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THIRD
SECTION
CASE OF LEVINŢA v. MOLDOVA (No. 2)
(Application
no. 50717/09)
JUDGMENT
STRASBOURG
17
January 2012
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 Levinţa
v. Moldova (no. 2),
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Mihai
Poalelungi,
Kristina Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 50717/09)
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 two
Moldovan nationals, Mr Pavel Levinţa
and Mr Vitalie Levinţa (“the
applicants”), on 8 Septembre 2009.
2. The
applicants were represented by Mr V. Ţurcan
and Mr M. Belinschi,
lawyers practising in Chişinău.
The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
3. The
applicants alleged, in particular, that they had been detained
without legal basis and in the absence of reasons for their
detention; that they had not had the opportunity to fully present
their case; and that the courts had not decided on their detention
pending trial within a reasonable time.
- On
25 August 2010 the Court 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1971 and 1974 respectively and
live in Cahul.
- The
applicants were arrested in Russia in October 2000 and were
thereafter extradited to Moldova. They were then ill-treated in order
to compel them to make self-incriminatory statements and were
convicted by the Moldovan courts, relying, inter alia, on such
confessions (for more details, see Levinţa v. Moldova,
no. 17332/03, 16 December 2008).
- On
16 December 2008 the Court adopted a judgment in the above-cited
Levinţa case, finding a violation of Articles 3 and 6 of
the Convention. On the basis of that judgment and the applicable
domestic law (see paragraph 22 above), on 3 April 2009 the applicants
lodged an extraordinary appeal (recurs în
anulare), seeking the annulment of their convictions.
- On 8 February 2010 the Plenary Supreme Court of Justice
accepted the request and quashed all the previously adopted
judgments, ordering a re-hearing of the case and verification of
whether the applicants’ complaint of ill-treatment was
well-founded. In the operative part of its ruling the court also
ordered the following: “[the applicants] shall continue to be
detained; the trial court shall decide on the preventive measure”.
- On
10 February 2010 the applicants’ lawyer complained to the
Minister of Justice and the Prosecutor General. He asked for his
clients’ immediate release because of the absence of any valid
decision by an investigating judge or a trial court ordering their
detention pending trial, as required by law. In response, the
Prosecutor General’s Office referred to the judgment of 8
February 2010, while the Ministry of Justice noted that it had not
been informed of any judgment in respect of the applicants after
16 April 2002.
- On
15 March 2010 the Supreme Court of Justice sent the case for
examination by the Chişinău Court of Appeal.
- On 13 April 2010 the applicants’ lawyer asked
the Chişinău Court of Appeal to order his clients’
immediate release, in the absence of any court order for their
detention pending trial. On the same date, the prosecutor’s
office requested that the same court order the applicants’
detention pending trial for thirty days. According to the applicants,
the prosecution did not submit any evidence in support of that
request.
- On
14 April 2010 the court held a preliminary hearing during which it
examined the parties’ requests. However, the court did not
adopt any decision and postponed the hearing until 16 April 2010. On
the latter date it again postponed the hearing until 19 April 2010.
- On 19 April 2010 the Chişinău Court of
Appeal noted that the Plenary Supreme Court of Justice had not
decided the issue of applying preventive measures in its judgment of
8 February 2010. It further stated that it would deal with the
parties’ requests in that respect and found that:
“[The applicants’] continued detention is
necessary in order to ensure the proper conduct of the criminal
proceedings, taking into account that there are reasonable grounds to
believe that they have committed the crimes of which they are
accused, crimes which are considered to be exceptionally serious;
[there are reasons to believe that] they could abscond from the court
and obstruct the criminal proceedings.”
Accordingly,
the court rejected the applicants’ lawyer’s request of
13 April 2010 and ordered their detention for thirty days,
starting from 2 p.m. on 14 April 2010. The court also
relinquished its jurisdiction in favour of the Supreme Court of
Justice.
