CASE OF MALAI v. THE REPUBLIC OF MOLDOVA

SECOND SECTION

CASE OF MALAI v. THE REPUBLIC OF MOLDOVA

(Application no. 24179/18)

JUDGMENT
 

STRASBOURG

19 November 2024

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

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

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

 Jovan Ilievski, President,
 Diana Sârcu,
 Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 24179/18) 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 8 May 2018 by a Moldovan national, Ms Nicoleta Malai (“the applicant”), born in 1990 and living in Ghelauza, who was represented by Mr I. Ungurean and Mr V. Berliba, lawyers practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their then Agents, Mr O. Rotari and D. Obadă;

the decision of 19 March 2019 to declare inadmissible the complaint under Article 3 of the Convention concerning material conditions of detention;

the parties’ observations;

Having deliberated in private on 22 October 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s deprivation of liberty for almost six months allegedly in the absence of relevant and sufficient reasons being given by the domestic courts and her video surveillance in police custody.

2.  At the time of the events the applicant was the mayor of a village. In March 2017 the Prosecutor’s Office initiated a criminal investigation into allegations of corruption and abuse of office committed by her during a public tender concerning the construction of an aqueduct in her village. In particular, it was alleged that one of the participants, who eventually did not win the tender, promised her 10% of the amount payable under the awarded contract and that she had selected as winner the company with the highest bid, contrary to legal requirements. The participant in question testified to the effect that the applicant and him had agreed upon the 10% commission. The applicant confirmed that she had received such a commission offer but denied having accepted it.

3.  On 20 November 2017 the applicant was arrested and detained in police custody until 22 November 2017 when she was placed under house arrest. The measure was prolonged on six occasions, including remand in prison for eleven days in March 2018. The applicant was released on 14 May 2018. Each time the courts prolonged her remand in prison or house arrest, they relied on similar grounds, namely on the risk of the applicant’s interfering with the investigation or influencing the witnesses. The applicant appealed against each decision prolonging her deprivation of liberty, arguing that there was no reasonable suspicion that she had committed the alleged offence and that there were no relevant and sufficient reasons for her deprivation of liberty, but without success. She argued that the criminal proceedings were political reprisals because she had refused to join the governing party at the time.

4.  During her detention in police custody from 20 to 22 November 2017 the applicant was allegedly subjected to permanent video surveillance because a CCTV camera was permanently recording images in her cell. Her subsequent requests for an investigation into alleged ill-treatment (conditions of detention, inadequate medical care and permanent video surveillance) were rejected as ill-founded.

5.  According to the available information, the criminal case against the applicant was not remitted for trial and the criminal investigation is pending to date.

6.  The applicant complained under Article 5 § 3 of the Convention that her deprivation of liberty was not based on relevant and sufficient reasons. She also complained under Article 5 § 1 of the Convention that her deprivation of liberty between 20 November 2017 and 14 May 2018 had not been based on a reasonable suspicion that she had committed an offence and that a prolongation of her deprivation of liberty in February 2018 had not been lawful because the prosecutor had missed the legal time-limit to lodge his request. She further complained under Articles 3 and 8 of the Convention that while in custody she had not been provided with adequate medical care and had been under unlawful video surveillance.

THE COURT’S ASSESSMENT

7.  In view of similar complaints about material conditions of detention, the Court decided in 2019 to join the present application with forty-one others and declared the applications partially inadmissible concerning material conditions of detention (see Bulgacov and Others v. the Republic of Moldova (dec.) [Committee], nos. 54187/15 and 41 other applications, 19 March 2019).

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

9.  As for the applicant’s complaint about the lack of relevant and sufficient reasons for her pre-trial detention, the Government submitted that the application was premature because the applicant would have a remedy under Law no. 1545 in the future if she were to be finally acquitted in the criminal proceedings pending against her.

10.  The Court recalls 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 (see Sarban v. Moldova, no. 3456/05, § 59, 4 October 2005). Since this is not the applicant’s case, the Court is not satisfied that the remedy suggested by the Government is effective in respect of the applicant’s complaints. Therefore, the Government’s objection must be dismissed.

