SECOND SECTION
CASE OF STRAISTEANU AND AGACHI v. THE REPUBLIC OF MOLDOVA
(Application no. 9204/08)
JUDGMENT
STRASBOURG
1 February 2022
This judgment is final but it may be subject to editorial revision.
In the case of Straisteanu and Agachi v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 9204/08) 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 two Moldovan nationals, Mr Gheorghe Ion Străisteanu and Mr Viorel Agachi (“the applicants”), on 14 February 2008;
the decision to give notice to the Moldovan Government (“the Government”) of the complaints under Articles 3 and 8 of the Convention;
the parties’ observations;
Having deliberated in private on 11 January 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns alleged ill-treatment inflicted upon the second applicant while in detention and the carrying out of secret surveillance measures against the applicants.
THE FACTS
2. The applicants were born in 1954 and 1974 respectively and live in Chișinău.
3. The Government were represented by their Agent at the time, Mr L. Apostol.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants’ arrest and conviction5. The first applicant is a well-known businessman and was a Member of the Moldovan Parliament between 1998 and 2001. He was, inter alia, the founder of the first Moldovan private television company and owned a chain of petrol stations. After the Communist party won the general election in 2001, he retired from politics and had to wind up most of his businesses, including the television company and the petrol business. Together with his family, he bought and rented forest land outside Chişinău and developed it with a view to using it for tourism and fishing. According to the first applicant, in 2005 Government officials started to exercise pressure on him and his family to induce them to give up their property. The facts relating to the expropriation of the first applicant’s property are described in more detail in the case of Straisteanu and Others v. Moldova (no. 4834/06, 7 April 2009).
6. The second applicant was the first applicant’s driver and bodyguard before the events which gave rise to the present application. He had been convicted for theft in 1997 but did not spend time in prison.
7. On 20 July 2005 both applicants were arrested in Chişinău. According to them, police officers placed in their car a packet of cannabis and three bullets from a machine gun. Later, at the police station, the applicants were informed that they were accused of having carried out a series of thefts from cars over the past year in Chişinău. In particular, they were accused of puncturing the tyre of a parked car and of having stolen handbags from the car later, while the car’s owner was busy changing the tyre. The second applicant was also accused of illegal possession of drugs and ammunition.
8. Between 20 and 29 July 2005 the second applicant made seven self‑incriminating confessions concerning thefts from seven cars. All the written confessions were similar in wording and written by the same hand. They were obtained during questioning in the absence of a lawyer and each time the first applicant was mentioned as an accomplice.
9. The domestic criminal case file contains a video of the questioning of the second applicant on 20 July 2005. It is apparent from that video that he has a bruise on his shoulder and that he complains of a headache to the police officer. The officer reads the applicant his rights and the applicant reads aloud from a paper a statement of confession. His reading is slow, he stumbles over the words, halts and falters as if he cannot see well or does not understand the handwriting. He then tells the police officer about five thefts committed by him and the first applicant, apologises to camera and signs a written statement of confession.
10. On 22 July 2005 the second applicant was taken to a court for a warrant of detention to be issued. During the proceedings he stated before the investigating judge, the prosecutor in charge of the case and his ex officio lawyer that he had been beaten up in order to obtain a confession and that in reality he had committed the thefts alone, without the participation of the first applicant. It appears that, prior to the communication of the recent application to the Government, no investigation into his allegations of ill-treatment followed. It also appears that the second applicant’s ex officio lawyer did not follow up the complaint.
11. On 25 July 2005 the General Police Station placed on its Internet page information stating, inter alia, that: “On 20 July a criminal gang engaged in thefts from cars was arrested in flagrante delicto. Those detained, Gheorghe Străisteanu (51) and Viorel Agachi (31), had been under secret surveillance for many months”. The applicants’ pictures appeared beside the text.
12. Between 25 July and 19 August 2005, the second applicant signed the minutes of seven interviews in respect of seven episodes of theft in the presence of an ex officio lawyer. Contrary to his statements in his confessions, he stated that the first applicant had not participated in five thefts and declared that he had lied in his initial confessions in the hope of avoiding prosecution. In the minutes concerning two episodes of theft the first applicant was mentioned as an accomplice.
13. On 19 August 2005 the first applicant stated, during remand proceedings before an investigating judge, that the second applicant was being ill-treated and forced to denounce him as his accomplice. It does not appear that the investigating judge reacted in any way to this complaint. It was subsequently confirmed by the Chișinău Prosecutor’s Office that during the period from 20 July to 29 August 2005, when the applicants had been detained at the General Police Inspectorate, each of them had been taken out of his cell, 31 and 27 times, respectively.
