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FOURTH
SECTION
CASE OF URSU v. MOLDOVA
(Application
no. 3817/05)
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 Ursu v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović, 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
case originated in an application (no. 3817/05) 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 Mihai Ursu (“the applicant”) on 30
December 2004.
- The
applicant was represented by Mr V. Constantinov, acting on behalf of
Lawyers for Human Rights, a non-governmental organisation based in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent at the time, Mr V. Pârlog.
- The
applicant alleged, in particular, that his detention had been
unlawful and contended that there had been a violation of Article 5
§§ 1 and 3 of the Convention.
- On
27 March 2006 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Mihai Ursu, is a Moldovan national who was born in 1970
and lives in Peresecina.
- On
31 March 2004 the applicant was arrested on suspicion of having
murdered, in 1993, Mr I.O., whose mother became Speaker of Parliament
in 2001.
- Between
2 April and 3 August 2004 he was remanded on the basis of monthly
detention orders issued by the Buiucani District Court. The detention
orders set out as grounds for his detention the fact that he had been
suspected of having committed a serious offence punishable by more
than two years' imprisonment; moreover, the isolation of the suspect
from society was considered necessary because he might abscond and
obstruct the criminal investigation by influencing the witnesses.
- In
his appeals against the detention orders, the applicant argued, inter
alia, that his detention was not necessary since there
were no objective reasons to suspect him, that during his detention
no investigation measures had been carried out and that he suffered
from epilepsy and needed specialist medical treatment.
- All
his appeals were dismissed on the ground that the circumstances
warranting his detention had not changed. On 6 July 2004 the
Chişinău Court of Appeal reduced the duration of the
detention order from thirty days to twenty days on the ground that
“during the previous month no investigation measures were
carried out ... the suspect did not have a criminal record, he has a
family and minor children, a house, a job and serious health
problems.”
- On
3 August 2004 the Prosecutor's Office submitted the applicant's
case file to the competent court. After that date the applicant
continued to be detained without any detention order.
- On
21 December 2004 a habeas corpus request lodged by the
applicant was rejected and he continued to be detained in pre-trial
detention until 6 July 2006, when he was convicted and sentenced to
twelve years' imprisonment.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in the Court's judgments in
the cases of Sarban v. Moldova (no. 3456/05, § 51,
4 October 2005) and Holomiov v. Moldova (no. 30649/05,
§§ 85 and 87, 7 November 2006).
THE LAW
- The
applicant complained under Article 5 § 3 of the Convention that
his pre-trial detention between 2 April and 3 August 2004 had not
been based on “relevant and sufficient” reasons. The
relevant part of Article 5 § 3 reads:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
applicant complained under Article 5 § 1 of the Convention that
his pre-trial detention after 3 August 2004, when the detention
warrant had expired, had been unlawful since it had had no basis
under domestic law. The relevant part of Article 5 § 1 reads:
“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;
...”
I. ADMISSIBILITY OF THE COMPLAINTS
- The
Court considers that the applicant's complaints raise questions of
fact and law which are sufficiently serious that their determination
should depend on an examination of the merits, and no other grounds
for declaring them inadmissible have been established. The Court
therefore declares the application admissible. In accordance with its
decision to apply Article 29 § 3 of the Convention
(see paragraph 4 above), the Court will immediately consider the
merits of the application.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant argued that the reasons relied on by the domestic courts
for detaining him were general and formulaic and could not therefore
be considered as relevant and sufficient for the purpose of Article 5
§ 3 of the Convention.
- The
Government submitted that the applicant's detention had been
necessary because he had been suspected of having committed a serious
offence and if released he might have fled, obstructed the criminal
investigation, influenced the witnesses, destroyed evidence or
reoffended.
- The
Court recalls that Article 5 of the Convention is, together with
Articles 2, 3 and 4, in the first rank of the fundamental rights that
protect the physical security of an individual (see, for example, its
link with Articles 2 and 3 in disappearance cases in Kurt v.
Turkey, judgment of 25 May 1998, Reports of Judgments and
Decisions 1998-III, § 123) and as such its importance is
paramount. Its key purpose is to prevent arbitrary or unjustified
deprivations of liberty (see, for example, Lukanov v. Bulgaria,
judgment of 20 March 1997, Reports 1997 II, § 41;
Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR
2004 II, § 46; Ilaşcu and Others v. Moldova
and Russia [GC], no. 48787/99, § 461, ECHR 2004 VII).
- The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8, p.37, §
4), the second limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial
within a reasonable time or granting him provisional release pending
trial. Until conviction, he must be presumed innocent, and the
purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006 ...).
- The persistence of reasonable suspicion that the
person arrested has committed an offence is a condition sine qua
non for the lawfulness of the continued detention, but after a
certain lapse of time it no longer suffices. In such cases, the Court
must establish whether the other grounds given by the judicial
authorities continued to justify the deprivation of liberty. Where
such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the proceedings (see Labita v. Italy [GC], no. 26772/95,
§§ 152 and 153, ECHR 2000-IV).
