PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI IN THE CASE OF BECCIEV AGAINST MOLDOVA

On 13 September 2005 the Fourth Section, having examined the case of Becciev against Moldova , found a violation of Article 3, Article 5 § 3 and Article 5 § 4 of the Convention.

I fully agree with my fellow judges as far as the violation of Article 3 and Article 5 § 3 is concerned.

At the same time, with all due respect to my learned colleagues, it is difficult for me to subscribe to their finding of a violation of Article 5 § 4 in the present case.

Let me express some reasons clarifying my position concerning the issue at stake.

First of all, and this is of critical importance so I therefore find it necessary to mention it, neither the applicant nor his representatives have ever alleged any violation under Article 5 § 4 of the Convention.

Let me reproduce directly the relevant part of their complaint.

On 15 May 2003 the applicant ’ s representatives sent the Court a letter stating their intention to supplement their initial complaint introduced on 6 March 2003 with, inter alia , the following allegation, and I quote:

“There was a violation of Mr. Becciev ’ s rights provided for by Art. 6 paragraph 3 litera (d) of the Convention - the court refused to summon and hear the witness for the defence who could adduce the arguments in favour of the applicant ’ s guiltlessness”

In the admissibility decision delivered on 5 April 2005 this part of the complaint was transformed into the following formula:

“ The applicant complains under Article 5 § 4 that the Chisinau Regional Court refused to hear his former investigator as a witness after the former gave an interview to a newspaper in which serious doubt was cast on the applicant ’ s guilt. ”

The judgment contains a new formula, namely:

“ The applicant originally complained under Article 6 § 3 that the Chişinău Regional Court refused to hear his former investigator as a witness. The Court considered that it was more appropriate to examine this complaint under Article 5 § 4 .”

I am really grateful to my colleagues who have found it proper, at least in the judgment – unlike the admissibility decision – to make reference to the original complaint made by the applicant ’ s lawyers. Nevertheless, it does not help me solve all my questions.

It is a well- known fact that the Court is the master of the characterisation to be given to the law and the facts adduced before it, but in each and every case – at least to the best of my knowledge – the Court, in deciding to depart from the characterisation attributed to the facts by an applicant, has given very convincing legal reasons.

I regret to say that this was not the case here. That being so, in the absence of any reasoning to the contrary, I consider that in this particular

case the point of departure should have been the complaint made by the applicant ’ s lawyers. And this complaint should not have been changed without providing any plausible legal explanation.

The applicant has never complained about the impossibility of bringing proceedings concerning the verification of the lawfulness of his detention. But this issue is the crux of the matter covered by Article 5 § 4 of the Convention.

Article 5 § 4 provides:

Everybody who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

There is no doubt that the Moldavian legislation on criminal procedure creates all the conditions necessary for the practical and effective enforcement of this right. Moreover, as is clear from the description of the facts, the applicant has on different occasions made use of all the legal provisions stipulated in the Code of Criminal Procedure, entitling him to have the lawfulness of his detention scrutinised by the competent judicial authorities.

Coming back to the substance of the applicant ’ s allegations, I must confess that I am beset by doubts when I try to analyse the applicant ’ s arguments concerning the refusal of the court to question Colonel C.B. during a routine examination of the applicant ’ s request for release. Colonel C.B., a former inspector, alleged in one of his interviews that the case against Becc i ev “was fabricated” and that “the file does not contain and has never contained any evidence that would prove Becc i ev ’ s guilt”.

As I have just mentioned, i n his additional complaint lodged with this Court on 15 May 2003 the applicant argue d that t here had been a violation of Mr. Becc i ev ’ s rights provided for in Art icle 6 § 3 ( d) of the Convention , namely, that the court had refused to summon and hear the witness for the defence who could adduce arguments allegedly confirming the lack of the applicant ’ s guilt.

The original complaint poses the question for me as to whether during a routine procedure verif ying the “lawfulness and necessity” of the prolongation of detention , a court should also examine the question of “guilt” and call and examine witnesses for the defence, as the applicant claims. My answer to this question is no for the following reasons.

The problem of the existence or absence of guilt cannot be solved in abstracto . To answer the question of an accused ’ s guilt, a court should hold a hearing in accordance with the standards of Article 6 of the Convention – and in conformity with the principles of an adversarial procedure – in order to hear all the witnesses, examine all material evidence submitted by all the parties, and take all other procedural measures provided for and guaranteed by law. To determine the issue of guilt at the stage of a routine control of

lawfulness of detention by questioning one sole witness is simply impossible.