14. On 23 August 2005 the first applicant wrote to the Prosecutor General stating that the second applicant was being tortured at the General Police Station and requested that a medical examination be conducted immediately. On 28 August 2005 the Prosecutor General’s Office replied that it was not competent to examine the first applicant’s complaint and suggested that all complaints should be addressed to the investigating judge.
15. On 4 October 2005 the second applicant wrote to the Ombudsman, stating that he had been subjected to torture during his detention at the General Police Station. According to him, after his arrest he had been questioned and tortured by several police officers. The ill-treatment had started immediately after his arrest. He had been kicked, his head had been smashed against a wall and started bleeding, he had been strangled with a wet towel and hit in the stomach with a baseball bat. He had also been suspended from a metal bar with his hands and feet tied together behind his back, a gas mask placed on his head and the air valve closed from time to time. An electric wire had been attached to one of his toes and another placed under the gas mask and electric shocks had been administered. While hanging from the metal bar he had been beaten on the soles of his feet until he lost consciousness. Due to the severity of the pain he had had to admit to two thefts which he had committed as well as five others he had not. The police officers had forced him to denounce the first applicant, who had not participated in any of the thefts. They had also planted a packet of marijuana and three machine-gun bullets in his car and accused him of their illegal possession. He was offered an ex officio lawyer only later, when he was officially indicted. It does not appear that any official investigation followed as a result of this complaint. The ombudsman subsequently submitted documents relating to this complaint to the trial court.
16. In the meantime, the criminal case against the applicants was sent to the Buiucani District Court for examination. The main evidence against the applicants was the confessions made by the second applicant, together with the reports of the reconstitution of the alleged offences, video recordings of the applicants’ secret surveillance between 28 March 2005 and 29 June 2005 and the pictures of the applicants taken during the same period of time. The video recordings showed the applicants’ car on the streets of Chişinău at different times, the applicants walking along the street, talking on their mobile telephones, shopping and driving their car. They did not show the applicants in the process of committing an offence, except for a sequence, dated 29 June 2005, showing a young male of approximately the same build as the second applicant approaching a white Mercedes and apparently stealing a handbag from it while another person, apparently the car’s owner, replaces a rear tyre. However, since the image was filmed from a distance, it is not possible to determine whether the young male in the video is the second applicant or not. The pictures used as evidence showed the applicants on the streets of Chişinău, accompanied by comments written by police officers in which an alleged account of the taped events is given. For instance, images showing the applicants’ car are described as the “suspects following a victim’s car”. These comments also included the dates on which the pictures had been taken and other surveillance measures had been carried out in respect of the applicants (namely 18 and 31 March, 18, 19 and 21 April, 17, 19 and 24 May, 1, 2, 3, 7, 8, 10, 16, 29 and 30 June 2005), while several pictures had the date stamped directly by the camera (the dates so applied were 2, 3, 29 and 30 June 2005). On 7 June 2005 the investigating judge of the Rîșcani District Court authorised the applicants’ surveillance by special means. That decision was final and could not subject to appeal; according to the applicants they found out about it much later during the criminal proceedings against them. The parties did not inform the Court of any other domestic court decision authorising the use of such special means of investigation.
17. During the proceedings the applicants argued that the criminal case against them had been fabricated for the purpose of expropriating the first applicant’s property. They reiterated on several occasions their complaint that the second applicant had been tortured for the purpose of extracting a confession. Moreover, the applicants submitted that the second applicant had not been assisted by a lawyer at the time of making his confessions and that some videos and pictures of their car on the streets of Chişinău had been made by police officers after their arrest, when the police had unlimited access to the car, which was in their custody.
18. On 20 December 2006 the judge in charge of the criminal case ordered a medical examination of the second applicant for the purpose of determining whether he had been subjected to ill-treatment in July and August 2005.
19. A forensic doctor examined the second applicant on 16 January 2007 and did not find any injuries on his body, except for a scar of undetermined date on his head.
20. On 22 January 2007 the Chişinău Prosecutor’s Office dismissed the second applicant’s complaint about ill-treatment on the basis of the medical report of 16 January 2007 and of the statements of the accused police officers who had denied all the accusations of ill-treatment.
