SECOND SECTION
CASE OF CUCU AND OTHERS v. THE REPUBLIC OF MOLDOVA
(Applications nos. 7753/13, 75188/13 and 76511/14)
JUDGMENT
STRASBOURG
10 July 2018
This judgment is final but it may be subject to editorial revision.
In the case of Cucu and Others v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 19 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in three applications (nos. 7753/13, 75188/13 and 76511/14) 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”) by three Moldovan nationals, Mr Alexandru Cucu, Mr Eugeniu Tanasiev and Mr Vadim Vladarcic (“the applicants”), on 27 December 2012, 8 November 2013 and 28 November 2014 respectively.
2. The first two applicants were represented by Mr A. Croitor, a lawyer practising in Chișinău and the third applicant was represented by Mr I. Oancea and Mr G. Malic, lawyers practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr L. Apostol.
3. On 4 May 2015 the applicants’ complaints concerning Article 5 §§ 1 and 5 of the Convention were communicated to the Government and the remainder of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1990, 1988 and 1957, respectively and live in Chișinău.
5. The first and the second applicants were arrested on 8 and 9 April 2009, as a result of the mass protest which took place in Chișinău after the elections of 5 April 2009. They were placed in detention for ten and seven days respectively. Later the charges against them were dropped.
6. The third applicant was accused of fraud and placed in detention pending trial between 15 and 18 April 2004 and between 28 July and 3 August 2005, i.e. for nine days. Later the charges against him were dropped. The Government disputed the fact that the third applicant was detained between 28 July and 3 August 2005.
7. On different dates the applicants brought civil actions under Law No. 1545 (on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts) seeking 115,000 Moldovan lei (MDL) (the equivalent of 6,765 euros (EUR)), MDL 600,000 (the equivalent of EUR 36,700) and MDL 80,000 (the equivalent of EUR 4800), respectively, in compensation for non‑pecuniary damage. On 11 December 2013, 3 July 2013 and 28 May 2014 respectively, the Supreme Court of Justice concluded that the applicants’ detentions had been unlawful and in breach of Article 5 of the Convention and awarded them MDL 15,000 (the equivalent of EUR 835), MDL 7,000 (the equivalent to EUR 428) and MDL 6,000 (the equivalent of EUR 317) respectively as compensation for the damage caused. The domestic courts found inter alia that the third applicant had been detained between 15 and 18 April 2004 and between 28 July and 3 August 2005.
8. In addition, the first and the second applicants were part of a group of persons considered to be victims of the events of April 2009 and were awarded by two Government decisions MDL 10,000 (the equivalent of EUR 625) and MDL 7000 (the equivalent of EUR 444), respectively.
THE LAW
I. JOINDER OF APPLICATIONS
9. The Court notes that the subject matter of the applications (nos. 7753/13, 75188/13 and 76511/14) is similar. It is therefore appropriate to join the cases, in application of Rule 42 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
10. The applicants complained of a violation of Article 5 § 1 of the Convention as a result of their unlawful detention for 10, 7 and 9 days, respectively. The relevant parts of Article 5 § 1 read as follows:
Article 5 § 1
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...”
A. Admissibility
1. Victim status
11. The Government submitted that all three applicants had lost their victim status as a result of the fact that the domestic courts had acknowledged a breach of Article 5 of the Convention and had compensated them in the civil proceedings initiated by them against the state. Moreover, the first and the second applicants were part of a group of persons considered to be victims of the events of April 2009 and were awarded by two Government decisions MDL 10,000 and MDL 7000, respectively. Those amounts should also be considered as making part of the compensation for the breach of their Convention rights.
12. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III).
13. In the instant cases it is true that the Supreme Court of Justice held that there had been a violation of the applicants’ rights guaranteed by Article 5 of the Convention and that it awarded them compensation. It is also true that the first and the second applicants were awarded additional compensation by two Government decisions. That said, the Court finds that the question of the applicants’ victim status as regards redress for the violation of their rights is inextricably linked to the merits of the complaints. Therefore, it considers that both questions should be joined and examined together.
2. Non-exhaustion of domestic remedies
14. The Government further submitted that on 24 December 2012 the Supreme Court of Justice adopted an explanatory judgment in which it explained how the domestic courts should compensate breaches of rights guaranteed by the Convention with reference to the Court’s case-law. The Government stated that since the applicants did not invoke that explanatory judgment in their submissions made before the domestic courts, they failed to exhaust domestic remedies.
15. The Court notes that the applicants made use of the available remedy provided for by Law 1545 and invoked expressly a breach of Article 5 of the Convention. The fact that they did not cite an explanatory judgment of the Supreme Court, whose purpose was to explain to the lower courts how to apply the Court’s case-law, cannot be held against them and cannot be interpreted as a failure to exhaust domestic remedies. Therefore, the Government’s objection must be dismissed.
