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FOURTH
SECTION
CASE OF
STICI v. MOLDOVA
(Application
no. 35324/04)
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 Stici v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35324/04) 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 Petru Stici (“the
applicant”), on 26 August 2004.
- The
applicant was represented before the Court by Mr V. Nagacevschi
from “Lawyers for Human Rights”, a non-governmental
organisation based in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent, Mr V.
Grosu.
- The
applicant alleged, in particular, that he had been unlawfully
detained and that the courts had not given relevant and sufficient
reasons for his detention, that he had had no access to the relevant
parts of his criminal file in order to challenge effectively his
detention pending trial and that several of his rights under Article
6 had been violated.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 10 April 2007 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. Under
Rule 41 of the Rules of the Court, the Chamber decided to give
priority to the examination of the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1970 and lives in Chişinău.
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- The applicant was summoned to appear at a prosecutor's
office in Chişinău on 14 June 2004. Upon arrival he was
arrested on suspicion of having murdered, in 1993, Mr I.O., whose
mother became Speaker of Parliament in 2001.
- On
15 June 2004 the prosecutor asked the Buiucani District Court to
issue a warrant for the applicant's arrest. In his request the
prosecutor alleged that the applicant had committed the crime with
which he was charged.
- On
17 June 2004 the Buiucani District Court issued an order for the
applicant's pre-trial detention for thirty days. The applicant and
his lawyer were not given access to the file which had been submitted
to the court to justify his arrest. The court gave the following
reasons for its decision:
“In initiating the criminal proceedings the
procedure was followed. [The applicant] is accused of a serious crime
for which the criminal law provides a punishment of deprivation of
liberty for more than two years. [The applicant] is unemployed and
has a Romanian passport – facts which confirm the existence of
a danger of absconding from law-enforcement authorities. Moreover,
the accused would be given a real possibility to obstruct the
criminal investigation by influencing witnesses if he were to be
released. In these circumstances, the accused's detention is at this
moment absolutely necessary.”
The
applicant did not appeal against that decision.
- On
12 July 2004 the prosecutor asked for a prolongation of the
applicant's detention, stating that many procedural acts still had to
be carried out, such as a confrontation with a co-accused (U.) and a
verification of the whereabouts of another person, and that the
applicant could abscond.
- On 13 July 2004 the Buiucani District Court extended
the applicant's detention for a further thirty-day period, based on
the reasons given by the prosecution.
- In his appeal, the applicant submitted that during the
first 30 days of his detention no procedural act had been carried out
with his participation, which contradicted the prosecutor's claim
that his detention was necessary to enable such acts to be carried
out. Moreover, the co-accused with whom a confrontation was planned
(U.) had also been detained during that period and yet no
confrontation had taken place. The applicant stated that he had a
permanent residence in Moldova and three children to support and
suffered from a neurological disease requiring specialised medical
treatment.
- On 20 July 2004 the Chişinău Court of Appeal
rejected the applicant's appeal. The court found that the lower court
had observed the correct procedure and had adopted a lawful decision
based on the circumstances of the case. According to the applicant,
he and his lawyer had not had access to any part of his criminal
file.
- On
27 July 2004 the applicant made a habeas corpus request, submitting
that there was no reason for his pre-trial detention. The crime he
was charged with had been committed eleven years earlier and he could
easily have left Moldova had he had anything to do with that crime.
He appeared before the investigators in response to their first
summons and had always pleaded his innocence. The applicant asked for
a milder preventive measure such as bail or house arrest to be
ordered in his case, emphasising that house arrest offered virtually
the same guarantees against interference with the investigation as
did detention. He finally added that he had no criminal record and
promised to appear before the investigator at the first request.
- On
6 August 2004 the applicant's brother concluded a contract with a
second lawyer, Mr V. Nagacevschi, to represent the applicant.
According to the applicant, it is standard practice in Moldova for an
accused's relatives to conclude a contract with a lawyer when the
accused is detained and has no means of finding a lawyer or paying
for one. According to the applicant, he intended to sign a contract
with Mr Nagacevschi just before the court hearing but he was deprived
of that possibility by the authorities' failure to bring him to the
hearing.
- Also
on 6 August 2004 Mr Nagacevschi asked the court to give the
applicant's lawyers access to the materials in the criminal file
which allegedly proved the need to detain the applicant. He argued
that a refusal to grant such access would violate the principle of
equality of arms.
