MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1294/H46-18

22 September 2017

1294th meeting, 19-21 September 2017 (DH) Human rights   H46-18 Sarban group v. Republic of Moldova (Application No. 3456/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2017)736, CM/Del/Dec(2014)1214/13

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
3456/05	SARBAN	04/10/2005	04/01/2006	Complex problem
23393/05	CASTRAVET	13/03/2007	13/06/2007
25664/09	DANALACHI	17/09/2013	17/12/2013
55792/08	FERARU	24/01/2012	24/04/2012
36988/07	IGNATENCO	08/02/2011	08/05/2011
14437/05	MODARCA	10/05/2007	10/08/2007
47306/07	NINESCU	15/07/2014	15/10/2014
35324/04	STICI	23/10/2007	23/01/2008
34382/07	TRIPĂDUŞ	22/04/2014	22/07/2014
39835/05	TURCAN AND TURCAN	23/10/2007	23/01/2008
3817/05	URSU	27/11/2007	27/02/2008
4834/06	STRAISTEANU AND OTHERS	07/04/2009 24/04/2012	07/07/2009 24/09/2012
1649/12	RIMSCHI	13/01/2015	13/04/2015
679/13	VERETCO	07/04/2015	07/07/2015
59474/11	BALAKIN	26/01/2016	26/04/2016
23755/07	BUZADJI	05/07/2016	Grand Chamber
50717/09	LEVINTA No. 2	17/01/2012	17/04/2012

Case description

This group of cases primarily concerns violations of the applicants’ rights to liberty and security, arising from:

Article 5 § 1: detention order issued by a court despite the fact that another court had earlier ordered the applicant’s release on the same grounds^[1]; absence of reasons and time-limits for detention in the higher court’s decisions sending the case for re-trial;^[2]

Article 5 § 3: lack of relevant and sufficient reasons in court decisions ordering or extending the applicants' detention on remand;^[3] legislative prohibition on release of persons accused of a crime punishable with more than 10 years of imprisonment;

Article 5 § 4: failure to ensure a prompt examination of the lawfulness of detention;^[4] failure to summon the applicants’ lawyer in due time for the court hearing on extending their detention pending trial;^[5] unjustified refusal by the domestic courts to let the applicants access the case files and to hear evidence from witnesses;^[6];

Article 5 § 5: lack of remedy to obtain compensation in respect of an unlawful deprivation of liberty.^[7] 

The Court also found other violations, as follows:

-       violations of Article 3 on account of poor conditions of detention and degrading treatment^[8] and lack of medical assistance during detention;^[9]

-       violation of Article 13 in conjunction with Article 3 on account of the lack of remedy to challenge poor conditions of detention;^[10]

-       violations of Article 6 § 1 and of Article 1 of Protocol No. 1 on account of upholding by the court of the Prosecutor’s General actions for the annulment of the contracts for sale and lease of land.^[11]

Status of execution

In response to the decisions adopted by the Committee of Ministers during its 1214^th meeting (December 2014) (DH), the authorities submitted an action report on 23 June 2017 (DH-DD(2017)736).

Individual measures: The applicants in this group have either been convicted (in five cases^[12]) or released (the rest of the applicants). Consequently, none of the applicants is detained pending trial. As concerns the violation of Article 6 § 1 and Article 1 of Protocol No. 1 in the Straisteanu and Others case, in October 2012 the applicants requested the reopening of the domestic civil proceedings. In March 2013 the Supreme Court granted these requests, quashed the previous decisions and adopted new decisions to reject the Prosecutor General’s actions for the revocation of the disputed contracts.   

General measures:

Ø  Legislative amendments

In May 2016 the authorities introduced substantial amendments to the Code of Criminal Procedure (CCP) to ensure its compliance with Article 5 requirements. These amendments served inter alia to reinforce the existing limitation of the use of preventive measures involving deprivation of liberty, require the judge to consider applying alternative measures and strengthen the ability of the defence to challenge the legality of detention on remand.

Measures to prevent violations of Article 5 § 1:

Detention order issued by a court despite the fact that another court had earlier ordered the applicant’s release on the same grounds: Following the amendments, the CCP provides for the exclusive territorial jurisdiction of courts to examine requests for detention on remand or their extension. A prosecutor can only lodge requests for detention on remand with the court with territorial jurisdiction over the given prosecutor’s office. In addition, Article 308 of the CCP now clearly prohibits repeated requests for detention on remand for the same person in the same case, after rejection of a previous request, unless new circumstances arise which can serve as basis for ordering detention. 

