SECRIERU v. THE REPUBLIC OF MOLDOVA - 20546/16 (Judgment : Article 3 - Prohibition of torture : Second Section Committee) [2018] ECHR 864 (23 October 2018)

In the case of Secrieru v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 2 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 20546/16) 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 Sergiu Secrieru ("the applicant"), on 6 April 2016.

2. The applicant was represented by Mr A. Procopovici a lawyer practising in Chișinău. The Moldovan Government ("the Government") were represented by their Agent, Mr O. Rotari.

3. On 12 July 2017 the complaints concerning Articles 3 and 5 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government did not object to the examination of the application by a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1985 and lives in Nicoreni.

6. In January 2012 the applicant had an agreement with a person ("X") according to which he promised to help him apply for a Spanish visa at the Spanish consulate in Moscow. They were to travel to Moscow by train, however, X did not show up at the train station at the time of leaving and the applicant left for Moscow alone with the money he had previously obtained from X in the amount of 520 euros. He did not return to Moldova until October 2015.

7. In the meantime X lodged a criminal complaint against the applicant accusing him of fraud. Criminal proceedings were initiated against the applicant in March 2012 on the basis of that complaint.

8. Since the prosecutor in charge of the case could not locate the applicant, he applied to an investigating judge for a detention warrant in respect of the applicant for a period of thirty days. The prosecutor argued in support of the remand that the applicant had been hiding from the investigating authorities.

9. On 8 February 2013 the Râșcani District Court ordered the applicant's remand in custody for a period of thirty days. In support of its decision, the court argued that the applicant had been absconding from the investigating authorities and that he could hinder the investigation and influence witnesses.

10. On 9 October 2015 the applicant returned to Moldova from the Russian Federation. At the border he was informed that he was being wanted by the police and that he had to present himself at the Râșcani Police Station. The applicant telephoned the police station and agreed to come on 13 October 2015.

11. On 13 October 2015 the applicant went to the Râșcani Police Station where he was immediately arrested and placed in detention.

12. On 15 October 2015 the applicant appealed against the order of 8 February 2013. He argued, inter alia , that he had not been aware of the criminal investigation against himself and that he had learned about it upon his return to Moldova. Moreover, after learning about the investigation he had immediately contacted the Police Station and presented himself there. He also submitted that there were no reasons to believe that he would abscond or interfere with the investigation.

13. On 2 November 2015 the Chișinău Court of Appeal dismissed the applicant's appeal. It did not give an answer to the applicant's argument that he had not been aware of the criminal investigation against him.

14. The applicant's detention was prolonged on several other occasions until 16 March 2016 on identical grounds and all his appeals were dismissed.

15. In the meantime the applicant was detained in Prison no. 13. According to him, he was detained in an overcrowded cell; the cell was equipped with a squat toilet which was not properly separated; the food was insufficient and of poor quality; he could have only one hour of outside exercise per day and only one shower per week.

16. By a final judgment of the Supreme Court of Justice of 12 July 2017 the applicant was convicted of fraud and given a suspended sentence of four years imprisonment.

II. RELEVANT DOMESTIC LAW

17. According to Article 176 of the Code of Criminal Procedure, the preventive measure of detention pending trial can be imposed only when there are reasonable grounds to believe that the suspect could abscond from the investigating authorities, hinder the discovery of the truth or re-offend.

18. According to Article 238 of the Code of Criminal Procedure, a person shall be summoned at his or her home address. If the address is unknown, then the summons shall be sent to his or her place of work. If the person to be summoned declared another address during the proceedings, then the summons shall be sent to that address. The summoning of persons who live abroad shall be carried out in accordance with the provisions of the treaties concerning judicial assistance.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

19. The applicant complained that, contrary to Article 5 §§ 1 and 3 of the Convention, that his remand in custody had not been based on relevant and sufficient reasons and that his detention had been arbitrary. The Court shall examine the above complaint under Article 5 § 3 of the Convention which, in so far as relevant, reads as follows:

"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."

A. Admissibility

20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

21. The applicant submitted that his detention was not necessary because the reasons relied upon by the Moldovan courts to order his detention pending trial had not been relevant and sufficient.

22. The Government disagreed and argued that the detention order had been necessary because he had absconded from the investigation by leaving the country and not showing up when summoned by the prosecutors. They argued that the applicant knew about the criminal proceedings against him because he had been informed by the Russian authorities.

23. The Court reiterates that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The requirement for the judicial officer to give relevant and sufficient reasons for the detention - in addition to the persistence of reasonable suspicion - applies already at the time of the first decision ordering detention on remand, that is to say "promptly" after the arrest (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87 and 102, ECHR 2016 (extracts)). Furthermore, when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see, for example, Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012).