- On the same day, the Buiucani District Court examined
the applicant's habeas corpus request in his absence. The applicant's
first lawyer gave additional reasons for releasing his client. He
argued that the gravity of the crime with which he was charged could
not in itself provide a sufficient basis for detention. No evidence
had been made available to him regarding the risk of the applicant's
absconding. The applicant's Romanian passport was an insufficient
ground for detention since it could be seized by the authorities,
along with his Moldovan passport. Moreover, the investigation was
already finished and the applicant could therefore not interfere with
its course. He finally stressed that detention should be an
exceptional measure, yet in practice the Moldovan authorities applied
it as a rule.
- The court rejected the applicant's lawyer's request
for the following reasons:
“The person is accused of a crime for which the
criminal law provides a punishment of deprivation of liberty for up
to twenty years. [The applicant] could abscond or commit further
crimes, and could obstruct the investigation by influencing the
[victim's mother] or witnesses. The court considers it premature to
replace the applicant's detention with a milder preventive measure.”
- In
his appeal, the applicant relied on the arguments submitted earlier
to the courts, adding that his rights had been further violated when
he was not brought to the court hearing, when Mr Nagacevschi was not
allowed to plead before the lower court and when the lawyers were not
given access to any parts of the criminal file.
- On
9 August 2004 the prosecution submitted the case file and the bill of
indictment of the applicant to the trial court. Following the expiry,
on 14 August 2004, of the court order of 13 July 2004 (see
paragraph 11 above), the prosecution made no further requests for
extension of the applicant's detention.
- On
17 August 2004 the Chişinău Court of Appeal upheld the
decision of 6 August 2004.
- On
29 November 2004 the first hearing before the trial court took place,
during which the court decided, inter alia, that the applicant
should remain in pre-trial detention, without specifying, however,
for how long.
- According
to the Government, on 3 July 2006 the Rîşcani
District Court found the applicant guilty of the crime with which he
had been charged. That judgment was upheld by the Chişinău
Court of Appeal on 2 October 2006.
- The
case is pending before the Supreme Court of Justice.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in Boicenco
v. Moldova (no. 41088/05, § 64-71,
11 July 2006).
- In addition, the relevant provisions of the Code of
Criminal Procedure read as follows:
“Article 66
(2) The accused ... has the right:
...
(21) to read the materials submitted to the court in
support of [the need for] his arrest;”
“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.
(2) Detention pending trial and alternative
preventive measures may be imposed only in cases concerning offences
in respect of which the law provides for a custodial sentence
exceeding two years. In cases concerning offences in respect of which
the law provides for a custodial sentence of less than two years,
they may be applied if ... the accused has already committed the acts
mentioned in paragraph (1).
(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.”
THE LAW
- The
applicant complained that his detention after the expiry of the last
detention order, on 14 August 2004, had not been “lawful”
within the meaning of Article 5 § 1 of the Convention, the
relevant part of which provides:
“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
applicant also complained that his 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.”
- The applicant complained that the failure of the
authorities to give him and his lawyer access to the relevant part of
the case-file in order to effectively challenge the grounds for his
arrest was contrary to Article 6 § 3 of the Convention. He
also complained, under the same Article, about the court's failure to
hear him personally on 6 August 2004 and to allow his second lawyer
to take part in the proceedings on that date. The Court considers
that these complaints should be examined under Article 5 § 4 of
the Convention since they relate to the habeas corpus
proceedings. Article 5 § 4 reads:
“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.”
- The
applicant complained about the prosecution's statements that he had
committed a crime before his guilt or innocence were decided by a
court, contrary to Article 6 § 2 of the Convention.
Article
6 § 2 reads as follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The
applicant finally complained that his appeal against the decision of
6 August 2004 had not been examined, thus depriving him of a review
by a higher court as required by Article 2 of Protocol No. 7 to the
Convention, which reads:
“1. Everyone convicted of a criminal
offence by a tribunal shall have the right to have his conviction or
sentence reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall be governed
by law.
2. This right may be subject to exceptions in
regard to offences of a minor character, as prescribed by law, or in
cases in which the person concerned was tried in the first instance
by the highest tribunal or was convicted following an appeal against
acquittal.”
I. ADMISSIBILITY
- In
his initial application, the applicant alleged that the authorities
had refused to give him access to the part of the file concerning the
grounds for his detention. However, in his observations on the
admissibility and merits, he asked the Court not to proceed with the
examination of that complaint in view of the fact that, regardless of
what had been in the case-file, the courts had never referred to any
materials in the file to support their decisions for his detention.
Therefore, the materials of the file had not affected the applicant's
detention orders in any manner. In view of its findings in respect of
the reasons for the applicant's detention under Article 5 § 3
(see paragraph 46 below), the Court finds no reason to examine this
part of the complaint.
-
The applicant also conceded that his appeal against the decision of
6 August 2004 had been examined on 17 August 2004, but insisted
that he had not known about that decision as he had not been informed
of it, nor invited to the hearing. The decision was in any event not
reasoned. The Court considers that Article 2 of Protocol No. 7 to the
Convention is not applicable since the applicant had not been
convicted by the decision of 17 August 2004. It follows that
this complaint must be rejected as incompatible with the Court's
competence ratione materiae.
- The
Court considers that the applicant's complaint regarding the
violation of the presumption of his innocence, contrary to Article 6
§ 2 of the Convention, is also manifestly ill founded. The
complaint referred to the prosecution's request for the applicant's
arrest, in which the applicant was accused of having committed a
crime. The Court considers that it is in the nature of the
prosecution's functions to submit to the competent court evidence and
charges against persons reasonably suspected of having committed a
crime. The Court notes that the accusation was made only to the court
and was not repeated in public.
- The
Court further considers that the applicant's complaints under
Articles 5 § 1 (lawful basis for detention), § 3 (reasons
for detention) and § 4 (examination of the applicant's
habeas corpus request on 6 August 2004 in his absence and the failure
to admit one of his lawyers to the hearing) of the Convention raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits. It
therefore declares these complaints admissible. In accordance with
its decision to apply Article 29 § 3 of the
Convention (see paragraph 4 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant argued that since the expiry of the last court order for
his detention pending trial on 14 August 2004 no other court decision
had provided for his further detention. He considered that the legal
provisions referred to by the Government were not foreseeable in
their application, contrary to the requirements of Article 5 of the
Convention. He relied on Baranowski v. Poland (no.
28358/95, ECHR 2000 III).
- The
Government stated that after the applicant's case file had been
submitted to the trial court on 14 August 2004, it was for the trial
court to deal with any requests regarding the applicant's detention
pending trial, which had been based on the clear provisions of the
law. They relied essentially on the same legal provisions as those
relied on in Boicenco (cited above, §§ 64-71).
The Government emphasised that, in addition to the relevant legal
provisions, the applicant had had the right to ask the trial court to
review the need for his continued detention and that the court had
carried out such a review on a number of occasions, thus providing
for a legal basis for his detention.
- The
Court recalls that it found a violation of Article 5 § 1 of the
Convention in Boicenco (cited above, § 154), Holomiov v.
Moldova, (no. 30649/05, § 130, 7 November 2006)
and Modarca v. Moldova (no. 14437/05, § 74,
10 May 2007). Having examined the material submitted to it, the
Court considers that the file does not contain any element which
would allow it to reach a different conclusion in the present case.
- The Court finds, for the reasons given in the cases
cited above, that the applicant's detention pending trial after 14
August 2004, when the last court order for his detention expired, was
not based on any legal provision.
- There
has, accordingly, been a violation of Article 5 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
- The
applicant complained about his detention pending trial without
sufficient reasons given by the courts. He relied on the Court's
jurisprudence in cases such as Sarban v. Moldova
(no. 3456/05, 4 October 2005) and Boicenco (cited above,
§ 145).
- The
Government considered that the domestic courts had given relevant and
sufficient reasons for the applicant's detention.
- The
Court first notes that it has found that the applicant's detention
after 14 August 2004 lacked any legal basis. In light of that
finding, it does not consider it necessary to examine separately the
complaint under Article 5 § 3 during the same period.
However, the applicant also complained about the lack of reasons for
his detention in the domestic court decisions adopted prior to 14
August 2004. The Court will examine his complaint in respect of that
period, recalling 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).
