European Court of Human Rights

 

 

 

SECOND SECTION

CASE OF EȘANU v. THE REPUBLIC OF MOLDOVA

(Application no. 15230/18)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

31 January 2023

This judgment is final but it may be subject to editorial revision.

In the case of Eșanu v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Jovan Ilievski, President,
          Lorraine Schembri Orland,
          Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 15230/18) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 March 2018 by a Moldovan national, Mr Valentin Eșanu (“the applicant”), born in 1977 and living in Chișinău, who was represented by Mr S. Tighineanu, a lawyer practising in Chișinău;

the decision of 19 March 2019 to declare inadmissible the complaint under Article 3 of the Convention concerning the material conditions of detention and to adjourn the examination of the remainder of the applicant’s complaints;

the decision to give notice of the complaints concerning Article 5 §§ 3 and 4 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible a further complaint under Article 5 § 4 of the Convention (concerning excessive delay of judicial review);

the parties’ observations;

Having deliberated in private on 10 January 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present case concerns the applicant’s deprivation of liberty pending trial on several charges for a total of twenty-two months in the absence of relevant and sufficient reasons, ordered and extended allegedly in breach of the principle of equality of arms. The applicant complained of a violation of his rights under Article 5 §§ 3 and 4 of the Convention.

2.  Specifically, in 2014 a criminal investigation into money laundering was initiated in respect of the applicant and the company, S., which he owned and administered. It was not until 15 August 2017 that the applicant was arrested and charged with tax evasion and money laundering committed from 2014 to August 2017. In particular, it was alleged that S. had evaded payment of taxes by increasing its liabilities through recording on its books inexistent purchases of scrap metal or purchases at higher prices. The money obtained from tax evasion had subsequently been used to buy cars and real estate, which was alleged to constitute money laundering.

3.  On 15 August 2017 the investigating judge ordered the applicant’s detention on remand, citing the risks of influencing witnesses, of tampering with evidence, of absconding and of continuing criminal activity. The measure was extended on four occasions, despite the applicant’s argument that he had not absconded or interfered with the investigation since its initiation in 2014.

4.  On 20 November 2017 a part of the case concerning the period from 2014 to 30 June 2017 was disjoined for practical reasons, noting that the crime had been committed from 2014 to 15 August 2017 but that the unpaid tax had been calculated until 30 June 2017 and that this part of the case was ready for trial. On 1 December 2017 it was remitted to court for trial, relying mainly on the Tax Control Decision of 8 November 2017, which had concluded that S. had failed to pay 5,697,759 Moldovan lei (MDL) in various taxes and social security contributions.

5.  On 4 January 2018 the Chișinău District Court ordered the applicant’s house arrest, relying on the same risks as the previous decisions, while noting that the prosecutor had failed to substantiate his request for the extension of the applicant’s detention.

6.  On 5 January 2018 an ambulance took the applicant from his home to a private clinic where he remained until 12 January 2018. Meanwhile, on 10 January 2018, the prosecutor requested that the applicant be remanded in prison for failure to comply with house arrest restrictions. Specifically, the prosecutor relied on the written reports of two officers, according to which the applicant had not informed the police that he was in hospital and had been in contact with persons “involved in the criminal case” during his stay in hospital, either by telephone or by visits. In court the applicant disputed the statements of the two officers and asked to hear them in person. He also noted that he had unrestricted opportunities to exchange with other co-defendants during court sessions. His request was ignored and on 12 January 2018 the applicant was remanded in prison. The court relied on the applicant’s alleged failure to comply with the conditions of the house arrest as grounds for further detention in prison. The measure was extended on seven occasions until 15 August 2018.

7.  On 5 August 2018 another criminal case was initiated in respect of the applicant on charges of trespassing and arbitrariness, for having unlawfully installed a fence. The applicant was arrested on these charges on 15 August 2018 at the gate of the prison, on his release from the twelve months’ detention handed down for the first set of proceedings. On 12 September 2018 the Chișinău District Court rejected the prosecutor’s request to extend the detention and released the applicant under judicial control. The court noted that the prosecutor had not provided any concrete evidence as to the four grounds which could have justified the applicant’s deprivation of liberty.