21. On 1 February 2007 the Buiucani District Court found the applicants guilty of seven counts of theft and sentenced them to imprisonment of eleven and twelve years, respectively. The charge against the second applicant concerning possession of marijuana was dismissed in view of the small quantity found. However, the second applicant was found guilty of possession of ammunition, for which he received an additional year of imprisonment. The court dismissed the applicants’ assertion that the second applicant’s confession had been taken under duress and found that both applicants’ guilt, regarding all seven counts of theft, was proven by the statements made by the second applicant during the questioning which took place between 25 July and 19 August 2005 in the presence of a lawyer.
22. The court also admitted as evidence the self-incriminating confession statements made by the second applicant in the absence of a lawyer and found that, in view of the Prosecutor’s Office’s dismissal of the second applicant’s complaint about ill-treatment, there were no reasons to doubt the validity of the confessions.
23. The court further relied on the video recordings and the pictures of the applicants and their car made by police officers after 7 June 2005 at a time when surveillance measures had been duly authorised by a judge. The images taken before that date were not admitted as evidence.
24. The applicants appealed and submitted, inter alia, that the confessions had been taken from the second applicant under duress without the presence of a lawyer of his own choice and that the rest of the evidence did not prove in any way their implication in the offences imputed to them.
25. On 17 May 2007 the Chişinău Court of Appeal dismissed the applicants’ appeal. The applicants lodged an appeal on points of law with the Supreme Court of Justice, which was dismissed on 3 October 2007.
The re-opening of the criminal proceedings against the applicants and their acquittal26. Following communication of the present case to the respondent Government and requests by the applicants, on 21 December 2009 the Supreme Court of Justice quashed the final judgments of 17 February and 3 October 2007 and sent the case for retrial by the Chișinău Court of Appeal. It also decided to inform the Prosecutor General’s Office of the breach of the applicants’ procedural rights by relying on unlawfully obtained evidence, in breach of their rights under Articles 3 and 6 §§ 1 and 3 of the Convention.
27. On 10 March 2010 a criminal investigation was started into the second applicant’s allegations of ill-treatment. On 29 July 2010 it was discontinued for lack of evidence. That decision was upheld by the final decision of the investigating judge of the Rîșcani District Court of 23 December 2010. The court found, inter alia, that the offence of torture had been included in the Criminal Code on 22 July 2005, while the second applicant’s alleged ill‑treatment had taken place on 20 July 2005, which ruled out prosecution in respect of that offence.
28. In the re-opened proceedings, on 8 July 2010 the Chișinău Court of Appeal found that none of the evidence in the file proved that the second applicant had committed a crime. Moreover, it found that the statements made by the second applicant incriminating himself and the first applicant had to be excluded from the file owing to the existence of a reasonable suspicion that those statements had been obtained through physical and psychological violence. These doubts were based on two letters from the prosecution, according to which a criminal investigation into the second applicant’s torture had been opened on an unmentioned date in 2010 and on 5 May 2010 two officers had been formally declared suspects in that case. Reference was also made to the materials from the Ombudsman (see paragraph 15 above). The court thus acquitted the first applicant. As for the second applicant, the court discontinued the proceedings in respect of the offence of unlawful possession of ammunition, owing to the expiry of the limitation period for prosecuting that offence. At the same time, it maintained his conviction for the seven counts of theft from cars, which it found proven by evidence other than his self-incriminating statements.
29. On 4 July 2011 the Supreme Court of Justice partly quashed the judgment of 8 July 2010. It found that the lower court had convicted the second applicant on the basis of the same evidence which had been excluded as inadmissible in the case against the first applicant. All other evidence was tainted by the unlawfulness of obtaining the main evidence and had to be excluded on the basis of the “fruit of the poisonous tree” doctrine. In the absence of any other independent evidence proving the second applicant’s guilt, he was acquitted. The remainder of the lower court’s judgment, concerning the first applicant’s acquittal, was upheld.
30. On 3 November 2011 the Chișinău Prosecutor’s Office refused to open a criminal investigation into the second applicant’s allegations of ill‑treatment during July-August 2005.
Civil court actions lodged by the applicantsThe court action lodged by the first applicant31. On 1 September 2011 the first applicant lodged a court action against the Ministry of Finance and the Prosecutor General’s Office, claiming compensation for the damage caused to him during his unlawful detention. He also requested publication of a retraction of the previously-made statements about him (see paragraph 11 above), as well as damages for the defamatory statements made by the Prosecutor General’s Office, repeated in various media, which were also named as defendants in the first applicant’s court action. He relied on Article 16 of the Civil Code (see paragraph 43 above). No complaint or claim for compensation was made in respect of the use of special surveillance methods.
