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SECOND SECTION

 

 

 

 

 

 

 

 

 

CASE OF SIRENCO v. THE REPUBLIC OF MOLDOVA

 

(Application no. 52053/15)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

15 January 2019

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

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

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

Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 4 December 2018,

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

PROCEDURE

1. The case originated in an application (no. 52053/15) 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, Ms Tatiana Sirenco ("the applicant"), on 14 December 2015.

2. The Moldovan Government ("the Government") were represented by their Agent, Mr O. Rotari.

3. On 13 June 2017 notice of the complaints concerning Article 5 §§ 1 and 3 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1977 and lives in Chișinău .

5. At the time of the events giving rise to the present application, the applicant worked as a cashier in the main office of a bank. Her duty was to count cash money brought in bags from the bank's branches.

6. On 18 September 2015 the applicant came to work at around 7.40 a.m. and started counting money in bags of cash. After having counted the money from four bags she went to the toilet and, upon her return, she heard one of her colleagues saying that one of the uncounted bags lacked its seal. She did not pay much attention to that, since that was not the first time when a seal was missing. The colleague who found the bag without a seal was instructed by her superior to count the money in the bag. It appeared that forty-seven thousand euros (EUR) was missing from that bag.

7. Another superior was called in and a search of the premises was carried out. The branch from which the bag of money came was contacted; however, its employees stressed that the bag had been sealed upon its dispatch. Later, the applicant went again to the toilet and then left for lunch.

8. On 2 October 2015 a search was carried out at the applicant's home but nothing of interest for the investigation was found.

9. On the same day, the applicant was arrested and placed in detention.

10. On 5 October 2015 the applicant was charged with the offence of theft in the amount of EUR 47,000. It was alleged that, together with other employees of the bank, she had stolen the aforementioned amount of money from the bag in question. The indictment order did not point to any evidence capable of proving the applicant's involvement in the offence. It appears that one of the applicant's colleagues was also accused of the same offence.

11. On the same date, namely on 5 October 2015, the prosecutor in charge of the case applied to the Buiucani District Court for the applicant's remand in custody for a period of thirty days. The prosecutor alleged that there was a risk that the applicant could tamper with evidence, influence witnesses and reoffend, which therefore warrant her detention on remand.

12. On 5 October 2015 the Buiucani District Court found that the prosecutor in charge of the case did not specify in his application the reasons giving rise to the suspicion that the applicant might have committed an offence. Nevertheless, the court noted that during the hearing the prosecutor had indicated that the other co-accused had stated that the money could have been stolen by the applicant because she had taken bags from the stack of bags in which the unsealed bag had been found and she had had a suspicious behaviour. Moreover, the security camera in the room was turned away from the place where the applicant was sit. The court concluded that there was a reasonable suspicion that the applicant had committed an offence. The court noted that some thirteen days had elapsed since the day of the theft. The applicant had a permanent abode, a job, family and no criminal record. There were no reasons to believe that she would hinder the investigation in circumstances in which her involvement in the offence was unclear. The court considered that the risk of reoffending had also not been proven by the prosecutor which would warrant placing the applicant in detention. Therefore, the court ordered the applicant's house arrest for a period of twenty days.

13. The applicant appealed against the above decision and argued that the measure of house arrest was unnecessary because even the court of first instance had found that the reasons adduced by the prosecutor had not been convincing. The prosecutor also appealed.

14. On 15 October 2015 the Chișinău Court of Appeal upheld the appeal lodged by the prosecutor. It quashed the decision of 5 October 2018 and ordered the applicant's remand in custody for a period of thirty days. The court considered that there was a risk of absconding, interference with the investigation and collusion with the other co-accused persons. The court observed that unjustified manifestations of clemency would encourage anti-social behaviour of the sort and would affect the peoples' trust in the law enforcement organs and that the measure of pre-trial detention was called to punish and discourage anti-social behaviour. As to the reasonable suspicion that the applicant had committed the offence imputed to her, the court noted that the applicant had not contested its presence.

15. The next day the applicant was arrested and placed in detention.

16. On 26 October 2015 the Chișinău Court of Appeal examined the appeal lodged by the applicant, upheld it and ordered her release under judicial control. The court found that there were no reasons to believe that the applicant would abscond, hinder the investigation or reoffend.

17. It appears that the criminal investigation into the circumstances of the alleged theft of 18 September 2015 is pending to date.

II. RELEVANT DOMESTIC LAW

18. 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 reoffend.

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, her remand in custody had not been based on a reasonable suspicion that she had committed a criminal offence and that the courts had failed to give any relevant and sufficient reasons for its decision. The relevant part of Article 5 of the Convention 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 reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right - usually through the courts - the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova (dec.), no. 44746/08, 24 January 2012).

21. The Court notes that in her appeal against the decision of the Buiucani District Court of 5 October 2005 ordering her house arrest, the applicant did not raise her complaint regarding the absence of a reasonable suspicion that she had committed a criminal offence. In such circumstances, her complaint under Articles 5 § 1 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

22. The Court notes that the applicant's remaining complaint under Article 5 § 3 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

23. The applicant submitted that her detention was not necessary because the reasons relied upon by the Moldovan courts to order her house arrest and detention pending trial between 2 and 26 October 2015 were not relevant and sufficient.

24. The Government disagreed and argued that the applicant's house arrest and remand in custody had been necessary in view of the risks of absconding, hindering investigation and reoffending.

25. 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).

26. 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).

27. 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)).

28. According to the Court's case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of Article 5 of the Convention ( Buzadji , cited above, § 104).

29. Turning to the facts of the present case, the Court notes that in its decision of 5 October 2015 the Buiucani District Court found the reasons advanced by the prosecutor to remand the applicant in custody unconvincing. Thus, the court found that there were no reasons to believe that the applicant might abscond, interfere with investigation or reoffend. Nevertheless, in spite of lack of evidence to deprive the applicant of her liberty, the court ordered her house arrest.

30. After spending some ten days under house arrest, the Chișinău Court of Appeal upheld the prosecutor's appeal and ordered the applicant's detention on remand. The Court notes that the reasons for remanding the applicant in custody were the same as those considered unconvincing by the Buiucani District Court in its decision of 5 October 2015. The Court of Appeal gave no explanation as to why it considered those reasons relevant and sufficient and why it disagreed with the lower instance court. In ordering the applicant's remand in custody, the Court of Appeal made no assessment of the applicant's character, her morals, her assets and links with the country and her behaviour during the criminal investigation. Nor had it paid attention to the fact that between the moment of the alleged theft and her arrest, the applicant had been at large and that none of the risks invoked by the prosecutor had materialised.

31. Moreover, the Court notes with concern that in its decision ordering the applicant's detention on remand, the Court of Appeal stated that pre-trial detention was called to punish and discourage anti-social behaviour and that unjustified manifestations of clemency could encourage anti-social behaviour of the sort and could affect the peoples' trust in the law enforcement organs (see paragraph 14 above). In this context, the Court considers it necessary to reiterate that the purpose of pre-trial detention under Article 5 § 1 (c) is to promote the interests of justice by bringing the suspect before the competent legal authority but to punish him or discourage others from criminal activity.

32. In the light of the above considerations, the Court considers that the national courts failed to give any relevant and sufficient reasons in ordering the applicant's deprivation of liberty between 5 and 26 October 2015. It follows that in the present case there has been a violation of Article 5 § 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. 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."

34. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 5 § 3 admissible and the remainder of the application inadmissible;

 

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

Done in English, and notified in writing on 15 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Julia Laffranque
Deputy Registrar President