8.  On 14 September 2018, as the applicant was at the gate of the prison to be released from detention in the second set of proceedings, he was again arrested on charges of money laundering and tax evasion, allegedly committed from January to August 2017, in the case-file which had remained after the disjoinder of 20 November 2017 from the first criminal case against him (see paragraph 4 above). On 15 September 2018 the Chișinău District Court decided to remand the applicant in custody and cited the same grounds as before (see paragraph 3 above). The measure was extended on numerous occasions until June 2019, when the applicant was released.

9.  On 31 July 2020 the Chișinău Court of Appeal acquitted the applicant of charges of trespassing and arbitrariness. The judgment became final in the absence of an appeal.

10.  On 4 June 2020 the Chișinău District Court discontinued the criminal proceedings in respect of the applicant on charges of money laundering and tax evasion committed from 2014 to June 2017. The court relied on Section 275 (9) of the Code of Criminal Procedure, which provides that criminal proceedings shall be discontinued when there are “other circumstances provided by law which exclude the criminal investigation”. It noted that the Tax Control Decision of 8 November 2017 had been annulled by a final court judgment in parallel civil proceedings and concluded that in such circumstances the criminal investigation had been initiated in breach of legal provisions. The judgment became final in the absence of an appeal.

THE COURT’S ASSESSMENT

I.         DISJOINDER OF THE APPLICATION

11.  On 19 March 2019 the Court decided to join this application with forty‑one others (see Bulgacov and Others v. the Republic of Moldova (dec.) [Committee], nos. 54187/15 and 41 other applications, § 10, 19 March 2019) in view of the similarity of the complaints concerning material conditions of detention, and declared the applications partially inadmissible in respect of this complaint.

12.  The Court now considers that it is necessary to disjoin this application from the forty-one others and to examine it separately.

II.      ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

13.  The Government argued that, by omitting to claim compensation under Law no. 1545, the applicant failed to exhaust domestic remedies which had become available after his acquittal.

14.  The Court reiterates that it has already found that Law no. 1545 is applicable only to persons who have been acquitted or in respect of whom a criminal investigation has been discontinued on rehabilitation grounds (see Sarban v. Moldova, no. 3456/05, §§ 54 and 59, 4 October 2005). In the present case, the applicant was finally acquitted only in the second set of proceedings initiated against him (see paragraph 9 above). The proceedings on charges of money laundering and tax evasion had been discontinued on 4 June 2020 due to “other circumstances” under section 275 (9) of the Code of Criminal Procedure (see paragraph 10 above), which did not qualify as a rehabilitation (full acquittal) as specifically provided for in section 285 of the Code of Criminal Procedure. The Government did not inform the Court about the outcome of the third set of proceedings.

15.  Therefore, the applicant’s claims for compensation under Law no. 1545 had no prospect of success, other than for his detention from 15 August to 14 September 2018 in the second set of proceedings. This interpretation of domestic law is confirmed by the Moldovan Constitutional Court in its decision no. 20 of 6 March 2018, which advised the Parliament to amend Law no. 1545 in order to open this remedy to persons in situations similar to that of the applicant in the present case. In the absence of any legal amendments to Law no. 1545 and of any information as to the existence of effective remedies which had to be exhausted, the Court upholds the Government’s objection in respect to the applicant’s detention in the second set of proceedings and rejects it in respect of the applicant’s detention in the first and third sets of proceedings.

16.  In view of the above and since the applicant did not make use of the mechanism provided for by Law no. 1545 in respect of his detention from 15 August to 14 September 2018, this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention (Burghelea v. Moldova (dec.) [Committee], no. 36084/07, 12 January 2016).

17.  The Court notes that the complaint concerning the applicant’s detention in the first and third set of proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

18.  The general principles concerning the need to rely on relevant and sufficient reasons for depriving someone of liberty have been summarised in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 87-91, 5 July 2016).

19.  The Government submitted that there had been relevant and sufficient reasons to hold the applicant under house arrest and in detention throughout the entire period concerned.

20.  The Court notes at the outset that the applicant was deprived of liberty for twelve months during the first set of criminal proceedings and for nine months during the third set of proceedings.

