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FOURTH
SECTION
CASE OF
MUSUC v. MOLDOVA
(Application
no. 42440/06)
JUDGMENT
STRASBOURG
6
November 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 Musuc v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mrs F. Aracı, Deputy
Section Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42440/06) 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 Eduard Muşuc (“the applicant”)
on 3 November 2006.
- The
applicant was represented by Ms Janeta Hanganu, a lawyer practising
in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr Vladimir
Grosu.
- The
applicant alleged, in particular, that his pre-trial detention was
arbitrary and contended that there have been several violations of
Article 5 §§ 1, 3 and 4 of the Convention.
- On
5 December 2006 the Fourth Section of the Court communicated 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.
- Judge
Pavlovschi, the judge elected in respect of Moldova, withdrew from
sitting in the case (Rule 28 of the Rules of Court) before it
had been notified to the Government. On 8 February 2007, the
Government, pursuant to Rule 29 § 1 (a), informed the Court
that they were content to appoint in his stead another elected judge
and left the choice of appointee to the President of the Chamber. On
18 September 2007, the President appointed Judge Šikuta to sit
in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Chişinău. He is the
Chief Executive Officer of Megadat.com SRL, a company which is the
applicant in the case Megadat.com SRL v. Moldova, no.
21151/04, and the leader of an extra-parliamentary opposition party.
1. The criminal proceedings against the applicant
- On
31 May 2006 the Centre for Fighting Economic Crime and Corruption
(“the CFECC”) initiated criminal proceedings based on an
alleged misappropriation of an office building belonging to company X
in 2002.
- On 22 September 2006 the applicant was declared a
suspect in the criminal proceedings. In a decision of the same date,
it was alleged that, in his capacity as Chief Executive Officer of
Megadat.com SRL, he had bought from bank M. the office building,
which had earlier been transferred to the bank by company X as
payment for a loan which it could not repay. According to the CFECC,
the office building was bought by Megadat.com at a price which was
lower than the market price of the building at the time.
The
CFECC alleged that the offence was committed by the applicant in
collusion with his father, who was the president of company X's board
of directors at the time. The applicant's father allegedly managed to
convince the board to mortgage the building to bank M. and to
indicate in the mortgage agreement a value lower than the market
value. Later, when company X found itself unable to repay the loan,
also allegedly due to the actions of the applicant's father, the
latter used his position as president of the board of directors to
convince the other members of the board to transfer the building to
the bank in lieu of money, thus avoiding a public auction. In such a
way, bank M. took possession of the building at a reduced price.
Later,
the applicant, in his capacity as Chief Executive Officer of
Megadat.com SRL, bought from bank M. the office building at a price
below its market value, thus creating a loss of 1,988,130 Moldovan
lei (MDL) for company X.
- The
decision of 22 September 2006 set out the above accusations against
the applicant and his father without, however, relying on any
evidence.
2. The applicant's remand proceedings
- On 28 September 2006 the applicant was arrested and a
request for his detention for ten days was addressed to the Buiucani
District Court. The request reiterated all the allegations against
the applicant and his father contained in the decision of 22
September 2006 (see paragraph 8 above) and alleged, inter alia,
that the applicant could attempt to influence witnesses since between
1999 and 2002 he and his father had threatened E.S., currently a
witness in the case against them.
- A detention warrant for a period of ten days was
issued by the investigating judge M.D. on the same day. The reasons
for remanding the applicant in custody were the fact that he was
accused of a serious offence, that there was a risk of the co-accused
colluding, that there was a risk of the applicant destroying evidence
and that there was evidence that he had attempted to influence a
witness.
- The applicant lodged an appeal against the order
arguing that there was no reasonable suspicion to believe that he had
committed an offence. The accusation against him was based on the
fact that Megadat.com SRL had bought an office building from a bank
at a price set by the bank. All the contracts concerning the matter
were valid and nobody had ever challenged them. No other facts which
would give rise to a reasonable suspicion had been established.
Moreover, not only had the prosecutors failed to prove the existence
of a reasonable suspicion that the applicant was involved in the
offence, but more fundamentally, they had failed to prove the
existence of an offence.
