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FOURTH
SECTION
CASE OF IGNATENCO v. MOLDOVA
(Application
no. 36988/07)
JUDGMENT
STRASBOURG
8
February 2011
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 Ignatenco v.
Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36988/07) 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 Oleg Ignatenco (“the
applicant”), on 17 August 2007.
- The
applicant was represented by Mr V. Nicoară and Mr I. Tofan,
lawyers practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent, Mr V.
Grosu.
- The
applicant complained about his detention on
remand and of various alleged violations in that connection: a
violation of Article 5 § 1 (unlawful arrest and
detention); a violation of Article 5 § 3
(insufficient reasons given by the courts for his detention on
remand); and a violation of Article 5 § 4 of the
Convention (lack of access to part of the criminal file).
- On
13 May 2008, the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was a security guard who was born in 1969 and lived in
Bălţi.
A. Background to the case
- The
applicant, together with Messrs Nicolae Ninescu and Anatolie Tripăduş
who have also lodged applications with the Court, was involved in a
series of complex commercial arrangements concerning the building of
eighteen blocks of flats in Chişinău by a construction
company (“the company”).
- On
29 March 2004 S.F. and L.B. created the above-mentioned company with
a capital of 5,400 Moldovan lei (MDL). Each of the parties was the
holder of 50% of the company's shares. On 17 December 2004 L.B. sold
10% of her shares to S.F. and on 11 February 2005 the remaining 40%
of her shares were sold to F.M., a German national. The relevant
documents were registered by the State Registration Chamber.
- On
14 February 2006 Mr Nicolae Ninescu, on behalf of F.M., brought an
action against S.F., seeking the exclusion of the latter from the
company on the ground that S.F. had not paid his part of the shares
since 29 March 2004.
- On
15 March 2006 the Bălţi District
Court upheld F.M.'s action and ordered the exclusion of S.F. from the
company. F.M. thus became the sole shareholder. On 31 March 2006 the
judgment became final and enforceable. The court issued an
enforcement warrant and on the same date the State Registration
Chamber registered the changes in the company's statutory documents.
- On
2 April 2006 F.M. sold 10% of his shares to the applicant and 70% of
his shares to V.S., who in turn sold them to three other persons, who
were represented by the applicant in these transactions.
- On
3 April 2006 the Bălţi
Territorial Office of the State Registration Chamber added 3,024,000
euros (EUR) to the company's capital. This corresponded to the value
of the project documentation for the construction site which had been
estimated at EUR 3,024,358.80 in an audit report dated 9 December
2005.
- Later
in 2006, on an unspecified date, S.F. appealed against the judgment
of 15 March 2006. He asked the Bălţi Court of Appeal
to strike the case out of its list on the grounds that Mr Nicolae
Ninescu did not have the powers to bring an action on behalf on F.M.
The Court of Appeal examined the appeal despite the fact that the
appealed decision was final, since it found that the merits of the
case had been examined by the Bălţi District Court in F.S.'
absence, who had not been legally summoned to that hearing. On 30 May
2006 the Bălţi Court of Appeal dismissed the appeal and
rejected the request to strike the case out of its list of cases.
S.F. lodged an appeal on points of law.
- On
11 July 2006 the Supreme Court of Justice upheld the appeal on points
of law. It quashed the judgment of the Bălţi District Court
of 15 March 2006 and the Bălţi Court of Appeal's
decision of 30 May 2006 and ordered that the case be remitted to the
first-instance court.
- On
2 August 2006 the Chişinău Court of Appeal joined F.M.'s
action to a counter action filed by S.F. against F.M. and the State
Registration Chamber, seeking the annulment of all documents which
had led to his exclusion from the founding members of the company and
for an acknowledgement of his sole ownership of the company's shares.
- By
a final judgment of 19 October 2006 the Supreme Court dismissed
F.M.'s action and upheld in full the action lodged by S.F.
B. Opening of the criminal investigation
- Meanwhile,
on 16 May 2006, the Prosecutor General's Office ordered the opening
of a criminal investigation into the alleged forgery of the power of
attorney whereby the applicant had represented the above-mentioned
three individuals (see paragraph 10 above). A criminal investigation
was also opened in relation to the alleged smuggling of the project
documentation for the construction site, since it had not been
drafted in Moldova and had to be registered with the customs when
introduced into Moldova. The investigation revealed that the project
documentation had been brought into Moldova by the applicant on 27
February 2006. It further appeared that the applicant had declared
the value of the project documentation as being MDL 19,665 whereas it
had been estimated at EUR 3,024,358.80 (see paragraph 11 above).
- On
26 May 2006 S.F. filed a criminal complaint with the Prosecutor
General's Office about having been excluded from the founders of the
company and about being illegally dispossessed of his shares.
- On
the same date, the Buiucani police office opened a criminal
investigation against Mr Nicolae Ninescu into the alleged
misappropriation of S.F.'s assets.
- On
9 June 2006 an officer of the Centre for Fighting Economic Crimes and
Corruption (“CFECC”) ordered the opening of a criminal
investigation into the allegations made by S.F. The CFECC only relied
on S.F.'s allegations that following the judgment of the Bălţi
District Court of 15 March 2006 S.F. had been excluded from the
founders of the company and that F.M. had subsequently sold the
company's shares to third parties, including the applicant.
