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FOURTH
SECTION
CASE OF CEBOTARI v. MOLDOVA
(Application
no. 35615/06)
JUDGMENT
STRASBOURG
13
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 Cebotari 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 S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35615/06) 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 a Moldovan national, Mr Mihail Cebotari, on
30 August 2006.
- The
applicant was represented by Mr V. Nagacevschi, acting on behalf of
Lawyers for Human Rights, a non-governmental organisation based in
Chişinău. The Moldovan Government (“the Government”)
were represented by Ms L. Grimalschi and Mr V. Grosu, the head of the
Government Agency Directorate and the Government Agent respectively.
- The
applicant alleged, in particular, that his detention had been
unlawful and arbitrary and contended that there had been a violation
of Articles 5 and 18 of the Convention. He also complained under
Article 34 of the Convention of being hindered by the domestic
authorities in bringing his case before the Court.
- On
3 October 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Chişinău. He is an
engineer. In 1997 he was the head of a Moldovan State-owned power
distribution company called Moldtranselectro.
- The
background to this case lies in a series of complex contractual
arrangements made in 1997 concerning importation of electricity from
Ukraine to Moldova and involving, in addition to Moldtranselectro, a
Ukrainian State-owned power distribution company, a Ukrainian private
company and a Moldovan private company called Oferta Plus (see Oferta
Plus SRL v. Moldova, no. 14385/04, § 7, 19
December 2006). The agreement to which Moldtranselectro was a party
provided, inter alia, that Oferta Plus would pay the Ukrainian
private company for the electricity supplied to Moldtranselectro in
United States dollars (USD) and would later be paid back by
Moldtranselectro in Moldovan lei (MDL) at the official exchange rate
on the day of payment.
- On
unspecified dates between 1997 and 1998 Oferta Plus paid more than
USD 33,000,000 for the electricity supplied to Moldtranselectro from
Ukraine.
- On
an unspecified date Moldtranselectro paid Oferta Plus
MDL 189,869,277.
- On 3 March 1998 the Government of Moldova adopted
Decision no. 243 by which the Ministry of Finance was authorised
to issue nominative Treasury bonds (“Treasury bonds”) in
favour of private companies for the payment of debts arising from the
importation of electricity supplied to state institutions.
- On 25 March 1998 Moldtranselectro wrote a letter
to the Ministry of Finance asking it to issue a Treasury bond with a
value of MDL 20,000,000 in favour of Oferta Plus. The letter was
signed by the applicant in his capacity as head of Moldtranselectro.
- On
27 March 1998 the Ministry of Finance issued a Treasury bond
valued at MDL 20,000,000 (USD 4,240,702 as of 27 March 1998) in
favour of Oferta Plus, payable by 10 July 1998. The Treasury
bond provided that Oferta Plus had to present it to the Ministry of
Finance at least ten banking days before the date of payment. It also
provided that Moldtranselectro had to present, by that date, to the
Ministry of Finance, documents proving the supply of electricity to
state institutions.
- Oferta Plus presented the Treasury bond to the
Ministry of Finance ten banking days before the date of payment.
However, the latter refused to pay, on the ground that
Moldtranselectro had failed to submit evidence concerning the payment
by Oferta Plus for the imported electricity.
- In
October 1998 Oferta Plus initiated civil proceedings against both the
Ministry of Finance and Moldtranselectro. The Ministry of Finance
defended the action on the grounds set out in paragraph 12 above
while Moldtranselectro declined all responsibility.
- On 27 October 1999 the Chisinau Economic Court found
in favour of Oferta Plus and confirmed its right to be paid
MDL 20,000,000 by the Ministry of Finance, in accordance with
the Treasury bond. It based its judgment on the finding that Oferta
Plus had paid for energy supplied to Moldtranselectro from Ukraine in
accordance with the agreement between them and that that energy had
been consumed by state institutions. The court also decided to
absolve Moldtranselectro of any responsibility.
