THIRD SECTION

Application no. 65953/11 Alexandr NAVROTKI against the Republic of Moldova lodged on 8 October 2011

STATEMENT OF FACTS

1. The applicant, Mr Alexandr Navrotki , is a Moldovan national, who was born in 1979 and lives in Chișinău . He is represented before the Court by Mr V. Ț urcan and Mr M. Belinschi , lawyers practising in Chișinău .

The circumstances of the case

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

1. The applicant ’ s initial arrest and detention

3. The applicant is the director of a private company. On 17 December 2010 he was arrested on suspicion that his company had imported into the country large amounts of goods and forged customs documents for tax avoiding purposes.

4. On 20 December 2010 the investigating judge of the Buiucani District Court ordered the applicant ’ s arrest for fifteen days, finding that he was being accused of a serious offence punishable by more than two years of imprisonment, that there was a risk of absconding, of exerting pressure on witnesses or destroying evidence. The judge also noted that the applicant had been twice convicted of criminal offences and had earlier absconded from the prosecuting authorities.

5. In his appeal the applicant noted that he had never been prosecuted before and, accordingly, had never been convicted, nor absconded from the prosecuting authorities.

6 . On 28 December 2010 the Chișinău Court of Appeal partly accepted the appeal and ordered the applicant ’ s house arrest for 15 days.

7. On 31 December 2010 and 28 January 2011 the investigating judge of the Buiucani District Court extended the applicant ’ s house arrest for thirty days, repeating the reasons given in the decision of 20 December 2010, but omitted any reference to the applicant ’ s prior convictions and absconding.

8 . On an unknown date the applicant ’ s lawyer asked the investigating judge of the Buiucani District Court to replace his client ’ s detention with a milder preventive measure. On 16 February 2011 the judge accepted the request, finding that although the applicant stood accused of a serious crime, he had a permanent residence and a job, was married and had two underage children in need of medical assistance; he had no criminal record and never breached any restriction imposed on him; the investigating authority had had the necessary time to carry out the investigating measures required to prove or dismiss the accusation against the applicant and such actions had already taken place; the prosecutor had not submitted any evidence confirming the applicant ’ s intention to abscond; the strictly necessary investigating measures had already been taken. Accordingly, the judge replaced the applicant ’ s house arrest with liberation under the court ’ s supervision. He was ordered not to leave the Moldovan territory and to give up his identity papers to the prosecutor; to inform the investigating authority of any change of residence; to appear before the investigating authority whenever summoned; to avoid contacting witnesses and the co-accused and to avoid taking actions which could prevent the normal course of the investigation.

9. In parallel criminal proceedings the prosecution started an investigation into the alleged forgery of documents by the applicant ’ s company ’ s accountant (R. T.) and a third person accused of having cooperated with the accountant (P. L.), leading to large-scale damage to the company. The applicant was officially recognised as the representative of the aggrieved party.

2. The applicant ’ s second arrest

10. On 20 July 2011 the prosecutor asked the investigating judge of the Buiucani District Court to replace the applicant ’ s preventive measure with detention. He noted that in the afternoon of 12 July 2011 and the morning of the next day he had called the applicant ’ s mobile phone number on numerous occasions in order to summon him to appear before the investigator, but the applicant had not answered. Also on 12 July 2011 the prosecutor called the applicant ’ s wife and informed her that her husband had to urgently call the prosecutor. However, the applicant did not call back. A call to the applicant from another prosecutor on the same day was also not answered. Moreover, on 15 July 2011 the prosecutor received two complaints made by R. T. and P. L., according to which the applicant had called each of them on their mobile phones on 13 July 2001 and threatened to harm them if they refused to change their statements against him.

11. In their reply to this request, the applicant ’ s lawyers noted, inter alia , that the prosecutor had not submitted evidence of his calls to the applicant or his wife on 12 and 13 July 2011. Instead, the prosecutor relied only on the record of outgoing calls in his mobile phone. Moreover, the applicant had been present at the hearing before the investigating judge of the Buiucani District Court on 14 July 2011 and the prosecutor did not find important to warn or summon the applicant, which proved the absence of any urgent need to find him. As for the complaints made by R. T. and P. L., they noted that these two persons were accused of a criminal offence against the applicant ’ s company and were thus interested parties. Moreover, the applicant had used his right to remain silent during the investigation and had not participated in any investigating actions such as cross examinations. Accordingly, he did not know which witnesses the prosecution had interviewed and what declarations had been made. He therefore had no reason to call R. T. and P. L. and ask them to change statements, the contents of which were unknown to him.