- On
22 April 2010 the applicants’ lawyer lodged an appeal with the
Supreme Court of Justice. He repeated his argument concerning the
absence of any court decision and arrest warrant ordering his
clients’ detention pending trial as required by law. He also
submitted that the Chişinău Court of Appeal had breached
the presumption of his clients’ innocence, which was clear from
its finding of “reasonable grounds” to believe that they
had committed the crimes of which they were accused. Moreover, the
applicants’ detention pending trial had lasted for more than
the maximum twelve months allowed by law. He added that the
prosecution had not submitted any evidence in support of their
contentions concerning the risks associated with the applicants’
release. The lawyer noted that the prosecution had not made any
request for the applicants’ detention pending trial prior to
the judgment of 8 February 2010. He finally complained about the
Chişinău Court of Appeal’s two decisions to postpone
its hearings concerning the applicants’ detention pending
trial.
- At
10.30 a.m. on 13 May 2010 the applicants’ lawyer was contacted
on his mobile phone by a Supreme Court of Justice judge, who informed
him that a hearing of the appeal was scheduled for 12 p.m. the same
day. Apparently, the lawyer managed to reach the court in time for
the hearing. The Supreme Court of Justice rejected the applicants’
appeal as unfounded. Having summed up the grounds on which the
prosecution had relied, it found that:
“In verifying the lawfulness of [the applicants’]
detention pending trial, the lower court fully complied with the
[relevant provisions of] law, being competent to decide on the issue
of applying preventive measures. In the absence of any procedural
violations in deciding on [the applicants’] detention pending
trial, there are no reasons to quash the lower court’s
decision. The lawyer’s request is therefore to be dismissed.”
The
court also found that the Chişinău Court of Appeal was the
competent trial court in the present case.
- According to the applicants, at 2 p.m. on 13 May 2010
the applicants’ lawyer was again contacted on his mobile
telephone by a clerk of the Chişinău Court of Appeal and
was informed that a hearing was scheduled for 4 p.m. the same day
concerning a request by the prosecution to extend his clients’
detention. The lawyer was in Anenii Noi at the time, participating in
a criminal investigation regarding another client. The Government
submitted that they could not confirm or deny that such a call to the
applicants’ lawyer had been made.
- At 5 p.m. on the same date, the Chişinău
Court of Appeal examined the above-mentioned request, which the
prosecution had submitted on 7 May 2010 and which sought an
order for the applicants’ detention pending trial for sixty
days. The applicants were absent from the hearing, one of them having
refused to attend and the other having declared that he was unfit to
attend. The applicant’s lawyer did not appear before the court
and they were represented by a State-appointed lawyer. The latter’s
position was summed up in the judgment as follows: “The defence
lawyer objected to the prosecution’s request”.
- The court accepted the prosecution’s request,
doing so for essentially the same reasons as those given in its
judgment of 19 April 2010. Gh. I., one of the three judges, delivered
a dissenting opinion. He found, inter alia, that the
prosecution’s request of 7 May 2010 had only reached the
Supreme Court of Justice on 11 May 2010. He also noted that in
its request the prosecution had simply repeated the relevant legal
provisions concerning the grounds for ordering detention pending
trial, without any attempt to show any specific danger posed by the
applicants, who had been detained for many years, or to precisely
identify reasonable grounds for their detention. Gh. I. also
disagreed with the examination of the request in the absence of both
the applicants and the lawyer chosen by them. He noted that the same
prosecutor, who on 7 May 2010 had requested an urgent hearing of his
request concerning the applicants’ detention pending trial, had
failed to inform the defence of that request, even though the parties
had attended the hearing before the Supreme Court of Justice on the
morning of 13 May 2010. Gh. I. concluded that the lawyer had
been prevented from effectively representing his clients and that the
applicants’ defence rights had been breached.
- The
applicants’ lawyer appealed, relying on essentially the same
grounds as those stated in his appeal of 22 April 2010. He also noted
that the Chişinău Court of Appeal had ordered his clients’
detention two hours after the previous detention order had expired.
They had therefore been detained for two hours without any legal
basis. He finally referred to his inability to appear before the
Chişinău Court of Appeal at such short notice as had been
given to him on 13 May 2010 and noted that his clients had not been
asked to comment on whether they agreed to be represented by a
State-appointed lawyer.