16. The Court further notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the applications inadmissible has been established. They must therefore be declared admissible.
B. Merits
17. The applicants argued that the compensation awarded to them in respect of the breach of Article 5 of the Convention had not been adequate and proportionate to the severity of the breaches of their rights. In support of this contention the applicants cited cases in which the Court had found breaches of Article 5 of the Convention and in which the awards had been considerably higher. In their view, as a result of the insufficient amount of compensation awarded by the Supreme Court of Justice, they still had victim status under Article 5 § 1 of the Convention.
18. The Government contested the applicants’ submissions and argued that they lost their victim status. They also argued that the third applicant was detained only for three days, in April 2004.
19. As the Court has stated on many occasions, Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, for example, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts)).
20. There is no doubt and it is undisputed among the parties that the applicants suffered a breach of their rights, as guaranteed by Article 5 § 1 of the Convention. In this respect the Court sees no reason to depart from the conclusion of the national courts, which acknowledged the violation of this Article. The Court shares this opinion and does not consider it necessary to re-examine the merits of this complaint. The Court also notes that the domestic courts, and the Government, awarded the applicants compensation for non‑pecuniary damage. It thus considers that the principal issue is whether the award made was proportionate to the damage the applicants sustained. It recalls in this latter respect that the level of compensation must not be unreasonable in comparison with the awards made by the Court in similar cases (see Burdov v. Russia (no. 2), no. 33509/04, § 99, ECHR 2009). Where, as in the present case, the victim status and therefore, the existence of a violation, is linked with the monetary redress afforded at domestic level, the Court’s assessment necessarily involves comparison between the actual award and the amount that the Court would award in similar cases (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 181 and 202, ECHR 2006‑V, and Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001‑I).
21. In so far as the third applicant is concerned, the Court notes the Government’s submission that he had not been detained in July-August 2005. However, it appears from the domestic courts’ judgments by which a breach of Article 5 in his respect was acknowledged, that he had been detained both in April 2004 and in July-August 2005. Therefore, the Court cannot accept the Government’s position on this issue.
22. The Court notes next that the Supreme Court and the Government awarded the equivalent of EUR 1460 to the first applicant, EUR 862 to the second applicant and EUR 317 to the third applicant in respect of non‑pecuniary damage. These amounts are considerably below the amounts awarded by the Court in cases in which it has found a violation of Article 5 § 1 of the Convention (see Ganea v. Moldova, no. 2474/06, 17 May 2011, where the applicant was awarded EUR 6,000 in respect of unlawful detention, and Cristina Boicenco v. Moldova, no. 25688/09, 27 September 2011, where the applicant was awarded EUR 6,000 also in respect of unlawful detention).
23. In the light of the foregoing, the Court considers that the applicants can still claim to be victims of a violation of Article 5 § 1 of the Convention. It therefore dismisses the Government’s objection.
24. It also finds that there has been a violation of Article 5 § 1 of the Convention, which arises from the unlawful detention of the applicants for ten, seven and nine days respectively.
III. ALLEGED VIOLATION OF ARTICLES 5 § 5 OF THE CONVENTION
25. The applicants complained that they had no effective remedy against the breach of their rights guaranteed by Article 5 of the Convention. They relied on Article 5 § 5 of the Convention.
26. However, having regard to the facts of the case, the submissions of the parties and its findings under Article 5 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in the present applications and that there is no need to give a separate ruling on the remaining complaint (see, among other authorities, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
28. The applicants considered that they were entitled to compensation in the amount of 30,000 euros (EUR), EUR 40,000 and EUR 15,000 respectively.
29. The Government considered those amounts to be excessive.
30. In the light of all the circumstances, the Court awards each applicant EUR 4,000 in respect of non‑pecuniary damage.
B. Costs and expenses
31. The applicants also claimed EUR 4,850, EUR 2,800 and EUR 4,160 respectively, for the costs and expenses incurred before the Court.
32. The Government considered those amounts to be excessive.
33. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award each applicant EUR 1,500 for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Joins to the merits the Government’s preliminary objection concerning the applicants’ victim status, rejects it and declares admissible the complaint under Article 5 § 1 of the Convention;
3. Holds that there has been a violation of Article 5 § 1 of the Convention;
4. Holds that it is not necessary to examine the admissibility and merits of the complaint under Article 5 § 5 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants, 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 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to Mr Cucu;
(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to Mr Tanasiev;
(iii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to Mr Vladarcic;
(iv) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to Mr Cucu;
(v) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to Mr Tanasiev;
(vi) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to Mr Vladarcic;
(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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy