence rights. She asked for the identification of those responsible for the violation of her client’s rights, notably those who had ill-treated him, and for their criminal prosecution. According to the applicant, neither he nor his lawyer received a reply to this complaint.

36.  Between 25 April and 22 June 2009 a prosecutor interviewed a number of police officers from Centru police station, all of whom denied having ill-treated the applicant or having witnessed such ill-treatment.

37.  According to documents submitted by the Government, on 22 June 2009 a prosecutor from the Chișinău Military Prosecutor’s Office decided not to start a criminal investigation into the applicant’s allegations. He relied on a medical examination of the applicant on 14 April 2009, which found only one bruise on the applicant’s forehead, which was incompatible with the numerous blows which he had allegedly received during his detention several days earlier. Moreover, the officers interviewed had all denied having caused or seen any ill-treatment. Finally, the applicant himself had stated that some of the stones thrown at the police had hit protesters, so that he had had to protect himself with a riot shield he had found on the ground. One such stone could have hit him in the forehead, and been the origin of the injury established in the medical report. The applicant was informed of that decision in a letter dated 28 July 2009.

38.  On 21 December 2011 the Prosecutor General’s Office annulled the decision of 22 June 2009 mentioned in the preceding paragraph and started a criminal investigation into the applicant’s ill-treatment. On 17 January and 8 February 2012 the applicant was summoned before the prosecutor, but he did not appear. A medical report of 17 May 2012 based on the previous medical reports confirmed the bruise on the applicant’s forehead. On 3 August 2012 the prosecutor in charge of that case suspended the investigation, having found that all possible investigative actions had been taken, notably all officers interviewed had denied any ill-treatment of the applicant; the latter had left the country on 4 August 2010 and had not returned since.

39.  On 17 May 2018 the Deputy Prosecutor General annulled the decision of 3 August 2012 and ordered the continuation of the investigation, which is still pending. On 29 March 2019 the investigation was suspended again.

RELEVANT LEGAL FRAMEWORK

40.  Under Section 166 (1) of the Code of Criminal Procedure, as in force at the time, a person could be arrested (reținut), inter alia, if caught in the act.

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

41.  The applicant complained in essence that he had been ill-treated while in police detention and held in inhuman conditions. Moreover, the investigation into his complaint about ill-treatment had been inefficient. The Court decided to examine these implied complaints under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.    Admissibility

42.  The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B.     Merits

1.    Complaints about ill-treatment and inhuman conditions of detention

43.  The applicant complained that he had been beaten while in police detention. He also described his conditions of detention at Centru police station and the general police headquarters, notably severe overcrowding, lack of food and water and of any furniture to be able to rest (see paragraphs 17 and 18 above).

44.  The Government argued that the applicant and his lawyer had shown no interest in the investigation into his allegations of ill-treatment over a long period of time. Moreover, his failure to appear before the investigators contributed to the impossibility of carrying out a series of investigative actions and ultimately of solving the alleged crime. The applicant was examined by a doctor upon his placement in detention and only the injury on his forehead was noted. As for the conditions of his detention in Prison no. 13 between 11 and 16 April 2009, they were not inconsistent with the requirements of Article 3, notably regarding the personal space available.

45.  The Court refers to the general principles of Article 3 concerning ill‑treatment in detention (see, for instance, Taraburca v. Moldova, no. 18919/10, §§ 44-47, 6 December 2011). In the present case, it notes that medical experts found an injury on the applicant’s forehead. Notwithstanding this injury thus being in a rather visible place on his body, the authorities did not consider it necessary to carry out a medical examination immediately upon his being brought to the police station. By choosing to do so they deprived themselves of evidence of what they claim may have been an injury caused prior to arrest.

46.  More generally, and regardless of whether or not his injury was visible, the Court reiterates its finding in a previous, similar case that the failure to carry out a medical examination upon a person’s entry into detention, and the absence of any record concerning any use of force or any sign of injury to his body, amounted to a lack of evidence that the person had been injured before his arrest (see Buhaniuc v. the Republic of Moldova, no. 56074/10, § 40, 28 January 2014). The Government argued that the applicant had been examined by a doctor upon his placement in detention. However, the only evidence submitted to the Court is of the examination on 9 April 2009, two days after he was arrested (see paragraph 15 above). In these circumstances, the Court does not have any reason to take a different view in the present case.