32. On 5 September 2011 the part concerning defamation in the statements of the Prosecutor General’s Office and the media was separated for examination in separate proceedings. In these latter proceedings, on 21 January 2013 the Rîșcani District Court rejected the action as having been lodged out of time. That decision was upheld by the Chișinău Court of Appeal on 24 April 2013 and the Supreme Court of Justice on 12 September 2013.
33. In the main court action, on 19 March 2012 the Rîșcani District Court partly accepted the first applicant’s claim and awarded him 385,361 Moldovan lei (MDL, the equivalent of approximately 19,300 euros (EUR) at the time) for pecuniary damage caused and MDL 500,000 (EUR 25,000) for non-pecuniary damage.
34. On 19 June 2012 the Chișinău Court of Appeal partly quashed that judgment and reduced the award for non-pecuniary damage to MDL 250,000 (EUR 12,500).
35. On 6 February 2013 the Supreme Court of Justice partly quashed the lower court’s judgment and reduced the award for pecuniary damage to MDL 70,313 (EUR 3,500) and that for non-pecuniary damage to MDL 80,000 (EUR 4,000).
The court action lodged by the second applicant36. On 4 October 2011 the second applicant lodged a civil court action under Law no. 1545, claiming compensation for the pecuniary and non‑pecuniary damage caused to him. On 6 April 2012 the Rîșcani District Court partly accepted his claim and awarded him MDL 211,267 (EUR 11,000) for pecuniary damage and MDL 72,000 (EUR 3,100) for non‑pecuniary damage. That judgment was upheld by the Chișinău Court of Appeal on 13 November 2012. On 11 September 2013 the Supreme Court of Justice ordered a re-trial by the Chișinău Court of Appeal. After the Court of Appeal again upheld the first-instance court’s judgment, the Supreme Court of Justice sent back the case for re-examination twice more, on 25 June 2014 and 26 August 2015. One of the reasons for such repeated sending for re‑examination by the lower court was the latter’s failure to deal properly with the argument raised by the defendants, that the second applicant had not been acquitted of all the charges, the proceedings concerning one of the charges against him having been discontinued for the expiry of the limitation period rather than for finding the absence of his guilt.
37. The parties did not inform the Court of any further decision taken in that case. It appears from the docket of the Supreme Court of Justice that a number of appeals in cassation made by the second applicant are pending before that court, including an appeal in a court action against the Ministry of Finances and the Prosecutor General’s Office claiming compensation for damage caused to the second applicant.
38. On an unknown date the second applicant lodged a court action claiming compensation for the excessive length of the proceedings in his civil case mentioned above. Those proceedings ended with the final judgment of the Supreme Court of Justice of 1 February 2017, awarding him MDL 8,000 (EUR 372). It is apparent from the docket of the Supreme Court of Justice that a similar court action concerning the excessive delays in the proceedings has been pending before that court since 21 November 2016.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
39. The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by illegal acts by the criminal investigation authorities, prosecution and courts have been set out in this Court’s judgment in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. In particular, under Article 1(d) of that law a person could claim compensation if he or she had been subjected to operative investigation measures in breach of domestic law.
40. In the case of Belicevecen v. the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no. 1545 (1998) only if he or she had been fully acquitted of all the charges against him or her (see also Veretco v. the Republic of Moldova, no. 679/13, § 28, 7 April 2015).
41. Articles 524 and 525 of the Code of Criminal Procedure provide for a general right of compensation for unlawful acts of the investigating authorities and courts in the criminal proceedings. With respect to the specific manner of claiming such compensation, these provisions refer to Law no. 1545, mentioned above.
42. Under Article 303 of the Code of Criminal procedure, operative investigative actions which may limit, inter alia, the inviolability of a person’s private life or amount to interception of communications, shall be carried out when authorised by an investigating judge.
43. Article 16 of the Civil Code provides for the protection of honour, dignity and professional reputation, as well as for the right to claim compensation and the publication of a denial of defamatory statements.
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION44. The second applicant complained that he had been ill-treated while in detention and that his complaints in this regard had not been subject to an efficient investigation, contrary to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility45. The Government argued that following the acknowledgement by the courts of a breach of the second applicant’s rights under Article 3 of the Convention and his acquittal on that basis, he could no longer claim to be a victim of a violation of his rights under Article 3 of the Convention. Moreover, he could have sought compensation from the domestic courts. He thus had not exhausted available domestic remedies.
46. The Court considers that this preliminary objection is closely linked with the merits of the complaints under Article 3 of the Convention. It therefore joins it to the merits.