11.  The Court further notes that the 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.

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

13.  The Government submitted that the risk of the applicant interfering with the investigation and of absconding had been relevant and sufficient reasons to hold her under house arrest and in detention throughout the entire period concerned.

14.  The Court notes in the first place that the reasons relied upon by the domestic courts to deprive the applicant of her liberty for almost six months were the alleged risk of her influencing witnesses and interfering with the investigation. However, 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 March 2017 and the moment when she was arrested in November 2017 (compare also 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 the first eight months of the investigation.

15.  Secondly, the domestic courts have not responded to the applicant’s submission that there were no unquestioned witnesses left after her arrest in November 2017 that could have been influenced by her.

16.  Finally, having examined the domestic courts’ decisions prolonging 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 ibid., § 122).

17.  In the light of all the above factors, the Court considers that there were no relevant and sufficient reasons to order and prolong the applicant’s deprivation of liberty pending trial. It follows that there has been a violation of Article 5 § 3 of the Convention.

18.  The applicant further argued that the video surveillance during her police custody had been unlawful and had violated Article 8 of the Convention.

19.  The Government submitted that the applicant had failed to exhaust domestic remedies in respect of this complaint. In particular, it had been open to the applicant to lodge a civil action either directly with the courts for compensation of any alleged damage under the general provisions on tort in the Civil Code or with the Centre for data protection under the Law on the protection of personal data. The Government submitted two judgments of the Supreme Court of Justice, from 2021 and 2023 respectively, awarding compensation for a violation of Article 5 of the Convention. The Government did not make any submissions on the merits of the complaint.

20.  The applicant argued that none of the remedies mentioned by the Government were specific and effective for her situation. The examples of judicial practice submitted did not pertain to the same period of time and did not concern unlawful video surveillance. The applicant relied on the report of the Ombudsperson issued after a visit in the same police facility two months before the applicant’s detention, which attested to the presence of 32 surveillance cameras and the permanent recording in all cells, monitored by two police officers, with the storage of the recorded material on a server of the General Police Inspectorate. The applicant argued that the permanent video surveillance was carried out by four male police officers, in the absence of any legal framework and safeguards against abuse, did not pursue a legitimate aim and was not necessary in a democratic society.

21.  The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Prodan v. Moldova, no. 49806/99, § 39, ECHR 2004‑III (extracts)). Having examined the case-law of the domestic courts cited by the Government, the Court notes that at the time of the introduction of the present application none of the two judgments in question had been adopted. Moreover, as they refer to Article 5 of the Convention only, it does not appear that these two cases formed part of a consistent policy of the domestic courts offering remedies with real prospects of success against breaches of Article 8 of the Convention on account of unlawful video surveillance in police custody. Furthermore, the Government did not provide any judicial practice concerning the alleged remedy under the data protection law. The Court therefore considers that the Government have not shown that an effective remedy was available in theory and in practice at the relevant time. Accordingly, the complaint under Article 8 of the Convention cannot be declared inadmissible for non-exhaustion of domestic remedies, and the Government’s objection must be dismissed.

22.  The Court further notes that the 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.

23.  In the context of a detainee’s right to respect for his or her private life, the Court has held that placing a person under permanent video surveillance whilst in detention – which already entails a considerable limitation on a person’s privacy – has to be regarded as a serious interference with the individual’s right to respect for his or her privacy, as an element of the notion of “private life” (see Vasilică Mocanu v. Romania, no. 43545/13, § 36, 6 December 2016; Gorlov and Others v. Russia, nos. 27057/06 and 2 others, § 82, 2 July 2019).

24.  In light of the Ombudsperson’s report on the presence and use of CCTV cameras in the police facility two months before the applicant’s custody there, the applicant’s domestic complaints invoking the video recording and the absence of any dispute at domestic level on the existence of such recording (see paragraphs 4 and 20 above), the applicant has provided evidence of having been subjected to permanent video surveillance during her police custody and the Government have not submitted any information to the contrary. The Court concludes that the impugned measure constituted an interference with the applicant’s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention.