47.  The Court notes that the authorities did not submit any convincing evidence of the origin of the injury on the applicant’s forehead. Moreover, further signs of violence, both physical and psychological, were established on the day of his release by the Memoria centre (see paragraph 16 above).

48.  The Court also notes that the Government did not dispute the description of the conditions in Centru police station and the general police headquarters, focusing instead only on the conditions of detention in Prison no. 13. Moreover, as confirmed by the head of Centru police station (see paragraph 20 above) that institution was not equipped for detention beyond a few hours after arrest. However, the applicant was kept there between 8 and 11 April 2009.

49.  While the above circumstances certainly raise an issue under Article 3 of the Convention, the Court considers that in the present case these are additional elements contributing to the anguish and suffering which the applicant must have suffered as a result of his ill‑treatment (see Taraburca, cited above, § 51 and Buhaniuc, cited above, § 41).

50.  There has, accordingly, been a breach of Article 3 of the Convention in its material limb in the present case.

2.    The investigation into the applicant’s allegations

51.  The applicant complained of the insufficiency of the investigation into his allegation of ill-treatment. He submitted that, having witnessed the inefficiency of the investigation and lost trust in the justice system, he had had to leave the country.

52.  The Government referred to their arguments concerning the applicant’s lack of interest in the investigation (see paragraph 44 above). They added that this absence of cooperation resulted in the impossibility of carrying out certain investigative actions, such as interviewing the applicant, determining all the circumstances of the case, identifying the officers who had allegedly ill-treated him, and carrying out a psychiatric and psychological expert examination. The applicant’s absence put the prosecutor in a difficult situation with regard to gathering evidence, including organising an identity parade and a confrontation with the alleged torturers. Moreover, after the reopening of the investigation, the case was still pending and thus this part of the complaint was premature.

53.  The Court notes that the authorities became aware of the applicant’s allegations on 13 April 2009 at the latest (see paragraph 34 above). An official complaint was made by the applicant’s lawyer on the following day (see paragraph 35 above). It is clear from the Government’s submissions (see paragraph 38 above) that the applicant was in the country until 4 August 2010, that is for more than a year after the authorities had become aware of his allegations. There was no claim that, during that period, the applicant had been summoned before the authorities and failed to appear. On the contrary, he was interviewed by the investigating authority or interacted with the prosecutor’s office as part of the criminal proceedings against him (see paragraphs 32 and 33 above).

54.  In such circumstances, it is unclear what prevented the authorities, during the initial year of the investigation, from carrying out the list of investigative actions mentioned by the Government in their observations (see paragraph 52 above), the more so that on 13 April 2009 the applicant gave the physical description of several officers whom he accused of ill‑treatment (see paragraph 34 above). In this regard, it is to be noted that none of these actions were apparently carried out before an investigator decided not to launch a proper criminal investigation on 22 June 2009 (see paragraph 37 above).

55.  The Court considers that the failure to carry out essential investigative measures during the crucial first year after the complaint was made considerably diminished the efficiency of the investigation, which was finally open only on 21 December 2011 (see paragraph 38 above). It reiterates that delays in the investigation of ill-treatment are incompatible with the obligations assumed under Article 3 of the Convention (see, for instance, I.E. v. the Republic of Moldova, no. 45422/13, § 41, 26 May 2020).

56.  It is also noted that the investigation was suspended between 2012 and 2018 and is still pending. In view of the deficiencies in the initial investigation mentioned in the preceding paragraph, the applicant’s failure to cooperate thereafter as a result of his leaving the country cannot be considered decisive under the circumstances. For the same reason, the Court finds that the investigation which is still pending has already been tainted by inefficiency and thus the complaint made by the applicant cannot be considered premature.

57.  The foregoing considerations are sufficient to enable the Court to conclude that the procedural limb of Article 3 has been breached in the present case.

II.    ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

58.  The applicant complained that he had been arrested in the absence of a reasonable suspicion that he had committed a crime, contrary to the requirements of Article 5 § 1 of the Convention, the relevant part of which 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:

...

(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;

...”

Admissibility

59.  The Government submitted that this complaint was manifestly ill‑founded. They referred to the elements of the file against the applicant, notably the fact that he had been caught in the act carrying a riot shield which he knew was the property of the State.

