SECOND SECTION

CASE OF PAȘA v. THE REPUBLIC OF MOLDOVA

( Application no. 50473/11 )

JUDGMENT

STRASBOURG

15 May 2018

This judgment is final but it may be subject to editorial revision.

In the case of Pașa v. the Republic of Moldova ,

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

Paul Lemmens, President, Valeriu Griţco , Stéphanie Mourou-Vikström , judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having deliberated in private on 10 April 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 50473/11) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Iurie Pașa (“the applicant”), on 1 August 2011 .

2 . The applicant was represented by Ms A. Procopciuc , a lawyer practising in B ă l ț i . The Moldovan Government (“the Government”) were represented by their Agent at the time , Mr L. Apostol .

3 . The applicant complained in particular that his rights guaranteed by Article 5 §§ 1 and 4 of the Convention had been breached.

4 . On 22 May 2013 the complaints concerning Article 5 §§ 1 and 4 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1984 and lives in B ă l ț i .

6 . On 5 February 2011 at 1 . 3 0 p . m . the applicant was arrested on suspicion of trafficking in human beings and placed in detention for a period of seventy-two hours , which is the maximum duration of detention under the Moldova n law before a detainee is brought before a judge .

7 . On 8 February 2011 at 10.20 a.m. the prosecutor applied to a judge for the applicant ’ s remand in custody and at 2 p.m. the applicant was brought before a judge , who order ed his remand in custody for thirty days . It is not clear at what time the decision was adopted, but there is a handwritten note on it which states it had been presented to the applicant at 3.50 p . m . , followed by the applicant ’ s signature.

8 . The applicant appealed against the above decision and argued , inter alia , that the detention which had t a k en place before the court ’ s decision of 8 February 2011 had been longer than seventy-two hours, which was the maximum duration provided for by law. He also submitted that he had not been given access to the materials in the case-file relied upon by the prosecutor when requesting his remand in custody.

9 . On 17 February 2011 the B ă l ț i Court of Appeal dismissed the applicant ’ s appeal. The court did not pay attention to the applicant ’ s allegation that he had no access to t he materials in the case-file.

10 . On 5 March 2011 the prosecutor in charge of the case applied to a judge for a prolongation of the applicant ’ s detention for another thirty days . A judge examined and upheld it on the same date. He ordered the applicant ’ s detention until 6 March 2011.

11 . On an unspecified date, the same judge issued a new decision rectifying the date of the validity of the applicant ’ s order for remand in custody from 6 March to 6 April 2011. The applicant appealed.

12 . On 16 March 2011 the B ă l ț i Court of Appeal upheld the applicant ’ s appeal and quas hed the decision of the lower court , after having found that the second decision modifying the date from 6 March to 6 April 2011 had not been taken in accordance with the procedure prescribed by the Code of Criminal Procedure. The court found therefore that the applicant ’ s detention had been unlawful since 6 March and ordered his immediate release .

13 . It appears from the materials contained in the case file that the applicant has been convicted at first instance and that the proceedings are still pending before the B ă l ț i Court of Appeal. According to the information provided by the parties, the applicant is currently wanted by the authorities .

II. RELEVANT DOMESTIC LAW

14 . The relevant domestic law has been set out in Ignatenco v. Moldova , no. 36988/07 , § 54, 8 February 2011 .

15 . The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by illegal acts by the criminal investigation authorities, prosecution and courts have been set out in this Cou rt ’ s judgment in Sarban v. Moldova , no. 3456/05, § 54, 4 October 2005.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

16 . The applicant complained under Article 5 § 1 of the Convention that his detention on 8 February 2011 between 1.30 p.m. and 3.50 p.m. after the expiry of the 72 hours ’ period of detention without a warrant should be considered unlawful. He further submitted that his detention between 6 and 16 March 2011 was also unlawful. The relevant part of Article 5 reads 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;”

A. Admissibility

17 . The Government argued that the complaint s we re ill-founded and that in any event the applicant had failed to exhaust domestic remedies, namely to make use of the remedy provided for by Law 1545.

18 . In so far as the Government ’ s non-exhaustion objection is concerned, the Court recalls that it has already dismissed similar objections of the respondent Government based on Law no. 1545, finding that the law is applicable only to persons who have been acquitted or in respect of whom a criminal investigation has been discontinued (see Sarban , cited above, § 59). Since this is not the case with the applicant, the Court is not satisfied that the remedy under Law no. 1545 would have been effective in respect of the applicant ’ s complaints. Therefore, the Government ’ s objection is dismissed.

19 . The Court further notes that the complaint concerning the applicant ’ s detention on 8 February 2011 between 1.30 p.m. and 3.50 p.m. is identical to the complaint under Article 5 § 1 examined in Ignatenco , cited above, §§ 65-68 . Since the applicant did not adduce any arguments to distinguish the present case from Ignatenco , and since the Court is not aware any reasons to do so, it considers th is complaint to be manifestly ill-founded and inadmissible within the meaning of Article 35 § 3 (a) of the Convention.

