Ruslan TOPA v Moldova - 25451/08 [2010] ECHR 1469 (14 September 2010)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

The European Court of Human Rights (Fourth Section), sitting on 14 September 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Registrar,

The applicant, Mr Ruslan Topa, is a Moldovan national who was born in 1975 and lives in Chişinău. He was represented before the Court by Mr V. Zama, a lawyer practising in Chişinău.

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

On 26 March 2008 the applicant was arrested on suspicion of being part of a criminal gang specialised in the smuggling of heroin through Moldova to the European Union. His arrest took place as a result of the seizure of a large quantity of heroin in Chişinău.

Between the date of his arrest and 8 July 2009 the applicant was remanded in custody. The detention warrants were issued on a monthly basis and the reasons given for prolonging his detention were the same throughout the entire period of detention: the applicant was accused of a serious criminal offence punishable with more than two years' imprisonment and he could abscond or hinder the investigation. All of the applicant's habeas corpus requests were dismissed.

The relevant provisions of Law No. 1545 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts”, read as follows:

(1) In accordance with the present law, individuals and legal entities are entitled to compensation for non-pecuniary and pecuniary damage caused as a result of:

b) illegal search carried out during the investigation phase or during the trial of the case, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the persons' rights;

c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine;

d) the carrying out of operative investigative measures in breach of lawful procedure;

e) illegal seizure of accounting documents, other documents, money, or stamps as well as the blocking of bank accounts.

(2) The damage caused shall be fully compensated, irrespective of the degree of culpability of the agents of the criminal investigation organs, prosecution and courts.

A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met:

b) the dropping of charges or discontinuation of an investigation on the ground of rehabilitation;

c) the adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation;

d) the adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova;...

The applicant complained, under Article 5 § 3 of the Convention, that the decisions to detain him on remand were unjustified and not based on relevant and sufficient grounds.

The applicant complained that his detention on remand had not been based on “relevant and sufficient” reasons. The material part of Article 5 § 3 reads:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

To the Court's question whether he had instituted proceedings under Law 1545 after acquittal, the applicant replied that he had not and that he was not intending to do so. According to him, the remedy instituted by Law 1545 was ineffective in view of the very low awards made by the domestic courts. He cited several judgments of the Supreme Court of Justice in proceedings under Law 1545 in which applicants had been awarded the equivalent of approximately 1,870 euros (EUR), EUR 3,100 and EUR 620 for detention contrary to Article 5 of the Convention of seventy-six days, eighteen days and five months respectively.

It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 IV). The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions.

The Court would refer to its classic and comprehensive statement set out in the Bahaddar v. the Netherlands (19 February 1998, § 44, Reports 1998 I) concerning the application of the rule of exhaustion of domestic remedies as required by former Article 26 (now Article 35 § 1 of the Convention):

“66. Under Article 26 normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (...).

Article 26 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (...).

67. However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the 'generally recognised rules of international law' there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (...).

69. The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 must be applied with some degree of flexibility and without excessive formalism (...). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (...). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.”

It is the applicant's case that the remedy under Law 1545 was ineffective because the awards made by the domestic courts were too low. In support of his submission he cited several judgments of the Supreme Court of Justice in proceedings under Law 1545 (see above).

The Court is not convinced by the applicant's arguments and notes that some of the awards made by the Supreme Court of Justice in the cases referred to by the applicant are comparable to those made by the Court in cases concerning Article 5 § 3. In particular, it recalls that in Castravet v. Moldova (no. 23393/05, 13 March 2007) the applicant was awarded by the Court EUR 2,500 for a breach of Article 5 §§ 3 and 4, while in Becciev v. Moldova (no. 9190/03, 4 October 2005) and in Sarban v. Moldova (no. 3456/05, 4 October 2005) the applicants were awarded EUR 4,000 for breaches of Article 3 and Article 5 §§ 3 and 4.

Furthermore, the Court is not persuaded that the domestic case-law relied upon by the applicant to prove the lack of effectiveness of the Law 1545 remedy can be considered as a comprehensive summary of the entire case-law of the domestic courts under that law. In this respect, the Court recalls from its own case-law that in Duca v. Moldova ((striking out), no. 1579/02, § 13, 10 June 2008) the applicant was awarded by the domestic courts EUR 10,289 in proceedings under Law 1545.

Accordingly, the Court cannot accept the applicant's position and finds that Law 1545 provides an effective framework of redress in respect of the complaint raised by the applicant in the present case. Since the applicant did not make use of this mechanism, his complaint must be rejected for non-exhaustion of domestic remedies. The Court concludes that the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Ruslan TOPA v Moldova - 25451/08 [2010] ECHR 1469 (14 September 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1469.html Cite as: [2010] ECHR 1469