- Since
an appeal by the Ministry of Finance was dismissed on 25 November
1999 for failure to pay court fees, a warrant for the enforcement of
the judgment of 27 October 1999 was issued to Oferta Plus in November
1999.
- On
14 February 2000 Oferta Plus officially requested a bailiff to start
the enforcement procedure under the warrant.
- On
27 April 2000 the Ministry of Finance requested an extension of the
time-limit for lodging an appeal against the judgment of 27 October
1999 and its request was granted. The appeal was examined on its
merits and dismissed by a judgment of the Appeals Chamber of the
Economic Court of the Republic of Moldova on 4 October 2000. The
Ministry of Finance lodged an appeal on points of law, reiterating
that Moldtranselectro had not complied with its obligation in the
Treasury bond.
- On 7 February 2001 the Supreme Court of Justice
dismissed the appeal and upheld the judgments of 27 October 1999 and
4 October 2000. It found it undisputed that Oferta Plus had paid for
electricity supplied from Ukraine to Moldtranselectro and consumed,
inter alia, by state institutions.
- In March 2001, following a request by the Ministry of
Finance, the Prosecutor General's Office introduced a request for
annulment of the final judgment of the Supreme Court of Justice. On
7 May 2001 the Plenary Supreme Court of Justice dismissed the
request and upheld the judgments favourable to Oferta Plus. It found,
inter alia, that both during the proceedings before the lower
courts and before the Plenary Supreme Court, it had been established
that over MDL 20,000,000 worth of electricity had been supplied
to state institutions.
- On 26 April 2004 the Government Agent informed the
Ministry of Finance about Oferta Plus's application to the Court
concerning the non-enforcement of the final judgments in its favour
and requested it to “take all the necessary steps in order to
avoid a finding of a violation against the State by the Court, with
the consequent impairment of the country's image”.
- On 7 June 2004 the Ministry of Finance wrote to the
Prosecutor General's Office, informing it, inter alia, that it
considered the judgment in favour of Oferta Plus to be unlawful, but
that it had complied with it partially so that Oferta Plus would not
complain to the Court. The Government Agent had informed it that
Oferta Plus had already complained to the Court. The Ministry asked
the Prosecutor General's Office for advice.
- On 8 June 2004 the Prosecutor General's Office
wrote to the Ministry as follows:
“...during the proceedings [between Oferta Plus,
Moldtranselectro and the Ministry of Finance] Oferta Plus and
Moldtranselectro presented invoices for MDL 15,608,692, of which
by 24 April 1998 only MDL 6,226,504 had been paid.
No other evidence as to the extent to which Oferta Plus
had fulfilled its obligations under the agreement [of 1997] has been
presented. Despite this the courts ruled in its favour.
In that respect the Prosecutor General's Office has
ordered an audit to verify the supply of electricity and the payments
between Oferta Plus, Moldtranselectro and state institutions. A final
decision will be adopted by the Prosecutor General's Office after the
results of the audit become available to it and the Ministry of
Finance will be informed accordingly.”
An
attempt to carry out this audit was made in August 2004 by a
representative of the Ministry of Finance at the request of the
Prosecutor General's Office. However, it was unsuccessful because, in
accordance with book-keeping legislation, Oferta Plus had destroyed
the accounting documents after three years.
- The
Ministry of Finance did not wait for a final reply from the
Prosecutor General's Office and on 15 June 2004 lodged with
the Plenary Supreme Court of Justice a request for revision of the
judgments in favour of Oferta Plus. The request did not specify any
reasons for revision.
- On
12 July 2004 the Plenary Supreme Court of Justice upheld the revision
request, following a hearing at which the Ministry of Finance was
represented by the Deputy Prosecutor General. It quashed the
judgments in favour of Oferta Plus and ordered the reopening of the
proceedings. The re-opened proceedings ended with a judgment of the
Supreme Court of Justice of 10 February 2005 in favour of the
Ministry of Finance.
