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You are here: BAILII >> Databases >> European Court of Human Rights >> POPOVICI v. MOLDOVA - 289/04 [2007] ECHR 984 (27 November 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/984.html Cite as: [2007] ECHR 984 |
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FOURTH SECTION
CASE OF POPOVICI v. MOLDOVA
(Applications nos. 289/04 and 41194/04)
JUDGMENT
STRASBOURG
27 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 Popovici v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having deliberated in private on 6 November 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. The interview of the Secretary of the Superior Council of Security of Moldova
“Людьми главы самой крупной преступной группировки - Мику - предпринимались самые энергичные попытки его освобождения из под стражи, и только личное вмешательство Президента пресекло эти попытки.”
“The men of the leader of the most important criminal gang, Micu, made very energetic attempts to get him released from detention, and only the personal involvement of the President cut short those attempts.”
3. The applicant's acquittal
“...
[The applicant] is accused of, between January 1998 and February 2000, together with R. and S., founding a criminal gang and heading it....
In his capacity as founder and head of the criminal gang, he is accused of the murder of three persons, attempted murder of five persons, deprivation of liberty of three persons and purchase and possession of firearms. He is also accused of purchase and possession of firearms and drugs in his personal capacity at the time of his arrest on 12 November 2001, use of false documents, blackmail and theft.”
Both during the investigation and the court proceedings [the applicant] pleaded his innocence.
Concerning the charge of founding and heading the criminal gang, the court stated:
“[The applicant]'s indictment is of a declarative nature and is based on suppositions but not on any convincing evidence. The prosecutor did not adduce any new evidence during the [court] proceedings.
The co-accused R. and G.D. and the [seven persons convicted by the Supreme Court on 22 October 2002] did not make any statements during the investigation which would incriminate [the applicant] in founding and heading the criminal gang..., purchasing firearms, ammunition and cars, renting apartments and financing the gang.
The charges against [the applicant] are based on the statements of S. [co-accused] to the effect that [the applicant], C., L.V., L.P., and G.D. [alleged members of the criminal gang] are [the applicant]'s men and that [the applicant] would have had an interest in the murder of Gr. [victim of an attempted murder in respect of which the charges against the applicant had been dropped]; that R. [co-accused] had told him that [the applicant] had paid money [for a murder]; that L.V. [convicted by the Supreme Court on 22 October 2002] had told him that [the applicant] could not return to the city because of Gr. and that G.D. [co-accused] could execute any order given by [the applicant].
These [hearsay] statements were not confirmed by R. [co-accused] or L.V. [convicted by the Supreme Court on 22 October 2002] either at the investigation stage or during the proceedings.
Moreover, R. [co-accused] stated that the money [for a murder] was paid by another person, Pa., but not by [the applicant].
It had not been established that [the applicant] participated in meetings of the criminal gang, in the planning of the murders, or that he had had contact by telephone with the members of the criminal gang.
None of the witnesses interrogated in respect of this head of charge [founding and heading a criminal gang] as well as in respect of the charges concerning murders and attempted murders, had made any statements that would incriminate [the applicant].
According to section 17 § 3 of the Criminal Code, the founders and the heads of criminal gangs bear responsibility for all the offences committed by the gang. In the present case, the investigation body itself cast doubt on [the applicant]'s status as founder and head of the criminal gang by only charging him with three murders out of a total of ten and with five attempted murders out of a total of thirteen.
Having before it such a declarative indictment, which is based on suppositions and with no evidence having been adduced during the proceedings in support of the indictment, the court finds itself incapable of convicting [the applicant].”
As to the charges concerning the murders, attempted murders, the deprivation of liberty and the possession of firearms in the applicant's capacity as founder and head of the criminal gang, the Court of Appeal found as follows:
“... It was not proved that [the applicant] was involved in the alleged offences either as an executor, instigator or accomplice.
During the hearing the prosecutor dropped the charges against [the applicant] concerning the attempted murder of Gr. and J. while considering that there was no evidence to support those charges. At the same time he maintained the charges in respect of other co-accused, thus again casting doubt on [the applicant]'s responsibility for organising the murders and attempted murders.
