Communicated on 29 September 2014
THIRD SECTION
Application no. 52507/09
Silvia BOSTAN and Veaceslav BOSTAN
against the Republic of Moldova
lodged on 15 September 2009
STATEMENT OF FACTS
The applicants, Ms Silvia Bostan and Mr Veaceslav Bostan, are Moldovan nationals, who were born in 1962 and 1960 respectively and live in Chișinău. They are represented before the Court by Mr P. Guțan, a lawyer practising in Chișinău.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
According to the applicants, their son-in-law, C., had his place of residence registered in their house although he had lived since 2005 at a separate address.
On 6 November 2008 C. was stopped by the police loading poultry into his van near the applicants’ house. The police asked C. about the origin of the poultry and he told them that he had bought the poultry at a market in Transnistria and had no documents for it. According to the police, C. told the police that more poultry was in a freezer he had built in the applicants’ courtyard and consented to the police searching the courtyard.
In the applicants’ absence, the police searched the courtyard and as a result of the search, they found and seized 4,924 kg of frozen poultry.
On 20 November 2008 the police adopted a decision finding that C. had committed the administrative offence of practicing illegal commercial activity, fined him to 500 Moldovan lei and forfeited the seized frozen poultry.
On 17 November 2008 the applicants submitted a criminal complaint to the Chișinău prosecutor’s office on the basis of Article 179 of the Criminal Code (Violation of the privacy of the home). They relied on Article 8 of the Convention and argued that the search had been conducted, contrary to Articles 12 and 118 of the Code of Criminal Procedure, in their absence, without a judicial warrant and without their permission. According to them, C.’s alleged permission could not substitute their permission because they, and not C., were the only owners and residents of the searched property.
On 1 December 2008 the Chișinău prosecutor dismissed their complaint, finding that the search had been conducted in accordance with domestic law, in particular that it was sufficient to obtain C.’s permission for the search, because he had his place of residence registered at the searched property. The applicants appealed.
On 20 March 2009, in the applicants’ and their representative’s absence, the Rîșcani investigating judge dismissed the applicants’ appeal as ill‑founded. The court reiterated the reasons provided by the prosecutor.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure read at the time as follows:
“Section 12. Respect for the home
(1) Respect for home shall be guaranteed under the law. In the course of criminal proceedings, no one shall be entitled to enter a premise contrary to the will of the persons living there or having their office there, except for the cases and in the way provided for in the present code.
(2) Home searches (...) shall be authorized and conducted under a judicial warrant, except for cases and in the way provided for in the present code. In case of searches without a judicial warrant, the competent authority shall no later than 24 hours after the completion of the search, submit to the court all relevant materials to subject the search to judicial review.
Article 118. On-site investigation
(1) For the purpose of finding evidence of a criminal offence or other material evidence, which might constitute evidence aiding to establish the circumstances of a criminal offence or other circumstances, which are important for the case, the criminal investigating authority shall carry out an on-site investigation. Subject of the on-site investigation will be the lands, buildings, objects, documents, animals, human corpses or animal corpses.
(2) On-site investigation in a residence without the permission of the persons whose rights under Article 12 are interfered with, shall be conducted based on the motivated order of the criminal investigating authority with the authorization of the investigating judge.”
COMPLAINTS
The applicants complain under Article 8 and 13 of the Convention that the search of their home conducted by the police without a judicial warrant and without their permission was contrary to domestic law and that the court examined the complaint about the unlawfulness of the search in their absence, without being legally summoned.
QUESTION TO THE PARTIES
Has there been an interference with the applicants’ right to respect for their home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
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