THIRD SECTION

Application no. 56386/10 Ilie ROTARU against the Republic of Moldova lodged on 10 September 2010

STATEMENT OF FACTS

1. The applicant, Mr Ilie Rotaru , is a Moldovan national who was born in 1954 and lives in Chişinău . He was rep resented before the Court by Mr V. Maximov , a lawyer practising in Chişinău .

A. The circumstances of the case

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

1. The original proceedings against the applicant

3. On 23 October 2003 the applicant ’ s private legal office was designated by the Centru District Court in Chişinău to administer 58.15% of the shares of S.A. “ Gemenii ” (hereinafter called “S.A.G.”), a company in Chişinău in the process of liquidation.

4. On 22 March 2004 a majority of S.A.G. ’ s shareholders concluded a contract with the applicant ’ s office according to which the latter provided legal services to the former, in exchange for 50% of the net annual revenue generated by those 58.15% of shares.

5. As found during a verification of the economic activity of S.A.G., the courts had also set an amount of remuneration of the applicant ’ s office ’ s work at 7% from the net profits from administering S.A.G. ’ s 58.15% of shares, not being informed of the contract of 22 March 2004. In that way, the applicant ’ s office was allegedly paid twice for the same services.

6. On 5 and 6 May 2005 the Centre for Fighting Economic Crime and Corruption (“the CFECC”) seized the banc accounts belonging to the applicant and to his office. Further property belonging to the applicant and his office was seized by the decision of the Buiucani District Court on 27 July 2005.

7. Two separate allegations were made during the same criminal investigation, as shown below.

(a) Investigation concerning the alleged excess of powers

8. On 20 July 2005 a criminal investigation was initiated into the above facts. The applicant was accused of exceeding his powers as an administrator and causing S.A.G. damage amounting to 1,457,658 Moldovan lei (MDL, approximately 95,390 euros (EUR) at the time).

9. On 28 November 2005 the applicant was officially recognised as a suspect in the case.

10. On 8 December 2005 the Buiucani District Court in Chişinău annulled the decision of 28 November 2005, finding that he had already become a suspect by virtue of the decision of 20 July 2005 and that the law prohibited the keeping of that status for more than three months.

11 . On 13 December 2005 the investigator officially dropped the case against the applicant and discontinued the proceedings since there was no evidence that he had committed a crime. The prosecutor also decided to lift the seizure of the applicant ’ s office ’ s property. That decision was not appealed and thus became final.

(b) Investigation concerning the alleged fraud

12. On 21 October 2005 another criminal investigation was initiated into the alleged fraud committed by the applicant, which resulted in S.A.G. ’ s loss of MDL 1,457,658, apparently the same sum as that noted in the investigation of the alleged excess of power.

13 . On 24 October 2005 a superior prosecutor decided not to initiate an investigation, finding no evidence that the applicant had committed an offence. That decision was not appealed and thus became final.

14. On 23 December 2005 the investigating judge of the Buiucani District Court annulled the seizure of the property and banc accounts belonging to the applicant and his office (decisions of 5 and 6 May 2005 as well as of 27 July 2005). That decision was not appealed and thus became final.

2. The reopening of the proceedings against the applicant

15. On 26 December 2006 the deputy Prosecutor General reopened the two investigations. In the first case (alleged excess of powers), he found that in adopting the decision of 24 October 2005 the investigator had not fully understood the case, despite sufficient evidence in the file that the applicant had committed the offence with which he had been charged.

16. In the second case (alleged fraud) he noted that the investigator ’ s decision had been illegal because there had been no ground for such a decision and not all the aspects of the case had been verified. The case file contained information that the applicant and his office had been paid for services to S.A.G. which had possibly not been offered in reality.

17. The Deputy Prosecutor General set a time-limit for finishing the investigation until 27 January 2007.

18. On 4 January 2007 an investigator initiated a criminal investigation against the applicant concerning the allegation of fraud.

19. On 12 January 2010 the applicant and a number of shareholders of S.A.G. held a press conference where they announced about the manner in which the family of the ex-President of Moldova V.V. had attempted to take control of their company.

20. On 14 January 2010 the applicant was formally accused of fraud. A further accusation of excess of power was added in a separate decision of 9 February 2010. According to the applicant, all the investigations against him concern the same circumstances as those already examined in 2005.

21. On 11 February 2010 a prosecutor annulled the decision of 13 December 2005 and the court decision of 8 December 2005. The applicant challenged that decision in court.

22. On 13 April 2010 the applicant was officially accused of fraud and excess of powers. He claims that as a result of the harassment by the authorities he became ill and starting form May 2010 he was admitted for in-hospital treatment, which continued for a year with short interruptions.

23. On 19 April 2010 the Buiucani District Court annulled the decision of 11 February 2010. On that day the applicant allegedly found out for the first time about the two decisions adopted by the Deputy Prosecutor General on 26 December 2006. On 26 April 2010 he challenged those decisions in court.

