Communicated on 22 February 2016

SECOND SECTION

Application no. 13150/11 Oleg IURCOVSCHI and others against the Republic of Moldova lodged on 28 February 2011

STATEMENT OF FACTS

The first applicant, Mr Oleg Iurcovschi , was born in 1969. The second applicant, Mr Vitalie Sîrbu , was born in 1977. The third applicant, Mr Alexandru Smoliacov , was born in 1980. All applicants are Moldovan nationals, live in Chişinău and are represented by Mr S. Pavlovschi , a lawyer practising in Chișinău .

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

A. The applicants ’ arrest and pre-trial detention

At the time of the events, the applicants were police officers. The first applicant retired from the police on 6 January 2011. The second and third applicants ’ were dismissed from the police on 18 February 2011 as a disciplinary sanction.

On 7 February 2011 the applicants were arrested and charged with kidnapping, murder and abuse of their authority as police officers. They were accused of having unlawfully apprehended, kidnapped and beaten P. on 8 December 2010 until he died, with the purpose of appropriating 15,000 US dollars (“USD”) allegedly owned by P.

The same day the prosecutor applied to the Centru District Court for a warrant for the applicants ’ detention in custody. The reasons relied upon by the prosecutor were that the applicants could abscond from prosecution, interfere with the criminal investigation and re-offend. The applicants ’ representative sought access to the materials submitted by the prosecutor in support of his requests but to no avail.

The same day the Centru District Court issued an arrest warrant for thirty days. In court the applicants argued that the allegations presented by the prosecutor were not supported by any facts or materials and that no materials whatsoever were presented by the prosecutor. The court cited the provisions of the Criminal Procedure Code which entitled the court to remand a person on the grounds of the risk of absconding, of interfering with the investigation and of re-offending. The court concluded that the applicants presented such risks because they were charged with an exceptionally serious crime and because the investigation was in its initial phase.

On 9 February 2011 the applicants appealed and argued, inter alia, that the orders for detention lacked reasoning referring to the specific case and that the court had relied only on suppositions. The applicants argued that the court had refused to provide their representative with any materials from the file other than the prosecutor ’ s requests.

On 17 February 2011 the Chișinău Court of Appeal dismissed the applicants ’ appeals. The court found that the materials in the file provided sufficient grounds for a reasonable suspicion that the applicants had committed the crimes they were charged with, the risk of interference with the investigation was determined by the fact that the investigation had just started and the risk of absconding resulted from the fact that the applicants were police officers and thus knew how the investigating authorities operated. The court did not reply to any contentions made by the applicants in their appeal.

On 5 March 2011 the Centru District Court extended the applicants ’ detention by thirty days for the same reasons as it had done earlier. The court noted that on this occasion the applicants ’ representative had been given access to the materials in the file.

The applicants appealed and argued, inter alia, that the investigation was not advancing as claimed by the prosecutor and that the risk of interference could just as well be mitigated by the applicants ’ house arrest. On 14 March 2011 the Chișinău Court of Appeal upheld the decision of the Centru District Court of 5 March 2011 for the same reasons as it had done earlier.

On 16 March 2011 the charges of murder were dropped in respect of all applicants and on 29 March 2011 the case was committed for trial.

B. Applicants ’ detention after the case was committed for trial

On 29 March 2011 the prosecutor applied for the extension of the applicants ’ detention by ninety days. The prosecutor cited the same reasons as before: risk of absconding, of interfering with the investigation and of re-offending.

On 7 April 2011 the applicants lodged a habeas corpus request, arguing that the risk of interfering with the investigation was no longer valid because the criminal investigation had been concluded and that there had not been any evidence presented that the applicants might abscond.

The same day, judge V. of the Rîșcani District Court extended the applicants ’ detention by ninety days and argued that the three risks invoked by the prosecutor resulted from the character of the charges brought in respect of the applicants.

The applicants appealed and argued, inter alia, that the court had failed to refer to any evidence in support of the alleged risks justifying their detention and that the following court hearing had been set for 11 May 2011, which implied that their detention for the following thirty four days did not comply with the “special diligence” requirements of Article 5 § 3 of the Convention.

