MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-23

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-23 Sarban group v. Republic of Moldova (Application No. 3456/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)981, DH-DD(2021)1086, CM/Del/Dec(2020)1377/H46-22

 

Application	Case	Judgment of	Final on	Indicator for the classification
3456/05	SARBAN	04/10/2005	04/01/2006	Complex problem

Case description

This case primarily concerns violations of the rights to liberty and security, arising from:^[1]

Article 5 § 3: lack of relevant and sufficient reasons in court decisions ordering or extending the detention on remand;

Article 5 § 4: failure to ensure prompt examination of the lawfulness of detention; failure to summon the applicants’ lawyer in due time for the court hearing on extending their detention pending trial; unjustified refusal by the domestic courts to let the applicants access the case files and to hear evidence from witnesses;

Article 5 § 1, Article 5 § 5 and Article 13 in conjunction with Article 5: lack of remedy to obtain compensation in respect of unlawful deprivation of liberty.

Status of execution

It is recalled that the Committee of Ministers examined the Șarbangroup of cases in December 2014, September 2017, June 2019 and June 2020.

At its previous examinations the Committee closed the supervision of individual measures in all cases.

As concerns general measures, at its last examination of this group, the Committee welcomed the noticeable decrease in the number of persons detained on remand in 2019, in comparison with previous years. At the same time, it expressed deep concern that the problem of inadequate reasoning of motions to detain and detention orders, and insufficient use of alternative measures, continue to persist. It thus strongly urged the authorities to intensify their efforts to ensure that domestic prosecutorial and judicial practice is brought into line with Convention requirements.

Concerning the Article 5 § 4 issues, it invited the authorities to provide examples of domestic judicial decisions adopted by the first instance courts on habeas corpus requests showing the length of examination of such requests and information on the current practice as concerns summoning lawyers to hearings on detention on remand. Finally, it urged the authorities to adopt without further delay the necessary amendments to Law No. 1545 on compensation for damage caused by illegal acts by the criminal investigation authorities, prosecution and courts.

In response to the latest decision, on 5 October 2021 the authorities submitted an updated action report (see DH-DD(2021)981) which can be summarised as follows:

General measures:

a)     Statistical data

The authorities provided statistical data from the General Prosecutor’s Office (GPO), showing that in 2020 the number of persons arrested and detained by the police for up to 72 hours and those detained on remand had decreased when compared to previous years.

	2017	2018	2019	2020
Number of persons arrested (up to 72 hours)	4 410	3 363	2 956	2 694
Number of persons in respect of which detention on remand was requested by prosecutors	2 843	1 936	1 600	1 401
Number of persons detained on remand	2 430	1 592	1 403	1 174

In 2020, detention on remand (including house arrest) was applied in respect of 8.08 % of the total number of persons charged with a crime.[2] Some 16.2% of the prosecutors’ motions for detention were dismissed by the domestic courts. Of the total number of those charged with a crime, 5.1%, i.e. 767 persons, were sent to court while detained on remand.[3] The majority of those cases concerned serious, extremely serious and exceptionally serious crimes.

In 110 cases the prosecution challenged dismissals by the investigative judges to apply or extend detention on remand, out of which 22.7% were admitted by the appeal instance. The defence challenged rulings of the investigative judges in 360 cases, out of which 13.6% were admitted by the appeal instance.[4]    

b)    Summoning lawyers for the court hearings on detention on remand

The Code of Criminal Procedure provides that the prosecutor should notify the lawyer about the court hearing. To ensure promptness, in practice the summoning takes place by telephone or e-mail.

c)     Training and awareness-raising

The authorities regularly organise training activities on issues related to the right to liberty and security and the European Court’s case-law, including in cooperation with the Council of Europe (CoE). Thus, in 2020 a series of trainings and a summer school was organised with the assistance of the CoE Programme “Promoting a criminal justice system based on respect for human rights in the Republic of Moldova”, covering inter alia topics related to legal reasoning of court decisions ordering or extending detention on remand, reasonable suspicion, grounds for arrest and evidence in proceedings related to detention on remand. Some 101 investigating judges, prosecutors and free legal aid lawyers benefited from these activities. 

Rule 9 communication:

A communication was received on 12 October 2021 (see DH-DD(2021)1086) from the NGO Legal Resources Centre from Moldova, which sustained the argument made in its previous communication according to which the legislative amendments of 2016 had not led to a substantive improvement in the practice of requesting and applying detention on remand.