- In
the meantime, on 19 October 2004, the Prosecutor General's Office,
having examined the letter from the Ministry of Finance of 7 June
2004 (see paragraph 21 above), initiated criminal proceedings against
Oferta Plus and against the applicant on charges of large-scale
embezzlement of State property. The Prosecutor General's Office
referred to the results of the audit which it had attempted to carry
out in August 2004 (see paragraph 22 above) and stated, inter
alia, that according to the results of that audit, Oferta Plus
had not paid for electricity supplied to state institutions.
- On
15 April 2005 the Chief Executive Officer of Oferta Plus (“C.T.”)
was questioned by the Prosecutor General's Office.
- On
20 April 2005 the offices of Oferta Plus were searched and some
documents seized.
- On 25 October 2005 the criminal proceedings were
discontinued. The prosecutor in charge of the criminal case stated in
his decision of discontinuation, inter alia, the following:
“According to the evidence obtained during the
audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus
reached MDL 202,644,866...
The materials gathered [during the investigation] and
the audit prove the existence of the debt of Moldtranselectro to
Oferta Plus for the electricity supplied. ...
Taking into consideration the evidence gathered, [the
prosecution concludes] that the acts of Oferta Plus's management do
not disclose any signs of the offence [of large-scale embezzlement]
or of other offences.”
- On 15 February 2006 the Court communicated the case of
Oferta Plus to the Moldovan Government.
- On 26 April 2006 the Deputy Prosecutor General quashed
the decision of 25 October 2005. He submitted, inter alia,
that on 1 January 2001 Moldtranselectro's debt to the applicant
company for the electricity supplied had been MDL 38,454,671. He
argued that while Oferta Plus had paid the Ukrainian partner more
than MDL 20,000,000 for the electricity supplied to
Moldtranselectro, it appeared that the energy for which it had paid
had not been supplied exclusively to state institutions.
- On
9 August 2006 the applicant was declared a suspect in the criminal
proceedings. In particular he was accused of having written the
letter of 25 March 1998 to the Ministry of Finance asking it to
issue a Treasury bond in favour of Oferta Plus (see paragraph 10
above) while knowing that the energy supplied to Moldtranselectro,
for which the Treasury bond was to be issued, had not been consumed
by state institutions as stipulated in the Government's Decision of 3
March 1998 (see paragraph 9 above). On the same date C.T. was
indicted on similar charges.
- On the same date the applicant and C.T. were arrested
and remanded in custody for ten days on the grounds, inter alia,
that they could influence witnesses and hinder the investigation.
According to the applicant, before being arrested the investigator
made it clear to him that his arrest or release depended on whether
he would agree to make the declarations expected of him.
- Both
the applicant and C.T. appealed against the detention order and
argued, inter alia, that there had been no reasonable
suspicion that they had committed an offence and that the criminal
proceedings against them had been a form of pressure to persuade
Oferta Plus to abandon its application before the Court. The
applicant argued that he had been arrested because he had refused to
make the declarations he had been asked to make by the investigating
officer and in order to induce him to make such declarations. He
also argued that the criminal proceedings had been pending since
October 2004 and that since that date he had never failed to appear
before the investigating authorities when summoned. On 15 August 2006
the applicant's appeal was dismissed without any reasons being given
for rejecting the arguments relied on by the applicant.
- The
applicant's detention was subsequently extended and all his habeas
corpus requests rejected. It continued until 19 November 2006
when he was released on bail.
- Throughout his detention the applicant was detained in
the detention centre of the Centre for Fighting Corruption and
Economic Crimes (“CFECC”). The room used for meetings
between lawyers and detainees had a glass partition to keep them
separated. The applicant complained before the domestic courts of the
impossibility of holding confidential meetings with his lawyer, but
his complaints were dismissed. He did not want the domestic
authorities to know about his application to the Court and therefore
his application and the power of attorney had to be signed by his
wife.