- On 3 June 2010 the Supreme Court of Justice rejected
the appeal as unfounded. It found that the rights of the defence had
not been breached since the applicants had refused to appear in
court. Their lawyer had been informed of the hearing, but could not
appear in court because he had another case in Anenii Noi. Therefore,
the lower court had correctly appointed another lawyer to attend the
hearing. Moreover, the thirty-day detention order made on 19 April
2010 (which indicated that the period started on 14 April 2010)
only ended on 14 May 2010 and therefore the applicants’
lawyer’s contention that they had been detained on 13 May 2010
for two hours without legal basis was unfounded. The court also found
that after the quashing of the judgments convicting the applicants
their detention pending trial was only possible in exceptional
circumstances and based on a request by the prosecution. The
prosecution had observed the deadlines set by law for submitting such
a request (at least five days before the expiry of the previous
detention order). The court finally found that:
“...the prosecutor’s request reveals the
existence of reasonable evidence that exceptionally serious crimes
have been committed and that there are sufficient grounds to believe
that the accused may obstruct the proceedings and abscond from the
court; the applicants previously absconded from the law-enforcement
authorities, they were declared internationally wanted persons and
were extradited from the Russian Federation; they have no social
links or home ties, no known sources of income and no employment”.
- Subsequently,
the applicants’ lawyers made further requests for their
clients’ release on a regular basis (approximately once a
month), while the prosecution asked for extensions of their detention
pending trial. The courts accepted the prosecutors’ requests,
while rejecting those made by the applicants’ lawyers. On 28
December 2010 the Supreme Court of Justice replaced the applicants’
detention with house arrest. On 4 February 2011 their house arrest
was replaced with an undertaking not to leave the country during the
investigation.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Criminal
Procedure (“the CCP”) read as follows:
“Section 453 Grounds for a request for
annulment of a judgment
Final judgments in criminal cases shall be subject to
requests for annulment (...) in the following instances:
...
d. an international court [has] found that
there has been a breach of human rights and fundamental freedoms
which could be remedied by a rehearing.”
- Under Section 457 of the CCP, when the Plenary Supreme
Court of Justice examines requests for annulment of a final judgment
it shall follow the procedure described in Sections 434-436 of the
CCP.
Under
Section 435 of the CCP, while examining an ordinary appeal in
cassation, the court shall also decide on the additional matters
described in Section 416 of the CCP. Under Section 436 of the CCP, if
a judgment adopted on appeal is quashed by the court of cassation,
the re-examination of the case shall follow the general procedure.
Under
Section 416 of the CCP, when examining a case, an appellate court may
also decide, if necessary, whether to apply preventive measures.
Under
Section 329 of the CCP, a court may on its own motion or at the
request of the parties apply, amend or annul preventive measures.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicants complained that they had not been
released immediately after the quashing of their convictions and had
been detained in the absence of a request by the prosecution to apply
preventive measures to them. Their detention had therefore been
illegal. They also contended that they had been detained unlawfully
for two hours on 13 April 2010, as the court decision extending their
detention had been adopted two hours after the expiry of the previous
detention order. They relied on Article 5 § 1 of the Convention,
which 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. Admissibility
- The
Court considers that the complaint concerning the applicants’
alleged detention without legal basis for two hours is inadmissible.
As established by the Supreme Court of Justice in its decision of 3
June 2010 (see paragraph 20 above), the relevant period in fact ended
the day after the alleged detention for two hours without a valid
detention warrant had taken place. The Court has no reason to doubt
that finding (see the date and time mentioned in the Chişinău
Court of Appeal’s decision, cited in paragraph 13 above).
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
- The
Court notes that the other complaint under Article 5 § 1 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
1. The parties’ submissions
- The
Government noted, first, that the case concerned very particular
circumstances. Following the Court’s finding of a violation of
Articles 3 and 6 of the Convention in the applicants’ case, the
highest court in Moldova had annulled the final judgment convicting
them. In doing so, it had also acted as a first-instance court, which
had had to decide on the application of preventive measures in
respect of the applicants. Under various sections of the Code of
Criminal Procedure (see paragraph 23 above), the Plenary Supreme
Court of Justice had had the power to order the applicants’
detention. However, it had not had the competence to also provide
reasons for such detention, which had been for the trial court to
decide. Therefore, the Supreme Court of Justice had expressly noted
that the Court of Appeal would decide on the application of
preventive measures.
