SECOND SECTION

DECISION

Application no . 36084/07 Valeriu BURGHELEA against the Republic of Moldova

The European Court of Human Rights ( Second Section ), sitting on 12 January 2016 as a Committee composed of:

Nebojša Vučinić , President, Valeriu Griţco , Stéphanie Mourou-Vikström , judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 8 August 2007 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Valeriu Burghelea , is a Moldovan national, who was born in 1974 and lives in Chişinău .

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

A. The circumstances of the case

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

4. On 17 June 2007 at 3.45 p.m. the applicant was arrested by the Centre for Fighting Economic Crime and Corruption (“the CFECC”) on suspicion of having solicited a bribe. He was searched at 4.38 p.m., but his arrest was registered as having taken place at 9.45 p.m. on the same day.

5. On 20 July 2007 the Buiucani District Court rejected the prosecutor ’ s request to order the applicant ’ s detention pending trial, finding that no materials had been submitted showing a risk of his absconding or interfering with the investigation. Moreover, the applicant had a permanent place of residence in Moldova and a job, was married and had a small child, had no criminal record and promised to appear before the investigating authority whenever summoned. The court ordered the applicant ’ s house arrest for ten days.

6. After receiving a summons from the investigating authority, on 24 July 2007 the applicant appeared before that authority and was interviewed as a suspect.

7. On 25 July 2007 the Chişinău Court of Appeal quashed the lower court ’ s judgment and ordered the applicant ’ s detention pending trial for ten days. The court found that:

“ ... in rejecting the request for [detention] the [lower] court did not take into consideration the seriousness of the crime with which [the applicant] is charged and adopted a premature and unfounded decision. At present the preventive measure of house arrest or other measure not involving deprivation of liberty will not ensure the normal course of the investigation. The reasons relied on by the prosecutor may be considered a ground for arresting the person. If released, [the applicant], who is accused of two offences of which one is serious, could abscond from the investigating authority, interfere with the investigation process, influence witnesses or reoffend”.

8. On 27 July 2007 the Buiucani District Court extended the applicant ’ s detention pending trial for another 15 days, relying on essentially the same reasons as the Chişinău Court of Appeal in its decision of 25 July 2007.

9. On 2 August 2007 the Chişinău Court of Appeal rejected the applicant ’ s appeal, giving essentially the same reasons as those in its decision of 25 July 2007.

10. On 8 August 2007 the Buiucani District Court extended the applicant ’ s detention pending trial for another 15 days. The court found that:

“ ... the grounds for [the applicant ’ s] arrest are still valid; the court takes into consideration the seriousness of the offence, which allows detention, the nature and degree of damage caused by the alleged offence, the emotional shock to society if the accused is released, considering the sums involved, the manner in which the offence was committed and the social state of the population ... ; there is an ongoing risk that the accused may influence witnesses, that the co-accused will collude or that the accused and third parties will collude in order to fabricate defence evidence.”

11. On 14 August 2007 the Chişinău Court of Appeal rejected the applicant ’ s appeal, giving essentially the same reasons as those in its previous decision. The applicant expressly noted that the prosecutor had not annexed to his request for the extension of the detention any materials proving the existence of the risk of his absconding or interfering with the investigation.

12. On 20 August 2007 the Buiucani District Court extended the applicant ’ s detention by another 30 days, giving essentially the same reasons as earlier.

13. On 6 September 2007 the Chişinău Court of Appeal rejected the applicant ’ s appeal, giving essentially the same reasons as those in its previous decisions.

14 . On 24 September 2007 the Buiucani District Court extended the applicant ’ s detention by another sixty days because “the grounds for the applicant ’ s detention [we]re still valid”.

15. On 8 October 2007 the applicant was released subject to an undertaking not to leave the city.

16. On 30 October 2009 the Buiucani District Court acquitted the applicant, finding no evidence to suggest that he and the other co-accused had committed an offence. That judgment was upheld by the Chişinău Court of Appeal on 17 March 2010 and by the Supreme Court of Justice on 1 March 2011 . The decision of the Supreme Court of Justice was final.

B. Relevant domestic law

17 . The relevant provisions of Law No. 1545 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts” , in force since 4 June 1998 , read as follows:

“ Article 1

(1) In accordance with the present law, individuals and legal entities are entitled to compensation for non-pecuniary and pecuniary damage caused as a result of:

a) illegal detention, illegal arrest, illegal indictment, illegal conviction;

b) illegal search carried out during the investigation phase or during the trial of the case, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the persons ’ rights;

c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine;

d) the carrying out of operative investigative measures in breach of lawful procedure;

e) illegal seizure of accounting documents, other documents, money, or stamps as well as the blocking of bank accounts.