47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
48. The Court notes that in a letter dated 29 April 2015 the first applicant complained about his inhuman conditions of detention and threats to his life during his detention during 2005-2009.
Merits49. The second applicant declared that he had been severely ill-treated while in detention and gave a detailed description of this ill-treatment (see paragraph 15 above).
50. The Government essentially relied on their objection concerning the failure to exhaust domestic remedies and the loss of victim status in respect of the complaint under Article 3.
51. The Court refers to its case-law concerning the authorities’ obligation to carry out an effective investigation into serious allegations of ill-treatment (see, among many other authorities, X and Others v. Bulgaria [GC], no. 22457/16, §§ 184-191, 2 February 2021).
52. In addition to a thorough and effective investigation it is necessary for the State, in order to remedy a breach of Article 3 at national level, to have made an award of compensation to the applicant, where appropriate, or at least have given him or her the possibility of seeking and obtaining compensation for the damage he or she sustained as a result of the ill‑treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 118, ECHR 2010).
53. In cases of wilful ill-treatment, the breach of Article 3 cannot be remedied only by an award of compensation to the victim. This is so because, if the authorities could confine their reaction to incidents of wilful ill‑treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see, for instance, Gäfgen, cited above, §§ 116 and 119, Jeronovičs v. Latvia [GC], no. 44898/10, § 103, 5 July 2016, and Cantaragiu v. the Republic of Moldova, no. 13013/11, § 48, 24 March 2020).
The second applicant’s ill-treatment in police custody54. In the present case, the Court notes that the domestic courts have established the existence of “a reasonable suspicion” that the second applicant had been ill-treated while in detention. Given the evidence in the file, including the video recording of his questioning (see paragraph 9 above) showing a bruise on his shoulder and his erratic behaviour in that video, the scar of an injury on his head subsequently found by a forensic doctor (see paragraph 19 above) and the complaints made during the investigation (see paragraph 10 and 17 above), including the materials gathered by the Ombudsman (see paragraph 15 above), the Court has no reason to disagree with that conclusion. Moreover, by relying on the findings of the Supreme Court of Justice regarding the second applicant’s ill-treatment the Government essentially acknowledged that the second applicant had been ill‑treated (see paragraph 45 above).
55. The only remaining question in respect of the substantive limb of Article 3 is whether the second applicant could still claim to be a victim of a violation of that provision after the above-mentioned acknowledgement by the domestic courts.
56. In this respect, the Court notes that the Supreme Court of Justice acknowledged that the second applicant had been ill-treated. Moreover, on that basis it excluded the main evidence from the file, which led to his acquittal.
57. However, the Court considers that these findings cannot, alone, be sufficient to deprive the second applicant of his victim status in respect of this complaint unless, in addition to such acknowledgment, he is awarded sufficient just satisfaction. In this connection it is noted that since October 2011 the second applicant has been claiming compensation in a civil court action and that the case is still apparently pending before the courts (see paragraph 37 above). Moreover, the second applicant lodged two additional court actions aimed at accelerating the proceedings by claiming compensation for excessive length of the proceedings. Despite these new court actions, the 2011 proceedings concerning compensation for his ill‑treatment are still pending. It is therefore apparent that in the second applicant’s case the remedy under Law no. 1545 was not effective.
58. In the light of the above, the Court concludes that the applicant can still claim to be a victim of a breach of the substantive limb of Article 3. In the light of this conclusion, the Government’s objection concerning his failure to exhaust available domestic remedies must be rejected.
Obligation to conduct an effective investigation59. The second applicant complained of the insufficiency of the investigation into his allegations of ill-treatment.
60. The Court refers to its own case-law concerning the State’s obligation to carry out an effective investigation into wilful acts of ill-treatment at the hands of State agents (see paragraphs 51-53 above). In the present case, only after communication of the present case and the re-opening of the criminal proceedings against the applicants did the prosecution start a criminal investigation into the second applicant’s complaint about ill-treatment (see paragraph 27 above). Moreover, that investigation was discontinued for lack of evidence. However, the Court considers that the passage of time made it increasingly difficult to obtain evidence of ill-treatment, almost five years after the fact. One relevant example in the present case was the prosecution’s order of the second applicant’s forensic examination, approximately a year and a half after the alleged ill-treatment (see paragraph 19 above). It is of little surprise that almost no evidence of ill-treatment could be found after the passage of so much time.