In such circumstances, [the applicant] cannot be convicted either for being the organiser of the deprivation of liberty of Gr., D. and C. ... or for possession of firearms ... in the capacity as founder of the criminal gang.”
In so far as the charge concerning possession and use of false documents was concerned, the court stated, inter alia, that:
“[the applicant] is also accused of obtaining false identity documents and of using them to travel to Ukraine.
Both during the investigation and the court proceedings [the applicant] pleaded his innocence....
During his interrogation of 27 November 2000, the accused B.G. [the head of the State authority which allegedly issued false identity papers to the applicant] did not incriminate [the applicant]. Only on 18 April 2001, after the criminal proceedings against him [B.G.] had been discontinued, did he submit that [the applicant] had obtained a false identity card and passport.
In such circumstances, the court has doubts about the truthfulness of B.G.'s declarations.
Moreover, the prosecution failed to produce any of the documents allegedly forged by [the applicant] such as a birth certificate, military card, marriage certificate or other documents necessary for obtaining an identity card and a passport.
Nor have the false identity card and passport been presented to the court.
[the applicant]'s signature does not appear on the application form lodged with the passport authority for the purpose of issuance of passport no. 49001072 ...”
As to the charge of blackmail the Court of Appeal stated, inter alia, the following:
“[The applicant] is accused of, between 1998 and 2000, together with G.V. and B.I., extorting 200,000 Moldovan lei (MDL) from C. ...
[The applicant] denied having extorted money from C....
[The applicant]'s guilt was not confirmed for the following reasons:
During the hearing C. was interrogated and confronted with J. He declared that ... in 1998 he borrowed 5,000 United States dollars (USD) from J. Then he met G.V. and [the applicant]. The latter told him to repay the debt as soon as possible.
Later G.V., together with B.I. and Ca., started to pay him [C.] visits and to threaten him and to take money from him... He [C.] believes that [the applicant] was their leader. [The applicant] told him to repay the debt. C. declared that it was not [the applicant] who had sent the bandits to him but J.
J. declared that he lent C. USD 6,000 and that C. did not pay it back for a long time. He sold his claim to G.V. for approximately USD 1,800. During the investigation he was forced to make statements incriminating [the applicant], under threat of reprisals by the police...
It does not follow from the declarations made by C. and J. that [the applicant] threatened anyone or extorted money.
Moreover, by an order of 21 May 2003... the criminal case against G.V. and B.I. concerning the extortion of money from C. had been discontinued for lack of evidence.
By an order of 28 July 2003 the prosecutor quashed the order to discontinue the case...
Accordingly, there is another criminal case pending against other persons in respect of the alleged blackmail...”
Concerning the theft charge, the Court of Appeal found, inter alia:
“[The applicant] is accused of, in August 1999, together with other unidentified persons, overtly stealing C.E.'s car...
[The applicant] denied his guilt and declared that he did not know C.E.
The evidence adduced by the prosecutor does not confirm [the applicant]'s guilt...
C.E. declared to the court that the car... was registered in his name when he worked as a cashier for company S. After the death of his uncle ... who was the head of the company... the uncle's partner requested that he [C.E.] bring the car back to the company. He brought the car, but kept a set of documents for himself...
Once he took the car and travelled abroad with it. After his return, R. told him that [the applicant] told him to bring back the car.
After a while he was stopped by another car... Two persons assaulted him and took his car. They went to a restaurant together, where [the applicant] asked him why he had taken the car and they both agreed to sell it. C.E. argues that his uncle left him the car, but that no documents were issued to that effect.
It was not confirmed that [the applicant] dispossessed C.E. of the car. It was not established who the persons who assaulted C.E. were.
In assessing C.E.'s depositions, the court considers that he is interested in the outcome of the case, since he has claims over the car. Moreover, the Botanica District Court found in a judgment of 30 January 2002 that it was company S. which was the owner of the car and not C.E.
It is not possible to rely on C.E.'s statements alone for the purpose of convicting [the applicant]....”
