European Court of Human Rights

 

SECOND SECTION

CASE OF MAŞAEV v. THE REPUBLIC OF MOLDOVA

(Application no. 14043/18)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

4 April 2023

 

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

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

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

          Jovan Ilievski, President,
          Lorraine Schembri Orland,
          Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 14043/18) 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”) on 10 March 2018 by a Moldovan national, Mr Denislam Maşaev, born in 1986 and living in Chişinău (“the applicant”), who was represented by Mr S. Cuşnir, a lawyer practising in Chişinău;

the decision of 19 March 2019 to declare inadmissible the complaint under Article 3 of the Convention concerning the material conditions of detention and to adjourn the examination of the remainder of the applicant’s complaints;

the decision to give notice of the complaint concerning Article 5 § 1 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 14 March 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case is about the applicant’s deprivation of liberty for over two months allegedly in the absence of a reasonable suspicion that he had committed the offence imputed to him.

2.  In February 2017 a criminal investigation was initiated in respect of alleged acts of corruption committed by the applicant. In particular, it was alleged that he, in his capacity of employee of a department of the Ministry of Internal Affairs, had sought and obtained a bribe from a private company.

3.  On 12 July 2017 the applicant was arrested and on 14 July 2017 the Buiucani District Court ordered his remand in custody for a period of thirty days. In so doing, the court ruled, inter alia, that there was a reasonable suspicion that he had committed the offence imputed to him and referred to several documents attached by the prosecutor to his application for remand, but without describing their content.

4.  The applicant challenged the above decision and argued, inter alia, that there was no reasonable suspicion that he had committed the offence imputed to him, since none of the documents referred to by the court and the prosecutor proved any link between him and the crime allegedly committed. However, the appeal was dismissed.

5.  On 8 August 2017 the Buiucani District Court prolonged the applicant’s deprivation of liberty but converted his remand in custody into house arrest. In so far as the reasonable suspicion was concerned, the court referred to the same documents as in its decision of 14 July 2017 (see paragraph 3 above). The Court of Appeal partly upheld the prosecutor’s appeal, and, on 23 August 2017, the measure was converted back to remand in custody.

6.  On 7 September 2017 the Buiucani District Court prolonged the applicant’s detention for another thirty days referring to the same reasonable suspicion as before, but the Court of Appeal quashed that decision on 20 September 2017 and ordered the applicant’s release.

7.  The applicant complains that his deprivation of liberty between 14 July and 20 September 2017 was not based on a reasonable suspicion that he had committed the offence imputed to him and was thus in breach of Article 5 § 1 of the Convention.

THE COURT’S ASSESSMENT

I.           DISJOINDER OF THE APPLICATION

8.  In view of similar complaints concerning poor conditions of detention, in 2019 the Court decided to join this application with forty-one other applications (see Bulgacov and Others v. the Republic of Moldova (dec.) [Committee], nos. 54187/15 and 41 other applications, 19 March 2019) and declared the applications partially inadmissible in respect of this complaint.

9.  The Court now considers that it is necessary to disjoin this application from the other forty-one applications and to examine it separately.

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

10.  The Government submitted that the application was premature because the applicant would possibly in the future have a remedy under Law no. 1545 if he was finally acquitted in the criminal proceedings against him which were still pending. The Court recalls that it has already found that Law no. 1545 is applicable only to persons who have been acquitted or in respect of whom a criminal investigation has been discontinued (see Sarban v. Moldova, no. 3456/05, §§ 54 and 59, 4 October 2005). Since, according to the information submitted to the Court, this is not the applicant’s case, it is not satisfied that the remedy suggested by the Government is effective in respect of the applicant’s complaints. Therefore, the Government’s objection must be dismissed.

11.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12.  The general principles concerning house arrest and the requirement of grounding a person’s deprivation of liberty on a reasonable suspicion that (s)he has committed an offence have been summarized in Buzadji v. the Republic of Moldova [GC] (no. 23755/07, § 104, 5 July 2016) and in Selahattin Demirtaş v. Turkey (no. 2) [GC] (no. 14305/17, § 314, 22 December 2020).

13.  The Government submitted that there had been a reasonable suspicion that the applicant had committed the offence imputed to him and referred, inter alia, to a document signed by the applicant which they attached to their observations.

14.  The Court notes that the domestic courts’ decisions did not refer to any evidence or witness statements which would support the reasonable suspicion that the applicant had sought and obtained a bribe. They simply referred to a list of documents attached by the prosecuting authority to its application for the applicant’s remand in custody. These documents comprise a decision to start criminal investigations; formal charges against the applicant; minutes of the applicant’s arrest; minutes of the questioning of the applicant (who refused to make any statements in the absence of his lawyer); and minutes of searches at the applicant’s home and workplace. Having perused those documents, the Court found no elements constituting evidence which would support the existence of a reasonable suspicion against the applicant along the lines of the accusation.

15.  In so far as the document relied upon by the Government is concerned (see paragraph 13 above), the Court notes that no such document was relied upon by the domestic courts, and that it was the Government which presented it for the first time during the Court proceedings. It must therefore be treated with caution (compare Guja v. the Republic of Moldova (no. 2), no. 1085/10, § 56, 27 February 2018). In any event, the document in question is a copy of a request lodged with the applicant’s employer by a private company which contains the applicant’s signature and an illegible hand-written text on it which does not support in any way the accusation that the applicant has sought and accepted a bribe.

16.  In the light of the above, the Court concludes that the material put forward by the prosecuting authority and relied upon by the domestic courts to deprive the applicant of his liberty for over two months was not sufficient to persuade an objective observer that the applicant might have committed the offence imputed to him (compare also O.P. v. the Republic of Moldova, no. 33418/17, § 39, 26 October 2021). It concludes therefore that the applicant’s detention between 14 July and 20 September 2017 was not based on a reasonable suspicion that he had committed an offence and thus that there has been a violation of Article 5 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,012 in respect of costs and expenses.

18.  The Government contested the above amounts and argued that they were excessive.

19.  The Court considers that, in view of the violation found above, the applicant is entitled to compensation for non-pecuniary damage and awards him EUR 7,500, plus any tax that may be chargeable. Having regard to the documents in its possession, the Court further awards the applicant the entire amount claimed for costs and expenses, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Disjoins the application from the others to which it was joined;

2.      Declares the application admissible;

3.      Holds that there has been a violation of Article 5 § 1 of the Convention;

4.      Holds

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

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,012 (one thousand and twelve 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 the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 April 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President