JOINT DISSENTING OPINION OF JUDGES SPANO AND KJØLBRO

1 . The legal question raised by the present case is whether the applicant was detained from 3 March 2015, when he was arrested, until 27 April 2015, when he was released from pre-trial detention, “on reasonable suspicion of having committed an offence”, more specifically the offence of pimping. In the view of the majority, that was not the case and, in consequence, they have found a violation of Article 5 § 1 (c) of the Convention. For the reasons elaborated below, we respectfully disagree. In our view, the applicant ’ s detention was lawful within the meaning of Article 5 § 1 (c).

2 . A “reasonable suspicion” that a criminal offence has been committed, referred to in Article 5 § 1 (c) of the Convention, has a factual aspect and a legal aspect.

3 . As to the factual aspect, a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence. As a rule, problems in this area arise at the level of the facts. The question then is whether the arrest and detention were based on sufficient objective elements to justify a “reasonable suspicion” that the facts at issue had actually occurred (see, for example, WÅ‚och v. Poland , no. 27785/95, § 108, ECHR 2000 ‑ XI). This aspect of a “reasonable suspicion” is not an issue in the present case, where it is undisputed that the applicant ran an erotic video-chat business employing young female models who provided erotic shows via webcam to customers in exchange for money.

4 . As to the legal aspect, which is the aspect in issue in the present case, the existence of a “reasonable suspicion” requires that the facts relied on can be reasonably considered as constituting a criminal offence, that is, falling under one of the sections describing criminal behaviour in the Criminal Code. Thus, there could clearly not be a “reasonable suspicion” if the acts or facts held against a detained person did not constitute a crime at the time when they occurred. The issue in the present case is whether the applicant ’ s detention was “lawful” within the meaning of Article 5 § 1. The Convention refers here essentially to national law, but it also requires that any measure depriving the individual of his liberty be compatible with the purpose of Article 5, namely to protect the individual against arbitrariness (see, for example, Włoch v. Poland , cited above, § 109).

5 . If the Court, exercising its supervisory control over compliance with domestic law, reaches the conclusion that the facts relied on cannot be reasonably considered as falling under any of the criminal provisions relied on by the domestic authorities, it will reach the conclusion that the detention was unlawful (see, for example, Lukanov v. Bulgaria , 20 March 1997, §§ 43-45, Reports of Judgments and Decisions 1997 ‑ II, and Kandzhov v. Bulgaria , no. 68294/01, § 59-62, 6 November 2008). Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see, inter alia , Mooren v. Germany [GC], no. 11364/03, § 73, 9 July 2009). That being said, the Court will as a rule accept domestic courts ’ interpretation and application of domestic law unless it is arbitrary or manifestly unreasonable (see, for example, Paci v. Belgium , no. 45597/09, § 73, 17 April 2018)

6 . The applicant was charged with the offence of “pimping”. Under Article 220 of the Criminal Code, pimping is defined as “encouraging or inducing another person to engage in prostitution or obtaining revenues as a result of another person engaging in prostitution”. In other words, the offence of “pimping” is closely linked to “prostitution”. In Moldova, prostitution is considered to be a misdemeanour under Article 89 of the Code of Minor Offences, which does not, however, provide a definition of “prostitution” or “engaging in prostitution”.

7 . The prosecutor was of the view that acts committed by the applicant, namely running an erotic video-chat business employing young female models who provided erotic shows via webcam to customers in exchange for payment, amounted to pimping. The applicant, on the other hand, was of the view that the models were not engaged in prostitution, since erotic video-chat activity could not be assimilated with prostitution.

8 . In finding a violation, the majority relies on the following arguments: (1) domestic law does not contain a definition of “prostitution” (see paragraph 31 of the judgment); (2) the facts of the applicant ’ s case predate the subsequent case-law development on the meaning of “prostitution” (see paragraph 32); (3) the meaning of “prostitution” was debated at domestic level (see paragraphs 32-33); and (4) the Constitutional Court in a decision of 19 April 2018 expressed the opinion that, given the lack of physical contact, the practising of erotic video-chat could not be considered prostitution (see paragraph 34), (a view that seems to be in conflict with the Supreme Court ’ s judgment of 21 June 2016). In our view, these arguments are insufficient to reach the conclusion that the applicant was not detained on a “reasonable suspicion” of having committed the offence of “pimping”.

9 . The fact that domestic legislation did not contain a definition of “prostitution” is not in itself decisive. Furthermore, the fact that the applicant ’ s case may have been the first of its kind and that there were no relevant precedents is not decisive for assessing “reasonable suspicion” and the lawfulness of the detention.