20 . In so far as the remaining complaint under Article 5 § 1 of the Convention is concerned, i.e. the one concerning the applicant ’ s detention between 6 and 16 March 2011, the Court notes that it is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

21 . The applicant submitted that his detention between 6 and 16 March 2011 had been unlawful because, as found by the B ă l ț i Court of Appeal, the decision modifying the date from 6 March to 6 April 2011 had not been taken in accordance with the procedure prescribed by the Code of Criminal Procedure.

22 . The Government did not submit any comments in respect of this complaint.

23 . As the Court has stated on many occasions, Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, for example, Buzadji v. the Republic of Moldova [GC], no. 23755/07 , § 84, ECHR 2016 (extracts)).

24 . It is undisputed among the parties that the applicant ’ s detention between 6 and 16 March 2011 was not in accordance with the domestic law. The domestic courts came to the same conclusion and the Court sees no reason to depart from their findings . It recalls that a detention which is not in accordance with the domestic law is contrary to Article 5 § 1 of the Convention.

25 . The Court further notes that in spite of the finding that the applicant ’ s detention had been contrary to domestic law, no award of compensation was made by the domestic courts in favour of the applicant. The Court recalls that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive the individual of his or her 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 (see Amuur v. France , 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI). Since the applicant was not afforded any compensation, he can still claim to be a victim of a violation of Article 5 § 1 of the Convention.

26 . Accordingly, there has been a violation of Article 5 § 1 of the Convention, which arises from the unlawful detention of the applicant between 6 and 16 March 2011 .

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 AND ARTICLE 13 OF THE CONVENTION

27 . The applicant complained under Article 5 § 4 of the Convention about the courts ’ refusal to present him with a copy of the materials in the case-file , which had been relied upon by the prosecutor in his application for remanding him in custody . The applicant also complained under Article 13 of the Convention that he did not have any effective remed y in respect of the breaches of his Article 5 rights. Article 5 § 4 of the Convention reads as follows:

“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.”

28 . Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

29 . The Court considers at the outset that the complaint under Article 13 falls to be examined solely under Article 5 § 4 of the Convention, which provides a lex specialis in relation to the more general requirements of Article 13 (see Amie and Others v. Bulgaria , no. 58149/08, § 63, 12 February 2013).

A. Admissibility

The Court notes that the complaint under Article 5 § 4 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

30 . The Government submitted that there has been no breach of Article 5 § 4 of the Convention because the applicant had the possibility to lodge an appeal .

31 . The applicant argued that he had been refused access to the documents regarding the application for his detention and w as thus unable to properly challenge the reasons for his detention.

32 . The Court reiterates that in the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required. In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial (see Shishkov v. Bulgaria , no. 38822/97, § 77, ECHR 2003 ‑ I (extracts)).

33 . Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential for an effective challenge to the lawfulness, in the sense of the Convention, of his client ’ s detention (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 ‑ II, and Garcia Alva v. Germany , no. 23541/94, § 39, 13 February 2001). The concept of lawfulness of detention is not limited to compliance with the procedural requirements set out in domestic law, but also concerns the reasonableness of the suspicion on which the arrest is grounded, the legitimacy of the purpose pursued by the arrest, and the justification of the ensuing detention. The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that some of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence (see Å¢urcan and Å¢urcan v. Moldova no. 39835/05, § 60, 23 October 2007, and Musuc v. Moldova , no. 42440/06, § 54, 6 November 2007).

34 . In the present case, the court which ordered the applicant ’ s detention on 8 February 2011 did not give the applicant access to the materials presented by the public prosecutor in support of the necessity to remand him in custody. The Court of Appeal did not answer the applicant ’ s complaint in that respect.

35 . The Court notes that no reasons were given by the district court or by the Court of Appeal for withholding this information, and that, therefore the applicant w as unable to challenge properly the reasons for his detention. In such circumstances, it cannot be said that the principle of “equality of arms”, within the meaning of Article 5 of the Convention, was observed in the present case. There has, accordingly, been a violation of Article 5 § 4 of the Convention.

I II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

37 . The applicant claimed 825 euros (EUR) in respect of pecuniary damage and 5,000 EUR in respect of non-pecuniary damage.

38 . The Government submitted that there was no causal link between the pecuniary damage claimed and the alleged violation. As to the non ‑ pecuniary damage claimed, the Government argued that it was excessively high.

39 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However , it awards the applicant the entire amount claimed in respect of non ‑ pecuniary damage.

B. Costs and expenses

40 . The applicant also claimed EUR 650 for the costs and expenses incurred before the Court.

41 . The Government claimed that the amount claimed was excessive.

42 . Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed for costs and expenses.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the complaints under Article 5 § 1 of the Convention concerning the applicant ’ s unlawful detention between 6 and 16 March 2011 and under Article 5 § 4 of the Convention admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 5 § 4 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 5,000 ( five thousand euros), plus any tax that may be chargeable, in respect of non- pecuniary damage;

(ii) EUR 650 ( six hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 15 May 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Paul Lemmens Deputy Registrar President