- On
27 June 2007 the applicant was acquitted by the Centru District Court
of all the charges brought against him.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law concerning pre-trial detention was set out in
the Court's judgment in Sarban v. Moldova, no. 3456/05, §
52, 4 October 2005.
- It appears from the photographs submitted by the
Government that in the lawyer-client meeting room of the CFECC
detention centre, the space for detainees is separated from the rest
of the room by a door and a window. The window appears to be made of
two plates of glass joined together. Both plates have small holes
pierced with a drill; however the holes do not coincide, so that
nothing can be passed though the window. Moreover, there is a dense
green net made either of thin wire or plastic between the glass
plates, covering the pierced area of the window. There appears to be
no space for passing documents between the lawyer and his client.
- Between 1 and 3 December 2004 the Moldovan Bar
Association held a strike, refusing to attend any proceedings
regarding persons detained in the CFECC detention centre until the
administration had agreed to provide lawyers with rooms for
confidential meetings with their clients. The demands of the Bar
Association were refused (see Sarban, cited above, § 126).
- On 26 March 2005 the Moldovan Bar Association held a
meeting at which the President of the Bar Association and another
lawyer informed the participants that they had taken part, together
with representatives of the Ministry of Justice, in a committee of
inspection of the CFECC detention centre. During the inspection they
had asked that the glass wall be taken down in order to check that
there were no listening devices. They had pointed out that it would
only be necessary to remove a few screws and proposed that all the
expenses linked to the verification be covered by the Bar
Association. The CFECC administration had rejected the proposal.
THE LAW
- The
applicant complained under Article 5 § 1 of the Convention that
his detention had been imposed in the absence of a reasonable
suspicion that he had committed an offence, and under Article 18 that
his detention had had a purpose other than that provided for in
Article 5 § 1 (c). The relevant parts of Article 5 and Article
18 read as follows:
“Article 5 – Right to liberty and security
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 ...;
Article 18 – Limitation on use of restrictions of
rights
The restrictions permitted under [the] Convention to the
said rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed.”
- He
also complained under Article 5 § 3 of the Convention that the
courts had not given relevant and sufficient reasons for his
detention. 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 during the
proceedings concerning his detention he and his lawyers had had no
access to the materials in his criminal file on the basis of which
the courts had ordered his detention. He also submitted that he had
not been able to meet his lawyers in conditions of confidentiality
and that all the documents which had passed between him and his
lawyers had been scrutinised by the prison authorities. 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.”
- Finally,
the applicant complained under Article 34 of the Convention that the
refusal to allow his lawyers to see him in conditions of
confidentiality had affected his right of petition. The relevant part
of Article 34 reads:
“...The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
I. ADMISSIBILITY OF THE COMPLAINTS
- The
Court considers that 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 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 application.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION AND OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION
WITH ARTICLE 5
- The
Government maintained that the applicant's detention between 9 August
and 19 November 2006 had been motivated by a reasonable suspicion
that he had committed offences set out in Articles 195/2 and
328/3 (d) of the Criminal Code, on the ground that he had sent the
Ministry of Finance the letter of 25 March 1998 asking it to issue a
Treasury bond in Oferta Plus's favour while knowing that the energy
supplied to Moldtranselectro with the latter's participation had not
been consumed by state institutions. The Government further submitted
that the applicant's detention had had no other purpose than that
provided for in Article 5 § 1 (c), that is to
bring him before the competent legal authority on reasonable
suspicion of having committed an offence.
- The
applicant argued the contrary and referred, inter alia, to the
Court's findings in paragraphs 138-143 of the Oferta Plus
judgment. He argued that his detention had been arbitrary and that
the Government had not contested the fact that an investigator had
made his release conditional on his making declarations desired by
the Government. He concluded that the facts of this case were very
similar to those in the case of Gusinskiy v. Russia
(no. 70276/01, ECHR 2004 IV).