As to the charge concerning the possession (in his personal capacity) of firearms and drugs during his arrest in a pharmacy, the Court of Appeal stated, inter alia, the following:
“...[the applicant] pleaded not guilty and ... argued that he did not have any firearms or drugs on him during his arrest...
... The [six] police officers ... who participated in [the applicant]'s arrest in November 2001 declared that they had found a pistol on him ... and a bag of drugs.
Witness G.F. declared that ... when she entered the pharmacy, [the applicant] was already on the floor. She saw a pistol and a bag of powder. [The applicant] was shouting that the pistol had been planted by the policemen three minutes earlier. She heard two gun shots.
Witness B.I. declared that ... when she came to work the pharmacy was surrounded. [The applicant] was seated on a chair. She saw a pistol on the floor. She did not see where the bag [of drugs] had come from.
Witness E.A. declared that ... she was at her place of work in the pharmacy. Two armed persons entered the pharmacy and ordered everybody to lie down. When she was in the corridor, she heard two gunshots. When she entered the main room, she saw a crowd and a pistol on the ground. [The applicant] was shouting that nothing was to be put in his pockets.
Witness L.A. declared that she was at work and that she heard noise. The police entered the pharmacy and ordered everybody to lie down. When [the applicant] was lying down, she heard shouts and two gunshots coming from outside.
Witness I. declared that ... she was at work. She heard noise. She saw a man on the floor and a gun near him. She heard gunshots as she was going to the main room.
The court has carefully examined the video-audio recording and noted that during the arrest [the applicant] was shouting that no guns or other objects were to be put in his pockets.
The video-audio recordings were not made in accordance with the law.
The video film is not continuous and on occasion the camera is directed away from [the applicant]. During the search, only [the applicant]'s head was filmed, but not the objects which were taken from his pockets.
... the witnesses to the arrest declared that they had not seen a bag [of drugs]. Witnesses L. and I. declared that the gunshots had gone off when [the applicant] was on the floor.
According to the ballistic report ... it appears that the gunshots came from [the applicant]'s pistol.
No witness declared that the shots were fired by [the applicant], and in any event it would have been impossible for him to have fired, because when the gunshots were heard, he was in the [main room of the pharmacy], according to witnesses L. and I.
The court considers that the testimonies of the police officers who arrested [the applicant] have no probative value, since they were involved in his arrest...
Since there are doubts in respect of [the applicant]'s guilt, and since any doubts should be interpreted in favour of the accused, he should be acquitted...”
4. The applicant's administrative arrest and detention
5. The applicant's continued pre-trial detention
“[The applicant] is suspected of having committed an offence which is punishable by more than two years' imprisonment, has been previously convicted and might try to avoid criminal responsibility. His release could impede the discovery of the truth”.
23. On 24 November 2003 a judge from the Buiucani District Court upheld the lawyer's complaint by finding a violation of the domestic legislation governing the conduct of criminal investigations and guaranteeing the confidentiality of lawyer-client meetings. The court ordered the investigating authority to ensure conditions of confidentiality for the applicant and his lawyers.
6. The appeal proceedings against the applicant's acquittal of 7 October 2003
In so far as the charges concerning the founding and heading of a criminal gang and the offences allegedly committed in the applicant's capacity as head of that gang, the defence submitted, inter alia, that the hearsay statements made by the co-accused, S., had no probative value since their alleged source denied having made such declarations. Moreover, S.'s declarations were based on his own suppositions, as he himself had admitted during his interrogation.
The defence also argued that there was no evidence that the applicant had attended the meetings of the criminal gang or had been involved in the planning of the murders or that he had even had telephone contact with any of the members of the gang.
The applicant's innocence was also confirmed, according to the defence, by the fact that he was not charged with all the offences committed by the criminal gang, which normally should have been the case had the prosecution genuinely believed him to be the head of the gang. In this connection the defence relied, exactly as the first-instance court had done, on the provisions of section 17 of the Criminal Code, which stated that the head of a criminal gang bears responsibility for all the offences perpetrated by the gang. The defence also relied on the fact that the prosecution had dropped the charges relating to two attempted murders.