In other words, solving the problem of “innocence” is impossible without answering the main, more global question as to whether an accused is guilty or not of having committed the offences with which he has been charged.

Examination of the question of “guilt” forms part of the examination of the merits of the case, and not of the judicial control of the lawfulness of detention.

If one takes the opposite approach, one should be conscious of the consequences and provide an answer to the following question: how many witnesses should it be permissible to examine on the issue of “guilt” during the stage of a routine judicial control of the lawfulness of detention? One? Two? Ten? A hundred? And if, as a result of all these examinations, a judge rules on the issue of “guilt”, what will be the difference between a “judicial control of the lawfulness of detention” and an “examination of the merits of the case”?

The answer to this question is, in my view, self-evident – to allow the hearing of witnesses on the issue of “guilt” in the course of a judicial control of lawfulness of detention would run contrary to the proper administration of justice, influence the further examination of the merits of the case, and, moreover, render the examination of the merits absolutely meaningless.

On the other hand, the applicant, as is clear from his additional complaint, has not alleged the impossibility “of taking proceedings by which the lawfulness of his detention shall be decided”, but invoked the impossibility of having evidence heard from a wit ness who could have cast doubt on the applicant ’ s guilt.

I hardly think that the impossibility of having the existence of “guilt” determined can be regarded or treated as the impossibility “of taking proceedings concerning the lawfulness of detention”

On the other hand, I agree that the statements made by Colonel C.B. are extremely serious and deserved special attention on the part of the applicant ’ s lawyers. And here again a question arises. Colonel C.B. cast doubts on the procedure initiating criminal proceedings against Becciev, declaring that the evidence had been fabricated.

I apologise for saying so, but for this type of situation there are other proceedings, provided by the Criminal Procedure Code, namely, reviewing the legality of initiating criminal proceedings. I am not going to describe here the whole criminal procedure that used to exist before a new code of criminal procedure entered into force, and which contained a sufficient range of safeguards and guarantees against the arbitrary initiation of criminal proceedings. I will concentrate on just some of those legal provisions, which were open both to the applicant and his lawyers in the present situation and could have helped the applicant to have his problem solved if properly applied.

Under Article 98 (1) of the Code of Cr iminal Procedure of Moldova the lawfulness of initiating criminal proceedings is su p ervised by the prosecutor. If criminal proceedings are initiated by a criminal investigator or by an investigative body without legal reasons or grounds, the prosecutor sets aside the decision made by the criminal investigator or investigative body and refuses to initiate criminal proceedings or orders the cessation of investigations if some investigative measures have already been taken.

If an accused does not agree with the decision made by the prosecutor he is entitled, in accordance with Articles 42, 193, 194 and 195 of the Code of Criminal Procedure, to complain about this decision to the hierarchically superior prosecutor. All complaints have to be examined within three days and a reasoned decision must be sent to the complainant.

Under Article 195-1 and Article 195-2 of the same Code, if a complaint lodged by an accused with a public prosecutor has been rejected by the latter, the accused is entitled to challenge prosecutor ’ s decision before a court, which in turn is under an obligation to have this complaint examined within ten days.

If an accused or his representative has information about criminal acts committed by law-enforcement officers, they must denounce such acts to the competent authorities, which in turn must investigate all the allegations.

Let me make the following clear. The Criminal Code of Moldova provides for criminal responsibility for various unlawful acts that jeopardise the proper administration of justice, f or instance Article 332 – Forgery of public deeds, Article 327 – Abuse of power or abuse of office, Article 306 – Malicious prosecution, Article 303 – Interference with the administration of justice and criminal prosecution, Article 308 – Illegal arrest or detention, etc.

So, in my view, the Moldavian legislator has created all the necessary possibilities for citizens to have their rights protected against criminal forms of conducting investigations. Both Mr. Becciev and his lawyers were free to use the above-mentioned legal provisions to stop the alleged violation of his rights during initiation of the proceedings or the continuation of them.

It remains unclear from the case whether the applicant used the above-described procedure, which was in place at the material time, and if not, why.

To sum up, I find Article 5 § 4 of the Convention inapplicable to the present situation for two main reasons:

1. The applicant has never complained about the impossibility “of taking proceedings by which the lawfulness of his detention shall be decided”; instead, he complained of the lack of possibility of having his guiltlessness proved.

2. Determination of “guilt” forms part of the examination of the merits of the case and not of “the proceedings by which the lawfulness of his detention shall be decided”.

Therefore, my conclusion is that there has been no violation of Article 5 § 4 of the Convention in the present case and this is where I respectfully disagree with the majority.