THIRD SECTION

Application no. 46372/10 Eduard MALANCEA against the Republic of Moldova lodged on 2 August 2010

STATEMENT OF FACTS

A . The circumstances of the case

1. The applicant, Mr Eduard Malancea , is a Moldovan national, who was born in 1982 and lives in Chişinău .

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

3. The applicant worked as an investigating officer in the Criminal Investigation Department of the Min istry of Internal Affairs. On 9 February 2010 at 3.30 p.m. he was stopped on the street by officers from the Centre for Fighting Economic Crime and Corruption (“the CFECC”) and accused of having taken a bribe from V. A body search revealed that he had taken marked money (1,500 euros (EUR)).

4. On the same day at 8.50 p.m. a record of the applicant ’ s arrest was drawn, stating that the applicant had been de facto deprived of his liberty on 9 February 2010 at 6.20 p.m.

5 . On 12 February 2010 the investigating judge of the Buiucani District Court ordered the applicant ’ s detention pending trial for twenty days, finding that there was a reasonable suspicion that he had committed a crime. Moreover, he could abscond or interfere with the course of the investigation. In response to the applicant ’ s complaint that in fact he had been deprived o f liberty at 3.30 p.m. on 9 February 2010 and not at 6.20 p.m. as stated in the record of arrest, the judge found that the body search and associat ed actions had lasted from 3.30 p.m. until 6.17 p.m. of that day. As explained by the prosecutor, only after the result of the search had become known was the decision taken to arrest the applicant at 6.20 p.m. The judge found that until 6.20 p.m. the applicant had not been deprived of liberty, although the investigator had had the right to prevent him from leaving or communicating with other persons during the search.

6. On 18 February 2010 the Chișinău Court of Appeal upheld that decision, essentially for the same reasons as the first-instance court, adding that the investigation was in its initial phase and urgent investigation measures needed to be taken.

7 . On 25 February 2010 the prosecutor asked for an extension of the applicant ’ s detention, essentially for the same reasons as those relied on earlier. He added that the investigation had been finished and that the defence was to be informed of that fact.

8 . On 1 March 2010 the Buiucani District Court rejected the prosecutor ’ s request to extend the applicant ’ s detention. The judge found that the applicant had been accused of a less serious offence, had a job and stable residence, had two underage children, the investigators had had sufficient time for carrying out urgent investigation measures and did not prove the applicant ’ s intention to abscond. The applicant ’ s preventive measure of arrest was replaced by an undertaking not to leave the country pending the outcome of the investigation.

9. On 9 March 2010 the Chișinău Court of Appeal quashed the lower court ’ s decision and ordered the applicant ’ s detention for thirty days. It found that there was a reasonable suspicion that he had committed a crime; he could abscond or re-offend; the crime he was charged with was punishable with up to three years ’ imprisonment; his detention would prevent him from contacting witnesses.

10. By the time when the applicant made his last submission to the Court the criminal case concerning him was pending before the first-instance court.

B. Relevant domestic law

11 . T he relevant provisions of the Code of Criminal Procedure read as follows:

“ Article 166. Grounds for arresting ( reţinere ) a person suspected of having committed a crime

(1) The Investigating authority has the right to arrest a person suspected of having committed a crime which is punished by law with more than one year ’ s imprisonment only in the following cases:

1) if he was caught in the act;

...

(3) Detention of a person on the grounds mentioned in paragraph (1) is possible before the registration of the offence in accordance with the law. The offence shall be registered immediately, but not later than three hours from the moment when the person is brought before the investigating authority; if the act for which the person has been taken into custody is not properly registered, the person shall be released immediately, with the exception provided in Article 273 (1) s.2)”.

“Article 167. Procedure for taking into custody a person

(1) In each case of taking into custody ( reţinere ) of a person suspected of having committed an offence, the law-enforcement authority shall draw a report of taking into custody within three hours from the moment of depriving a person of his or her liberty, indicating the grounds for taking into custody, the place and date of making the report, the offence committed by the person, the results of the personal search, as well as the time of filing the report ... Within three hours from taking the person into custody the person who filed the report shall submit to the prosecutor a written note concerning the taking into custody”.

COMPLAINTS

12. The applicant complains under Article 5 § 1 of the Convention that he was detained for more than three hours without registration of his detention, contrary to the requirements of domestic law.

13. He also complains under Article 5 § 3 of the Convention that when ordering and extending his detention pending trial the domestic courts did not give “relevant and sufficient” reasons.

QUESTION TO THE PARTIES

Has there been a violation of Article 5 § 1 of the Convention? In particular, was the applicant ’ s detention on 9 February 2010 between 3.30 p.m. and 6.20 p.m. “lawful” within the meaning of that provision?