In so far as the charge concerning the use of false documents was concerned, the defence submitted essentially the same arguments which had been used by the first-instance court for the applicant's acquittal. Besides that, the defence also argued that it was obvious from a video recording that the main witness, B., (the clerk who had allegedly issued the false passport), and who had allegedly recognised the applicant's photograph, had been shown by a police officer which photograph to pick out.
As to the charge concerning the theft of a car, blackmail and the possession of drugs, the defence used essentially the same arguments as used by the first-instance court in its acquittal judgment.
As to the charge concerning two attempted murders (of F. and Po.), the court endorsed the prosecution's version of the facts according to which the applicant, R. and S., together with other members of the criminal gang, had elaborated a plan to do away with their rival, F. For that purpose, a group of three members of the gang had waited for the victim near his house. Mistakenly, the person who was supposed to carry out the killing had fired at F.'s bodyguard. The bodyguard had been wounded and F. had managed to escape. The court used the following evidence to find the applicant guilty:
“... [Co-accused] S. stated that F. was preventing [the applicant] from returning to the city...
[Co-accused] R. stated [during the proceedings which ended with the judgment of the Supreme Court of 22 October 2002, in which seven members of the criminal gang were convicted] that L.V. [one of the participants in the attempted murder of F. and Po.] had good relations with a leading figure in the criminal world named Micu and that L.V. asked him to kill F. since he was a nuisance to Micu....”
In so far as the charges concerning the murder of G. and the illegal deprivation of liberty of his bodyguards (D. and C.) were concerned, the court accepted the prosecution's version of the facts according to which [the applicant], G.D., R., S., O., L.V., L.P. and several other persons had devised a plan to murder a gang leader named G. For that purpose a group of seven persons, dressed in police uniforms, shoved G. and his bodyguards into a minivan. They drove them outside the city, where they killed G. The court used the following evidence to find the applicant guilty:
“...[Co-accused] S. declared that [co-accused] R. had told him that [the applicant] had given him USD 30,000 for the murder of G....
The participation [of the applicant] and his role as organiser in the murder of G. and in the illegal deprivation of liberty of D. and C. are confirmed by [co-accused] S., who declared during the proceedings that his testimonies during the investigation stage were true and that he maintained them...
[Co-accused] S. stated that he was introduced to [the applicant]'s men L.V. and L.P. by G.D., who was close to [the applicant].
S.E. [a member of the criminal gang convicted on 22 October 2002] had told [co-accused] S. that G. should be abducted ... because he was a nuisance to the criminal activity of [the applicant]....
[Co-accused S. also declared that] for G.'s murder USD 30,000 were paid and that the money was brought by G.D. (a person close to [the applicant]). [Co-accused] R. told him that [the applicant] had provided the money....
During the confrontation between [co-accused] S. and O., in the presence of lawyers, the former declared that [co-accused] R. had told him that G. should be abducted in order for [the applicant] to 'deal with him'....
The evidence in the court's possession is indicative of the fact that [the applicant] ordered the murder of G. and paid for it through [co-accused] G.D.
[The applicant] and G.D. organised the illegal deprivation of liberty of G., D. and C.”
As to the charge concerning the murder of R. and G.I. and the attempted murder of C.V., the court accepted the version of the facts presented by the prosecution, namely that the applicant, S., R., G.D. and L.I. had devised a plan to murder the gang leader R. For that purpose they also involved O., L.V., C.O. and C.S. In the evening of 10 February 2000, after following R.'s car, one of the accused (L.V.) fired at the car from a machine gun and killed R. and his bodyguard G.I. The other bodyguard, C.V., was wounded. The court used the following evidence to find the applicant guilty:
“...During the confrontation between [co-accused] S. and O., in the presence of lawyers, the former declared that he had received USD 2,500 from G.D. for the murder of R....
...During his interrogation, which was video recorded, [co-accused] S. declared that G.D. was the one who had had a fight with P.A., who was [friends] with the L. brothers and [the applicant]....
...[co-accused] S. declared that G.D. was part of [the applicant]'s team and that he could not order [the applicant] to do anything....
[Conclusion] [the applicant] organised the murder of R. and G.I. ... and the attempted murder [of C.V.].