60.  The applicant argued that he had been forced to make self‑incriminating statements, including about the riot shield, which he subsequently declared he had picked up without the intention of stealing it. Moreover, the domestic law had not been observed since the applicant was not summoned to appear before the investigating authority after starting a criminal file, but was secretly and suddenly arrested on the street.

61.  The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody. Nor is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling the suspicions which provide the grounds for the detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see, for instance, Khadija Ismayilova v. Azerbaijan (no. 2), no. 30778/15, § 75, 27 February 2020).

62.  In the present case, it is noted that the applicant confirmed, in the presence of a lawyer chosen by him, that he had been in possession of a police riot shield at the time of his arrest, which he had known was the property of the police (see paragraph 32 above). The fact of holding that shield was sufficient evidence, in the Court’s opinion, to cause the police to have a “reasonable suspicion” that he had committed the offence of stealing the shield, regardless of whether, upon further investigation, his actions were eventually found to be motivated by criminal intent or not.

63.  As for the allegation that the domestic law had not been observed (see paragraph 60 above), the Court notes that Section 166 of the Code of Criminal Procedure expressly authorised arresting a person caught in the act (see paragraph 40 above).

64.  In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

65.  The applicant complained that the court had not given relevant and sufficient reasons for ordering his detention pending trial. He relied on Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and 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

66.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

67.  The applicant argued that when ordering his detention pending trial on 9 April 2009 the investigating judge used the same reasons which he had used for a number of other detainees. In particular, the decision did not specify which specific actions of the applicant were considered unlawful and did not examine any evidence before reaching the conclusion that the applicant had to be detained pending trial. He did not pay any attention to such relevant circumstances as the applicant having a place of residence in Moldova and a job, as well as the absence of any criminal record.

68.  The Government submitted that the court had properly reasoned its decision to remand the applicant.

69.  The Court refers to the principles developed in its case-law concerning the obligation of the domestic courts to give relevant and sufficient reasons for their decisions ordering detention pending trial (see, for instance, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84‑91, 5 July 2016). In particular, justifications which have been deemed “relevant” and “sufficient” reasons for detention pending trial in the Court’s case-law, have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (idem, § 88).

70.  The Court further points out that the requirement for the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (Buzadi, cited above, § 102).

71.  Turning to the present case, the Court observes that, in ordering the applicant’s detention pending trial, the domestic court relied on several grounds in addition to the persistence of a reasonable suspicion that he had committed a crime (see paragraph 25 above). In particular, the court referred to the risk of collusion with other persons accused of similar crimes, the fact that the investigation was in its initial phase and not all the circumstances had been established, and the nature of the crime, which was a serious crime against public order.

72.  The Court notes that, of the grounds relied on by the domestic court (see the preceding paragraph), only the risks of collusion and of causing public disorder are amongst those which may constitute justification for departing from the presumption of release in favour of detention (see paragraph 69 above).

73.  It further notes that neither the minutes of the applicant’s arrest, nor the court’s decision to remand him, described the specific actions taken by the applicant. The only details mentioned were the Sections of the Criminal Code he stood accused of having breached, namely robbery and hooliganism (see paragraphs 9 and 25 above). In such circumstances, it is unclear whether the police and then the court examined the applicant’s case in any detail.

74.  Moreover, no details were mentioned as to with whom the applicant might collude. The general reference to other persons accused of similar crimes is vague and it is unclear on what the court based this part of its decision. In order to collude with other persons in his own criminal case, the applicant had to know such other persons, but it was not suggested at any point that he, or the authorities, knew any such specific persons. The subsequent dropping of charges against the applicant for lack of evidence that he had committed the two crimes in association with others (see paragraph 32 above), together with the absence of any reference to any specific fact allowing to believe that the applicant had acted as part of a group, appears to suggest that at no point was there any real risk of collusion.

75.  As for the prevention of public disorder, the applicant’s sole action (not noted in the minutes of detention and the decision to remand him) was the holding of a riot shield. Even assuming that his explanation that the shield was to protect him from stones thrown by other protesters was not sufficiently credible, it is unclear how he could endanger public order if released, since he no longer had the shield and no argument had been made that he had been violent or otherwise dangerous to himself or others.