- 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). Neither
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
dispelling 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 stresses in this connection that in the absence of a reasonable
suspicion arrest or detention of an individual must never be imposed
for the purpose of making him confess or testify against others or to
elicit facts or information which may serve to ground a reasonable
suspicion against him.
- The
Court further reiterates that Article 18 of the Convention, like
Article 14, does not have an autonomous role. It can only be applied
in conjunction with other Articles of the Convention. As in the case
of Article 14, there may be a violation of Article 18 in
connection with another Article, although there is no violation of
that Article taken alone. It further follows from the terms of
Article 18 that a violation can only arise where the right or freedom
concerned is subject to restrictions permitted under the Convention
(Gusinskiy v. Russia, cited above, § 73).
- It
is noted that the accusation against the applicant was based on the
assertion that while allegedly knowing that Oferta Plus had not paid
for energy supplied specifically to state institutions he requested
the Ministry of Finance to issue a Treasury bond in Oferta Plus's
favour, in breach of the Government's Decision no. 243 (see
paragraph 9 above). The Court recalls that in Oferta Plus the
accusation against the Chief Executive Officer was “based on
the allegation that the applicant company had not paid for energy
supplied specifically to state institutions and had thus fraudulently
obtained first the Treasury bond in its favour and later the civil
judgments in its favour” (see Oferta Plus, cited above,
§ 135). Thus, the accusation against the applicant in the
present case is indissociable from that against the Chief Executive
Officer of Oferta Plus. Moreover, the criminal proceedings against
the applicant and Oferta Plus's CEO and their detention coincided in
time, were initiated and dealt with by the same investigators from
the CFECC, and were couched in similar terms. It is for these reasons
that the Court will rely on its findings in Oferta Plus for
the purposes of the present case.
- In Oferta Plus the Court made the following
findings in respect of the charges against the company's CEO:
“138. Analysing the judgments adopted by the
civil courts in the dispute between the applicant company and the
Ministry of Finance, the Court notes that it is an established fact
that the former had paid over USD 33,000,000 for the electricity
imported by Moldova from the Ukraine and that the Treasury bond
issued by the Ministry of Finance on 27 March 1998 was intended to
cover a small part of that amount. This was confirmed by the civil
courts both before and after the proceedings were wrongfully reopened
on 12 July 2004....
139. Some of the electricity imported to Moldova
with the participation of the applicant company was supplied to state
institutions. The civil courts established that the applicant company
had paid more than MDL 20,000,000 for that electricity. This finding
was made by the Plenary Supreme Court in its judgment of 7 May
2001....
140. The court rulings which followed the reopening
of the proceedings on 12 July 2004 must, in principle, be
disregarded, in view of the Court's earlier finding that the
reopening was wrongful .... However, it is of some interest to note,
for instance, that the Court of Appeal in its judgment of 3 November
2004 found that the applicant company had paid more than MDL
27,000,000 for electricity supplied to state institutions .... The
Supreme Court of Justice, in reversing that judgment, on 10 February
2005, did not dispute this finding but made only a general statement
that the electricity supplied with the participation of the applicant
company had been supplied, inter alia, to state institutions
....
141. In those circumstances, the accusation against
C.T. based on the premise that his company had not paid for
electricity supplied to state institutions appears to be inconsistent
with the above findings of the civil courts.
142. Against this background, the Court notes that
C.T. was charged with a criminal offence for the first time after the
Government had been informed about the present application .... Later
the criminal proceedings were discontinued, but reactivated shortly
after the communication of the present case to the Government ....
143. In view of the above, the Court considers
that, on the basis of the materials before it, there are sufficiently
strong grounds for drawing an inference that the criminal proceedings
against C.T. were aimed at discouraging the company from pursuing the
present case before the Court. Accordingly, there has been a breach
of Article 34 of the Convention.”