- The
applicants considered that the law had not provided for a procedure
to be followed in cases such as theirs. Pending a legislative
amendment by Parliament, they could not have been lawfully detained
on the basis of the decision of the Plenary Supreme Court of Justice,
which had not had the power to order their detention such as had
occurred. The procedure that could have been applied had required a
request by the prosecution and an examination of that request by the
trial court, which had not happened until much later. Consequently,
the failure to release the applicants immediately after the quashing
of their conviction on 8 February 2010 had been unlawful and
their detention until a new court order was adopted on 19 April 2010
had been without legal basis.
2. The Court’s assessment
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is not
always the decisive element. The Court must also be satisfied that
any detention during the period under consideration was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent people from being deprived of their liberty in an arbitrary
fashion (see Anguelova v. Bulgaria, no. 38361/97, § 154,
ECHR 2002-IV, and Fedotov v. Russia, no. 5140/02, § 74,
25 October 2005).
- The
Court considers that domestic law, as summarised in paragraph 23
above, could be interpreted as giving sufficiently clear powers to
the Plenary Supreme Court of Justice to examine the issue of whether
to apply preventive measures when annulling a final judgment.
However, that court expressly left the issue to be determined by the
Court of Appeal (see paragraph 8 above; see also paragraph 13 above
for the Court of Appeal’s confirmation that the Supreme Court
of Justice did not apply any preventive measures) and did not issue
arrest warrants. The court simply stated that the applicants should
“continue to be detained”, without specifying that this
was detention pending trial or any other type of deprivation of
liberty.
- At
the same time, with the annulment on 8 February 2010 of the judgments
adopted in their case, the applicants were no longer subject to
“lawful detention after conviction by a competent court”
(Article 5 § 1 (a) of the Convention). Accordingly, since
the Supreme Court of Justice decided that the applicants were to be
further detained, it had to refer to a legal basis for their
detention which would conform to any of the other grounds for
detention provided for in Article 5 § 1 of the Convention, so as
to observe the principle that no one should be arbitrarily deprived
of their liberty.
- However,
the Supreme Court of Justice did not devote any analysis to the issue
of the legal grounds and justification for the applicants’
detention (see, a contrario, Mooren v. Germany [GC],
no. 11364/03, §§ 82 89, 9 July 2009). In fact,
their continued detention was mentioned only in the operative part of
the judgment and without any detail as to the reason or purpose for
their detention. Moreover, the court failed to specify the period of
time during which the applicants could be detained. As the materials
in the case file make clear, this made it possible for the
prosecution not to ask for a proper warrant of arrest for more than
two months (see paragraph 11 above).
- The
Court takes note of the Government’s argument that the Plenary
Supreme Court of Justice had no power to give reasons for the
applicants’ detention. However, it considers that a court which
has the power to order a person’s detention must also have the
power to justify such detention, no matter how extraordinary the
circumstances. This follows from the principle that detention should
be the exception and that no one should be detained arbitrarily.
- Absent
any kind of justification for the applicants’ detention in the
decision of the Supreme Court of Justice of 8 February 2010 in the
present case, it is impossible to verify which of the specific
grounds listed exhaustively in Article 5 § 1, if any, applied.
- The foregoing considerations are sufficient to enable
the Court to conclude that the applicants’ detention between 8
February and 19 April 2010 was not compatible with the purpose
of Article 5 § 1 of the Convention.
There
has accordingly been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants complained of a violation of their
rights protected under Article 5 § 3 of the Convention, which
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
- 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
38. The
applicants submitted that the domestic courts had not given
relevant and sufficient reasons for ordering and extending their
detention pending trial.
- The
Government contested that argument. They referred to the reasons
given by the domestic courts, namely the risk of interference with
the conduct of the investigation and the risk of absconding.
- 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 can show that there are “relevant and
sufficient” reasons to justify his continuing detention (Yağcı
and Sargın v. Turkey, 8 June 1995, § 52, Series A
no. 319 A).
