THIRD SECTION

DECISION

Application no. 38178/08 Petru POPOVICI against the Republic of Moldova

The European Court of Human Rights ( Third Section ), sitting on 24 June 2014 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Dragoljub Popović , Luis López Guerra , Johannes Silvis , Valeriu Griţco , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 11 August 2008 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant , Mr Petru Popovici , is a Moldovan national, who was born in 1962 and lives in Chișinău . He was represented before the Court by Mr R. Zadoinov , a lawyer practising in Chisinau .

2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3 . In 2000 and 2001 the applicant and a group of ten other persons were accused of being members of a criminal gang and of having committed numerous offences, including ten murders and thirteen attempted murders. The applicant was arrested and placed in detention on 12 November 2001.

4. On 7 October 2003 the Chişinău Court of Appeal acquitted the applicant of all the charges for lack of evidence and ordered his release from custody.

5. On 1 March 2004, in the applicant ’ s absence, a panel of three judges of the Supreme Court of Justice examined an appeal lodged by the Prosecutor General ’ s Office against the judgment of the Court of Appeal, quashed the judgment, convicted the applicant and sentenced him to life imprisonment.

6. The applicant complained to the Court and, on 27 November 2007 , the Court found, inter alia, that his right to a fair trial had been breached on the grounds that the Supreme Court of Justice had convicted him without making a direct assessment of evidence given by the applicant in person (see Popovici v. Moldova , nos. 289/04 and 41194/04, § 72 , 27 November 2007 ).

7. As a result of the Court ’ s judgment, the applicant lodged an extraordinary appeal against the judgment of the Supreme Court of 1 March 2004 seeking its quashing and a fresh examination of the appeal against the judgment of the Chişinău Court of Appeal of 7 October 2003. The Prosecutor General ’ s Office did not object.

8. On 30 June 2008 the Plenary Supreme Court of Justice examined the extraordinary appeal lodged by the applicant, quashed both the judgment of 1 March 2004 and that of the Court of Appeal of 7 October 2003 and ordered a fresh examination of the case. The Supreme Court also ordered the applicant ’ s remand in custody for an undefined period of time without there being a request by the Prosecutor General ’ s Office.

9. After the communication of the case to the Government, the Court became aware of the fact that on 17 November 2008 the Supreme Court of Justice had examined an extraordinary appeal lodged by the applicant against its judgment of 30 June 2008 and had upheld it. The Supreme Court considered unlawful the quashing in that judgment of the decision of the Court of Appeal of 7 October 2003 and the decision to remand the applicant in custody, and reversed those parts of the judgment.

COMPLAINTS

10. The applicant complain ed that his detention had been contrary to Article 5 of the Convention because it had been ordered without there being a request by the Prosecutor General ’ s Office and in the absence of relevant and sufficient reasons. Moreover, he had not been present during the proceedings when his detention had been ordered and the Supreme Court had ordered his detention for an indefinite period of time.

11. The applicant also complained, under Article 6 of the Convention, that the quashing of the decision of the Court of Appeal of 7 October 2003 had been contrary to the Code of Criminal Procedure (Articles 434 and 435) since nobody had requested it and since the applicant had been un able to argue against it.

THE LAW

12. The applicant complained of a number of violations of Articles 5 and 6 of the Convention. The relevant parts of Article 5 read 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;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The relevant part of Article 6 reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”.

13. The Government submitted, inter alia, that on 17 November 2008 the Supreme Court of Justice had reversed its judgment of 30 June 2008 and declared unlawful the quashing in that judgment of the decision of the Court of Appeal of 7 October 2003 and the decision to remand the applicant in custody. Therefore, the breaches complained of by the applicant had been remedied and consequently the applicant had found himself in the same position as he had been in before the violation had occurred. Accordingly, the Government submitted that the applicant could no longer claim to be a victim of a violation of his rights under Article 6 of the Convention. They also argued that the applicant could have claimed compensation from the domestic courts for the alleged violations of his rights, but did not do so.

14. The applicant disagreed, claiming that he had not lost his victim status because he had not been compensated.

15. The Court must consider whether the applicant can still claim to be a victim of a violation of Articles 5 and 6 within the meaning of Article 34 of the Convention. In this connection, it emphasises that it falls first to the national authorities to redress any alleged violation of the Convention. The question of whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails, on the part of the Court, an ex post facto examination of his or her situation. A decision or measure of the domestic authorities favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. The question of whether he has received compensation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court ’ s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § § 179-181 , ECHR 2006 ‑ V , and Ciorap v. Moldova (no. 2), no. 7481/06 , § 18 , 20 July 2010 ).

16. In the present case, the Court notes that the Supreme Court of Justice redressed in its decision of 17 November 2008 the breaches complained of by the applicant and expressly acknowledged the violation of the applicant ’ s rights.

17. It is true that the applicant was awarded no compensation for the damage caused to him. However, the Court notes that he did not claim such compensation before the Supreme Court of Justice. The Court has already established in Galuschin c. Moldova (( dec. ), 29568/06 , 23 August 2011) that the Supreme Court of Justice can award compensation even in the absence of an express provision in the national law, relying directly on the Convention. It was also established that the awards which the Supreme Court of Justice made in those cases were consistent with the awards made by the Court in similar cases in respect of Moldova.

18. Accordingly, in cases such as the present one, where the violation of the Convention right has been fully acknowledged by the domestic courts, in the light of the present domestic case-law, applicants have clear prospects of success in claiming compensation at the domestic level.

19. Since the applicant has failed to claim compensation in the present case, the Court concludes that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for failure to exhaust available domestic remedies (see, mutatis mutandis , M ă tăsaru and Saviţchi v. Moldova , no. 38281/08 , § 76, 2 November 2010 ) .

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall              Deputy Registrar President