Absence of reasons and time-limits for detention in the higher court’s decisions sending the case for re-trial: as concerns the violation in the case of Levinţa (No. 2), the authorities submitted that following the amendments the Supreme Court was explicitly granted the power to examine requests for detention on remand. As concerns the violation in the case of Danalachi, the authorities submitted that it was an isolated incident and no general measures are necessary except for the publication and dissemination of the judgment and training of judges.

Measures to prevent violations of Article 5 § 3:

Lack of relevant and sufficient reasons: The law was amended explicitly to provide for the obligation of the prosecuting authority and the court to undertake a “proportionality test” when requesting and deciding on detention on remand. Thus, they should check the existence of a reasonable suspicion and consider if detention is a proportionate measure taking into consideration the specific circumstances of the case. The law now requires the court to reflect in a detention order the legal basis for the application of detention on remand, with reference to the specific facts and circumstances of the case which gave rise to this measure; explain why other non-custodial preventive measures are insufficient in that specific case; explain the necessity to detain the person according to the conditions and criteria provided by the law; cite arguments of the parties, including the defence; and explain why these arguments were admitted or rejected by the court. The same rules apply to orders for continued detention on remand.

Prohibition on release of certain accused persons: Articles 191 and 192 of the CCP were amended to lift the prohibition on release from detention on remand of persons accused of a crime punishable by more than 10 years of imprisonment as well as those with a criminal record for serious, very serious or exceptionally serious crimes. 

Measures to prevent violations of Article 5 § 4:

Failure to ensure a prompt examination of the lawfulness of detention: Following the facts in the Şarban case (2004-2005) the domestic legislation was amended several times to impose strict deadlines in proceedings to challenge the lawfulness of a deprivation of liberty. Currently, the CCP establishes clear deadlines for the prosecutor to lodge a request for detention on remand of an apprehended person and for its extension, for the court of first instance to submit the case file and the appeal request to the second instance court, and for the second instance court to examine the appeal against the detention order. In addition, a new provision was introduced in 2016 requiring a prosecutor to release a person without delay if detention on remand is no longer justified (previously such revocation of detention required a judicial hearing and a court decision). Furthermore, the Supreme Court in its Explanatory Decision of 15 April 2013 indicated that requests for the revocation of detention on remand or house arrest should be examined by the courts with maximum speed.

Failure to summon the defence counsel in due time for the court hearing on extending detention and refusal to let the applicants access the case files: The CCP was amended to provide that the prosecutor should inform the person concerned and his/her lawyer of the request for detention on remand and the date of the court hearing. Moreover, the law clearly stipulates that the prosecutor is under an obligation to present this request and the case file to the defence before sending it to the court. Access to the case file should be confirmed in writing by the person concerned and his/her lawyer. If necessary, at the request of the defence the court should give sufficient time to get acquainted with the case file and prepare the defence.

Unjustified refusal by the domestic court to hear evidence from witnesses: The CCP was amended to provide that the defence can invite witnesses to the hearing on detention on remand. At the court hearing the defence can present any materials and evidence they consider necessary which should be attached to the case file. A similar procedure is provided for challenging detention orders on appeal.

Ø  Training and awareness-raising

The National Institute of Justice (NIJ), in cooperation with other institutions and international partners, is organising continuous training activities for judges and prosecutors, including on the standards pertinent to Article 5 and their practical application. Thus, in 2014-2016 over 17 training activities, including distance learning courses, were organised for about 659 judges and prosecutors. Furthermore, a Guide on arrest in criminal proceedings was elaborated by the General Police Inspectorate in cooperation with the “Soros-Foundation Moldova” and disseminated to all investigators. Six training courses on respecting human rights in police custody were organised for investigators and other police officers.

Ø  Other aspects

As concerns the violation of Article 3 in the Şarban case (degrading treatment inter alia on account of his placement in a metal cage during the court hearing), the authorities submitted that metal cages had been removed from all domestic courts. 

General measures concerning the violations of Article 3 on account of poor conditions of detention and lack of medical assistance are examined in the context of the Ciorap, Becciev and Paladi groups of cases. General measures concerning the violations of Article 6 § 1 and Article 1 of Protocol No. 1 are examined in the Dacia S.R.L. group of cases.

At its 1214^th meeting (December 2014) (DH) the Committee of Ministers considered with satisfaction that the following issues had been resolved:

- detention pending trial without legal basis in violation of Article 5 § 1;

- lack of confidentiality of lawyer-client communication on account of the glass partition at the then Centre for Fighting against Economic Crimes and Corruption (CFECC) in violation Article 5 § 4.