- On
26 June 2006 both criminal investigations instituted against
Mr Nicolae Ninescu were joined.
- On
17 July 2006 the criminal investigation started by the Prosecutor
General's office on 16 May 2006 into the acts of smuggling and
forgery was joined to the criminal investigation started by the CFECC
on 9 June 2006.
- On
8 August 2006 all the above-mentioned criminal investigations were
joined in a single criminal investigation.
- On
18 December 2006 an expert report commissioned by the CFECC concluded
that it could not firmly establish whether the power of attorney
whereby the applicant had represented the above-mentioned three
individuals (see paragraph 10 above) had properly been signed by the
director of the company or whether the signature had been forged.
- On
3 May 2007 an investigating judge of the Buiucani District Court
granted the CFECC's application for a search warrant to search the
applicant's domicile in Bălţi. The search was conducted on
4 May 2007.
C. The applicant's arrest and initial detention
- On
19 June 2007, at 12.15 p.m., the applicant was arrested and placed in
the remand centre of the CFECC.
- On
22 June 2007, at 8.55 a.m., the prosecutor applied to the Buiucani
District Court for an arrest warrant for the applicant. The
application recorded that the applicant lived in Bălţi.
It further noted that on 31 March
2006 F.M. had asked the State Registration Chamber urgently to
enforce the judgment of 15 March 2006, i.e. as soon as it had become
final and enforceable. This request had been made without notice to
S.F. and, in the prosecutor's view, in order to erase all evidence of
an offence. Relying on “investigative information”
(măsuri operativ-investigative)
that the applicant, together with F.M. and Mr Nicolae Ninescu, had
executed the orders of Mr Anatolie Tripăduş against S.F.,
the prosecutor alleged that the applicant had committed the offence
of misappropriation of another's property. The prosecutor's
application did not refer to any other evidence in support of a
reasonable suspicion that the applicant had committed the offence.
Nor did it refer to any reasons for his detention or that he might
abscond or put pressure on witnesses.
- Later
on the same day, at 2.40 p.m., the applicant's lawyer lodged an
application for the applicant's release on the ground that the period
of his detention had ended at 12.15 p.m. earlier that day.
- At
4 p.m., however, an investigating judge of the Buiucani District
Court ordered the applicant's remand for a period of 10 days. The
judge gave the following reasons for the applicant's detention:
“[the court] takes into consideration the
character and the degree of the alleged offence ... its seriousness,
the necessity to protect public order, the sense of shock which may
be caused to society by the applicant's release, ... the existence of
a danger of absconding from law enforcement authorities, the risk of
influencing the outcome of the investigation and collusion between
the accused and the creation of exculpatory evidence, which result
from the nature of the offence ... and the personality of the accused
and his conduct during the criminal proceedings.
... the court dismisses the argument that the applicant
had to be released after 72 hours ... because the delay in the
opening of the hearing was due to the examination of other remand
warrants and the delay in examining the prosecutor's request was due
to the courts' efforts to observe the procedural rights of the
defence party.
... at this stage, the court considers that the
relevance of the prosecution's reasoning has priority and will
contribute to the normal conduct of the criminal proceedings.
...
The court orders the prosecutor to ensure ... the
applicant's proper medical care.”
- The
applicant appealed on 25 June 2007. The applicant did not, however,
complain in his written submissions about the delay in releasing him
on 22 June 2007.
- On
26 June 2007 the police informed the CFECC that the applicant had not
been living at his given address in Bălţi
for four years.
- On
28 June 2007, at 9.30 a.m., the applicant was officially indicted on
charges of misappropriation of another's property and forgery. The
indictment stated that S.F.'s 60% shares in the company were worth
MDL 20,165,034 (EUR 1,327,083) on 1 January 2006.
- On
the same day, at 10 a.m., the Chişinău Court of Appeal
examined the appeal against the decision of 22 June 2007 and
dismissed the applicant's appeal. It did not consider the applicant's
arguments about the lack of a reasonable suspicion against him or
deal with other submissions in favour of release. However, the court
endorsed the reasons given by the investigating judge of the Buiucani
District Court for remanding the applicant in custody and stated that
he could abscond through the uncontrolled territory of
Transdniestria.
D. The remand proceedings
- Still
on 28 June 2007, at 10.40 a.m., the prosecutor applied to the
Buiucani District Court for an extension of the applicant's detention
for another 30 days. The grounds for the extension were similar to
those relied upon in the initial application for a remand warrant. It
further stated that the identity of all the persons who could have
been aware of the offence were unknown. An investigating judge of the
Buiucani District Court ordered the extension of the applicant's
detention for another 20 days for the reasons given by the
prosecution later on that day. Relying on Article 186 § 3 of the
Code of Criminal Procedure (“the CCP”) the judge further
stated that in exceptional circumstances, depending on the complexity
of the case, the severity of the offence and the risk of the
applicant's absconding, the detention could be prolonged. He further
noted that the criminal investigation was still ongoing and that
several other measures had to be taken in order to complete it. The
judge however did not consider any of the arguments put forward by
one of the applicant's lawyers that the applicant's wife was eight
months' pregnant, that he would not abscond and that he did not
intend to influence witnesses. The applicant appealed.