In so far as the charge concerning the possession of firearms in his capacity as founder and head of the criminal gang, the court concluded that this charge should not be treated separately but as part of the charge concerning the founding and heading of the criminal gang.
As to the charge concerning possession of a gun in his personal capacity at the time of his arrest in a pharmacy on 12 November 2001, the court dismissed the testimonies of the policemen, who declared that the gun and a bag of heroin had been found in his pocket, and concluded that the guilt of the applicant had not been established, since according to the witnesses he could not have fired the gun in the corridor of the pharmacy as at that time he had been lying in the main room of the pharmacy.
At the same time, the court found the applicant guilty of possession of 0.08 grams of heroin which were allegedly in his pocket together with the gun, according to the same declarations of the policemen. The court argued, inter alia, that:
“...According to the minutes of the search of 12 November 2001, which was video recorded, a bag of drugs was found in [the applicant]'s pocket...
According to the report... the packet contained 0.08 grams of heroin...”
In so far as the charge concerning the use of false documents was concerned, the court found that in 1999 the applicant obtained an identity card and a passport with a false identity. The court stated, inter alia, that:
“[Co-accused] S. declared that he maintained his statements made during the investigation...
[Co-accused] S. also declared that in 1999 he had obtained a passport with a false identity. At the same time, [the applicant] had also obtained false documents.
B. [the clerk who had allegedly issued the false passport] identified [co-accused] S. as being the person who had asked him to make a false passport for [the applicant]....
It follows from the minutes of the confrontation between B. and [the applicant], with the participation of a lawyer, that B. identified [the applicant] and confirmed that [the applicant] ... obtained a passport with a false identity...
... S. identified [the applicant]... and confirmed that he knew him...
It appears ... that there were two applications for identity papers, one bearing the name of [the applicant] and another bearing the name of S.I.B.
According to the expert's report ... the signatures on both applications belong to the same person... the pictures on the both applications are of the same person but were taken at different times...
The use of the false identity papers by [the applicant] is confirmed by the ... fact that he travelled by aeroplane from Bucharest to Kiev using a passport bearing the name S.I.B.”
As to the charge concerning the blackmail of C., the court found that between 1998 and 2000, the applicant and two other persons extorted MDL 200,000 and other goods from C. It was also found that C. owed USD 5,000 to a businessman named J., who declared during the proceedings that he had sold the debt to one of the persons who allegedly later extorted money from C. with the applicant. In convicting the applicant, the court relied solely on the declarations of C., who accused the applicant of blackmail. It did not give any assessment of the statements of J., or of the statements in the applicant's defence.
In so far as the charge concerning the theft of a car was concerned, the court found that in 1999, following a dispute between a private company and one of its former employees concerning proprietary rights over a car, the applicant organised the theft of the car. In particular, the victim (the former employee) was stopped and assaulted by two men and his car was taken away. The applicant denied any involvement in the offence and argued that he had never seen the victim of the alleged offence before the hearing. In convicting the applicant, the court relied solely on the declarations of the victim.
The Supreme Court concluded that on the basis of all the evidence adduced in support of the charges against the applicant, it could be deduced that he was the founder and leader of the criminal gang. It therefore found the applicant guilty of founding and heading a criminal gang and held that:
“...The fact that some offences (murders and attempted murders) have not been imputed to one of the founders of the criminal gang [the applicant], cannot serve as a reason for acquitting him....”
For founding and heading a criminal gang – to twenty-four years' imprisonment;
For attempted murder in his capacity as founder and head of the criminal gang – to eighteen years' imprisonment;
For murder in his capacity as founder and head of the criminal gang – to life imprisonment;
For illegal deprivation of liberty in his capacity as founder and head of the criminal gang – to four years' imprisonment;
For possession of false identity papers – to three years' imprisonment;
For theft of a car – to twelve years' imprisonment;
For blackmail – to thirteen years' imprisonment;
For possession of drugs – to two years' imprisonment
On the basis of the principle of absorption of the lesser punishment into the greater punishment, he received a final sentence of life imprisonment.