- The
Court notes that the reasons relied on by the domestic courts in
their decisions to prolong the applicant's detention (see paragraphs
11, 13 and 18 above) were virtually identical to the reasons used by
the domestic courts to remand the applicant in Sarban (cited
above, at §§ 11 and 14) and other similar cases
against Moldova. 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 applicant's case. The only exception was that they referred to
the applicant's Romanian passport, which could have enabled him to
abscond abroad, and his lack of a permanent job. However, the courts
did not react in any way to the applicant's argument that both his
Romanian and Moldovan passports could have been seized by the
authorities if they had decided that this was necessary to prevent
his absconding and that alternative preventive measures existed, some
of which (for example, house arrest) provided virtually the same
guarantees against absconding as pre-trial detention (see paragraph 17
above). Neither were any other factors in favour of the applicant's
release examined, such as his appearance before the investigator at
the latter's first request (see paragraph 7 above), despite an
express requirement to do so under Article 176 (3) of the Code of
Criminal Procedure (see paragraph 26 above) and the applicant's
reference to several prima facie relevant reasons against detention
(see paragraph 12 above; see also Ambruszkiewicz v. Poland,
no. 38797/03, § 33, 4 May 2006). The Court also takes
into account that the applicant was held for over two years in
detention pending trial, even though no new reasons were advanced for
the continued need for such detention.
- Accordingly,
the Court does not consider that the instant case can be
distinguished from Sarban and other similar Moldovan cases 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 this connection.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
- The
applicant also complained under Article 5 § 4 of the Convention
about the court's failure to hear evidence from him on 6 August 2004
and its refusal to allow one of his lawyers to participate in the
proceedings on that date, which the Court has decided (see paragraph
29 above) should be examined under Article 5 § 4 of the
Convention since the lawyer's participation concerned habeas
corpus proceedings.
- However,
the Court considers that it need not examine separately these
complaints in view of its finding above regarding the lack of
relevant and sufficient reasons in the court's decision of 6 August
2004 (see paragraph 46 above). It appears from that decision that the
arguments raised by the applicant's first lawyer were never answered
in any serious manner by the court. In such circumstances, the Court
doubts that the presence of the applicant or of another lawyer would
have affected the outcome.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 4,000 euros (EUR) in compensation for the damage
caused to him by the violation of his rights. In support of his
claims he relied on the Court's case-law in respect of similar
complaints.
- The
Government disagreed with the amount claimed by the applicant,
arguing that it was excessive in the light of the case-law of the
Court and that no evidence had been adduced to show that damage had
been caused to the applicant. In any event, a finding of a violation
should constitute sufficient just satisfaction.
- The
Court considers that the applicant must have been caused a certain
amount of stress and anxiety as a consequence of the authorities'
failure to respect his rights guaranteed by Article 5 §§ 1
and 3 of the Convention, in particular his detention without any
legal basis for more than ten months. It therefore awards in full the
applicant's claim (see Ječius
v. Lithuania, no. 34578/97,
§ 109, ECHR 2000 IX).
B. Costs and expenses
- The
applicant also claimed EUR 1,425 for costs and expenses. He relied on
a contract with his lawyer, according to which he had had to pay
legal fees at an hourly rate of EUR 75, and an itemised list of hours
worked on the case, amounting to nineteen hours.
- The
Government considered those claims to be excessive and challenged the
need to work for nineteen hours on the case. Moreover, no evidence
had been submitted to prove that the amount claimed had in fact been
paid to the lawyer.
- The
Court recalls that in order for costs and expenses to be reimbursed
under Article 41, it must be established that they were actually and
necessarily incurred and are reasonable as to quantum (see Modarca,
cited above, § 106). According to Rule 60 § 2 of the
Rules of Court, itemised particulars of claims made are to be
submitted, failing which the Chamber may reject the claim in whole or
in part.
- In the present case the Court takes note of the
contract with the applicant's lawyer and the itemised list submitted.
In view of the relative lack of complexity of the case and of the
rejection or withdrawal of a number of complaints initially raised
before the Court, it awards the applicant EUR 1,000 for costs and
expenses.
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 admissible the complaint under Articles
5 § 1 (lawful basis for detention), § 3 (reasons for
detention) and § 4 (examination of the applicant's habeas corpus
request on 6 August 2004 in his absence and the failure to admit one
of his lawyers to the hearing), and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant's detention
without a legal basis after 14 August 2004;
- Holds that there has been a violation of
Article 5 § 3 of the Convention as regards the period
between 14 June and 16 August 2004;
- Holds that there is no need to examine
separately the complaint under Article 5 § 4 of the
Convention;
- Holds:
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 4,000 (four thousand
euros) for non-pecuniary damage and EUR 1,000
(one thousand euros) for costs and expenses, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