- In such circumstances, the Court cannot agree with the
assertion that the materials of the criminal case against the
applicant could lead an objective observer to have a reasonable
belief that the applicant may have committed the offence imputed to
him. As found in Oferta Plus (see the preceding paragraph),
such a belief could not be guided by any objective considerations,
having regard to the clear findings in the final judgments of the
civil courts. Accordingly, the Court considers that the applicant's
detention between 9 August and 19 November 2006 was not based on a
reasonable suspicion that he had committed an offence.
- The Court recalls that the restriction on the right to
liberty under Article 5 § 1(c) must be justified by the purpose
of that provision. In the instant case, the Government have failed to
satisfy the Court that there was a reasonable suspicion that the
applicant had committed an offence, with the result that there was no
justification for his arrest and detention. Indeed, having regard to
its conclusion in paragraph 141 of the Oferta Plus judgment
(cited above) the Court can only conclude that the real aim of the
criminal proceedings and of the applicant's arrest and detention was
to put pressure on him with a view to hindering Oferta Plus from
pursuing its application before the Court. It therefore finds that
the restriction on the applicant's right to liberty was applied for a
purpose other than the one prescribed in Article 5 § 1(c). On
that account there has been a breach of Article 18 of the Convention
taken in conjunction with Article 5 § 1.
III. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 3 and 4
OF THE CONVENTION
- The
applicant complained under Article 5 §§ 3 and 4 of the
Convention of a lack of reasons for his detention and that during the
proceedings concerning his detention he and his lawyers had had no
access to the materials in the criminal file on the basis of which
the courts had ordered his detention. He also submitted that he had
not been able to meet his lawyers in conditions of confidentiality
and that all the documents which had passed between him and his
lawyers had been scrutinised by the prison authorities.
- In
view of its finding that the applicant's detention was arbitrary (see
paragraphs 52 and 53 above) the Court does not consider it necessary
to examine these complaints separately.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicant complained that he had not been allowed to meet in private
with his lawyer and had been separated from him by a glass partition
without any aperture, preventing normal discussion or work with
documents. As a result they had had to shout to hear each other and
had not been able to pass documents to each other without involving
the criminal investigator or the prosecutor. The applicant had
therefore been prevented from signing the application form and the
power of attorney himself and it was his wife who had signed them.
- According
to the Government, the glass partition was necessary to protect
detainees and lawyers and did not prevent normal communication. The
applicant had not provided proof that his discussions with the lawyer
had been intercepted, which would be contrary to the law in any case.
They further referred to the case of Kröcher and Möller
v. Switzerland (no. 8463/78, DR 26, p.40) by way of
justification for the glass partition.
- The
Court notes that one of the key elements in a lawyer's effective
representation of a client's interests is the principle that the
confidentiality of information exchanged between them must be
protected. This privilege encourages open and honest communication
between clients and lawyers. The Court recalls that it has previously
held that confidential communication with one's lawyer is protected
by the Convention as an important safeguard of one's right to defence
(see, Oferta Plus, cited above, § 145).
- Indeed,
if a lawyer were unable to confer with his client and receive
confidential instructions from him without surveillance, his
assistance would lose much of its usefulness, whereas the Convention
is intended to guarantee rights that are practical and effective
(see, inter alia, Artico v. Italy, judgment of 13
May 1980, Series A no. 37, § 33).
- The
Court considers that an interference with the lawyer-client privilege
and thus with the right of petition guaranteed by Article 34 of the
Convention does not necessarily require an actual interception or
eavesdropping to have taken place. A genuine belief held on
reasonable grounds that their discussion was being listened to might
be sufficient, in the Court's view, to limit the effectiveness of the
assistance which the lawyer could provide. Such a belief would
inevitably inhibit a free discussion between lawyer and client and
hamper the client's right to be effectively defended or represented.
