SECOND SECTION

DECISION

Application no. 56386/10 Ilie ROTARU against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 17 November 2020 as a Committee composed of:

Branko Lubarda, President, Valeriu Griţco , Pauliine Koskelo , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 10 September 2010,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Ilie Rotaru , is a Moldovan national who was born in 1954 and lives in Chișinău .

The facts of the case, as submitted by the parties, may be summarised as follows.

On 23 October 2003 the applicant ’ s private legal office was designated by a court to administer 58.15% of the shares of S.A. “ Gemenii ”, a company in Chişinău then in the process of liquidation.

Subsequently, the prosecuting authorities suspected the applicant of having committed excess of powers and fraud in administering that property. On 24 October 2005 a superior prosecutor decided not to start the investigation into the allegation of fraud, finding no evidence that the applicant had committed an offence. On 13 December 2005 an investigation into excess of power was discontinued by an investigator. None of these decisions was appealed against.

On 26 December 2006 the Deputy Prosecutor General reopened the two investigations, which were subsequently joined.

On 23 February 2011 the Buiucani District Court found a number of violations of the applicant ’ s rights, including the principle non bis in idem .

According to the documents submitted by the Government, on 31 January 2014 a prosecutor discontinued the criminal proceedings against the applicant, a decision which was notified to him on the same day. According to the applicant, he was not informed of that decision.

The applicant ’ s complaints concerning legal certainty, length of proceedings and non bis in idem were communicated to the Government of the Republic of Moldova (“the Government”).

THE LAW

The Government referred to the discontinuation of the investigation against the applicant on 31 January 2014. They argued that the applicant ’ s failure to inform the Court of this important factual development amounted to abuse of the right of petition and considered that the application should be struck out of the list of cases.

The Court does not find it necessary to deal with this objection since it considers the application inadmissible for the reasons mentioned below.

The applicant complained of the excessive length of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

The Government submitted that the applicant had failed to exhaust available domestic remedies. In particular, the applicant should be required to request compensation under Law 87 (adopted on 21 April 2011, in force since 1 July 2011).

The applicant considered that the Government ’ s reference to the remedy under Law 87 was a proposal for a friendly settlement, which he rejected.

The Court points out its finding in Balan v. Moldova ( dec. ) (no. 44746/08) that the above-mentioned remedy was available and that there was no reason to doubt its efficiency. It also decided that, even though that application had been lodged prior to the introduction of that remedy, the applicant was required to exhaust it. In doing so, the Court relied on the nature of the remedy, adopted in response to the Court ’ s pilot judgment in the case of Olaru and Others v. Moldova (nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009) in order to deal with a large number of similar cases pending before the Court, as well as the fact that it provided for no court fees, short time-limits and only two levels of jurisdiction, thus allowing for a speedy conclusion of the law suits.

The Court notes that the present application was lodged more than a year after the adoption of the Olaru pilot judgment mentioned above and some six months prior to the adoption of Law 87 (nine months prior to its entry into force). As a lawyer, the applicant had to be aware of the newly ‑ introduced remedy which, moreover, had been extensively discussed in the media.

Having regard to all the above considerations, the Court concludes that the applicant was required by Article 35 § 1 to avail himself of the new domestic remedy by pursuing the domestic proceedings under Law 87. It notes, however, that he has not instituted such proceedings at the national level.

It follows that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The applicant complained under Article 6 § 1 of a breach of the principle of legal certainty as a result of the annulment of decisions discontinuing the investigations against him after they had become final.

The Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, occurred in the course of proceedings in which he was acquitted or which were discontinued (see, for instance, Khliustov v. Russia , no. 28975/05, § 103, 11 July 2013, Batmaz v. Turkey , no. 714/08, § 36, 18 February 2014, and Castraveț and Musienco v. the Republic of Moldova ( dec. ), no. 29352/09, 24 March 2020).

In the present case, the investigation against the applicant was discontinued on 31 January 2014. The applicant submitted that he only learned about that decision from the Court ’ s letter of 17 August 2020 forwarding the Government ’ s letter with annexes. He argued that the decision must be a fake since otherwise the Government would have mentioned it in their earlier observations.

The Court does not have any reason to doubt the genuine character of the decision of 31 January 2014, annexed to the Government ’ s letter. Even if, as claimed by the applicant, it was not in fact delivered to him, what is important in the present case is that such a decision was adopted and the investigation against the applicant was discontinued.

The Court considers that in these circumstances the applicant can no longer claim to be a victim of a violation of his right to a fair trial.

It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

The applicant alleged that he had been prosecuted twice for the same offence, contrary to the requirements of Article 4 of Protocol No. 7 to the Convention, the relevant part of which reads 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.

...”

The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. It reiterates that a prosecutor ’ s decision to apply a deterrent and punitive penalty, after assessing evidence and determining the guilt of the accused, may amount to a “conviction” within the meaning of Article 4 of Protocol No. 7 to the Convention ( Mihalache v. Romania [GC], no. 54012/10, §§ 96-101, 8 July 2019). However, the Court has long held that discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and Article 4 of Protocol No. 7 is therefore not applicable in such a situation ( idem , § 96 and further references therein).

In view of the fact that in the present case a prosecutor discontinued the investigation against the applicant, without determining his guilt or innocence, Article 4 of Protocol No. 7 to the Convention does not apply. Accordingly, this complaint is incompatible with the Convention ratione materiae and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2020 .

Hasan Bakırcı Branko Lubarda Deputy Registrar President