24. Justifications which have been deemed "relevant" and "sufficient" reasons in the Court's case-law have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see, for instance, Wemhoff v. Germany , 27 June 1968, § 14, Series A no. 7; Stögmüller v. Austria , 10 November 1969, § 15, Series A no. 9; Letellier v. France , 26 June 1991, § 51, Series A no. 207; Toth v. Austria , 12 December 1991, § 70, Series A no. 224; Tomasi v. France , 27 August 1992, § 95, Series A no. 241-�A; and I.A. v. France , 23 September 1998, § 108, Reports of Judgments and Decisions 1998-�VII).

25. The presumption is always in favour of release. The national judicial authorities must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5 of the Convention, and must set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see, among other authorities, Buzadji , cited above, §§ 89 and 91). Arguments for and against release must not be "general and abstract" (see Smirnova v. Russia , nos. 46133/99and 48183/99, § 63, ECHR 2003-�IX (extracts)).

26. Turning to the facts of the present case, the Court notes that the main argument invoked by the Public Prosecutor requiring the applicant's remand in custody was the fact that he had been absconding from investigation in the Russian Federation. The applicant replied to this allegation that he had not been aware of the criminal investigation against him and the fact that the investigation authorities had been looking for him.

27. The Court recalls that where the authorities order the detention of an individual pending trial on the grounds of his or her failure to appear before them when summoned, they should make sure that the individual in question had been given adequate notice and sufficient time to comply and take reasonable steps to verify that he or she has in fact absconded (see Vasiliciuc v. the Republic of Moldova , no. 15944/11, § 40, 2 May 2017).

28. The Court notes that the Government presented no evidence that the applicant was summoned to appear before the investigating authorities in accordance with Article 238 of the Code of Criminal Procedure (see paragraph 18 above). Nor did the Government present any evidence that the Russian authorities had informed the applicant about the criminal proceedings. Moreover, the Court notes that the information about the applicant being informed by the Russian authorities was presented by Government for the first time during the Court proceedings and that no such submissions were made by the Public Prosecutor during the domestic proceedings. This submission must therefore be treated with caution, especially in the absence of any form of substantiation (see Nikolov v. Bulgaria , no. 38884/97, § 74 et seq., 30 January 2003).

29. The Court further notes that after his return to Moldova, the applicant appeared immediately before the investigation authorities. Thus, the reason concerning the applicant's absconding relied upon by the domestic courts when ordering and prolonging his detention for over five months does not appear to have been relevant in the applicant's case.

30. The Court notes that the domestic courts also relied on other reasons such as the risk of the applicant's interference with the investigation and his putting pressure on witnesses. However, in the absence of any substantiation, of the lack of complexity of the case and of the limited gravity of the offence imputed to the applicant, those reasons cannot be considered as relevant and sufficient in the circumstances of the case.

31. In the light of the above, the Court considers that there were no relevant and sufficient reasons to order and prolong the applicant's detention for over five months. It follows that in the present case there has been a violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

32. The applicant complained under Article 3 of the Convention about the poor conditions of his detention. Article 3 reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

33. The Court notes that the complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

34. The applicant complained about poor conditions of detention in Prison no. 13 (see paragraph 15 above).

35. The Government disputed the applicant's allegations and argued that the conditions of detention did not amount to inhuman and degrading treatment.

36. The Court reiterates the general principles concerning conditions of detention set out in Ostrovar v. Moldova , no. 35207/03, §§ 76-79, 13 September 2005; in Shishanov v. the Republic of Moldova , no. 11353/06, §§ 83-85, 15 September 2015; Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 163-67, ECHR 2016 (extracts); and Mursič v. Croatia [GC], no. 7334/13, § 104, ECHR 2016.

37. The Court recalls that it has found the conditions of detention in Prison no. 13 to be contrary to Article 3 of the Convention in numerous judgments (see, amongst many other authorities, Hadji v. Moldova , nos. 32844/07and 41378/07, § 20, 14 February 2012; Silvestru v. the Republic of Moldova , no. 28173/10, 13 January 2015; Pisaroglu v. the Republic of Moldova , no. 21061/11, 3 March 2015). Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of the applicant's complaints. The Court thus considers that the hardship endured by the applicant during his detention in Prison no. 13 went beyond the unavoidable level of hardship inherent in detention and reached the threshold of severity required by Article 3 of the Convention. Accordingly, there has been a violation of Article 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

38. 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

39. The applicant claimed 10,000 euros (EUR) in respect of non-�pecuniary damage.

40. The Government disagreed with the amount of non-pecuniary damage claimed by the applicant.

41. The Court considers that the applicant must have suffered stress and frustration as a result of the violations found. The particular amount claimed is, however, excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 for non-pecuniary damage.

B. Costs and expenses

42. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court.

43. The Government claimed that the amount claimed was excessive.

44. Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Paul Lemmens
Deputy Registrar President

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