The
reasons relied upon by the court for remanding him in custody were
formulaic and without factual support. He also argued that he had
never attempted to influence any witness and complained that judge
M.D. had rejected his request to hear evidence from the witness he
had allegedly attempted to influence. Judge M.D. had also refused to
give him access to the materials in the file relevant to the remand
proceedings. He had not even been given a copy of the transcript of
witness E.S.'s statements.
The
applicant finally argued that he was unable to meet his lawyers in
conditions of confidentiality in the CFECC detention centre because
of a glass partition separating them. He argued that the glass
partition was an impediment both to confidential communication and to
the exchange of documents between him and his lawyers.
- On 3 October 2006 the Chişinău Court of
Appeal dismissed the applicant's appeal. It did not give any
assessment of the applicant's arguments about the lack of reasonable
suspicion and argued that according to Article 5 § 3 of the
Convention it was not obliged to consider all the arguments raised by
the applicant. However, it endorsed the reasons given by the Buiucani
District Court in favour of remanding the applicant in custody and
argued that the applicant and his defence lawyers were not entitled
to see the materials of the criminal file but only the materials
presented by the prosecutor in support of the request for remand. The
court further submitted that a copy of the transcript of the
statements made by witness E.S. was attached to the prosecutor's
request for remand; however, it did not mention whether the applicant
or his defence had been served with it. The court finally dismissed
the applicant's complaint that the first-instance court refused to
question E.S. and argued that Moldovan domestic law did not provide
for the questioning of witnesses during remand proceedings.
3. The proceedings concerning the prolongation of the
applicant's detention
- On
4 October 2006 a request for the prolongation of the applicant's
detention for thirty days was addressed to the Buiucani District
Court by Prosecutor L.R. The grounds for the prolongation were
similar to those relied upon in the initial request for a detention
warrant.
- In his written observations, the applicant objected to
the prolongation and argued again that there was no reasonable
suspicion that he had committed an offence. He also submitted that he
had never attempted to influence any witness and that there were no
grounds to hold him in detention. He repeatedly asked the witness,
whom he was accused of having attempted to influence, to be
questioned.
- On 6 October 2006 the Buiucani District Court allowed
the prosecutor's request for prolongation of the detention on the
same grounds as those relied upon in the initial remand proceedings.
The court argued that it did not have the right to express an opinion
concerning the applicant's guilt and the relevance of the evidence
which served as a basis for his indictment. The court also argued
that it did not consider it necessary to question E.S. because her
written statements had been attached to the prosecutor's request for
remand.
- The applicant appealed and argued that the
prolongation was illegal because the prosecutor's request for
prolongation had been lodged out of time. He submitted that, pursuant
to Article 186(6) of the Code of Criminal Procedure, the prosecutor
was entitled to request the prolongation at the latest five days
before the expiry of the duration of detention. Since the duration of
detention would expire on 8 October 2006, the prolongation request
should have been lodged at the latest on 3 October 2006. Under
Article 230 of the Code of Criminal Procedure, non-compliance with
the time-limit led to the loss of the prosecutor's right to request
prolongation and to the nullity of the request for prolongation. The
applicant submitted that he had brought this argument before the
first-instance court, but that it had been ignored. Moreover, before
the hearing of the first-instance court, the prosecutor and the judge
had locked themselves in the judge's office without the presence of
the defence and had a private discussion. For that reason the
applicant had challenged the judge. His challenge, however, had been
dismissed.
The
applicant further complained that the first-instance court had not
given him access to the materials of the case file relevant to the
remand proceedings. He argued that he had been served with the
following documents:
the decision of 22
September 2006 by which he was declared a suspect in the criminal
proceedings;
the minutes of his
arrest of 28 September 2006;
the request by the
prosecutor to remand him in custody dated 28 September 2006;
the decision of
indictment of the applicant dated 4 October 2006;
copies of requests
to provide the applicant with mineral water and newspapers;
copies of requests
by the applicant to see his lawyer;
results of the
applicant's medical check up;
four colour
photographs of the building of the Court of Appeal.