76.  The Court considers that, in the absence of a reference to any specific facts on which the court’s decision of 9 April 2009 was based, the reasons relied on by the domestic court for ordering the applicant’s detention were stereotyped and abstract. That decision cited the grounds for detention without any attempt to show how they applied concretely to the specific circumstances of the applicant’s case.

77.  Moreover, the domestic courts cannot be said to have acted consistently. The Court of Appeal, in its decision of 16 April 2009, relied on circumstances such as the absence of any criminal record in respect of the applicant; his good character; his permanent place of residence in Chișinău; that he had a job; that he was a citizen of the Republic of Moldova and that he had promised to appear before the authorities whenever summoned (see paragraph 31 above). These circumstances were not only known to the investigating judge when ordering the applicant’s detention, but were also factors which the court had to verify under applicable domestic law (see, for instance, Sarban v. Moldova, no. 3456/05, § 101, 4 October 2005). However, the judge did not mention any of these circumstances and did not weigh their importance against the need to detain the applicant.

78.  In the light of all of the above factors, the Court considers that there were no relevant and sufficient reasons to order the applicant’s detention pending trial. It follows that in the present case there has been a violation of Article 5 § 3 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

79.  The applicant complained that he had not had access to any material in the file before the judge ordered his detention pending trial and that he had been prevented from securing the services of a lawyer of his own choice. He relied on Article 5 § 4 of the Convention, which reads as follows:

“4.  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.”

A.    Admissibility

80.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

81.  The applicant submitted that he could not prepare for the “hearing” of 9 April 2009 and that he had not even been aware that it was a hearing concerning the prosecutor’s request to have him remanded until after it happened. He also argued that he had wanted to hire a lawyer whom he could trust, and that the State-appointed lawyer was present only to give legitimacy to the process, but did not defend his rights in any way.

82.  The Government submitted that on 4 May 2009 the applicant’s lawyer asked the prosecutor’s office for access to the materials of the case and that on 11 May 2009 copies from those materials were sent to her. Accordingly, the applicant’s right of access to the materials of the case was observed. Moreover, it had not been established that the investigating judge examined the case on the police station’s premises.

1.    Access to the case materials

83.  The Court reiterates that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012).

84.  Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, that is, the prosecutor and the detainee. A party must be informed whenever observations are filed by another party and must be given a real opportunity to comment thereon (see, for instance, Stollenwerk v. Germany, no. 8844/12, §§ 36 and 37, 7 September 2017).

85.  In respect of access to the materials of the case, the Court notes that the Government did not dispute the applicant’s submission that he had not seen any of the materials concerning the prosecutor’s request for his remand before the decision of 9 April 2009 was taken. He was thus deprived of the opportunity to prepare his defence and to submit arguments against his detention to the investigating judge. The fact that, subsequently, his lawyer was able to obtain copies of these materials does not change the fact that on the date when his detention was decided he did not have access to any of the relevant materials.

2.    Access to a lawyer of his own choosing

86.  The applicant argued that he had not been given the opportunity to appoint his own lawyer, which he had had the means to do. Moreover, when his family did hire a lawyer to represent him, the authorities prevented that lawyer from contacting the applicant during the first days of his arrest.

87.  The Government did not comment in this respect.

88.   The Court reiterates that under Article 5 § 4 of the Convention it may be essential that the individual concerned should not only have the opportunity to be heard in person but that he should also have the effective assistance of his lawyer (see Modarca v. Moldova, no. 14437/05, § 85, 10 May 2007, Lutsenko v. Ukraine, no. 6492/11, §§ 95 and 96, 3 July 2012, with further references, and Černák v. Slovakia, no. 36997/08, § 78, 17 December 2013).

89.  In the present case, the Government did not challenge the applicant’s submissions concerning his lawyer’s repeated attempts to gain access to her client (see paragraphs 27 and 28 above). After the complaints made by the lawyer to the various authorities, they were clearly aware that the applicant had a lawyer chosen by his family, yet for at least two more days of detention he was prevented from being seen by his lawyer. Instead, for reasons unexplained by the authorities, the applicant was assisted by a State‑appointed lawyer whom he did not know or trust.

