THIRD SECTION

DECISION

Application no . 10910/06 Tudor CIORAP against the Republic of Moldova

The E uropean Court of Human Rights (Third Section), sitting on 1 6 October 2012 as a Chamber composed of:

Josep Casadevall , President, Egbert Myjer , Corneliu Bîrsan , Alvina Gyulumyan , Ján Šikuta , Luis López Guerra , Kristina Pardalos , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 3 January 2006,

Having regard to the decision taken by the President of the Chamber to appoint Mr Ján Šikuta to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Mihai Poalelungi , the judge elected in respect of the Republic of Moldova, had resigned (Rule 6),

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 Tudor Ciorap , is a Moldovan national who was born in 1965 and lives in Chişinău .

A . The applicant ’ s conviction and subsequent quashing of his sentence

2. On 29 December 1999 the Centru District Court convicted the applicant of fraud and usurping official powers (Articles 122(2) and 207 of the Penal Code (“the P.C.”) applicable at the time) and sentenced him to seven years ’ imprisonment. The court absolved him from serving the sentence in view of an amnesty law which applied to participants in the military conflict in the Transdniester region in 1992.

3. On 20 July 2000 a prosecutor asked the court to quash its own judgment of 29 December 1999 since the amnesty should not have applied to the applicant. The prosecutor explained that it had been discovered shortly prior to making the request that a copy of the document submitted by the applicant to the court in 1999 to prove his participation in the 1992 conflict could not be found in the file. At the same time, the applicant was not registered with any organisation responsible for issuing such documents and keeping the lists with those issued with such documents. This, the prosecution considered, constituted new facts unknown to the court when it had adopted its judgment.

4 . On 23 March 20 01 the Centru District Court re opened the proceedings and declared the applicant guilty of having committed the offences covered by Articles 122(2) and 207 of the C.P. It sentenced him to seven years of imprisonment.

5. On 29 May 2001 the Chişinău Regional Tribunal partly quashed that judgment and reduced the punishment to 5 years ’ imprisonment. On 11 October 2001 the Court of Appeal upheld that judgment.

6. Having eventually gathered sufficient evidence in February 2004, a specialised State Commission confirmed the applicant ’ s participation in the 1992 conflict. The prosecution then asked the court to quash the judgment of 23 March 2001 and all subsequent judgments upholding it.

7 . On 7 July 2004 the Centru District Court again found the applicant guilty of having committed the offences provided under Articles 122(2) and 207 of the C.P. and applied the amnesty law to him, absolving him from serving his sentence.

8 . According to the documents submitted by the Government, the applicant was released immediately after the adoption of the judgment of 29 December 1999 and was re-arrested on 23 October 2000 on suspicion of having committed another offence (extortion) on 22 October 2000. According to the applicant, he was de tained for up to 48 hours on 28 May and 26 June 2000 on suspicion of fraud committed during May-June 2000 and was arrested again on 23 October 2000. He claimed that during May ‑ June 2000 his office and car had been searched.

B . Contemporaneous criminal proceedings concerning the applicant

9 . On 23 October 2000 the applicant was arrested on suspicion of having extorted money from a private individual on 22 October 2000. He was also accused of having defrauded several persons during March-June 2000.

An arrest warrant was issued by the Hînceşti District Court on 25 October 2000 and it was renewed thereafter until 22 December 2004, when he was released in order to undergo medical treatment in a civilian hospital. Since he thereafter absconded from the law enforcement author ities, he was re-arrested on 22 April 2005. On 8 August 2005 he was convicted of fraud by the Botanica District Court.

10 . That judgment was partly upheld by the Chişinău Court of Appeal on 29 December 2005 and by the Supreme Court of Justice on 29 March 2006, sentencing him to eleven years ’ detention.

C . Proceedings concerning compensation for miscarriage of justice

11. On 3 May 2005 the applicant initiated proceedings claiming compensation for his “repeated conviction” in 2001. On 1 July 2005 the Râşcani District Court found in his favour and awarded him MDL 5,000 ( EUR 330) for the non-pecuniary damage caused by the 2001 revision and the resulting five months of illegal imprisonment (May ‑ October 2000).

12. On 3 November 2005 the Chişinău Court of Appeal quashed that judgment and adopted a new one, rejecting all of the applicant ’ s claims. According to the applicant, he could not lodge an appeal against that judgment because he could not observe formal requirements such as the typed form of the appeal and the payment of court fees. It appears from the documents submitted by the parties that he managed to lodge his appeal and that it was examined.

13. On 14 March 2006 the Supreme Court of Justice ordered a re ‑ hearing of the case by the ChiÅŸinău Court of Appeal because of procedural shortcomings.

14 . On 29 June 2006 the Chişinău Court of Appeal upheld the judgment of 1 July 2005 and rejected the applicant ’ s argument that the sum awarded to him had been too small to compensate for the damage caused to him by unlawful detention, which according to him had lasted over four years.

15 . On 7 November 2006 the Supreme Court of Justice upheld that judgment. The court found that the applicant was the victim of a miscarriage of justice and that personal freedom was one of the highest social values. However, the applicant was compensated sufficiently by the lower court, in view of the fact that compensation should neither undervalue the damage to the victim nor constitute a source of unjust enrichment.

16. According to the applicant, on 17 July 2009 the Supreme Court of Justice rejected a request of the Prosecutor General ’ s Office to reopen the proceedings in order to take account of the fact that he had not been detained in May-October 2000. The applicant did not submit a copy of that decision.