According
to the applicant, those documents did not contain any evidence in
support of his detention. The applicant accused the first-instance
judge of lying about the fact that he had been served with a copy of
witness E.S.'s statements and relied on the discussions between the
judge and the prosecutor during the hearing, when the judge had asked
the prosecutor where the written statement of witness E.S. was, and
the prosecutor had replied: “I do not know, maybe at the Court
of Appeal.”
The
applicant asked the Court of Appeal to quash the decision of the
Buiucani District Court and to order his release. He also asked that
witness E.S. be questioned and that he and his defence counsel be
given access to the materials of the case file which confirmed the
necessity to hold him in detention. He finally requested that the
Superior Council of Magistrates be informed about the fact that Judge
M.D. from the Buiucani District Court had had a private discussion
with the prosecutor before the hearing and had allowed a request
which was time-barred.
- On 11 October 2006 during the hearing before the Court
of Appeal the applicant's lawyers reiterated the request to be given
access to the case file and to be allowed to see witness E.S.'s
depositions. It appears from an audio recording of the hearing that
the applicant's lawyers insisted on being given a copy of E.S.'s
depositions, while the prosecutor maintained that they had seen them.
The applicant's lawyers requested that the prosecutor produce a
receipt proving that they had been given the transcript and asked the
prosecutor to give it to them at the hearing. At the lawyers'
request, the court took a pause apparently so as to enable the
prosecutor to provide them with a copy of E.S.'s depositions;
however, after the pause it went straight to pronouncing its
decision. The lawyers' request does not appear to have been allowed
as the Court of Appeal did not refer to it at all in its judgment. It
found that the first-instance court had not committed any breach of
procedure. However, given that the applicant had a fixed address, did
not have a criminal record and that there was no risk of his
hindering the discovery of the truth, the Court of Appeal decided to
release him on bail. In reaching that decision the Court of Appeal
referred to the principle that an accused should always be tried at
liberty and fixed the bail at MDL 2,000,000. The court ordered
that the applicant's detention continue until he paid the money.
- Since
the applicant was unable to pay the amount set for bail he continued
to be detained. He presented to the Court a certificate from his
employer, stating that between January and September 2006 he had had
no income.
- He
was detained in the CFECC detention centre. According to him, the
room for meetings between lawyers and detainees had a glass partition
to keep them separated. They had to shout in order to hear each other
and could not exchange documents.
- On
14 November 2006 the Buiucani District Court examined a habeas
corpus request lodged by the applicant and ordered his release
without bail.
II. RELEVANT DOMESTIC LAW
- The
relevant parts of the Code of Criminal Procedure read as follows:
“Article 186 (6)
If it is necessary to prolong the period of an accused's
pre-trial detention, the prosecutor must lodge a request for that
purpose with the investigating judge not later than five days before
the expiry of the duration of detention.
...
Article 192. The release of the detained person on bail
(4) Bail shall be set by the investigating judge or by
the trial court and should be between MDL 6,000 and 2,000,000,
according to the financial circumstances of the person concerned and
the gravity of the offence.
...
Article 230 (2)
When the exercise of a procedural right is limited by a
time-limit, the failure to observe the time-limit causes the loss of
that procedural right and the nullity of the acts effected in breach
of the time-limit.”
THE LAW
- The
applicant complained under Article 5 § 1 of the Convention that
his detention was imposed in the absence of a reasonable suspicion
that he had committed an offence. Moreover, the applicant argued that
the prolongation of his detention was unlawful because the
prosecutor's request for prolongation of 4 October 2006 had been
time-barred. The relevant part of Article 5 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 ...”
- He
also complained under Article 5 § 3 of the Convention that the
courts did not give relevant and sufficient reasons for his
detention. Furthermore, the order of the Court of Appeal of 11
October 2006 establishing bail was not compatible with Article 5 §
3 of the Convention as its amount was not fixed by reference to the
purpose for which it was imposed, namely to ensure that the applicant
appeared for trial. The material part of Article 5 § 3
reads:
“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 also complained under Article 5 § 4 that he did not
have an effective remedy under domestic law to challenge the amount
set for bail and that during the proceedings concerning his remand he
and his lawyers had no access to the materials in his criminal file
on the basis of which the courts ordered his pre-trial detention. He
also submitted that he could not meet his lawyers in conditions of
confidentiality because they were separated by a glass partition.