24 . On 23 February 2011 the Buiucani District Court found a number of violations of the applicant ’ s rights, including of the principle non bis in idem . The court found that a number of decisions had been adopted regarding the allegations against the applicant, and the investigation had been discontinued by final decisions of 23 December 2005 and 19 April 2010. The court referred expressly to Article 4 of Protocol No. 7 to the Convention. However, it found that courts did not have the power to annul decisions taken by prosecutors to initiate criminal investigations, but could only order the prosecutor ’ s office to do so. Therefore, the court ordered the Prosecutor General ’ s Office, inter alia , to annul the decision of 4 January 2007 which had initiated the investigation against the applicant because other investigations were pending against the applicant concerning the same facts. It also ordered the Prosecutor General ’ s Office to examine the applicant ’ s complaint concerning the two decisions of that office adopted on 26 December 2006.

25. Since the prosecution did not annul its decisions reopening the investigation against him, the applicant made several complaints to the Buiucani District Court. On 27 March 2011 that court rejected his complaints. It rejected further similar complaints on 15 July 2011, finding that although he had asked for the annulment of the decision of 13 April 2010, he had made only general complaints about the prosecutors ’ actions and had not persuaded the court of any unlawful act committed by the prosecution in that decision.

26. The case is being examined by the prosecuting authorities.

B. Relevant domestic law and practice

27 . T he relevant provisions of the Code of Criminal Procedure provide:

“Article 22

(1) No one shall be prosecuted by the investigating authorities, convicted or sentenced by a court several times for the same deed.

...

(3) The decision of the investigating authority to drop the charges ( scoaterea persoanei de sub urmărire penală ) or to discontinue the criminal investigation ( încetarea urmăririi penale )... shall prevent the re-opening of the investigation ..., except when new or recently discovered circumstances are discovered or a fundamental defect in the previous proceedings affected that decision.

Article 287

(1) The re-opening of an investigation after its discontinuation, the dismissal of the investigation ( clasarea cauzei penale ) or the dropping of charges is ordered by the hierarchically superior prosecutor by means of a decision, if it is thereafter discovered that there was no reason for taking the measure or that the circumstance which had led to the discontinuation of the investigation, its dismissal or the dropping of the charges has disappeared.

...

(4) Where a decision to discontinue the investigation, to dismiss it or to drop the charges was adopted lawfully, the investigation can only be re-opened if new or recently discovered circumstances are revealed or if the decision was affected by a fundamental defect in the previous proceedings. Where a fundamental defect in the proceedings is discovered, the criminal prosecution can be re-opened not later than one year following the entry into force of the order discontinuing the criminal investigation, dismissing the criminal case or dropping the criminal charges.

Article 313

1. The suspect, the accused, the defence lawyer, the aggrieved party and other participants in the proceedings whose rights have been breached by the unlawful actions of the prosecuting authority and of the operative investigation agencies may challenge such actions before the investigating judge.

2. The persons mentioned under paragraph 1 may challenge before the investigating judge:

...

(2) decisions to discontinue the criminal investigation, to dismiss it or to drop the charges against a person;

...

3. The complaint to the investigating judge of the place where the authority responsible for the actions complained of is situated can be made within 10 days.

... ”

COMPLAINTS

1. The applicant complains under Article 4 of Protocol No. 7 to the Convention that he is being prosecuted twice for the same acts.

2. He also complains under Article 6 of the Convention of a breach of the principle of legal certainty.

3. He also complains, under the same Article, that the investigation in his case has been excessively long and that a number of other principles of fairness of proceedings (equality of arms, reasoned decisions, impartiality of the courts) have been breached.

4. He further complains of a breach of Article 13 of the Convention because the prosecution refused to investigate the alleged crimes committed by various criminal groups against the interests of S.A.G.

5. The applicant complains of a breach of Article 1 of Protocol No. 1 to the Convention because he lost property as a result of the unlawful investigations against him.

6. He finally complains of a violation of Article 3 of the Convention due to the suffering caused to him over more than six years of investigation.

QUESTIONS TO THE PARTIES

1. Has the applicant been tried twice for the same offence in the territory of the respondent State, as prohibited by Article 4 of Protocol No. 7 to the Convention (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, 10 February 2009 and Nikitin v. Russia , no. 50178/99, § 37, ECHR 2004 ‑ VIII )?

In particular:

(a) was the applicant “finally acquitted” by the prosecutor ’ s decisions of 24 October and 13 December 2005?

(b) did the reopening of the criminal investigation against the applicant on 26 December 2006 amount to a repeated prosecution for the same acts in respect of which the decisions to discontinue the investigation had been adopted (see Gorea v. Moldova , no. 21984/05, § 28, 17 July 2007 )?

(c) if so, did that reopening comply with the requirements of the domestic law and practice, in particular the one-year time-limit established in Article 287 of the Code of Criminal Procedure?

(d) did the reopening fall within the exceptions envisaged under Article 4 § 2 of Protocol No. 7 to the Convention?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?