- On
10 July 2007 the Chişinău Court of Appeal rejected the
appeal lodged against the decision of 28 June 2007 and found that the
investigating judge of the Buiucani District Court had observed the
correct procedure. It did not adduce any new reasons for the
applicant's detention.
- On
12 July 2007 the applicant's lawyer made a fresh habeas corpus
application, submitting that there was no reason for the applicant's
further detention on remand. He stated that there was no risk of
collusion between the accused or of influencing witnesses, since the
criminal proceedings had been instituted on 9 June 2006 and during
that period the prosecution had done enough to obtain evidence.
- On
16 July 2007 the prosecutor filed a new application with the Buiucani
District Court for the prolongation of the applicant's detention for
an additional 30 days. The prosecutor also relied on the risk that
the applicant would forge identity papers and documents in order to
hinder the investigation and that the identity of all the persons who
could have been aware of the offence was unknown.
- On
18 July 2007 an investigating judge of the Buiucani District Court
upheld the prosecutor's request and relying on Article 186 § 3
of the CCP prolonged the applicant's detention for 20 days. The
investigating judge endorsed the reasons given by the prosecutor in
favour of the applicant's further detention. As to the habeas
corpus application, the investigating judge found that the
reasons put forward by the prosecution for extending the applicant's
detention outweighed the reasons put forward by the defence. Again,
the applicant's lawyer's argument that his wife was pregnant and that
therefore he was unlikely to abscond was ignored. Similarly, the
investigating judge did not heed the argument that the applicant was
willing to give up his passport as an assurance that he would not
leave the country. The applicant appealed.
- On
25 July 2007 the Chişinău Court of Appeal dismissed the
appeal without adducing any new reasons. It noted however that the
identity of the persons who could have been aware of the offence were
unknown.
- On
7 August 2007 an investigating judge of the Buiucani District Court
upheld a new request of the prosecution for a prolongation of the
applicant's detention and ordered a further 20 days' detention. In
particular, the investigating judge dismissed the argument that the
applicant's wife was pregnant on the ground that she was on maternity
leave and that there was no evidence that she required any assistance
or medical treatment. The applicant appealed, invoking again his
wife's poor health. On 9 August 2007 the Chişinău Court of
Appeal dismissed the appeal. Neither the prosecution nor the courts
adduced new reasons for the applicant's further detention.
- On
17 August 2007 the investigation ended and the criminal file was
referred to the Buiucani District Court.
- On
22 August 2007 the prosecutor applied for a further extension of the
applicant's detention for 90 days on the ground that the applicant
would hinder the proceedings before the court and would commit other
offences.
- On
28 August 2007, at 4 p.m., the Buiucani District Court upheld the
prosecutor's request in full without relying on any new reasons for
the applicant's further detention. It did not examine the applicant's
contention that the prosecutor had failed to submit any evidence to
substantiate his request.
- The
applicant appealed and argued that the decision had been issued at 4
p.m., after the expiry of the previous remand warrant at 12.15 p.m.
Relying on Boicenco v. Moldova (no. 41088/05), Şarban
v. Moldova (no. 3456/05) and Becciev v.
Moldova (no. 9190/03) he argued that the domestic courts had
failed to provide relevant and sufficient reasons for his detention.
- On
30 August 2007 the applicant's lawyer was given the annex with the
prosecution's list of evidence. It included, inter alia,
addresses of witnesses, copies of documents related to the company
and the construction site, verbatim records of the examination of
compact discs with recordings of telephone conversations of A.T. with
other co-accused and minutes of searches.
- On
10 September 2007 the Chişinău Court of Appeal dismissed
the appeal. Besides the reasons outlined in the prosecutor's request,
the court stated that although a search had been conducted of the
applicant's domicile, there was no proof that he had been permanently
residing there. The applicant's application for release was
considered as an attempt to influence the investigation. As to the
applicant's detention after 12.15 p.m. on 28 August 2007, the court
found that he had been lawfully detained, since the hearing had been
opened at 10 a.m. that day. Finally, the court stated:
“Moreover, [the applicant's] intention to
undermine the normal conduct of the proceedings ... is highlighted by
the fact that constant reference is made to cases examined by the
European Court of Human Rights, and which are not related to the
present case. Those cases are totally different from the present case
and therefore the declarations are designed to indirectly influence
the courts to release the applicant.”
- On
17 September 2007 the applicant's lawyer made a fresh habeas
corpus request, submitting that there was no reason for his
further detention on remand. On the same date the Buiucani District
Court dismissed it without providing any relevant reasons.
- On
the same day, the Buiucani District Court ordered an official medical
examination of the state of health of Mr Anatolie Tripăduş,
who was one of the applicant's co-accused in the criminal
proceedings. The court also suspended the criminal proceedings
pending the medical examination and the delivery of a report.