COMPLAINTS

17. The applicant complained under Article 1 of the Convention that the State had not protected his rights.

18. He also mentioned his “repeated convicti on” in 2001 contrary to Article 6 § 1 of the Convention and the resulting unlawful deprivation of liberty, contrary to Article 5 of the Convention. When he had complained of that domestically under Article 5 § 5 of the Convention, the Supreme Court of Justice initially refused to examine his appeal in cassation because the appeal was not typewritten and because he had failed to pay court fees, which refusal, in his opinion, had been contrary to Articles 5 § 4 and 6 of the Convention. Although his case was eventually examined, the compensation which he received was too small.

19. The applicant complained under Article 6 § 3 (b), (c) and (d) of the Convention because he had been informed of the hearing of the Chişinău Court of Appeal scheduled for 3 November 2005 only on 1 November 2005 and had not had the necessary time and facilities to prepare for the hearing.

20. He also complained under Articles 8, 13, 14 and 17 of the Convention, as well as under Article 3 of Protocol No. 7 and Article 4 of Protocol No. 7 to the Convention of the unlawful search of his car and office, the requirement of typed appeals and the obligation to pay court fees, as well as the low amount of compensation awarded to him after his “repeated conviction for the same act”.

THE LAW

A. Complaint concerning the applicant ’ s allegedly unlawful detention following the reopening of his case

21. The applicant complained under Article 5 of the Convention that he had been detained unlawfully as a result of his “repeated conviction” in 2001. While the domestic courts eventually confirmed the unlawfulness of that detention, he was awarded too small a compensation and thus could still claim to be a victim of a violation of his Convention rights. 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;

...

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.”

22. The Government argued that the applicant had failed to exhaust available domestic remedies by not claiming compensation for the alleged unlawful detention following the reopening of his case, but rather insisted on the causal link between that reopening and his detention. They also submitted that the applicant had not in fact been detained during May ‑ October 2000 and that the domestic courts had mistakenly established the contrary in their judgments (see paragraphs 14 and 15 above).

23. The Court notes that, according to the evidence from the Government and to the applicant ’ s own statements (see paragraph 8 above), he was released from detention immediately after the adoption of the judgment of 29 December 2009 and (with the exception of two short arrests in May and June 2000) was free until his re-arrest on 23 October 2000 on suspicion of having committed fraud and extortion on 22 October 2000. These crimes were distinct from that for which he had been convicted in 1999, having been committed after the judgment of 29 December 1999 had been adopted.

24. Starting from 23 October 2000 and until his final conviction on 29 March 2006 (see paragraph 10 above, with an interruption during which he was released from prison, see paragraph 9 above) the applicant was detained on the basis of arrest warrants issued by the courts examining the alleged new crimes committed in 2000. Moreover, even after the court decision of 7 July 2004 applying the amnesty law to the applicant became final on 22 July 2004, he continued to be detained pending trial in the context of accusations of offences committed in 2000 (see paragraphs 7 and 9 above). It follows that the applicant ’ s contention that after the reopening of his case on 23 March 2001 (see paragraph 4 above) he had been detained precisely because of that reopening is contrary to the evidence in the file.

25 . The Court concludes that the reopening of the applicant ’ s case on 23 March 2001 did not result in any unlawful detention since the applicant was already detained pending trial throughout the relevant period in the context of another case.

26. Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

B. Complaint concerning the applicant ’ s “repeated conviction”

27. The applicant alleged that the wrongful reopening of the criminal case against him on 23 March 2001, following which he had had to serve the sentence of which he had been absolved in the original proceedings, amounted to a repeated conviction for the same act. He relied on Article 4 of Protocol No. 7 to the Convention, the relevant parts of which read as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

... ”

28. The Government submitted that following the domestic courts ’ judgments of 29 June and 7 November 2006 (see paragraphs 14 and 15 above) the applicant could no longer claim to be a victim of a violation of his rights protected under Article 4 of Protocol No. 7 to the Convention.

29. The applicant considered that due to the small amount of compensation awarded to him (the equivalent of EUR 330) he could still claim to be a victim of a violation of his Convention rights.

30. The Court notes first that the second par agraph of Article 4 in Protocol no. 7 to the Convention expressly allows for the reopening of a criminal case in certain exceptional circumstances and subject to the observance of the domestic law. Since the domestic courts themselves found that the reopening of the case had been unlawful, it is clear that domestic law had not been properly observed in reopening the applicant ’ s case.

31. The only remaining question is whether, in view of the circumstances of the case as a whole, including the damage caused to the applicant, the domestic courts ’ judgments and the compensation awarded to him, the applicant can still claim to be a victim of a violation of his rights. In this respect the Court notes the unequivocal condemnation by the domestic courts of the reopening of the case, finding that it had amounted to “a miscarriage of justice” (see paragraph 15 above).

32. The domestic courts awarded compensation to the applicant. While the amount of the compensation is small, it is to be assessed against the damage caused to the applicant in the particular circumstances of the case. As the Court has already found (see paragraph 25 above), the applicant was not subjected to any period of detention attributable separately to the reopening of his criminal case. Moreover, the reopening concerned only the issue whether, as a result of applying an amnesty law, the applicant should be absolved of serving his sentence. Therefore, it never affected the issue of his guilt, established by the final judgment of 29 December 1999 and confirmed by all the subsequent court decisions. Since in practice the applicant in any case did not have to serve his sentence during a separate period of detention, the damage caused to him by the reopening of the case had been minimal.

33. In view of the foregoing, the applicant should be considered as having lost his victim status in relation to the present complaint. Thus, the Court concludes that the applicant is no longer a victim of the alleged violation and that this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Other complaints

34. In so far as the applicant ’ s remaining complaints are concerned, the Court considers them to be unsubstantiated and notes that there is nothing in the file to suggest that the provisions invoked by the applicant have been violated. Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President