7. The dissenting opinion of Judge S. Furdui
“The evidence presented by the prosecution is not sufficient to prove [the applicant]'s guilt in respect of the offences [enumerated below]. ... The court has not established the role, the degree and the manner [of involvement] of [the applicant] in:
- the founding and heading of the criminal gang;
- the commission of the murders;
- the commission of the attempted murders;
- the illegal deprivation of liberty;
- the possession of drugs;
Nor has it established the nature of the [structure of the] criminal relationship between him and the rest of the convicted persons.
[The applicant]'s accusation in respect of the above offences relies in essence on the declarations of [co-accused] S. The latter did not incriminate [the applicant] as being a co-participant in the commission of the offences by the criminal gang. His declarations do not confirm the facts and the circumstances which result from the totality of the evidence from the case file in respect of [the applicant]. They represent suppositions or are based on hearsay statements, which in their turn have not been confirmed by the alleged sources.
It is important to note that the court gave different assessments of similar evidence concerning the possession of a gun and the possession of drugs during [the applicant]'s arrest in a pharmacy on 12 November 2001....
I express my conviction that it was not correct to sentence [the applicant] to life imprisonment without hearing evidence from him in person, in the circumstances in which he was acquitted [by the judgment of 7 October 2003] and was remanded in custody [prior to his conviction by the Supreme Court]. This is all the more so since the judgment of the Supreme Court is final and there is no appeal against it.
In the light of the above, I believe that ... the provisions of Article 6 of the Convention were disregarded...”
II. RELEVANT NON-CONVENTION MATERIAL
A. Domestic Law and Practice
“...
The founders and the heads of a criminal gang are responsible for ... all the offences committed by the criminal gang.
...”
“After examining an appeal on points of law (recurs) [in respect of certain offences there is only one level of appellate jurisdiction (recurs), rather than two levels (apel followed by recurs), before a final judgment is delivered], the court shall adopt one of the following decisions:
...
2) allow the recurs, set aside the judgment entirely or partially and adopt one of the following solutions:
a) order the acquittal of the accused person and the termination of the criminal proceedings in his or her respect;
b) re-examine the case and adopt a new judgment;
c) order a re examination of the case by the first-instance court if the Supreme Court of Justice allows the recurs and it is necessary to examine new evidence.”
According to Article 451 the procedure of re-examination is regulated by Article 436 of the Code. The latter Article states that after the setting aside of a judgment in recurs, the re-examination shall be carried out in accordance with the general rules of examining a criminal case.
B. Materials from the CPT
Visit to Moldova of 20-30 September 2004
“
4. Conditions of detention.
a. Institutions of the Ministry of Internal Affairs
41. Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs.
The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow the concern of the Committee to be alleviated. In fact, most recommendations made have not been implemented.
42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to spend the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives...
45. As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereal at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions.
...
47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.”
Visit to Moldova of 10-22 June 2001:
“B. Establishments visited
... - EDP of Chişinău Police Inspectorate1
... b. remand centres (EDPs)
53. In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity.
54. Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. For example, the renovation and reconstruction of the cells of the EDP of the Department for the fight against organised crime and corruption in Chişinău (reopened in 2000), which were supposed to reflect the CPT's 1998 recommendations, turned out to have had quite the contrary effect. All the conceptual and organisational shortcomings highlighted by the CPT at the time had been faithfully reproduced: cells without access to natural light, artificial lighting of low intensity and permanently switched on, inadequate ventilation and furnishings consisting exclusively of platforms without mattresses (although certain prisoners did have their own blankets). A similar conclusion can be drawn about the new section of the Bălţi EDP set aside for administrative detainees.
55. One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the Moldovan authorities have paid no attention to the CPT recommendations. In fact, this state of affairs strongly suggests that, setting aside economic considerations, the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty.
56. Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit.
In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m².
57. The delegation also received numerous complaints about the quantity of food in the EDPs visited. This normally comprised tea without sugar and a slice of bread in the morning, cereal porridge at lunch time and hot water in the evening. In some establishments, food was served just once a day and was confined to a piece of bread and soup. ...