- On
23 November 2007, without resuming the suspended proceedings, the
Buiucani District Court upheld a fresh request of the prosecution for
a prolongation of the applicant's detention and ordered a further 30
days' detention. It also dismissed a new habeas corpus request
made by the applicant. On 4 December 2007 the Chişinău
Court of Appeal dismissed the appeal. Neither the prosecutor nor the
courts adduced new reasons for the applicant's further detention.
E. Subsequent proceedings
- On
14 December 2007 the Buiucani District Court resumed the criminal
proceedings which had been suspended on 17 September 2007 and the
prosecutor requested a further prolongation of detention for 90 days.
- On
20 December 2007, the Buiucani District Court ordered the extension
of the applicant's detention for 60 days. The applicant appealed.
- On
29 December 2007, the Chişinău Court of Appeal quashed the
extension order. In particular, the Court of Appeal stated that the
applicant had his permanent residence in Chişinău, that
there was no risk that he would abscond or that he would undermine
the conduct of the criminal proceedings by influencing witnesses.
However, the Court of Appeal prohibited the applicant from leaving
the city for 60 days.
- On
6 March 2008 the Buiucani District Court granted the prosecutor's
request that one of applicant's co-accused be examined by a doctor.
Accordingly, the criminal proceedings were suspended.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in Şarban
v. Moldova (no. 3456/05, §§ 51-56, 4 October 2005)
and Muşuc v.
Moldova (no. 42440/06,
§ 22, 6 November 2007).
- In
addition, the relevant provisions of the Code of Criminal Procedure
('the CPP') read as follows:
Article 165:
Arrest and police custody
“(1) A person may be arrested and
taken into police custody for a short period of time not exceeding 72
hours and under the conditions established by law.
(2) The following persons
may be arrested and taken into police custody:
a) persons suspected of having
committed a criminal offence punishable by a sentence of imprisonment
of over 1 year...”
Article 166:
Grounds for arresting and taking into police custody a person
suspected of having committed a criminal offence
“(1) The criminal
investigation body shall be entitled to arrest and take into custody
a person suspected of having committed a crime for which the law
prescribes a punishment of deprivation of liberty of over a year,
only in the following cases:
1) when
he or she has been caught in the act;
2) if
the eye witness, including the injured party, indicates that the
person has committed the crime;
3) if
obvious traces of the crime are discovered on his body or clothes, or
in his home or vehicle;
(2) If a person is suspected
of having committed a crime in other circumstances, the person can be
arrested and taken into custody only if he or she tried to abscond;
or if he or she does not have a permanent residence; or if his or her
identity could not be established.
...
(5) The
arrest and detention in police custody of a person in accordance with
the present article shall not exceed 72 hours from the moment of his
deprivation of liberty.
...
(7) A
person who has been detained under this article shall be brought
promptly, and before the expiry of the 72-hour period, before the
investigating judge, who will decide whether he or she should be
remanded in custody or, if appropriate, whether he or she should be
released. The application for pre-trial detention of such a person
must be lodged by the prosecution at least three hours before the
expiry of the 72-hour detention period.”
Article 174:
Release of persons arrested and detained in police custody
“(1) A person who has
been arrested and detained in police custody shall be released in the
following circumstances:
1) the
suspicion that the person has committed a crime is not confirmed;
2) there
are no grounds for his or her continued deprivation of liberty;
3) the
criminal investigation body establishes that the person was arrested
and detained in police custody in flagrant breach of the law;
4) the
72-hour detention period has expired;
5) the
72-hour detention period has expired and the court has not authorised
the person's arrest...”
Article 287/2: Actions of the criminal investigating
body following the suspension of criminal investigation
“...
(3) Any criminal investigation action shall
not be allowed after the suspension of the criminal investigation.”
Article 307:
Examination of applications for the pre-trial detention or house
arrest of suspects
“...
(2) The
application for pre-trial detention or house arrest shall be examined
without delay by the investigating judge in a closed hearing with the
participation of the representative of the criminal prosecution,
counsel for the defence and the suspect.
In presenting his application in court, the representative of the
criminal prosecution shall ensure the participation of the suspect at
the court hearing; he shall notify counsel for the defence and the
suspect's legal representative of the hearing. If defence
counsel so notified does not appear at the hearing, the investigating
judge shall ensure that an ex officio
counsel is appointed to defend the interests of the suspect...”
Article 330: Suspension and re-opening of the court
hearing
“(1) The court shall suspend the
proceedings if an accused suffers a serious illness which prevents
his participation at the hearing. The court shall issue a decision to
suspend or to resume the proceedings.
(2) If there are several co-accused and one
of them is seriously ill, the court shall suspend the proceedings
only in respect of the latter, but will continue the proceedings in
respect of the others. The lawyer of the accused, in respect of whom
the proceedings have been suspended, shall attend with his clients
the proceedings in respect of the other co-accused, if the offence
had been committed by participation.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF
THE CONVENTION
- The
applicant complained under Article 5 § 1 that his arrest and
detention had not been based on a reasonable suspicion that he had
committed an offence. He further complained that his detention on 22
June 2007 between 12.15 p.m. and 4 p.m. after the expiry of the 72
hours' period of detention without a warrant as required by the
Constitution should also be considered unlawful. He further alleged
that he had been unlawfully detained since 22 June 2007 as his status
as a suspect had ceased on that date, whereas the indictment had been
filed on 28 June 2008. He further maintained that his detention had
been unlawfully prolonged since between 17 September and 14 December
2007 the proceedings had been suspended and during that period the
courts could not adopt any decision in his respect. 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 or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
A. The complaint about the lack of reasonable suspicion
- The
Government noted that the applicant had not complained about his
arrest and initial 72 hours' detention before the domestic courts but
only about pre-trial detention after the permitted 72 hours had
expired.