(2) The damage caused shall be fully compensated, irrespective of the degree of culpability of the agents of the criminal investigation organs, prosecution and courts. ”

“ Article 4

A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met:

a) the pronouncement of an acquittal judgment;

b) the dropping of charges or discontinuation of an investigation on the ground of rehabilitation;

c) the adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation;

d) the adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova ;... ”

COMPLAINTS

18. In his initial application t he applicant complained under Article 5 §§ 1, 2 and 3 about procedural irregularities during his arrest, the insufficient reasons for his detention and the failure to inform him promptly of the reasons for his arrest.

19. He also complained of a breach of Article 6 § 1 of the Convention because the judges who decided on his detention pending trial had taken to the deliberations room the materials of the criminal case against him.

20. He finally complained of a breach of Article 13 of the Convention due to the breach of his right to a defence during his arrest.

21. In subsequent correspondence of 2 October 2007 the applicant complained about his unauthorised bodily search, in breach of Article 8 of the Convention. He also complained of a breach of Article 5 § 3 due to insufficient reasons for his detention pending trial and of Article 6 § 3 (b) and (c) about the refusal to allow him to meet with his lawyer during the first two days of his detention.

22 . In further submissions of 10 December 2014 the applicant complained of a violation of Article 3 due to inhuman conditions of detention in July and August 2007.

THE LAW

A. Complaints under Articles 5 §§ 1, 2 and 3, as well as under Articles 6 § 1, 8 and 13 of the Convention

23. The applicant complained that he was arrested in breach of domestic law and was not promptly informed of the reasons for his arrest, while the judge did not give sufficient reasons for his arrest. He also complained of an unauthorised search and of the absence of effective remedies in respect of his other complaints.

24. The Government submitted that the applicant had failed to exhaust domestic remedies. In particular, following his acquittal by the domestic courts, he could have claimed compensation relying on Law No. 1545.

25. The Court recalls that i t is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV). The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions.

26. The Court would refer to its well-established case law concerning the obligation to exhaust domestic remedies, as summarised , for instance, in Vu č kovi ć and Others v. Serbia (preliminary objection) [GC] (nos. 17153/11 and 29 others , §§ 69-77, 25 March 2014) .

26. In the present case the applicant did not comment in any manner the Government ’ s submission that he had failed to exhaust domestic remedies. The Court notes that it has already found on a number of occasions that Law No. 1545 provides an effective framework of redress in respect of complaint s under Articles 5 and 8 of the Convention (see, inter alia , the case of Țopa v. Moldova ( dec. ), no. 25451/08 , 14 December 2010; Mătăsaru and Savițchi v. Moldova (no. 38281/08, § 75; Bisir and Tulus v. Moldova , no. 42973/05 , § 37 , 17 May 2011 ; Djaparidze v. Moldova ( dec. ), no. 32530/07, § 34, 31 January 2012; Arabadji v. The Republic of Moldova ( dec. ), no. 25620/06, 17 September 2013 ).

27 . Since the applicant did not make use of this mechanism, his complaints under Articles 5 and 8 must be rejected for non-exhaustion of domestic remedies. The Court concludes that this part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

28. The Court notes that the applicant made a complaint under Article 6 § 1 concerning the decision-making process in respect of his detention pending trial. B eing the master of the characterisation to be given in law to the facts of any case before it (see Akdeniz v. Turkey , no. 25165/94, § 88, 31 May 2005), the Court considers that this complaint falls to be examined under Article 5 § 4 of the Convention (see Djaparidze , cited above, § 35 and Arabadji , cited above, § 26 ). Since the present complaint the applicant ’ s detention pending trial, it closely linked with the complaint under Article 5 § 1 about the lawfulness of his detention as a whole. In view of its conclusion in respect of the complaint under Article 5 § 1 (see paragraph 27 above), the Court finds that the applicant should have made use of the mechanism established in Law No. 1545. The Court concludes that this part of the application must therefore also be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

29. In view of the findings above, the Court finds that the complaint under Article 13 is unsubstantiated since domestic law provides for a procedure aimed at offering a remedy for the breaches alleged by the applicant. Accordingly, the Court concludes that this complaint is manifestly ill-founded and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

B. Complaint under Article 3 of the Convention

30. In his further correspondence of 10 December 2014 the applicant complained of a violation of Article 3 of the Convention.

31. The Court notes that the applicant complained of the conditions of his detention during a specific period of time in July and August 2007 (see paragraph 22 above). It is clear from the file that this complaint was made in December 2014. Consequently it has been lodged more than six months after the alleged breach took place and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 February 2016 .

Abel Campos NebojÅ¡a Vučinić              Deputy Registrar President