CASE OF FIODOROV & CO S.R.L. v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

CASE OF FIODOROV & CO S.R.L. v. THE REPUBLIC OF MOLDOVA

(Application no. 78280/14)

JUDGMENT
 

STRASBOURG

27 February 2025

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

In the case of Fiodorov & CO S.R.L. v. the Republic of Moldova,

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

 Stéphanie Mourou-Vikström, President,
 María Elósegui,
 Diana Sârcu, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 78280/14) 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”) on 1 December 2014 by Fiodorov & Co S.R.L. (“the applicant company”), a company incorporated in Moldova in 2003 and represented by Mr V. Grosu and Mr T. Gurițanu, lawyers practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr D. Obadă;

the parties’ observations;

Having deliberated in private on 30 January 2025,

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

SUBJECT MATTER OF THE CASE

1.  The present case concerns the search of the applicant company’s business premises without a valid search warrant. The applicant company complains under Articles 6, 8 and 13 of the Convention about the unlawfulness of the search and the unsatisfactory judicial remedy.

2.  In particular, the applicant company operated as a pawnbroker at the time of the events and had its business office in a commercial centre. On 4 October 2013 the police searched the applicant company’s office and seized an inventory list of gold items. The search was carried out under a warrant issued by the anti-corruption prosecutor and authorised by a decision of the investigating judge issued earlier on the same day. The warrant explicitly authorised the search in the premises of another company, A., located in the same commercial centre. N.L., the applicant’s employee, was present during the search and the report included her statements, as follows:

“In the pawn shop there are no new or recently brought items, no unmarked gold items, no customs, accounting or bank documents. The pawn shop only holds gold items as collateral for the loans made to private individuals.”

3.  On 9 January 2014 the applicant company asked the anti-corruption prosecutor’s office what the legal basis had been for the search and sought the return of the seized list of items. On 20 February 2014 the applicant company confirmed the return of the seized list of items; sought the formal acknowledgement that the search had been unlawful and an investigation into the persons who had carried out the search.

4.  In the absence of any reply from the prosecutor, the applicant company lodged a formal complaint with the investigating judge seeking the formal acknowledgement that the search had been unlawful and an investigation into the persons who had carried out the search.

5.  On 3 June 2014 the Buiucani District court investigating judge rejected the applicant company’s request finding that it was not within its jurisdiction to declare the search unlawful and to order an investigation into a person’s acts. The decision also read as follows:

“...The court finds that the representative of the [applicant company] had not objected to the search and ...that the lawfulness of the search had been challenged only on 20.02.2014, that is four months after the search had taken place...The court finds that the search had been carried out in the pawnbroker’s office because the office was located de facto in the area leased by A. The police office and the prosecutor who carried out the search explained that it had been practically impossible to distinguish that the pawnbroker’s office was not part of A. when the search had started and that this aspect had been elucidated only during the search. ... [The applicant company’s employee] had not objected to the search either. ...However the court finds that once it had become clear that the office belonged to another entity, the search should have stopped and no items should have been seized. ...The documents were subsequently returned to the owner. Therefore, all violations committed in the course of the search had been remedied once the documents had been returned.”

This decision was final.

THE COURT’S ASSESSMENT

6.  The Government submitted that the applicant company had failed to exhaust domestic remedies because it had not lodged a complaint with the prosecutor within fifteen days from the day of the search. The applicant disagreed noting that it had availed itself of the remedy under Article 313 of the Code of Criminal Procedure which provides for an appeal before the investigating judge.

7.  The Court notes that the investigating judge had not dismissed the applicant company’s complaint as time-barred and the Government have not substantiated in what way the procedure before the prosecutor could have provided the applicant company with full redress for the alleged violation. Therefore, the Court rejects the Government’s objection of non-exhaustion. The Court notes that this complaint 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.

8.  The applicant company argued that the search of its premises had been carried out in the absence of a search warrant and its lawfulness had not been a posteriori confirmed by an investigating judge. It noted that the Government did not dispute this aspect. It further contended that its representative had been in no position to oppose the search while it had been ongoing but had informed the police that they were in the pawnbroker’s and not A.’s premises. The applicant company disputed the allegation that the two companies and their premises could not be distinguished, referring to the existence of two separate entrances and the explicit identification of its premises as that of a pawnbroker. In any event, it was the duty of the law enforcement officers to determine the correct location for which the search had been authorised and to not exceed the scope of the warrant. The applicant concluded that the case was legally identical to that of Bostan v. the Republic of Moldova (no. 52507/09, 8 December 2020), where the Court had found a violation of Article 8 of the Convention.

9.  The Government submitted that the interference had a basis in domestic criminal procedure law, pursued the aim of combating criminal activities and was proportionate to the pressing need to search various locations in order to identify smuggled items. They conceded that the applicant company was not covered by the search warrant but argued that the applicant company’s offices could not be distinguished from that of company A. covered by the search warrant. The Government emphasised that the applicant company’s representative had failed to object to the search while it was ongoing and that, in any event, the only item seized had been returned at the first request made by the applicant company only four months after the search had taken place. For this reason, they argued that the search had not attained a level of seriousness capable of amounting to a breach of Article 8 of the Convention.

10.  The general principles concerning the lawfulness of searches carried out in the absence of a search warrant have been summarized in Bostan v. the Republic of Moldova (no. 52507/09, §§ 31-30, 8 December 2020).

11.  The Court notes that the search of the applicant company’s premises was carried out in the absence of a search warrant and the authorities did not seek the authorisation of the search a posteriori before the investigating judge. Further, the Court notes that the Government had not cited any legal provision or domestic practice which would substantiate their argument that the absence of objections by the applicant’s representative during the search or that the material error in the location subject to the search had not required the a posteriori judicial review by an investigating judge as required by Article 125 of the Code of Criminal Procedure (see the similar legal provision discussed in Bostan, cited above, §§ 14 and 26).

12.  The Court observes that the investigating judge seized by the applicant company conceded that the search should have stopped and no seizure should have been carried once it had become clear that the location of the search had not been within the scope of the search warrant. However, while the investigating judge explained how the error could have occurred, he had not found the search lawful and had explicitly declined its jurisdiction to declare the search unlawful. In these circumstances, the Court cannot conclude that these proceedings amounted to a proper control of lawfulness of the search (see Bostan, cited above, § 28).

13.  In such circumstances, the Court does not find any reason to distinguish the present case from that of Bostan. The Court concludes that in the absence of a search warrant and of a judicial review a posteriori, the impugned measure amounted to an interference with the applicant company’s “home” which was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

14.  Therefore, there has been a violation of Article 8 of the Convention.

15.  The applicant company also complained under Articles 6 and 13 of the Convention. Having regard to the facts of the case, the submissions of the parties, and its above-mentioned findings, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  The applicant company claimed 4,000 euros (EUR) compensation in respect of non‑pecuniary damage, relying on the temporary hindrance of its commercial activity due to the seized documents, and EUR 2,520 in respect of costs and expenses incurred before the Court. The applicant submitted the contract with its legal representative, the detailed sheet of legal services and the proof of partial payment of fees.

17.  The Government submitted that the claims were excessive and in any event unsubstantiated.

18.  The Court awards the applicant EUR 3,000 compensation in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant company.

19.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 for costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant company, 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant company, 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;

Done in English, and notified in writing on 27 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President