- The
applicant disagreed and argued that he had complained about the lack
of reasonable suspicion for his arrest and detention in relation to
the whole remand proceedings. He argued that the period between 19
and 28 June 2007 should be considered as a whole, in light of
the fact that this period was covered by the investigating judge's
detention order of 22 June 2007.
- In
so far as the Government appear to raise a preliminary objection that
the applicant failed to exhaust domestic remedies, the Court notes
that it is not required to rule on this point as this part of the
applicant's application is in any event manifestly ill-founded for
the following reasons.
- The
Court recalls that a “reasonable suspicion” that a
criminal offence has been committed presupposes the existence of
facts or information which would satisfy an objective observer that
the person concerned may have committed an offence (Erdagöz
v. Turkey, 22 October 1997, § 51, Reports of Judgments
and Decisions 1997 VI; Fox, Campbell and Hartley v. the
United Kingdom judgment of 30 August 1990, Series A no. 182, pp.
16-17, § 32). However, what may be regarded as "reasonable"
will depend upon all the circumstances of the particular case (see
Fox, Campbell and Hartley, cited above, § 32).
The Court further reiterates that facts which raise a suspicion need
not be of the same level as those necessary to justify a conviction,
or even the bringing of a charge which comes at the next stage of the
process of criminal investigation (see Brogan and Others v. the
United Kingdom, judgment of 29 November 1988, Series A no.
145-B, p. 29, § 53, and Murray v. the United Kingdom,
judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55.
- Turning
to the facts of the present case, the Court notes that the applicant
was arrested on the basis of “investigative information”
that the applicant, F.M. and Messrs Nicolae Ninescu and Anatolie
Tripăduş had executed the orders of the latter against S.F.
The Court further notes that this “investigative information”
was corroborated by S.F.'s criminal complaint, which would have been
sufficient of itself to justify the applicant's arrest under national
law. In this connection, the Court recalls that in Labita v. Italy
[GC], no. 26772/95, § 59, ECHR 2000 IV, it recognised that
a suspect may validly be detained at the beginning of proceedings on
the basis of statements made by an informer (pentiti).
Similarly, the Court found in O'Hara v. the United Kingdom,
no. 37555/97, ECHR 2001 X that information passed on at a police
briefing by informers who identified the applicant as one of a number
of persons suspected of involvement in a specific terrorist event was
sufficient to raise a reasonable suspicion that the applicant had
committed a criminal offence. The Court therefore considers that
there was sufficiently specific information in the present case to
raise a reasonable suspicion that the applicant had committed an
offence. Accordingly, this part of the applicant's application must
be declared inadmissible as manifestly ill-founded pursuant to
Article 35 §§ 3 and 4 of the Convention.
B. The complaint about unlawful detention between 12.15
p.m. and 4 p.m. on 22 June 2007
1. Admissibility
- The
Government submitted that the applicant had failed to exhaust the
available domestic remedies in respect of the complaint that the
applicant had been unlawfully detained between 12.15 p.m. and 4 p.m.
on 22 June 2007.
- The
applicant disagreed and argued that he had raised this complaint in
writing before the investigating judge and then in his oral
submissions before the Court of Appeal. He further pointed to an
application made by his lawyers before the investigating judge in
relation to his detention after the expiry of the permitted 72 hours
and which had been included in the case file before the Court of
Appeal.
- The
Court has taken cognisance of the application contained in the case
file before the Court of Appeal and is therefore prepared to accept
the applicant's submission that his complaint was raised before the
domestic courts. He has therefore exhausted domestic remedies within
the meaning of Article 35 § 1 of the Convention.
- The
Court further considers that the applicants' complaint under Article
5 § 1 of the Convention raises complex issues of law and fact,
the determination of which should depend on an examination of the
merits. This part of the application is therefore not manifestly
ill-founded or inadmissible on any other ground. It must therefore be
declared admissible.
2. Merits
(a) Arguments
of the parties
- The
applicant argued that Article 5 of the Convention protected
individuals against arbitrary detention by the State. In the present
case, the applicant had been detained without a warrant past the
72-hour period of detention on remand permitted under national law. A
warrant had only been issued at 4 p.m. Therefore, the applicant's
detention between 12.15 p.m. and 4 p.m. had been unlawful and
arbitrary. Indeed, according to Moldovan Criminal Procedure Code, the
applicant should have been released immediately upon the expiry of
the 72-hour period. Moreover, the heavy caseload of the investigating
judge on the day was not a relevant and sufficient excuse for the
applicant's arbitrary detention between 12.15 p.m. and 4 p.m.
- The
Government contested that argument. They pointed out that the
transcript of the hearing of 22 June 2007 made it clear that the
hearing to examine the prosecution's request to remand the applicant
in custody had started at 12.45 p.m. in the applicant's presence.