... Concerning the issue of access to toilets in due time, the CPT wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of one or several other persons, in a confined space such as the EDP cells which also serve as their living space, is in itself degrading, not only for the individual concerned but also for those forced to witness what is happening. Consequently, the CPT recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should – if they so request – be taken out of their cell without delay during the day in order to go to the toilet.
59. The CPT also recommends that steps be taken to:
- reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level;
- supply persons in custody with clean mattresses and clean blankets;
- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter.
In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.”
C. Materials of the German courts
The court decided to reject the application for extradition on grounds of serious suspicion that the proceedings leading to G.D.'s conviction had not complied with the basic rules of fairness. In particular, the court found that the applicant and other co-accused were subjected to torture and pressure in order to confess to the offences imputed to them or to incriminate other co-accused. In finding the above, the court relied on witness testimonies to the effect that G.D. had signs of violence on his body during the court hearings. The allegations of ill-treatment were consistent with reports of German and International bodies specialised in the protection of human rights. The court relied, inter alia, on a report of the German Government concerning the Republic of Moldova, in which it was stated that the Moldovan justice system lacked independence from the Government and that ill-treatment and torture by police was a wide spread practice in Moldova. The court also relied on several other reports from Amnesty International and UN and EU bodies specialised in the prevention of torture with similar allegations concerning Moldova. The court also noted that the judge of the Court of Appeal who acquitted G.D. (see paragraph 11 above) was subsequently dissmissed.
The court also expressed concern about G.D.'s conviction by the Supreme Court of Moldova in his absence but only on the basis of the documents in the file and expressed the view that there were no guarantees that if extradited to Moldova, G.D. would not be subjected to inhuman treatment.
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
“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.”
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint under Article 5 § 4 of the Convention concerning the alleged lack of access to the materials of the criminal file
B. The complaint under Article 5 § 4 of the Convention concerning the confidentiality of meetings between the applicant and his lawyer during the remand proceedings
C. The complaint under Article 5 § 4 of the Convention concerning the lack of independence and impartiality of the judges who ordered and extended the applicant's pre-trial detention
D. The complaint under Article 6 § 1 of the Convention concerning the unfairness of the administrative proceedings against the applicant
E. The rest of the complaints
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
In support of his submissions, the applicant relied on the Court's judgment in the case of Becciev v. Moldova (no. 9190/03, 4 October 2005), in which a breach of Article 3 was found in respect of the conditions of detention in the remand centre of the Ministry of Internal Affairs. In so far as the conditions in the remand centre of the GDFOCC were concerned, he relied on the findings of the CPT and on the letter of a Deputy Prosecutor addressed to the Office of the President of Moldova (see paragraph 34 above).
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
76. The applicant argued that the declaration of Mr Gurbulea, to the effect that he was the head of a criminal gang, before his being convicted, amounted to a breach of his right to be presumed innocent.
77. According to the Government, Mr Gurbulea's statement was not susceptible of being interpreted as accusing the applicant of being the head of a criminal organisation, because the name Micu had been used as the name of the criminal organisation but not as the applicant's name. Had Mr Gurbulea wanted to refer to the applicant, he would have used the name Petru Popovici. The Government paraphrased Mr Gurbulea's statement in the following way: “The representatives of the largest criminal gang – MICU - made very energetic attempts to release Petru Popovici from detention”. They argued that this was the correct meaning of the impugned statement.
79. The Court notes that it is undisputed between the parties that the applicant was known to the public by the name of Micu. Having carefully examined the original statement of Mr Gurbulea and its English translation (see paragraph 10 above) the Court concludes that both of them clearly suggest that Mr Gurbulea had regarded the applicant as guilty of being the head of a criminal organisation. However, even assuming that the name Micu had been used as the denomination of the criminal organisation but not as the applicant's name, as suggested by the Government, the result remains the same. A statement that a criminal organisation bears one's name constitutes an implicit accusation that the initial bearer of the name (the person) is somehow involved with the gang. Otherwise there would simply be no reason for the gang to bear his name. Accordingly, Mr Gurbulea's statement was clearly a declaration of the applicant's guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of Article 6 § 2 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 7,500 (seven 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;
Done in English, and notified in writing on 27 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
1 Follow-up visit.