- A
person charged with an offence must always be released pending trial
unless the State can show that there are “relevant and
sufficient” reasons to justify their continued detention (see
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. Justification for any period of detention, no matter
how short, must be convincingly demonstrated by the authorities (see
Belchev v. Bulgaria, no. 39270/98, § 82, 8
April 2004).
- The
Court recalls that it has found a violation of Article 5 § 3 on
the grounds of lack of relevant and sufficient reasons for detention
in the cases of Sarban and Becciev v. Moldova
(no. 3456/05, § 103, 4 October 2005 and no. 9190/03,
§ 64, 4 October 2005). The Court notes that, as in Sarban
and Becciev, most of the reasons relied upon by the
domestic courts in their decisions to remand the applicant in custody
and to prolong his detention were formulaic and were 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.
- In
such circumstances, the Court does not consider that the instant case
can be distinguished from Sarban and Becciev in what
concerns the relevance and sufficiency of reasons for detention. This
is particularly so, since the applicant was held for over two years
in detention pending trial, even though no new reasons were advanced
for the continued need for such detention. Moreover, the Court is
struck by the fact that in giving on 6 July 2004 reasons which would
normally have argued in favour of the applicant's release from
detention (see paragraph 9 above), the Chişinău Court of
Appeal nevertheless decided to prolong the applicant's detention
albeit reducing the period from thirty to twenty days.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant argued that after 3 August 2004 he had been detained
illegally since no detention warrant had been issued by a judge for
that period. He pointed to Article 25 of the Constitution, according
to which persons may be arrested only under warrant issued by a
judge for a maximum period of 30 days, and argued that the situation
in the present case resembled that in the cases of Baranowski v.
Poland (no. 28358/95, ECHR 2000 III) and Boicenco v.
Moldova (no. 41088/05, 11 July 2006). He argued that his
detention had been in breach of Article 5 § 1 between 3 August
2004 and 21 December 2004, when a court had examined and dismissed a
habeas corpus request lodged by him.
- The
Government stated that after the applicant's case file had been
submitted to the trial court on 3 August 2004, it was for the trial
court to deal with any requests regarding the applicant's pre-trial
detention, which detention had been based on the clear provisions of
the law, namely Article 79 of the old Code of Criminal Procedure
and Articles 186 (2) and (8), 329(1), 351(7) and 345(1) and (4) of
the new Code of Criminal Procedure. This and the fact that the
applicant's detention had been ordered by an investigating judge and
not a prosecutor distinguished the case from Baranowski.
- The
Court recalls that it found a violation of Article 5 § 1 of the
Convention in this respect in Baranowski v. Poland (cited
above, § 58); see also Boicenco (cited above, §
154) and Holomiov (cited above, § 130). Having examined
the material submitted to it, the Court considers that the file does
not contain any element which would allow it to reach a different
conclusion in the present case.
- The Court finds, for the reasons given in the cases
cited above, that the applicant's detention pending trial after 3
August 2004 was not based on any legal provision.
- There has, accordingly, been a violation of Article 5
§ 1 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 4,000 euros (EUR) in respect of non-pecuniary
damage and EUR 420 in respect of pecuniary damage suffered as a
result of the breach of his Convention rights. He argued that he had
experienced frustration, helplessness, anxiety, confusion, distress
and a feeling of injustice. Moreover, he could have worked between
August and December 2004 and earned at least EUR 420.
- The
Government contested the amount claimed by the applicant and argued
that there was no proof that he had suffered any damage. They pointed
to the fact that the applicant was unemployed. They asked the Court
to dismiss the applicant's claim.
- Having
regard to the violations found above and their gravity, the Court
considers that an award of compensation for non-pecuniary damage is
justified in this case. Making its assessment on an equitable basis,
the Court awards the applicant EUR 4,000 for non-pecuniary
damage. In so far as his claim for pecuniary damage is concerned, the
Court finds this to be speculative and therefore rejects the claim.
B. Costs and expenses
- The
applicant also claimed EUR 1,425 for the costs and expenses incurred
before the Court. He submitted a detailed time-sheet indicating the
time spent by his lawyer on the case and an itemised list of other
expenses incurred in connection with the examination of the case. He
also submitted a copy of a contract between him and his lawyer.
- The
Government disagreed with the amount claimed for representation and
disputed, inter alia, the number of hours worked by the
applicant's lawyer and the hourly rate charged by him. They also
argued that the claims were excessive in view of the economic
situation in Moldova.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicant the sum of EUR 1,000 for costs and
expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention on account of
the applicant's detention in the absence of a legal basis in the
period after 3 August 2004;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one
thousand euros) in respect of costs and expenses, plus any tax that
may be chargeable, which sums are to be converted into the currency
of the respondent State at the rate applicable at the date of
payment;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