Analysis by the Secretariat

Individual measures

Violations of Article 5: It is recalled that during its last examination of this group of cases at its 1214^th meeting (December 2014) (DH) the Committee considered that no further individual measure was necessary. It is noted with reference to the five new cases in this group that none of the applicants is currently detained pending trial and the just satisfaction awarded by the Court has been paid. Overall, six applicants in these five cases have been convicted and are currently serving their prison sentences; the Court did not find in any of these cases a violation of Article 3 on account of poor conditions of detention. The rest of the applicants have been released. Consequently, no further individual measures are required.

Violations of Article 6 § 1 and Article 1 of Protocol No. 1 in the Straisteanu and Others case: It is noted that, following the reopening of the domestic civil proceedings, the contested judicial decisions were quashed and the Prosecutor’s General action for the annulment of the contracts for sale of land and for lease of a lake was rejected. It is further noted that the pecuniary and non-pecuniary damage suffered by the applicants was covered by the just satisfaction awarded by the European Court. In their communication to the Committee of 11 March 2013 the applicants submitted that the individual measures in this case have been fully executed.^[13] Thus, no further individual measures is required.

General measures

The legislative amendments introduced to the CCP in 2016 are welcomed. According to the opinion of the Council of Europe Directorate General Human Rights and Rule of Law, “overall the amendments embody a considerable advance on the protection of liberty in criminal process in accordance with the European standards and, in particular the Convention”.^[14]

Measures to prevent violations of Article 5 § 1

Detention order issued by a court despite the fact that another court had earlier ordered the applicant’s release on the same grounds: It appears that the legislative amendments introduced clear rules as concerns the territorial jurisdiction of investigative judges to examine prosecutors’ requests for detention on remand and explicitly prohibit repeated requests for detention after a rejection. These amendments appear capable of preventing similar potential abuses by the prosecution. In addition, it is noted that this is the only case with such a violation against the Republic of Moldova and that no similar violation has been established by the Court since. Therefore, no other general measures are required.

Absence of reasons and time-limits for detention in the higher court’s decisions sending the case for re-trial: In the case of Levinţa (No. 2)[15], it appears that the Moldovan authorities addressed this issue in the framework of new amendments to the CCP: the Supreme Court can now decide on the imposition of detention on remand and is obliged to give reasons for detention orders. It appears that these amendments are capable of preventing similar violations.

In the case of Danalachi, it is recalled that the Court of Appeal quashed the decision of the first instance court ordering imprisonment and from that moment the applicant was no longer subject “to lawful detention after conviction” given that her initial conviction did not call for a detention. It seems to be the only case with this specific violation against Moldova and no similar cases are pending before the Court. It is noted that the domestic legislation was not called into question. As the question of individual measures is resolved, it is accordingly proposed to close the supervision of the Danalachi case.

As concerns the measures to prevent violations of Article 5 § 3

Lack of relevant and sufficient reasons: Further legislative amendments specifically requiring the courts to provide adequate reasons for detention orders are all welcome steps. However, the lack of relevant and sufficient reasoning is mainly a question of judicial practice[16]. It appears that the Court continues to receive new similar complaints. Thus, it is crucial that the strict application of new legislation is ensured and properly monitored by the authorities and is supplemented by continuous training of judges and prosecutors. The authorities should be invited to provide further information on the impact of the measures adopted and the development of judicial practice, including examples of decisions given by domestic courts when ordering and extending detention pending trial.

Prohibition on release of certain categories of accused persons: The amendments made to Articles 191 and 192 of the CCP are welcome developments in that they remove the prohibition on release for certain categories of accused persons It appears that now there are no legislative provisions that automatically deny the possibility of release. Therefore, no other general measures appear required.

Measures to prevent violations of Article 5 § 4

Amendments to the CCP aimed at ensuring prompt examination of complaints on the lawfulness of detention, the summoning in due time of the defence to court hearings, allowing access by the defence to the case files and ensuring that witnesses are heard by the court, are welcome. However, to enable the Committee to assess the effectiveness of these measures, the authorities are invited to provide information on the application of these new legal provisions, including data on the average time for the examination of appeals on detention on remand and examples of decisions of domestic courts reflecting the examination of evidence from the defence, including hearing of witnesses.

Measures to prevent violation of Article 5 § 5

No information was provided on the measures adopted to address the lack of a remedy to obtain compensation in respect of an unlawful deprivation of liberty. It is recalled in this context that in the Veretco case the Court found that Law No. 1545^[17] does not afford a remedy when the domestic court does not finally acquit the person concerned of all charges. The Committee might wish to request the authorities to submit information on the measures adopted or envisaged to ensure that a possibility to apply for compensation is open to any person detained in breach of Article 5.

Financing assured: YES