According to the same record, the hearing had been interrupted
between 12.45 p.m. and 2.30 p.m. to enable the applicant's lawyer to
examine the criminal case file. The hearing had ended at 4.05 p.m. As
for the 30 minutes between 12.15 p.m. and 12.45 p.m., the Government
submitted that the prosecution had filed their request for the
applicant's pre-trial detention at 8.55 a.m., i.e. in good time.
However, it had been impossible to hold the hearing earlier than
12.45 p.m. as the investigating judge in charge of hearing the case
was hearing the pre-trial detention requests of the applicant's
co-accused in the morning. In this respect, the Government pointed
out that the applicant's co-defendants were also represented by the
applicant's lawyer, so he would not in any event have been available
to represent the applicant earlier.
(b) The
Court's assessment
- The
Court recalls that it has accepted on a number of occasions that some
delay in implementing a decision to release a detainee is
understandable and often inevitable in view of practical
considerations relating to the running of the courts and the
observance of particular formalities (Quinn v. France,
judgment of 22 March 1995, Series A no. 311, p. 17, § 42;
Giulia Manzoni v. Italy, judgment of 1 July 1997, Reports
1997-IV, p. 1191, § 25 in fine; and Mancini v.
Italy, no. 44955/98, § 24, ECHR 2001-IX). However, this
was in cases where the period of detention was not laid down by
statute but ended as a result of a court order. The Court has been
stricter in cases where the authorities were under a statutory
requirement to release the applicant after a fixed period of time as
in the present case. The Court thus found in K.-F. v. Germany
(judgment of 27 November 1997, Reports 1997-VII, p. 2675,
§ 71) that a delay of 45 minutes in releasing an
applicant, when the statutory maximum period of detention was twelve
hours, was in breach of Article 5 of the Convention. The Court held
that since the maximum period of detention was known in advance, the
authorities responsible for the detention were under a duty to take
all necessary precautions to ensure that the permitted duration was
not exceeded.
- In
the present case, the Court notes that the statutory maximum period
of detention was 72 hours. As the applicant had been arrested at
12.15 p.m. on 19 June 2007, he should have been released before 12.15
p.m. three days later, i.e. on 22 June 2007. As the investigating
judge did not order the applicant's detention before 4 p.m., the
applicant's detention had no legal basis between 12.15 p.m. and 4
p.m. The Court notes however that the prosecution lodged their
request to remand the applicant in custody within the required
time-limit. The Court further observes that the applicant was
required to attend, and attended, the remand hearing from 12.45 p.m.
until 4 p.m. before the investigating judge. The applicant was
therefore only materially affected by the delay in release between
12.15 p.m. and 12.45 p.m., i.e. 30 minutes. In these
circumstances, where the application for an extension had been lodged
within the relevant time-limit, the hearing was imminent and there
was only a short delay during which the detention had no legal basis,
the Court considers that the present case can be distinguished from
K.-F. v. Germany, cited above. In light of the above
considerations, the Court considers there has been no violation of
Article 5 § 1 of the Convention.
C. The complaint concerning the lawfulness of detention
between 22 and 28 June 2007
- The
applicant alleged that he had been unlawfully detained since 22 June
2007 as his status as a suspect had ceased on that date, whereas the
indictment had been filed on 28 June 2007.
- The
Court reiterates that a period of detention is, in principle, lawful
within the meaning of Article 5 § 1(c) if it is based on a court
order (Mooren v. Germany [GC], no. 11364/03, § 74, ECHR
2009 ). The Court notes that in the present case, the
applicant's detention was ordered on 22 June on reasonable suspicion
that he had committed an offence. The order was therefore valid and
formed the basis of the applicant's detention for the period between
22 and 28 June 2007. The fact that the bill of indictment was lodged
only on 28 June 2007 is irrelevant to the question of the lawfulness
of detention for the above-mentioned period of detention.
Accordingly, this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected pursuant to Article 35 § 4 of the Convention.
D. The complaint about unlawful detention whilst the
proceedings were suspended
- The
Court notes that the applicant relied on Article 287/2 read together
with Article 330 of the Moldovan CCP in support of his complaint that
his detention had been unlawfully prolonged between 17 September and
14 December 2007 whilst the proceedings were suspended. However, the
Court observes that Article 287/2 does not deal with the suspension
of criminal proceedings as in the applicant's case, but rather with
the suspension of the criminal investigation. Similarly, Article 330
does not address the issue of the lawfulness of detention. The
applicant's complaint is therefore manifestly ill-founded and must
accordingly be declared inadmissible under Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant further complained about the lack of relevant and
sufficient reasons given by the domestic courts ordering his
detention and subsequent extensions under Article 5 §§ 1
and 3 of the Convention. The relevant part of Article 5 § 3
provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
A. Admissibility
- The
Court considers that the applicant's complaint under Article 5 §§
1 and 3 of the Convention is better examined solely under Article 5 §
3 of the Convention. The Court further considers that this complaint
raises complex issues of law and fact, the determination of which
should depend on an examination of the merits. It concludes,
therefore, that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground of inadmissibility has been raised and it
must be declared admissible.