The NGO provided statistical data from the Agency for Court Administration (ACA), which differs from the statistical data of the Prosecutor General’s Office submitted in the government’s action report.[5] The NGO reiterated its concerns in respect of inter alia a high rate of requests for detention on remand granted by courts, rare use of alternatives to pre-trial detention, lack of promptness in the examination of habeas corpus requests, issues related to the equality of arms in detention proceedings and to compensation for unlawful arrest. According to the NGO these issues are caused by insufficient independence of judges and the prosecution service, professional background of the investigating judges and their very heavy workload.

Analysis by the Secretariat

General measures

a)     Measures to prevent violations of Article 5 § 3

It is recalled that the main problem revealed by the judgments in this group was the use of stereotyped and abstract reasoning by the domestic courts when ordering and extending pre-trial detention, without showing how the grounds cited applied concretely to the specific circumstances of the case. In this context, it is positive that, as shown by the statistical data provided by the authorities and the NGO, the number of requests for detention on remand lodged by the prosecutors and the number of persons detained continued to decrease in 2020.[6] The authorities should be encouraged to maintain this encouraging dynamic. It should be noted, however, that non-custodial alternatives to detention, such as release under judicial control or bail, appear to be rarely applied. This is confirmed by the observations made by the Ombudsman’s Office in its report on the visit to the Penitentiary no. 13 in May 2021.[7] The authorities are thus strongly encouraged to reflect on the impediments preventing the use of non-custodial alternatives and take all necessary measures to ensure that the prosecutors and courts properly consider their use, bearing in mind the principle of presumption in favour of liberty under Article 5 of the Convention and the Court’s case-law in this respect. Such measures, in addition to tackling violations of Article 5, will contribute to the reduction of prison overcrowding which continues to be a major concern in the Republic of Moldova. Information on this aspect is awaited. It is also important that the authorities continue providing updated statistics for future years in order to enable the Committee to continue tracking developments and attest whether the decrease in the number of persons detained on remand is a sustainable trend.

While the statistical data is useful for observing the trends in the use of detention on remand, they are not conclusive when it comes to the reasoning of court decisions. In this context, it is recalled that the research on the application of pre-trial detention in the Republic of Moldova conducted in 2020 in the framework of the Council of Europe Programme “Promoting a Human Rights Compliant Criminal Justice System in the Republic of Moldova” examined domestic court decisions delivered up to 2017 and identified important deficiencies in the practice of prosecutors and courts in respect of reasoning.[8] To enable the Committee to evaluate the current state of affairs in this area, the authorities should be invited to provide information based on empirical data on the current practices in the reasoning of court decisions and requests for detention in recent years.

At the same time, it is noted that although the number of similar cases communicated by the European Court to the Moldovan authorities diminished in recent years, new complaints concerning alleged breaches of Article 5 § 3 continue to be communicated. This gives an indication that the problem persists. The Committee might therefore reiterate its firm call to the authorities to continue taking vigorous actions to ensure that deprivation of liberty is used only as a measure of last resort and that detention orders are properly reasoned.

b)    Measures to prevent violations of Article 5 § 4

As concerns thefailure to summon defence counsel in due time, it appears that the domestic legislation clearly provides for the obligation of the prosecutor to summon the lawyer and allows the use of electronic means of communication to ensure promptness. Given also that this violation was found by the European Court in one single case[9] with the events dated back to 2010 and that this does not appear to be an issue in the recent cases communicated by the European Court, the Committee might wish to close the examination of this aspect.  

No information was submitted as concerns the promptness of examination of habeas corpus requests by the first instance courts. Information showing the relevant recent practice is thus still awaited. Confirmation is also awaited on the instruction given to judges and prosecutors as concerns their obligation to present the defence with a copy of the file related to the detention request and to properly deal with requests to hear evidence.

c)     Absence of domestic remedy to obtain compensation for unlawful arrests

Despite the Committee’s previous calls, no information was provided on the progress made in adopting legislative amendments to Law No. 1545 to ensure that compensation in respect of an unlawful deprivation of liberty is open to all those detained in breach of Article 5. The Committee might therefore wish to repeatedly urge the authorities to adopt rapidly the necessary measures and to keep it informed on the progress achieved.

Financing assured: YES