25.  The Government have not submitted any evidence that the impugned measure had some basis in domestic law, which was adequately accessible and foreseeable and afforded adequate legal protection against arbitrariness and accordingly indicated with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see for the relevant principles, among many other authorities, M.M. v. the United Kingdom, no. 24029/07, § 193, 13 November 2012).

26.  With regard to the latter requirement, the Government have also failed to submit any information as to whether the applicant’s placement under permanent video surveillance was based on an individualised and reasoned decision providing grounds which would have justified the measure in question in the light of the legitimate aims pursued; whether the contested measure was limited in time, and whether the administration of the pre‑trial detention centre was under an obligation to review regularly (or at all) the well-foundedness of such a measure.

27.  In fact, there does not appear to exist any basis in national law for the adoption of such individualised decisions. While the Court is prepared to accept, having regard to the ordinary and reasonable requirements of detention, that it may be necessary to monitor certain areas of pre-trial and penal institutions, or certain detainees on a permanent basis, including by a CCTV system, this necessity does not justify vesting in the authorities an unrestricted power to place every individual in pre-trial detention under permanent – that is day and night – video surveillance, unconditionally, in any area of the institution, including cells, for an indefinite period of time, with no periodic reviews and without an effective remedy (see also Gorlov and Others, cited above, §§ 96-98).

28.  The Court therefore finds that the measure complained of was not “in accordance with the law” as required by Article 8 § 2 of the Convention. Accordingly, there is no need to examine whether it pursued any of the legitimate aims and was “necessary in a democratic society”, being proportionate to those aims. In particular, the Court will leave open the question of whether the fact that the permanent video surveillance was allegedly carried out by male police officers was compatible with the requirements of Article 8 § 2 of the Convention, as, in its view, this is an element of the proportionality of the alleged interference (compare also Gorlov and Others, cited above, § 99).

29.  The Court thus concludes that there has been a violation of Article 8 of the Convention.

30.  The applicant further complained under Article 3 of the Convention that she had not been provided with adequate medical care while in police custody. The Court notes that the applicant was provided with emergency assistance while in custody and that she had not substantiated the medical condition for which she needed but had not received adequate medical assistance. In addition, the Court notes the conclusions of the Ombudsman, submitted by the applicant herself, according to which she had been provided adequate medical care. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

31.  The applicant also complained under Article 5 § 1 of the Convention that there was no reasonable suspicion that she had committed a criminal offence and that she had been deprived of her liberty after the court had unlawfully upheld a time-barred request for extension.

32.  The Court notes that the materials of the case refer to various pieces of evidence (see paragraph 2 above) which could satisfy an objective observer that the person concerned may have committed the offence (compare Muşuc v. Moldova, no. 42440/06, § 31, 6 November 2007). As for the applicant’s allegation that the prosecutor’s request for extension was time-barred because it had been lodged five hours after the expiry of the time-limit, the Court notes the findings of the domestic courts that the time‑limit concerned was to be calculated in days and not in hours and that for this reason the request had been submitted within the legal time-limit. The applicant did not argue that the time-limit expired on another day and the interpretation provided by the domestic courts does not appear arbitrary (compare also Ialamov v. the Republic of Moldova [Committee], no. 65324/09, § 23, 12 December 2017).

33.  It follows that this part of the application is equally manifestly ill‑founded and must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  The applicant claimed 1,189 euros (EUR) in respect of pecuniary damage, representing the lost salaries for the period of her deprivation of liberty, EUR 10,500 for non-pecuniary damage and EUR 3,010 in respect of costs and expenses.

35.  The Government did not contest the amount referring to the lost salaries but argued that there was no causal link between that claim and the alleged violations. As to the other claims, they stated that they were excessive and asked the Court to dismiss them.

36.  In view of the violations found above, the Court rejects the applicant’s claim for pecuniary damage, but awards her compensation for non-pecuniary damage in the amount of EUR 5,000, plus any tax that may be chargeable. Having regard to the documents in its possession, the Court also awards the applicant EUR 1,500 for costs and expenses, 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, 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand and five hundred 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;

Done in English, and notified in writing on 19 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President