B. Merits
1. Arguments of the parties
- The
applicant complained that the decisions ordering his pre-trial
detention and extending it as well as the decisions on his habeas
corpus requests, were not based on relevant and sufficient
reasons. In this respect, he argued that the circumstances of the
present case were identical to those of Sarban v. Moldova, no.
3456/05, 4 October 2005; Becciev v. Moldova, no. 9190/03, 4
October 2005; Boicenco v. Moldova, no. 41088/05, 11 July 2006;
and Musuc v. Moldova, no. 42440/06, 6 November 2007, where the
Court had found a violation of Article 5 § 3. In particular, the
applicant averred that the domestic courts had merely reproduced the
relevant provisions of the Criminal Code. The applicant further
complained that the courts had ignored his argument that his wife was
pregnant, which according to him argued in favour of his release. The
applicant further submitted that the reasons invoked by the
Government were different from those given by the domestic courts in
their judgments and should therefore be disregarded.
- The
Government argued that the domestic courts gave sufficiently detailed
reasons for their decisions. In particular, the Government claimed
that the courts based their decisions on the evidence in the criminal
file, including the CFECC's resolution to initiate a criminal
investigation into S.F.'s allegations and the record of the
applicant's arrest and detention in the CFECC's detention facility.
The Government maintained that the domestic courts had also found it
relevant that the applicant had been charged with extremely serious
offences carrying up to 25 years' imprisonment; that the alleged
offences involved a number of co-accused; that there were reasons to
believe that the applicant had forged documents in relation to the
said offence; there was a risk that he would pervert the course of
justice and commit a new offence by forging new documents; and that
the applicant had allegedly lied about his place of residence. In
this regard, there was a risk of his absconding to Transdnestria
which was not under the effective control of the Moldovan
authorities.
2. The Court's assessment
(a) General
principles
- The
Court recalls that under the second limb of Article 5 § 3, a
person charged with an offence must always be released pending trial
unless the State is able to show that there are “relevant and
sufficient” reasons justifying his continuing detention (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 of time. Justification for any period of detention, no matter
how short, must be convincingly demonstrated by the authorities
(Belchev v. Bulgaria, no. 39270/98, § 82, 8 April
2004; Castravet v. Moldova, no. 23393/05, § 33, 13 March
2007).
- A
further function of a reasoned decision is to demonstrate to the
parties that they have been heard. Moreover, a reasoned decision
gives a party the possibility to appeal against it, as well as the
possibility of having the decision reviewed by an appellate body. It
is only by giving a reasoned decision that there can be public
scrutiny of the administration of justice (Suominen v. Finland,
no. 37801/97, § 37, 1 July 2003).
- While
Article 5 of the Convention does not impose an obligation on a judge
examining an appeal against detention to address every argument
contained in the appellant's submissions, its guarantees would be
deprived of their substance if the judge, relying on domestic law and
practice, could treat as irrelevant, or disregard, concrete facts
invoked by the detainee which would be capable of casting doubt on
the “lawfulness” of the deprivation of liberty (Nikolova
v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999-II). In this
respect, arguments for and against release must not be general and
abstract (Smirnova v. Russia, nos. 46133/99 and
48183/99, § 63, ECHR 2003-IX (extracts); Boicenco
v. Moldova, no. 41088/05, § 142, 11 July 2006) but contain
references to the specific facts and the applicant's personal
circumstances justifying his detention (Aleksanyan v. Russia,
no. 46468/06, § 179, 22 December 2008).
- The
Court has identified four basic grounds upon which pre-trial
detention may be justified: the danger of absconding (see Stögmüller
v. Austria, judgment of 10 November 1969, Series A no. 9,
§ 15); the risk that the accused, if released, would take
action to prejudice the administration of justice (see Wemhoff,
cited above, § 14) or commit further offences (see Matznetter
v. Austria, judgment of 10 November 1969, Series A no. 10, §
9) or cause public disorder (see Letellier v. France, judgment
of 26 June 1991, Series A no. 207, § 51).
- As
regards the danger of absconding, the Court has held that it cannot
be assessed solely on the basis of the severity of the sentence that
the accused may expect if convicted. In particular, the risk of
absconding has to be assessed in light of the factors relating to the
person's character, his morals, home, occupation, assets, family ties
and all kinds of links with the country in which he is prosecuted
(Becciev v. Moldova, no. 9190/03, § 58, 4 October
2005).
- As
for the danger that the accused may hinder the proper conduct of the
proceedings, it is not a ground of detention which can be relied upon
in abstracto, it has to be supported by factual evidence
(Trzaska v. Poland, no. 25792/94, § 65, 11 July
2000).
(b) Application
of the abovementioned principles in the present case
- The
Court notes at the outset that the reasons relied upon by the
domestic courts in their decisions to remand the applicant in custody
and to prolong his detention were, for the most part, 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 (see paragraphs 29, 33-35, 38-40, 43, 47 and 49
above). The Court therefore does not consider that the present case
can be distinguished from the above-cited cases of Sarban and
Becciev v. Moldova in which the Court found a violation of
Article 5 § 3 of the Convention on account of the lack of
relevant and sufficient reasons in the domestic courts' decisions.