10 . Thus, under Article 7 of the Convention, in assessing the foreseeability of a judicial interpretation, the Court has repeatedly found that no importance should be attached to a lack of comparable precedents (see K.A. and A.D. v. Belgium , nos. 42758/98 and 45558/99, §§ 55-58, 17 February 2005, and Huhtamäki v. Finland , no. 54468/09, §§ 46-54, 6 March 2012). Where the domestic courts are called on to interpret a provision of criminal law for the first time, an interpretation of the scope of the offence which was consistent with the essence of that offence must, as a rule, be considered as foreseeable (see Jorgic v. Germany , no. 74613/01, § 109, ECHR 2007 ‑ III). Even a new interpretation of the scope of an existing offence may be reasonably foreseeable for the purposes of Article 7, provided that it is reasonable in terms of domestic law and consistent with the essence of the offence (see see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 791-821, 25 July 2013). The Court has adopted a similar approach in assessing the lawfulness of an interference under other provisions of the Convention (see, for example, Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 115, ECHR 2015, concerning Article 11 of the Convention).

11 . What is decisive is whether the domestic authorities, first the prosecutor in requesting detention and subsequently the domestic courts in ordering detention, could “reasonably [have] believe[d]” that the acts committed by the applicant constituted pimping (compare Kandzhov v. Bulgaria , no. 68294/01, § 60, 6 November 2008) or, to use the terminology of Article 7, whether it was to a reasonable degree “foreseeable” that the acts committed could be considered to fall within the scope of pimping and whether the domestic courts ’ interpretation of domestic law was consistent with the “essence” of the offence.

12 . In our view, it is a matter of interpretation whether “prostitution” requires direct physical contact or whether it may also include the obtaining of sexual gratification as a result of a model ’ s performance, displayed by means of erotic video-chat and in return for payment. In our view, there is nothing arbitrary or unreasonable in the latter and more extensive interpretation, adopted by the domestic courts in the applicant ’ s case. In addition, such an interpretation of the notion “prostitution” seems consistent with the essence of the offence, which is to protect persons, in particular women, from sexual and economic exploitation. The interpretation adopted by the District Court and the Court of Appeal, ruling on the applicant ’ s detention, was in accordance with the subsequent opinion of 21 October 2015 from the State Agency for the Protection of Morality, according to which the actions of the female models employed by the applicant could be considered acts of prostitution, in that their clients were able to obtain sexual gratification as a result of the models ’ performance and because the models were paid for those acts (see paragraph 14 of the judgment). It was also confirmed subsequently, not only in the judgment of 30 December 2016 convicting the applicant (see paragraph 13), a judgment that the applicant did not challenge by lodging an appeal, but also in other similar cases (the Court of Appeal ’ s judgments of 30 October 2015 and 13 September 2016 (see paragraphs 20 and 22 respectively)) and, importantly, by the Supreme Court in a judgment of 21 June 2016 (see paragraph 20).

13 . In our view, therefore, the applicant was lawfully detained “on reasonable suspicion of having committed an offence”, and there was nothing arbitrary or unreasonable in the domestic courts ’ interpretation of domestic law (see Włoch v. Poland , cited above, § 116), and this interpretation seems reasonably foreseeable (see Kandzhov v. Bulgaria , cited above, § 60) and consistent with the essence of the offence of pimping (see Jorgic v. Germany , cited above, § 109).

14 . To conclude, we find the reasoning of the majority problematic for the following reasons. Firstly, the majority do not pay sufficient attention to the wording of Article 5 § 1 (c) of the Convention, which requires only a “reasonable suspicion”, not a sufficient basis for a conviction, and it is first and foremost for the domestic courts to interpret and apply domestic law. Secondly, it follows logically, and at least implicitly, from the majority ’ s reasoning, according to which the applicant “could not have reasonably been expected to foresee, even with appropriate legal advice, the consequences of his conduct” (see paragraph 35), that not only the applicant ’ s detention, but also his subsequent conviction were, in the majority ’ s view, unlawful. For the reasons set out above, we voted against finding a violation of Article 5 § 1 (c). In our view, a certain deference should be afforded to the domestic authorities, including prosecutors and domestic courts, as they interpret and apply domestic law in the light of present-day conditions and changing circumstances in society, provided that such an interpretation is sufficiently foreseeable and consistent with the essence of the offence, in the present case the provision of sufficient protection to vulnerable women against sexual and economic exploitation.