21.  The Court observes that in ordering and extending the applicant’s detention pending trial the courts referred to a range of criteria, such as the risk of absconding or reoffending, as well as interfering with the investigation by destroying evidence, colluding with other defendants or influencing witnesses. The Court considers that these factors were, in principle, relevant. However, the domestic courts did not indicate on what evidence they had relied in reaching their conclusions concerning the seriousness of the risks involved. There is no indication in the domestic decisions that the courts took into account such an important factor as the applicant’s conduct between the beginning of the investigation in 2014 and the moment when he was arrested in August 2017 and September 2018 respectively (compare Buzadji, cited above, § 117). Indeed, it was not argued or found that the applicant had attempted any form of interference with the investigation while being at large during those years of the investigation.

22.  Furthermore, the courts dismissed the applicant’s argument that he had complied with the requirements of house arrest in January 2018, without thoroughly assessing whether the police had been duly informed of his stay in hospital and without identifying the persons “involved in the criminal case” with whom the applicant had communicated, as alleged by the prosecutor. It is also relevant that, as argued by the applicant before the domestic courts, the criminal case had already been remitted for trial and he had been able to meet and communicate with the other co-defendants at court hearings. Against this background, it is particularly striking that the courts relied on this ground to extend the applicant’s detention for another seven months.

23.  The Court equally notes that after the courts ordered the applicant’s release notably on 14 September 2018, he was re-arrested on that same day in the context of other criminal investigations. However, in respect of the third investigation, the Court notes that it referred to the same charges of tax evasion and money laundering as the first investigation, allegedly committed in overlapping time periods, and that originally these had been part of the same criminal case, having been separated a few days before the first case was remitted for trial (see paragraphs 4 and 8 above). By starting separate criminal investigations into various episodes of the same alleged criminal activity, the prosecution was able to circumvent the provisions of the Moldovan Constitution which limited deprivation of liberty pending trial to a maximum of twelve months. The Court considers that the artificial division of a criminal investigation into several separate criminal investigations in order to circumvent mandatory legal provisions is incompatible with Article 5 of the Convention (compare Cosovan v. the Republic of Moldova, no. 13472/18, § 99, 22 March 2022).

24.  Finally, having examined the domestic courts’ decisions extending the applicant’s deprivation of liberty, the Court considers that the reasons relied upon were stereotyped and abstract. The decisions cited the grounds for detention without any attempt to show how they applied concretely to the specific circumstances of the applicant’s case (compare Buzadji, cited above, § 122).

25.  In the light of the above, the Court finds that while the domestic courts’ reasons for ordering the applicant’s detention were relevant as such, they were not sufficiently grounded on evidence in the file and the justification for the applicant’s extended detention has not been convincingly demonstrated.

26.  It follows that in the present case there has been a violation of Article 5 § 3 of the Convention.

III.   ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

27.  The applicant also raised a complaint under Article 5 § 4 of the Convention, about being unable to hear in court the officers whose reports of his alleged failure to respect the conditions of house arrest had served as grounds for his extended deprivation of liberty. This complaint is covered by the well‑established case-law of the Court, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 5 § 4 of the Convention in the light of its previous findings in Ţurcan and Ţurcan v. Moldova (no. 39835/05, §§ 67-70, 23 October 2007 with further references).

IV.   REMAINING COMPLAINTS

28.  The applicant also raised complaints under Articles 3 and 6 of the Convention. Specifically, he complained that his state of health had deteriorated while in detention and that criminal proceedings had been initiated against him in reprisal for having criticised the governing party at the time.

29.  The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

30.  It follows that this part of the application must be rejected as inadmissible in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 2,464 in respect of costs and expenses incurred before the Court. He submitted a contract with his legal representative, a detailed breakdown of costs and proof of payment in the amount of MDL 50,126 (equivalent to EUR 2,466).

32.  The Government submitted that the claims were excessive and unsubstantiated.

33.  The Court awards the applicant EUR 3,900 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

34.  Having regard to the documents in its possession, the Court considers it reasonable to award in full the applicant’s claims for costs, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Disjoins the application from the others to which it was joined;

2.      Declares the complaints under Article 5 § 3 of the Convention concerning the applicant’s detention in the first and third set of proceedings and under Article 5 § 4 of the Convention admissible and the remainder of the application inadmissible;

3.      Holds that there has been a violation of Article 5 § 3 of the Convention;

4.      Holds that there has been a violation of Article 5 § 4 of the Convention;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,464 (two thousand four hundred and sixty-four euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 31 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President