- The
Court further observes that the domestic courts failed adequately to
deal with the applicant's submissions in support of his release. In
particular, the domestic courts did not give sufficient consideration
to the applicant's argument that he was unlikely to abscond as his
wife was pregnant, apparently treating this argument as irrelevant to
the lawfulness of his detention (see paragraphs 38 and 40 above). In
this respect, the Court recalls that the risk of absconding has to be
assessed in light of the factors relating to the person's character,
his morals, home, occupation, assets, family ties and all kinds of
links with the country in which he is prosecuted (Becciev cited
above, § 58, 4 October 2005). In the present case, however, the
domestic courts failed adequately to assess the applicant's ties with
Moldova. It is true that the domestic courts considered whether the
applicant had a permanent address in Moldova and that there was
conflicting evidence on this issue. The Court recalls however that
the mere absence of a fixed residence does not automatically give
rise to a danger of flight (Sulaoja v. Estonia, no.
55939/00, § 64, 15 February 2005). Moreover, the Court notes
that the domestic courts failed to deal with the applicant's argument
that he was willing to give up his passport as an assurance that he
would not leave the country (see paragraph 38 above). Similarly, no
reference was made in the domestic courts' reasoning to any evidence
in support of the finding that the applicant was likely to abscond to
Trandsnestria.
- Finally,
the Court would remark with grave concern that reliance on its
case-law before the domestic courts was thought to amount to an
attempt to undermine the normal conduct of domestic proceedings (see
paragraph 46 above).
- In
light of the above, the Court considers that the reasons relied upon
by the Buiucani District Court and the Chişinău Court of
Appeal in their decisions concerning the applicant's detention on
remand and its prolongation were not “relevant and sufficient”
and that accordingly there has been a violation of Article 5 §
3.
III. ALLEGED VIOLATIONS OF ARTICLE 5 § 4 OF THE
CONVENTION
- Lastly,
the applicant complained about the fairness of the remand proceedings
under Article 5 § 4 of the Convention. In particular, he
submitted that he had had no access to the part of the criminal file
containing evidence relied on by the prosecution in support of the
decision to detain him in custody. He also alleged that the domestic
courts had refused to hear the evidence of S.F. as a witness as well
as the records of the search conducted at his domicile on 4 May 2007,
in breach of the equality of arms principle. Article 5 § 4 of
the Convention reads:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
- The
Government submitted that the court had rightly rejected the
applicant's request to examine the evidence of S.F. as a witness, as
well as the search records, as irrelevant.
- The
Government further argued that the applicant had failed to raise the
complaint about the lack of access to the case file before the
domestic courts and that therefore this part of his application
should be dismissed for non-exhaustion of domestic remedies.
- The
applicant contested the Government's arguments. In particular, he
maintained that he had not been given access to all the relevant
documents in connection with his detention.
- The
Court notes that this complaint is linked to the one examined above
and therefore must be likewise declared admissible.
- The
Court notes that it has already concluded that the habeas corpus
procedure in the present case was at all times manifestly
deficient, having regard to the requirements of Article 5 § 3 of
the Convention and the failure of the habeas corpus proceedings
to provide any independent review of the justification advanced by
the prosecution for the applicant's continued detention. Accordingly,
the Court considers that no separate examination of the applicant's
complaint under Article 5 § 4 of the Convention is required.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 30,000 in respect of non-pecuniary damage.
- The
Government considered that the award claimed by the applicant in
respect of non-pecuniary damages was grossly exaggerated. They cited
the Sarban case on which the applicant had relied earlier and
in which the Court had awarded EUR 4,000 in respect of non-pecuniary
damages. In this respect, they pointed out that, unlike the Sarban
case in which the Court had found a violation of Article 3 of the
Convention, the present case only concerned Article 5 of the
Convention. The award for non-pecuniary damages should accordingly be
reduced.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,000 for the costs and expenses incurred
before the domestic courts and before the Court. The applicant's
lawyer referred to a contract of legal assistance and a
Recommendation of the Moldovan Bar, approved by the Moldovan Bar
Council on 29 December 2005, establishing the hourly rate for the
work done. However, those documents were not submitted to the Court.
The applicant's lawyer further listed the number of hours spent
preparing the case before the Court (amounting to 54 hours).
- The
Government considered these claims to be unjustified. They pointed
out that the applicant had failed to substantiate his claims. In
particular he had failed to produce the contract of legal assistance
or the Recommendation of the Moldovan Bar. They further questioned
the need for drafting the application and observations before the
Court during 24 and 21 hours respectively. According to the
Government, the generally accepted practice was to spend no more than
3-4 hours studying the case and drafting the application before the
Court and 6-10 hours drafting the observations. The Government
further pointed out that the average salary being in the amount of
2630 lei in Moldova in 2008, the amount claimed by the applicant in
costs and expenses was unrealistic and excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court.
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 § 1
about unlawful detention between 12.15 p.m. and 4 p.m. on 22 June
2007 and the complaints concerning Article 5 §§ 3 and 4
admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 5 § 4 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
2,000 (two thousand euros) plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros) plus any tax that may be chargeable in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 8 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