On 20 April 2011 the Chișinău Court of Appeal upheld the decision of the Rîșcani District Court of 7 April 2011. The court relied on the fact that the applicants were police officers and inferred that they could influence the witnesses or destroy evidence. Without making reference to any particular circumstance, the court concluded that the applicants “still had the intention” to re-offend and to abscond.

On 10 May 2011 the applicants lodged a habeas corpus request, arguing that there were no grounds to assume that the applicants would abscond, re-offend or interfere with the trial. On 6 June 2011 the applicants lodged another habeas corpus request, noting that their previous request had not been examined by then. They argued that on 25 May 2011 judge V. had withdrawn from the case because he had previously worked together with the third applicant and another judge had accepted his withdrawal. The applicants contended that the ineligibility of judge V. had existed on 7 April 2011 when he had ordered the extension of their detention and thus affected the lawfulness of that order. They pointed out that since their detention was extended on 7 April 2011 no court hearing had been held.

On 5 July 2011 judge M. from the Rîșcani District Court extended the applicants ’ detention by ninety days for the same reasons as had been done earlier. The court rejected the applicants ’ habeas corpus request of 6 June 2011 by noting that all previous grounds for detention had not lost their validity because the trial had not yet started. The court did not make any reference to the habeas corpus request of 10 May 2011.

On 6 July 2011 the applicants appealed and argued, inter alia , that the court had not examined their habeas corpus requests “speedily” as required under Article 5 § 4 of the Convention and had not replied to their contention that the detention order of 7 April 2011 had been unlawful because it had been ordered by judge V. who lacked impartiality. They also noted that the absence of any court hearing in the previous ninety days was due to the repeated withdrawals of judges from the case on the ground of lack of impartiality and their detention during that period did not comply with the requirement of trial within a reasonable time.

On 15 July 2011 the Chișinău Court of Appeal upheld the decision of the Rîșcani District Court of 5 July 2011 for the same reasons as it had done before.

On 30 September 2011 the Rîșcani District Court acquitted the applicants of all charges and released them in the court room.

On 11 March 2013 the Chișinău Court of Appeal quashed that judgment, convicted the applicants of kidnapping and abuse of office and sentenced them to seven years of imprisonment. The applicants attended the appellate proceedings.

On 12 November 2013 the Supreme Court of Justice upheld that judgment in absentia.

COMPLAINTS

The applicants complain under Article 5 § 3 of the Convention that the courts ’ decisions were contrary to domestic law because they did not give relevant and sufficient reasons when ordering and extending their detention.

They also complain under Article 5 § 3 of the Convention, with reference to the periods of inactivity on handling their case, that their detention was prolonged beyond a “reasonable time” without any reason.

They also complain under Article 5 § 3 of the Convention that judge V. lacked impartiality.

The applicants complain under Article 5 § 4 of the Convention about the unfairness of the proceedings challenging the lawfulness of their detention ordered on 7 February 2011 and, in particular, about the courts ’ refusal to present them with any materials from the criminal file.

They also complain under Article 5 § 4 of the Convention about the refusal to examine their habeas corpus request of 10 May 2011 and the unjustified delay in the examination of their habeas corpus request of 6 June 2011.

QUESTIONS TO THE PARTIES

1. Was the length of the applicants ’ detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular, were the domestic courts ’ decisions extending the applicants ’ detention founded on “relevant and sufficient” reasons and were the proceedings conducted with a “special diligence” (see Ilijkov v. Bulgaria , no. 33977/96, § 81, 26 July 2001)?

2. Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention ? In particular, the parties are invited to comment on the following questions:

(a) D id judge V. satisfy the impartiality requirement under Article 5 § 4 of the Convention (see D.N. v. Switzerland [GC], no. 27154/95 , § 42, ECHR 2001 ‑ III; and mutatis mutandis, Rudnichenko v. Ukraine , no. 2775/07, § 118, 11 July 2013 )?

(b) Were the applicants ’ habeas corpus requests of 10 May and of 6 June 2011 considered “speedily” (see Șarban v. Moldova, no. 3456/05, § 120, 4 October 2005)?

(c) Did the defence have sufficient access to the materials of the criminal file needed to challenge the applicants ’ detention pending trial (see, Ţurcan and Ţurcan v. Moldova , no. 39835/05, §§ 61-64, 23 October 2007)?