THIRD SECTION

Application no. 629/13 Rodion LUPACESCU against the Republic of Moldova lodged on 10 December 2012

STATEMENT OF FACTS

1. The applicant, Mr Rodion Lupacescu, is a Moldovan national, who was born in 1977 and lives in Chisinau. He is represented before the Court by Mr A. Donica, a lawyer practising in Chisinau.

A. The circumstances of the case

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

3. On 21 October 2011 a criminal case charging the applicant with larceny ( jaf ) was referred to Buiucani District Court for trial. It appears that no restraint measure was applied to the applicant.

4. According to the record of the hearing, the examination of the case started on 14 January 2012. The hearings of 14 January 2012, 14 March 2012 and 3 May 2012 were adjourned because the prosecutor did not secure the presence of the victim and of the two witnesses. The applicant attended all hearings.

5. On 18 June 2012 another hearing took place, from which the applicant and his representative were absent. The record of the hearing stated that the victim and the witnesses were also absent and that the applicant ’ s representative had informed the court by telephone that he was unable to attend the hearing because another hearing was scheduled in another court and that the applicant was in Belgium for medical treatment. According to the applicant, he and his representative never received a proper summoning to this hearing and he was not abroad.

6 . On 18 October 2012 another hearing took place, from which the applicant and his representative were absent. The record of the hearing stated that the victim was abroad and the witnesses were absent without any explanation. A note in the file dated 18 June 2012 stated that the court staff had informed by telephone the applicant ’ s representative about the court hearing scheduled for 18 October 2012. According to the applicant ’ s representative, he never received a proper summoning to this hearing and was called by the court clerk only when the hearing had already started.

During this hearing the prosecutor requested to remand the applicant in custody. The court announced a recess for thirty minutes and invited a pro bono lawyer who argued that the court should summon the applicant and not remand him. The court issued the same day an arrest warrant for ninety days. The court found that the applicant was absconding because he failed to appear when summoned before the court. The court also found that the applicant ’ s detention would secure the attendance of witnesses to the court hearings and could contribute to the proper examination of all evidence (the list of evidence comprising one victim and two witnesses).

7. On 7 November 2012 the applicant was arrested at his home. The following day the applicant appealed the order of detention, arguing that he and his representative had never received any notice about the hearing of 18 October 2012 and there was no reason to assume that he had been absconding from the court.

8 . On 16 November 2012 the Chișinău Court of Appeal partially accepted the applicant ’ s appeal and shortened the applicant ’ s detention to thirty days. The court found that the law prohibited an initial arrest warrant of ninety days; the maximum allowed duration was thirty days. The court cited as grounds for detention the seriousness of the alleged offence, the applicant ’ s previous conviction to community service, concluding that there existed also the risk of re-offending and of absconding from the enforcement of a subsequent custodial sentence.

9. On 7 December 2012 the Buiucani District Court extended the applicant ’ s detention for another fifteen days. The court found that this period was sufficient for finishing the examination of the case, which was delayed for more than one year because the applicant had absconded. The court found that with the applicant in custody the examination of evidence were to become more effective. The court concluded that the applicant could re-offend because another criminal case against him was pending before the Centru District Court.

On 11 December 2012 the Buiucani District Court decided to refer the criminal file to Centru District Court to be joined with the criminal case pending before that court. The applicant was absent from this hearing because he felt ill and refused to be escorted to court from prison.

10 . On 10 December 2012 the applicant appealed the extension of his detention and reiterated that he never absconded but did not appear in court because he had not been summoned. The applicant also argued that the delay in the examination of the case was not related to his absence at one hearing but to the absence of the victim and of two witnesses, the presence of which ought to have been secured by the prosecution because the accusation relied exclusively on their statements.

11 . On 14 December 2012 the Chișinău Court of Appeal dismissed the applicant ’ s appeal and upheld the extension of his detention. The court cited the risk of tampering with evidence, which were still to be collected, the persistence of the risk of absconding and the risk of re-offending.

12 . On 22 December 2012 the Buiucani District Court held another hearing. An undated note in the file stated that the court staff called the applicant ’ s representative to invite him to this court hearing. The same note stated that a pro bono lawyer was also invited by a telephone call.

At this hearing the prosecutor requested the extension of the applicant ’ s detention for another ninety days. The prosecutor argued that this was necessary because the applicant refused to appear in court at the hearing on 7 December 2012.

The same day the Buiucani District Court ordered the extension of the applicant ’ s detention for ninety days. The court cited the risk of absconding, the delay in the examination of the criminal case, the existence of another criminal case pending before the Centru District Court and the Centru Police Station. The court rejected the applicant ’ s request for a non-custodial measure, arguing that the lawfulness of his detention had been previously upheld by the Chișinău Court of Appeal.

13 . On 24 December 2012 the applicant appealed and argued, inter alia, that the prosecutor did not prove that he could tamper with evidence; that the delayed examination of the case was not imputable to him, since every hearing was adjourned due to the absence of witnesses and of the victim and in the past fifteen days no hearing had been scheduled.

14 . On 11 January 2013 the Chișinău Court of Appeal dismissed the applicant ’ s appeal, reiterating the same arguments as previously.

B. Relevant domestic law

15. According to Article 186 (8) of the Criminal Procedure Code after a case was referred to court for trial, the examination of the case with the accused in custody shall not exceed 6 months if the person is charged with a crime for which the maximal penalty of 15 years of imprisonment.

16. According to Articles 236 and 239 of the Criminal Procedure Code, at the time of the events, a person is called before the court by means of written summons. The summoning can also be done by telephone or by telegram or by electronic means. The summons is handed to the addressee by the authorized agent or by the post service. The addressee shall sign the proof of receipt.

17. According to Article 311 (3) the court which adopted the decision to remand or to extend detention, not later than 24 hours after the appeal was lodged, shall send the appeal and all relevant materials to the appellate court, shall set the date for the examination of the appeal and shall inform about it the prosecutor and the defence counsel.

COMPLAINTS

18. The applicant complained under Article 5 of the Convention about the unlawfulness of his detention pending trial.

19 . He also complained in substance under Article 5 § 4 of the Convention about being deprived of the right to attend and to be represented by his chosen representative at the hearings of 18 October and 22 December 2012 and about the unjustified dela y in examining his appeal of 24 December 2012.

20. He also complained under Article 6 of the Convention about the length of the criminal proceedings conducted against him.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did his deprivation of liberty fall within paragraph (c) of this provision?

2. Was the procedure for the application and extension of the applicant ’ s detention adversarial as required by Article 5 § 4 of the Convention? Did the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention, comply with the “speed” requirement of Article 5 § 4 of the Convention?