Article 5 § 4 of the Convention 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.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint under Article 5 § 4 of the
Convention concerning the lack of a remedy to challenge the amount
set for bail
- The
applicant complained that he did not have an effective remedy under
domestic law in accordance with Article 5 § 4 of the Convention,
to challenge the amount of bail he was obliged to pay by the final
decision of the Court of Appeal of 11 October 2006.
- The
Court recalls that Article 5 § 4 guarantees no right, as such,
to appeal against decisions ordering or extending detention as the
above provision refers to “proceedings” and not to
“appeal”. The intervention of one organ satisfies Article
5 § 4, on condition that the procedure followed has a judicial
character and gives to the individual concerned guarantees
appropriate to the kind of deprivation of liberty in question (see
Jecius v. Lithuania, no. 34578/97, § 100, ECHR
2000-IX). It follows that the complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance with
Article 35 § 4.
B. The rest of the complaints
- The
Court considers that the rest of the applicant's complaints raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and no
other grounds for declaring them inadmissible have been established.
The Court therefore declares the remainder of the application
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 the remainder of the
application.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant argued that there was no reasonable suspicion that he had
committed the offence he was accused of. His company bought from a
bank property which the latter was selling and it was the bank that
set the price of the property in accordance with a valuation carried
out by a specialised company approved by the bank. According to the
applicant the prosecution did not present any evidence to support a
reasonable suspicion that he had committed any offence.
- The
Government argued that there were credible reasons to believe that
the applicant had committed the offence imputed to him and that he
had attempted to threaten a witness.
- 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
(see Brogan and Others v. the United Kingdom, judgment of
29 November 1988, Series A no. 145-B, pp. 29-30, § 53). Nor is
it necessary that the person detained should ultimately have been
charged or brought before a court. The object of detention for
questioning is to further a criminal investigation by confirming or
discontinuing suspicions which provide the grounds for detention (see
Murray v. the United Kingdom, judgment of 28 October 1994,
Series A no. 300-A, p. 27, § 55). However, the requirement
that the suspicion must be based on reasonable grounds forms an
essential part of the safeguard against arbitrary arrest and
detention. The fact that a suspicion is held in good faith is
insufficient. The words “reasonable suspicion” mean the
existence of facts or information which would satisfy an objective
observer that the person concerned may have committed the offence
(see Fox, Campbell and Hartley v. the United Kingdom, judgment
of 30 August 1990, Series A no. 182, pp. 16-17, § 32).
- The
Court notes that in the present case the applicant was accused of
having misappropriated an office building by buying it from a bank at
a price lower than its market value. The accusation against him and
the prosecutor's request for his remand (see paragraphs 8 and 10
above) contained a chronological description of events that took
place between 1999 and 2002 and attributed to him and to his father
conduct which, in the prosecutors' view, amounted to an offence.
However, they do not appear to have contained any evidence to support
the theory that an offence had been committed and that the applicant
may have been guilty of it. Indeed there is no mention in the above
documents on how the prosecution reached the conclusion that the
value of the office building in question was under-estimated or
whether there was collusion between the applicant and the bank making
the sale. It only referred to the existence of a witness within the
criminal proceedings without however saying anything about her
testimony, let alone whether that witness's testimony confirmed the
accusation against the applicant. Moreover, while the applicant
specifically argued during the habeas corpus proceedings that
there was no reasonable suspicion that he had committed the offence
imputed to him (see paragraphs 12 and 15 above), the courts appear to
have ignored this submission and treated it as irrelevant (see
paragraphs 13 and 16 above).
- In
the light of the above, the Court is not satisfied that the material
put forward by the prosecuting authority and relied upon by the
domestic courts to detain the applicant was sufficient to persuade an
objective observer that the applicant may have committed the offence
imputed to him. It concludes therefore that the applicant's detention
between 28 September and 14 November 2006 was not based on a
reasonable suspicion that he had committed an offence and thus there
has been a violation of Article 5 § 1 of the Convention.
- In
view of the above finding the Court does not consider it necessary to
decide on the lawfulness of the prolongation of the applicant's
detention on 6 October 2006.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the decisions ordering
his pre-trial detention were not based on relevant and sufficient
reasons but only on declarative and formulaic grounds. Moreover, the
courts had failed to assess the arguments put forward by his defence,
both in the appeal applications and orally during the hearings.
The
applicant further argued that the amount fixed for bail of
MDL 2,000,000 was excessive and that the Court of Appeal made no
enquiries about the applicant's financial circumstances before
adopting its decision of 11 October 2006.
- The Government submitted that the applicant's
detention was necessary because he was suspected of having committed
a serious offence. The criminal case against him was very complex and
if released he could have destroyed evidence, influenced witnesses or
fled. Moreover, he had previously attempted to influence a witness
and his submissions that he had not been presented with a transcript
of the latter's depositions were false, as he had not even requested
that that witness be questioned.
The
Government also submitted that the amount set for bail had not been
excessive in view of the applicant's financial circumstances and that
that amount was in no way linked to the amount of the loss allegedly
caused by the applicant to the victim of the offence.
- The
Court recalls that Article 5 of the Convention is, together with
Articles 2, 3 and 4, in the first rank of the fundamental rights that
protect the physical security of an individual (see, for example, its
link with Articles 2 and 3 in disappearance cases in Kurt v.
Turkey, judgment of 25 May 1998, Reports of Judgments and
Decisions 1998-III, § 123) and as such its importance is
paramount. Its key purpose is to prevent arbitrary or unjustified
deprivations of liberty (see, for example, Lukanov v. Bulgaria,
judgment of 20 March 1997, Reports 1997 II, § 41;
Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR
2004 II, § 46; Ilaşcu and Others v. Moldova
and Russia [GC], no. 48787/99, § 461, ECHR 2004 VII).
- The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8, p.37, §
4), the second limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial
within a reasonable time or granting him provisional release pending
trial. Until conviction, he must be presumed innocent, and the
purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006 ...).
- The persistence of reasonable suspicion that the
person arrested has committed an offence is a condition sine qua
non for the lawfulness of the continued detention, but after a
certain lapse of time it no longer suffices. In such cases, the Court
must establish whether the other grounds given by the judicial
authorities continued to justify the deprivation of liberty. Where
such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the proceedings (see Labita v. Italy [GC], no. 26772/95,
§§ 152 and 153, ECHR 2000-IV).
- A
person charged with an offence must always be released pending trial
unless the State can show that there are “relevant and
sufficient” reasons to justify their continued detention (see
Yağcı and Sargın v. Turkey, judgment of 8
June 1995, Series A no. 319 A, § 52).
- Article
5 § 3 of the Convention cannot be seen as authorising pre trial
detention unconditionally provided that it lasts no longer than a
certain period. Justification for any period of detention, no matter
how short, must be convincingly demonstrated by the authorities (see
Belchev v. Bulgaria, no. 39270/98, § 82, 8 April
2004).
- Insofar
as bail is concerned, it may only be required as long as reasons
justifying detention prevail. When such reasons do prevail, the
amount of the bail must be “assessed principally in relation to
the person concerned, his assets ... in other words to the degree of
confidence that is possible that the prospect of loss of security in
the event of his non-appearance at a trial will act as a sufficient
deterrent to dispel any wish on his part to abscond” (see
Neumeister v. Austria, judgment of 27 June 1968, Series A, no.
8, p. 40 § 14).
- The
Court has found above that the applicant's detention was not based on
reasonable suspicion. That would be sufficient ground for it to
consider it unnecessary to examine the present complaint also.
However, the Court notes with concern the recurring nature of the
problems concerning the relevance and sufficiency of reasons for
remand in the case of Moldova. It notes that it has found a violation
of this kind for the first time in the cases of Sarban and
Becciev v. Moldova (no. 3456/05, § 103, 4 October
2005 and no. 9190/03, § 64, 4 October 2005) and that
regrettably, the problem continues to persist.