12. On 29 July 2011 the investigating judge of the Buiucani District Court replaced the applicant ’ s preventive measure with detention for twenty-five days. He referred to the prosecutor ’ s unsuccessful attempts to find the applicant on the phone on 12 and 13 July 2011, as well as to the complaints made by R. T. and P. L. The court also noted that the applicant had a criminal record and had earlier absconded from the investigating authority and was declared a wanted person.

13. In their appeal, the applicant ’ s lawyers repeated the arguments made in reply to the prosecutor ’ s request of 20 July 2011. They added that there was no evidence in the file that R. T. and P. L. had in fact been called on 13 July 2001 and, if so, that the applicant had anything to do with such calls. The prosecution had had two weeks to request the relevant records from the mobile phone company, but had failed to do so, relying exclusively on the statements of two persons opposed to the applicant in parallel criminal proceedings. The lawyers added that the judge had claimed that their client was declared a wanted person, even though the prosecutor never submitted such an argument and even though the applicant had never been declared a wanted person. They relied on Article 5 of the Convention and on the Court ’ s case-law in this respect.

14. On 5 August 2011 the Chișinău Court of Appeal upheld the decision of 29 July 2011, relying on the same reasons as the lower court.

15. On an unknown date the prosecutor asked for the extension of the applicant ’ s detention. In reply, the applicant ’ s lawyers repeated their arguments made earlier. They noted, in addition, that on 5 and 9 August 2011 they had asked the prosecutor to obtain information from the mobile phone company in order to verify the veracity of the allegations made by R. T. and P. L. They also noted that they had still not obtained some of the documents in the file, despite complaints made to the prosecution.

16. On 23 August 2011 the Buiucani District Court extended the applicant ’ s detention by thirty days, for the same reasons as it had done earlier. That decision was upheld by the Chișinău Court of Appeal on 2 September 2011 for the same reasons as earlier.

17 . On 12 September 2011 the applicant ’ s lawyers asked for the replacement of the preventive measure taken in respect of their client with a milder one. They noted, inter alia , the absence of any evidence that he had called or threatened R. T. and P. L. and the prosecutor ’ s refusal to ask for such information. That request was rejected by the Buiucani District Court on the same day. The decision was upheld by the Chișinău Court of Appeal on 16 September 2011. Neither court made any reference to the applicant ’ s failure to respond to phone calls on 12 and 13 July 2011 or to the alleged calls and threats made to R. T. and P. L. as a ground for refusing to replace his preventive measure. On 16 September 2011 the Chișinău Court of Appeal upheld the lower court ’ s decision for the same reasons as before.

18. The applicant continues to be detained pending trial.

3. The applicant ’ s lawyers ’ access to their client and to the materials in the file

19. On 20 July 2011 the applicant ’ s lawyers asked the prosecutor in charge of the case against their client to allow them access to all the materials in the file concerning their client. Since they received no reply, they repeated their request on 28 July 2011.

20. On 1 August 2011 the applicant ’ s lawyers complained to the Prosecutor General ’ s Office about the failure to allow them access to documents in the criminal file concerning their client. They noted that they had still not received a reply, nor obtained access to the documents requested. They finally complained that the access to their client was allowed on a case-by-case basis personally by the prosecutor in charge of the case, who was often absent from his office or unable to talk on the phone, which created impediments for defending their client.

21. On 1 August 2011 the applicant ’ s lawyers were sent a reply to their request of 28 July 2011, to which were annexed several documents (decision to start the criminal investigation, record of the applicant ’ s arrest and formal accusation). According to the prosecutor, some documents (records of the search at his company ’ s office and of seizing certain documents) had already been issued to the applicant. The remainder of the documents which had grounded the accusation against the applicant could be seen after the end of the investigation.

22. On 2 August 2011 the applicant ’ s lawyers asked the relevant phone company to provide information whether any calls had been made to R. T. and P. L. on 13 July 2011 from the number allegedly used by the applicant.

23. On 4 August 2011 the applicant ’ s lawyers again complained to the Prosecutor General ’ s Office about restrictions in accessing their client due to the need to obtain permission from the prosecutor in charge of the case, who could not be found earlier that day. They also noted that other lawyers had the possibility to freely visit their clients detained in the same detention facility, while access to the applicant was conditioned on the prosecutor ’ s permission.