- In
the present case, the Court notes that the initial period of the
applicants’ detention (between 8 February and 19 April 2010)
was contrary to Article 5 § 1 of the Convention (see paragraph 35
above). Therefore, it is not necessary to also determine whether
there was a violation of Article 5 § 3. However, after
19 April 2010 the applicants were detained on the basis of a
properly issued decision and arrest warrant. The Court will therefore
examine whether the domestic courts have given relevant and
sufficient reasons for their orders to remand the applicants in
custody.
- It
notes that in the past it has found violations of Article 5 § 3
of the Convention in respect of Moldova due to the domestic courts’
failure to rely on any specific evidence of the risks caused by
releasing persons detained pending trial (see, for instance, Sarban
v. Moldova, no. 3456/05, §§ 95-104, 4 October
2005; Becciev v. Moldova, no. 9190/03, §§ 53-64,
4 October 2005; and Castravet v. Moldova, no. 23393/05,
§§ 29-36, 13 March 2007).
- In
the present case, however, in its decision of 3 June 2010 the Supreme
Court of Justice referred to a specific fact which was relevant to
deciding whether detention pending trial was necessary – the
applicants had previously absconded from the investigation and the
courts and could only be brought before the court after being
declared internationally wanted persons (see paragraph 20 above).
In
view of the above and of the fact that the applicants’
detention in the grounds mentioned by the domestic courts lasted for
a relatively short period, the Court considers that there has been no
violation of Article 5 § 3 of the Convention in the present
case.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicants complained of a violation of their
rights protected under Article 5 § 4 of the Convention, which
reads as follows:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
A. Admissibility
- 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
- In
the applicants’ view, their rights under Article 5 § 4 of
the Convention had been breached as a result of their inability to be
represented by the lawyer of their choice during the hearing of 13
May 2010 (see paragraphs 16 and 17 above). They added that the
short notice given by the domestic court had not allowed their lawyer
to properly prepare their position in order to challenge the
prosecutor’s request to extend their detention pending trial.
- The
Government rejected that argument and submitted that the case had
been exceptional and that a number of lengthy hearings had taken
place. In any event, since the applicants’ lawyer had not been
able to attend the hearing, the courts had ensured that the
applicants had been properly represented by a State-appointed lawyer.
- The Court notes that the hearing of 13 May 2010 was
scheduled to deal with the prosecutor’s request of 7 May 2010
to extend the applicants’ detention pending trial (see
paragraph 16 above). As emphasised by a dissenting judge (see
paragraph 18 above), the prosecutor had failed to inform the defence
of his request at the time of lodging it with the Chişinău
Court of Appeal. It is also unclear why the defence was not notified
of the request on 11 May 2010 when it was received by the Supreme
Court of Justice. Indeed, as rightly pointed out by the applicants,
the same prosecutor attended the hearing before the Supreme Court of
Justice on the morning of 13 May 2010, but failed to inform the
defence of his request.
- The
Government stated that they were unable to confirm or deny that the
applicants’ lawyer had been summoned over the phone by a clerk
of the Court of Appeal to appear at the hearing that took place in
the late afternoon on 13 May 2010 (see paragraph 16 above). However,
they did not submit any evidence to challenge the applicants’
submission that they and their lawyer had not been summoned in any
other manner for that hearing. It follows that either the applicants’
lawyer received a very late call from the clerk at the Court of
Appeal or he received no summons at all. In either case, the Court
considers that the lawyer did not have sufficient time to familiarise
himself with the prosecutor’s request and to prepare his
clients’ position in response to that request. It is therefore
only to be expected that the lawyer subsequently appointed by the
domestic court, who had no prior knowledge of the case, apparently
had little relevant to say (see paragraph 17 above).
- The
Court cannot, moreover, accept the Government’s argument that
the case was exceptional and that various lengthy hearings were
taking place, which somehow prevented the courts from ensuring that
the applicants were represented by the lawyer of their choice. As is
clear from the facts, the prosecution and the Court of Appeal did not
inform the applicants’ lawyer of the request and of the date of
the hearing, despite having a number of opportunities to do so (see
paragraph 48 above).