- The
Court notes that, as in Sarban and Becciev, most
of the reasons relied upon by the domestic courts in their decisions
to remand the applicant in custody and to prolong his detention (see
paragraphs 11 and 16 above) were limited to paraphrasing the reasons
for detention provided for by the Code of Criminal Procedure, without
explaining how they applied in the applicant's case.
- Besides that, the domestic courts invoked in support
of detention the fact that the applicant had attempted to influence a
witness. The Court notes in the first place that this assertion
constituted a misreading of the prosecution's statement to the effect
that between 1999 and 2002 the applicant had allegedly threatened a
person who had subsequently become a witness in his case (see
paragraph 10 above). However, more fundamentally, while relying on
such a statement, the domestic courts rejected the applicant's
insistent requests to have that witness examined (see, for
comparison, Becciev v. Moldova, cited above, §§
73-76) or at least to see a transcript of her depositions (see
paragraphs 12, 15 and 17 above). Indeed, while arguing that the
applicant had been presented with such a transcript, the Government
failed to adduce any evidence to prove that.
- In
such circumstances, the Court does not consider that the instant case
can be distinguished from Sarban and Becciev in what
concerns the relevance and sufficiency of reasons for detention.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention in this respect.
- In
the light of the above finding that there were no relevant and
sufficient reasons to prolong the applicant's detention, the Court
considers that the requirement that the applicant pay bail and his
continued detention on the ground that he had failed to pay it
constituted a separate violation of Article 5 § 3 of the
Convention. In such circumstances, the Court does not consider it
necessary to determine whether the amount of the bail imposed on the
applicant was excessive or not.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
- The
applicant argued that he had submitted numerous requests to the
domestic courts to be allowed to see the transcript of witness E.S.'s
statement relied upon by the prosecution in favour of his detention,
but to no avail. He pointed to such requests made in his habeas
corpus requests and in his appeals (see paragraphs 12, 15, 17 and
18 above). The applicant also complained that the glass partition in
the CFECC detention centre prevented him from having confidential
meetings with his lawyer to discuss matters related to his defence in
the pre-trial detention proceedings.
- The
Government disputed the applicant's allegations and argued that he
and his lawyers had had access to all the materials in the case file
relied upon by the prosecution and courts to support the need for his
detention. According to the Government, they had also had access to
the transcript of E.S.'s depositions, which had been among the
documents transmitted to them by the prosecution. However, probably
due to their lack of diligence, they had failed to notice it. The
Government also disputed the applicant's allegations concerning the
glass partition in the CFECC detention centre.
- The
Court reiterates that a court examining an appeal against detention
must provide guarantees of a judicial procedure. The proceedings must
be adversarial and must always ensure “equality of arms”
between the parties, the prosecutor and the detained person.
- In
the case of a person whose detention falls within the ambit of
Article 5 § 1 (c), a hearing is required. In view of
the dramatic impact of deprivation of liberty on the fundamental
rights of the person concerned, proceedings conducted under Article 5
§ 4 of the Convention should in principle meet, to the largest
extent possible under the circumstances of an ongoing investigation,
the basic requirements of a fair trial (see Shishkov v. Bulgaria,
no. 38822/97, § 77, ECHR 2003 I (extracts)).
- Equality
of arms is not ensured if counsel is denied access to those documents
in the investigation file which are essential in order to challenge
effectively the lawfulness, in the sense of the Convention, of his
client's detention. The concept of lawfulness of detention is not
limited to compliance with the procedural requirements set out in
domestic law but also concerns the reasonableness of the suspicion on
which the arrest is grounded, the legitimacy of the purpose pursued
by the arrest and the justification of the ensuing detention.
- The
Court acknowledges the need for criminal investigations to be
conducted efficiently, which may imply that part of the information
collected during them is to be kept secret in order to prevent
suspects from tampering with evidence and undermining the course of
justice. However, this legitimate goal cannot be pursued at the
expense of substantial restrictions on the rights of the defence.
Therefore, information which is essential for the assessment of the
lawfulness of a detention should be made available in an appropriate
manner to the suspect's lawyer (see, among other authorities, Lamy
v. Belgium, judgment of 30 March 1989, Series A no. 151, pp.
16-17, § 29, and Garcia Alva v. Germany, no. 23541/94, §§
39-43, 13 February 2001).