24. On 5 August 2011 the applicant ’ s lawyers asked the Chișinău Court of Appeal to request from the phone company the following information: the date and time of selling the SIM card used to make the alleged calls to R. T. and P. L. on 13 July 2011 and whether any information concerning the identity of the purchaser had been recorded; whether on that date calls had been made from that number to the phone numbers of R. T. and P. L., including the time and duration of any such calls, whether the identification number of the mobile phone used to make the alleged calls had been recorded; which GSM antennas had served four mobile phones belonging to the applicant and his family members on 13 July 2011, as well as the antenna which served the phone allegedly used to make the calls to R. T. and P. L. on that date. On the same day they made a similar request to the prosecutor in charge of the applicant ’ s case.

25. On 12 August 2011 the applicant ’ s lawyers repeated to the Buiucani District Court their complaint made on 4 August 2011 and asked for a formal reply to their earlier complaint.

26. On 15 August 2011 the prosecutor decided not to request any information from the mobile phone company. He found that the lawyers had failed to specify the reason for which such information was necessary, while collecting such information about private users could only be authorised on the basis of well-founded reasons.

27. On 18 August 2011 the Prosecutor General ’ s Office replied to the complaints made by the applicant ’ s lawyers concerning access to the materials concerning their client, as well as the impediments in seeing him. The officer noted that the relevant materials had been issued to the lawyers and that no impediment in visiting their client had been established, the visit book attesting to a number of visits to the applicant made by his lawyers.

28. On 5 September 2011 the applicant ’ s lawyers made a new request to the prosecutor with a view to obtaining information from the mobile phone company. They referred to the fact that the main thrust of the prosecutor ’ s request to replace the applicant ’ s preventive measure with detention had been the complaints made by R. T. and P. L. about the alleged threats made by the applicant in telephone conversations. It was in order to verify the veracity of these allegations that the relevant information had been requested, without which their client had no means of countering the prosecutor ’ s arguments concerning pressure on witnesses. According to the applicant, this request was eventually rejected.

4. Medical assistance to the applicant

29. On 10 August 2011 the applicant ’ s lawyers asked the prosecutor in charge of the case to authorise the applicant ’ s urgent visits to a number of doctors.

30. On 12 August 2011 the prosecutor replied that the prison doctor had seen the applicant on a daily basis and that according to the journal of medical visits the applicant was not in need of any medical assistance. However, if he wished to be seen by independent doctors, they would have to visit him in prison.

31. On 22 August 2011 the applicant was taken to the hospital of the Ministry of Internal Affairs and was seen by two specialists. One of them prescribed an audiogram, which was never carried out. The other prescribed injections to treat bronchitis, one of which was to be administered late in the evening. However, the prison doctor would leave earlier than the time at which the last injection was to be administered, and the applicant did not thus receive the full treatment prescribed.

32. On 26 August 2011 the applicant ’ s lawyers were informed that the applicant was allowed to be seen by another medical specialist, as requested.

33. On 29 September 2011 the applicant asked the prison administration to allow him to take showers every day in order to fight the rushes on his body. It is unclear whether he obtained a reply.

COMPLAINTS

34. The applicant complains under Article 3 of the Convention that he is being held in inhuman conditions of detention, notably as a result of the failure to provide him with the medical treatment required by his condition.

35. He also complains under Article 5 § 1 of the Convention that in ordering and extending his detention pending trial the courts did not give “relevant and sufficient reasons” and that the preventive measure of liberation under court supervision for an unlimited period of time was unlawful.

36. He further complains under Article 5 §§ 3 and 4 that the rights of the defence were breached, notably by the failure to allow his lawyers free access to him and to the materials of the case.

37. The applicant finally complains under Article 6 §§ 1 and 2 of the Convention because of the authorities ’ refusal to request information from the mobile phone company.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 5 § 3 of the Convention? In particular, did the courts give “relevant and sufficient reasons” for ordering and extending the applicant ’ s detention pending trial?

2. Has there been a violation of Article 5 § 4 of the Convention? In particular, did the defence have sufficient access to the applicant while in detention, as well as to the materials of the criminal file and to other materials needed to challenge his detention pending trial? Did the courts give convincing reasons for refusing to request information from the mobile phone operator asked by the applicant in order to verify the allegations made by R. T. and P. L. (see, mutatis mutandis , Becciev v. Moldova , no. 9190/03, §§ 73-76, 4 October 2005 and Ţurcan v. Moldova , no. 39835/05, §§ 61-64 and 67-70, 23 October 2007 )?