90.  In view of all the circumstances mentioned above, the Court concludes that the applicant did not have access to the materials concerning the prosecutor’s request to remand him at the time when the judge ordered his detention. Moreover, he was not assisted by a lawyer of his own choosing. Neither the domestic authorities in their decisions, nor the Government in their submissions to the Court gave any reasons for this failure to observe the applicant’s rights.

91.  There has, accordingly, been a breach of Article 5 § 4 of the Convention in the present case.

V.    ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

92.  The applicant complained of a violation of Article 5 § 5 of the Convention, which reads as follows:

“5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.    Admissibility

93.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

94.  The applicant argued that in the light of the breach of his rights guaranteed under Article 5 §§ 1, 3 and 4 of the Convention, he had not had the right to compensation.

95.  In the Government’s opinion, the absence of any violation of Article 5 §§ 1-4 in the present case, together with the ongoing investigation into the applicant’s allegations, meant that no violation of Article 5 § 5 could take place in respect of the applicant.

96.  The Court reiterates that Article 5 § 5 of the Convention is complied with where it is possible to apply for compensation in respect of deprivation of liberty effected in conditions contrary to Article 5 §§ 1, 2, 3 or 4. The right to compensation set forth in Article 5 § 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions (see Stanev v. Bulgaria[GC], no. 36760/06, § 182, ECHR 2012, and Strazimiri v. Albania, no. 34602/16, § 132, 21 January 2020). Moreover, where a right to compensation exists under domestic law, but the applicant is awarded a clearly lower amount of compensation than would normally be awarded by the Court, Article 5 § 5 will not be complied with (see, for instance, Ganea v. Moldova, no. 2474/06, §§ 29-31, 17 May 2011, and Cristina Boicenco v. Moldova, no. 25688/09, §§ 42-44, 27 September 2011).

97.  Turning to the facts of the present case, the Court reiterates that it has found violations of Article 5 §§ 3 and 4 of the Convention (see paragraphs 78 and 91 above). Accordingly, Article 5 § 5 is applicable.

98.  The Court notes that, apart from arguing the inapplicability of Article 5 § 5 in the absence of any breach of other provisions of Article 5, the Government did not dispute the applicant’s allegation that he had had no right to compensation in the circumstances in which he had found himself. It is also clear from the facts of the case that the applicant’s lawyer expressly asked the Court of Appeal to deal, inter alia, with the issue of compensation for the violation of the applicant’s rights, including his right to liberty and to be represented by a lawyer of his own choosing (see paragraph 29 above). That court did not deal in any manner with the question of compensation. Accordingly, the Government did not prove that the applicant had an enforceable right to compensation.

99.  The above is sufficient for the Court to conclude that there has been a violation of Article 5 § 5 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

100.  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

101.  The applicant claimed 20,000 euros (EUR) in respect of the damage caused to him.

102.  The Government argued that the sum claimed was excessive and not justified.

103.  The Court reiterates that it has found breaches of the applicant’s rights under Article 3 and 5 §§ 3 and 4 of the Convention. In the light of the materials in the file, it awards the applicant EUR 15,000 in respect of non‑pecuniary damage suffered (see Taraburca v. Moldova, no. 18919/10, § 63, 6 December 2011, and Buhaniuc v. the Republic of Moldova, no. 56074/10, § 53, 28 January 2014).

B.     Costs and expenses

104.  The applicant claimed EUR 840 in respect of costs and expenses. He relied on a contract with his lawyer and an itemised list of hours spent on the case (7 hours at an hourly rate of EUR 120).

105.  The Government argued that the sum claimed, as well as the number of hours spent on the case, had been excessive, as the case did not raise any complex questions.

106.  The Court awards the applicant the entire sum claimed, plus any tax that may be chargeable on the applicant.

107.  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, UNANIMOUSLY,

1.      Declares the complaint under Article 5 § 1 inadmissible and the remainder of the application admissible;

2.      Holds that there has been a violation of Article 3 of the Convention in respect of both its substantive and procedural limbs;

3.      Holds that there has been a violation of Article 5 § 3 of the Convention;

4.      Holds that there has been a violation of Article 5 § 4 of the Convention;

5.      Holds that there has been a violation of Article 5 § 5 of the Convention;

6.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 840 (eight hundred and forty 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;

7.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                    Branko Lubarda
Deputy Registrar                                                                       President