- In
the present case, it is disputed between the parties whether the
applicant or his lawyers asked for access to parts of the
investigation file and were refused such access. The Court notes,
however, that the applicant and his lawyers requested on numerous
occasions that they be given a copy of the transcript of E.S.'s
depositions (see paragraphs 12, 15, 17 and 18 above), and that the
courts did not react in any manner to these requests. Moreover, the
Government's submission to the effect that they had in fact had
access to the document is not supported by any evidence (see
paragraph 45 above).
- The
Court notes that no reasons were given for such withholding of
information and that the applicant was unable to challenge properly
the reasons for his detention. In such circumstances, it cannot be
said that the principle of “equality of arms”, within the
meaning of Article 5 of the Convention, was observed in the present
case. There has, accordingly, been a violation of Article 5 § 4
of the Convention.
- Insofar
as the applicant's complaint under Article 5 § 4 concerning the
glass partition in the CFECC detention centre is concerned, the Court
recalls that it has already found violations in respect of similar
complaints in such cases as Castravet v. Moldova (no.
23393/05, § 61, 13 March 2007), Istratii and
Others v. Moldova (nos. 8721/05, 8705/05 and 8742/05,
§ 101, 27 March 2007) and Modarca v. Moldova
(no. 14437/05, § 99, 10 May 2007). In such
circumstances and in view of the similarity of the complaint in the
present case with those in the above cases, the Court does not
consider it possible to depart from its reasoning and its findings in
those cases. Accordingly, there has been a violation of Article 5 §
4 of the Convention in this respect also.
V. 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 11,000 euros (EUR) in respect of non-pecuniary
damage suffered as a result of the breach of his Convention rights.
He argued that he had experienced frustration, helplessness, anxiety,
confusion, distress and a feeling of injustice.
- The
Government contested the amount claimed by the applicant and argued
that there was no proof that he had suffered any damage. They asked
the Court to dismiss the applicant's claim.
- Having
regard to the violations found above and their gravity, the Court
considers that an award of compensation for non-pecuniary damage is
justified in this case. Making its assessment on an equitable basis,
the Court awards the applicant EUR 9,000.
B. Costs and expenses
- The
applicant also claimed EUR 3,500 for the costs and expenses incurred
before the Court. He submitted a detailed time-sheet indicating the
time spent by his lawyer on the case and an itemised list of other
expenses linked with the examination of the case. He also submitted a
copy of a contract between him and his lawyer.
- The
Government disagreed with the amount claimed for representation and
disputed, inter alia, the number of hours worked by the
applicant's lawyer and the hourly rate charged by him. They also
argued that the claims were excessive in view of the economic
situation in Moldova.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicant the sum of EUR 3,000 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 the complaint under Article 5 § 4
of the Convention concerning the alleged lack of a remedy to complain
about the amount set for bail inadmissible and the remainder of the
application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention since the applicant's detention was not
based on a reasonable suspicion that he had committed an offence;
- Holds that it is not necessary to examine the
complaint under Article 5 § 1 of the Convention concerning
the alleged unlawfulness of the prolongation of the applicant's
detention on 6 October 2006;
- Holds that there has been a violation of Article
5 § 3 of the Convention in respect of the insufficiency of the
reasons given for the applicant's detention;
- Holds that there has been a violation of Article
5 § 3 of the Convention since the applicant was required to pay
bail and continued to be detained on the ground that he had failed to
pay it;
- Holds that there has been a violation of Article
5 § 4 of the Convention since the applicant and his lawyers had
no access to the materials in the criminal file on the basis of which
the courts ordered the applicant's detention pending trial;
- Holds that there has been a violation of Article
5 § 4 of the Convention in respect of the interference with the
applicant's right to communicate with his lawyers under conditions of
confidentiality;
- Holds
(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, EUR 9,000 (nine
thousand euros) in respect of non-pecuniary damage and EUR 3,000
(three thousand euros) in respect of costs and expenses, plus any tax
that may be chargeable, which sums are to be converted into the
currency of the respondent State at the rate applicable at the date
of payment;
(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 6 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Josep Casadevall
Deputy Registrar President