- The
Court must therefore establish whether the applicant and the lawyer
had a genuine belief held on reasonable grounds that their
conversation in the CFECC lawyer-client meeting room was not
confidential. It appears from the applicant's submissions that the
fear of having his conversations with the lawyer intercepted was
genuine. The Court will also consider whether an objective,
fair-minded and informed observer would have feared interception of
lawyer-client discussions or eavesdropping in the CFECC meeting room.
- The
Court notes that the problem of alleged lack of confidentiality of
lawyer-client communications in the CFECC detention centre has been a
matter of serious concern for the entire community of lawyers in
Moldova for a long time and that it has even been the cause of a
strike organised by the Moldovan Bar Association (see paragraph 39
above). The Bar's requests to verify the presence of interception
devices in the glass partition were rejected by the CFECC
administration (see paragraph 40 above), and that appears to have
contributed to the lawyers' suspicion. Such concern and protest by
the Bar Association would, in the Court's view, have been sufficient
to raise a doubt about confidentiality in the mind of an objective
observer.
- Accordingly,
the Court concludes that the applicant and his lawyer could
reasonably have had grounds to fear that the conversation in the
CFECC lawyer-client meeting room was not confidential.
- Moreover,
the Court notes that, contrary to the Government's contention that
the applicant and his lawyer could easily exchange documents, the
pictures provided by the Government (see paragraph 38 above) show
that this was not the case because of the lack of any aperture in the
glass partition. This, in the Court's view, rendered the lawyer's
task even more difficult.
- The
Court recalls that a violation of Article 34 was found in Oferta
Plus, on the ground, inter alia, that because of the glass
partition the applicant could not present its claims under Article 41
of the Convention.
- In
the present case, the effective representation of the applicant
before the Court also appears to have been seriously hampered, in
such a way that he was unable to sign the application form or the
power of attorney (see paragraph 35 above).
- The
security reasons invoked by the Government are not convincing, in the
Court's view, since visual supervision of the lawyer-client meetings
would be sufficient for such purposes.
- In the light of the above, the Court considers that
the impossibility for the applicant to discuss with his lawyer issues
concerning the present application before the Court without being
separated by a glass partition affected his right of petition.
Accordingly, there has been a violation of Article 34 of the
Convention.
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 50,000 euros (EUR) in compensation for the damage
caused to him by the violation of his rights. He argued that his
arbitrary detention had caused him severe stress and anxiety. The
CFECC authorities published a press release on their website and
Moldovan National Television presented a report about his arrest on
the evening news of 21 August 2006. His image had been tarnished and
he felt the consequences of that to the present day.
- 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 asked the Court to dismiss the applicant's claim.
- The
Court considers that the applicant must have been caused a certain
amount of stress and anxiety as a consequence of the very serious
breaches found above. It awards the applicant EUR 10,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 3,555.58 for legal costs and expenses. He
submitted a list of hours worked by his lawyer in preparing the case
and the hourly fee which corresponded to a decision of the Moldovan
Bar Association adopted on 29 December 2005 recommending the
level of remuneration for lawyers representing applicants before
international courts. The claim also included the cost of translation
and the cost of express mail.
- The
Government considered these claims to be unjustified given the
economic realities of life in Moldova. They questioned the number of
hours spent by the applicant's lawyer on the case and the fee charged
by him.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred and were
reasonable as to quantum (see, for example, Amihalachioaie v.
Moldova, no. 60115/00, § 47, ECHR 2004 ...).
- In
the present case, regard being had to the itemised list submitted by
the applicant, the above criteria and the complexity of the case, the
Court awards the applicant EUR 2,500.
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 application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
3. Holds that it is not necessary to examine separately the
applicant's complaints under Article 5 §§ 3 and 4 of the
Convention;
- Holds that there has been a violation of Article
18 of the Convention taken in conjunction with Article 5;
- Holds that there has been a violation of Article
34 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 in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten thousand
euros) in respect of non-pecuniary damage, and EUR 2,500 (two
thousand five hundred euros) in respect of 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 13 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President