- Having
regard to the above, the Court considers that there has been a
violation of Article 5 § 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicants further complained that the decision
of the Chişinău Court of Appeal of 13 May 2010 had breached
their right to the presumption of innocence. They
relied on Article 6 § 2 of the Convention, which reads as
follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The
applicants referred to the phrase used by the Chişinău
Court of Appeal in its decision of 13 May 2010, namely that “there
are reasonable grounds to believe that they have committed the crimes
of which they are accused”. They considered that this was
contrary to the court’s obligations under Article 6 § 2 of
the Convention.
- The
Government contested that argument.
- The
Court notes that the phrase referred to by the applicants is
virtually the same as that used in Article 5 § 1 (c) of the
Convention. It refers to the existence of a reasonable suspicion that
a person has committed a crime as one of the elements to be
established by the courts before ordering a person’s detention
and therefore acts as a guarantee against arbitrary detention. The
Court considers that the use of this phrase in the above-mentioned
decision of the Chişinău Court of Appeal was concordant
with the court’s obligation under Article 5 § 1 of the
Convention and without prejudice as to the issue of actual guilt or
innocence on the part of the applicants.
- Accordingly,
this part of the application must be rejected as being manifestly ill
founded within the meaning of Article 35 § 3 (a) of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 § 3 OF THE
CONVENTION
- The
applicants complained that the failure to summon
their lawyer in due time for the hearing of 13 May 2010 and their
resulting inability to put forward their position at that hearing had
breached their rights protected under Article 6 § 3 of the
Convention.
-
In the light of its findings under Article 5 § 4 above, the
Court finds that there is no need to examine the admissibility and
merits of this complaint.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Lastly,
the applicants complained under Article 13 of
the Convention that it had not been possible to appeal against the
part of the decision of the Plenary Supreme Court of Justice of 8
February 2010 concerning their continued detention.
- In
the light of its findings under Article 5 § 1 above, the Court
finds that there is no need to examine the admissibility and merits
of this complaint.
VII. 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
applicants claimed 66,000 euros (EUR) each in
respect of non-pecuniary damage. They referred to their detention for
more than two months without legal basis and their subsequent
detention in the absence of relevant and sufficient reasons, as well
as to the other violations of their Convention rights, which had
caused them to suffer such damage.
- The
Government considered that the sum claimed was excessive in
comparison with the awards which the Court had made in previous
similar cases and was unsubstantiated.
- The
Court considers that the applicants must have suffered as a result of
their unlawful detention for over two months and as a result of the
other violations of their rights under Article 5 of the Convention.
Deciding on an equitable basis, the Court awards each applicant EUR
8,000 for non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 5,520 for costs and
expenses incurred before the Court, as well as EUR 302 for
translation of documents. They submitted a detailed timesheet showing
the time (44 hours) spent by their lawyers working on their case at a
rate of EUR 120 per hour. They also submitted bills confirming the
payment of EUR 1,000 to their lawyers. The lawyers asked for a direct
transfer of the sums awarded under this heading to their bank
accounts.
- The
Government referred to the applicants’ failure to submit a copy
of a contract with their lawyers. Aside from the bills confirming the
payment of EUR 1,000, no other evidence had been produced to confirm
any legal expenses had actually been incurred. Therefore, they should
not be awarded more than EUR 1,000 for legal fees. Moreover, the
bills confirming payment for translation services mentioned a third
party as the beneficiary and did not prove that it referred to
translations undertaken at the request of the applicants or their
lawyers.
- 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 are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and to the above
criteria, the Court considers it reasonable to award the sum
of EUR 2,000 jointly covering costs under all heads. This sum shall
be split into two equal parts, to be transferred to each of the
applicant’s two lawyers’ bank accounts.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 admissible the complaints
under Article 5 § 1 (detention between 8 February 2010 and 19
April 2010), Article 5 §§ 3 and 4 of the Convention, and
the complaint under Article 6 § 2 of the Convention
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been no violation of
Article 5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
5. Holds that there is no need to examine the admissibility
and merits of the complaints under Article 6 § 3 and Article 13
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants,
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
Moldovan lei at the rate applicable at the date of settlement:
(i) EUR
8,000 (eight thousand euros) to each of the applicants, plus any tax
that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR
2,000 (two thousand euros) jointly, plus any tax that may be
chargeable to the applicants, 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
