PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

This case, in my view, deserved a little more attention on the part of the Chamber as regards the finding of a violation of Article 5 § 1 of the Convention. The seriousness of the problem revealed in the case called for a somewhat more detailed examination.

Let me first point out that both the arrest and the detention of the applicant in the case before us were perfectly legal in terms of the criminal procedural legislation of the Republic of Moldova , and can in no way be considered arbitrary. At the same time, the applicant ’ s detention during the judicial stage of the examination of the case was contrary to the standards of the Convention as seen from the angle of the Court ’ s very well-established case-law [1] because it was not prolonged by a court after its validity had expired.

It is quite clear from the description of the facts and the law that in the Republic of Moldova, at least partly – as regards the lack of official prolongation of detention or the lack of automatic review by the courts of the legality of keeping inmates in jail during the judicial examination of criminal cases – the former Soviet-type criminal procedure is still in place. This results in what one might call a kind of “tacit prolongation”.

The Code of Criminal Procedure of the Republic of Moldova does not contain any legal provisions which either envisage clear and precise procedures for extension of the term of detention at the stage of adjudicating on criminal cases or/and automatic judicial review of such detentions. Here, reference may be made to the Court ’ s finding in Nakhmanovich v. Russia ( no. 55669/00 , § 67, 2 March 2006):

“The Court has already examined and found a violation of Article 5 § 1 of the Convention in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment has been lodged with the trial court. The Court has held that the practice of keeping defendants in detention without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation – was incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law...”

I agree that, as in Nakhmanovich (ibid., § 68), there is “...no reason to reach a different conclusion in the present case”, seeing that “[f]or the detention to meet the standard of ‘ lawfulness ’ , it must have a basis in domestic law. The Government, however, did not point to any legal provision which permitted a defendant to continue to be held once the authorised detention period had expired...”

Of course, in order to fill the gap, there is a need for urgent legislative measures to be taken to bring national legislation into line with Convention standards.

In this context – as in the case of Broniowski v. Poland ([GC], no. 31443/96, § 189, ECHR 2004-V) – we are faced with a “...widespread problem which resulted from a malfunctioning of [Moldovan] legislation and [judicial] practice and which has affected and remains capable of affecting a large number of persons...”

And these very circumstances entitle us to speak about the systemic or structural nature of this problem. As the Court stated in Broniowski (ibid., § 190):

“As part of a package of measures to guarantee the effectiveness of the Convention machinery, the Committee of Ministers of the Council of Europe adopted on 12 May 2004 a Resolution (Res(2004)3) on judgments revealing an underlying systemic problem, in which, after emphasising the interest in helping the State concerned to identify the underlying problems and the necessary execution measures (seventh paragraph of the preamble), it invited the Court ‘ to identify in its judgments finding a violation of the Convention what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments ’ (paragraph I of the resolution). That resolution has to be seen in the context of the growth in the Court ’ s caseload, particularly as a result of series of cases deriving from the same structural or systemic cause.”

In the same case the Court went on to say (ibid., § 191):

“... In the same context, the Court would draw attention to the Committee of Ministers ’ Recommendation of 12 May 2004 ( Rec (2004)6) on the improvement of domestic remedies, in which it is emphasised that, in addition to the obligation under Article 13 of the Convention to provide an individual who has an arguable claim with an effective remedy before a national authority, States have a general obligation to solve the problems underlying the violations found. Mindful that the improvement of remedies at the national level, particularly in respect of repetitive cases, should also contribute to reducing the workload of the Court, the Committee of Ministers recommended that the Contracting States, following Court judgments which point to structural or general deficiencies in national law or practice, review and, ‘ where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court ’ .”

All this reasoning is perfectly valid in the present case and it merely remains for me to regret that the majority missed a very good opportunity to underline this in the judgment by mentioning the structural character of the problem identified and urging the Moldovan authorities to take some legislative steps to have this problem resolved in the shortest time possible.

While agreeing with the amount awarded for costs and expenses, I respectfully disagree with the majority, however, as regards the amount awarded in respect of non-pecuniary damage. I consider that this amount, EUR 25,000, is far too excessive and does not take into consideration either the realities of life in the Republic of Moldova or our previous case-law.

Let me give some examples. In the case of Sarban v. Moldova (no. 3456/05, 4 October 2005) the Court found violations of Article 3, Article 5 § 3 in respect of insufficient reasons for the applicant ’ s detention, and Article 5 § 4. The award made was EUR 4,000. In the case of Becciev v. Moldova (no. 9190/03, 4 October 2005) the same violations were found and the same amount of compensation was awarded. If we take into consideration the fact that an additional violation was found in the present case – that of Article 6 § 1 – this could lead us to award maybe EUR 3,000 or 4,000 more. In addition to this, a certain amount should be awarded for the prolonged period of detention – somewhere in the region of EUR 4,000 to 5,000. All these calculations would lead us to the conclusion that the amount of compensation in the present case should not have exceeded a lump sum of between EUR 12,000 and EUR 15,000.

This is the maximum amount I consider acceptable in theory for an award in respect of non-pecuniary damage in such situations, because even the means of calculation I have used above is a speculative one and has never been applied by this Court.

Awarding such huge amounts of compensation as in the present case may be regarded as an unjust act towards those who, despite being in a much more difficult situation, were granted smaller sums of money. By way of example, I would like to mention the case of Bursuc v. Romania (no. 42066, § 91, 12 October 2004), in which a gentleman who had been badly beaten up by eight policemen and received craniocerebral trauma as a result of being subjected “to violence ... of a particularly serious nature, capable of causing severe pain and suffering which must be regarded as acts of torture within the meaning of Article 3 of the Convention”. Some years later Mr Bursuc died as a consequence of the trauma received, as his widow claimed. In that case the applicant ’ s widow was awarded EUR 10,000, although the level of her suffering combined with the suffering of her late husband had been much higher than the level of suffering experienced by the applicant in the present case simply on account of a gap in legislation.

To be fair, just and reasonable, the level of compensation in the present case should not have exceeded EUR 15,000 – an amount which would have been both in conformity with the realities of Moldovan standards of living and in proportion with the level of suffering experienced by the applicant in the present case. Even assuming that the applicant may have suffered some “anxiety” as a result of the above-mentioned gap in legislation, he did not submit any evidence to confirm that had there been a separate procedure for extending the terms of detention during trials, he would have been able to regain his freedom.

These are the points on which I disagree with the majority in the present case.

[1] 1. See , for instance, Baranowski v. Poland , no. 28358/95 , ECHR 2000-III.