61. The Court also notes that during his remand hearings of 22 July 2005 and 19 August 2005, in the presence of the investigation judge, the prosecutor in charge of the case against him and his ex officio lawyer, the second applicant declared that he had been ill-treated in order to make him confess (see paragraphs 10 and 17 above). Despite those complaints, it would appear that no investigation was initiated at the time into those allegations, a prosecutor having dismissed the complaint only on 22 January 2007 (see paragraph 20 above).
62. On an unknown date a prosecutor did examine the allegations and made a pre-investigation inquiry, questioning the police officers accused of ill-treatment and ordering a forensic report (see paragraph 28 above). In this respect, the Court reiterates that in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it is incumbent on the authorities to open a criminal case and conduct an investigation, a pre‑investigation inquiry alone not being capable of meeting the requirements of effective investigation under Article 3. The mere fact of the investigative authority’s refusal to open a criminal investigation into credible allegations of serious ill‑treatment in police custody is indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 128-40, 24 July 2014 and Razzakov v. Russia, no. 57519/09, § 60, 5 February 2015). A proper criminal investigation into the second applicant’s allegations of ill‑treatment did not start until sometime in 2010 (see paragraph 28 above), some five years after the fact. This must have affected the ability to gather evidence and thus undermined the effectiveness of the investigation.
63. The significant delay in initiating a criminal investigation into the second applicant’s allegations of ill-treatment, together with the absence of any information from the Government about any results of the investigation eventually started in 2010, is sufficient for the Court to conclude that there was no effective investigation into the second applicant’s ill-treatment in the present case.
64. There has thus been a breach of Article 3 of the Convention in its procedural limb also.
ALLEGED VIOLATION OF ARTICLE 6 §§ 1, 2 and 3 OF THE CONVENTION65. The applicants complained of breaches of various aspects of Article 6 §§ 1,2 and 3 of the Convention.
66. The Court points out that, following annulment of a conviction or termination of the proceedings against an applicant, he or she can no longer be considered a victim, within the meaning of Article 34 of the Convention, of a breach of his or her right to a fair trial in connection with these proceedings (see Sharomov v. Russia, no. 8927/02, § 36, 15 January 2009, G. v. France, no. 27244/09, § 46, 23 February 2012, and Hacer Arican v. Turkey (dec.) no. 24461/09, § 20, 2 July 2019).
67. In the present case, since the applicants were eventually acquitted following the annulment of their conviction by the Supreme Court of Justice, they can no longer claim to be victims of a breach of their rights under any of the provisions of Article 6. It follows that the complaints under Article 6 §§ 1, 2 and 3 of the Convention must be rejected as being manifestly ill‑founded pursuant to Article 35 §§ 3 and 4 of the Convention.
ALLEGED VIOLATION OF ARTICLE 8 THE CONVENTION68. The applicants complained of a breach of Article 8 as a result of their unlawful surveillance by special means. Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility69. The Government argued that the applicants had failed to exhaust available domestic remedies in respect of the complaint under Article 8 of the Convention. In particular, following their acquittal, they could have claimed compensation under Law no. 1545 and Articles 524 and 525 of the Code of Criminal Procedure.
70. As concerns the first applicant, the Court notes that he was fully acquitted and could thus claim compensation under Law no. 1545 (see paragraph 39 above). It points out that in a similar case it has already found that, under this law, it was open to the applicants to claim compensation for the alleged unlawful searches of their homes (Bisir and Tulus v. Moldova, no. 42973/05, § 37, 17 May 2011). It notes that the law expressly provides for the right to claim compensation for unlawfully carrying out special investigation measures.
71. The Court sees no reason to depart from its findings in the above‑mentioned case. It notes that the first applicant does not complain of any unknown measures possibly taken against him. The Court thus does not have to analyse the quality of the law and practice concerning supervision of the lawfulness of taking such measures and whether the first applicant had a real chance of finding about them (see Iordachi and Others v. Moldova, no. 25198/02, §§ 29-54, 10 February 2009). Instead, he complains of specific acts of photo and video surveillance and recording to which he was subjected during the first half of 2005, the results of which were disclosed during the criminal proceedings against him. After his full acquittal, and based on Article 1(d) of Law no. 1545 (see paragraph 39 above) which expressly provided for compensation for unlawful operative measures taken, the first applicant could have claimed compensation. However, in his court action lodged on 1 September 2011 the first applicant did not complain, at least in substance, of any breach of his rights under Article 8 of the Convention and did not claim compensation in that respect (see paragraph 31 above).
72. The Court finds that the first applicant’s failure to complain under Law no. 1545, despite having had the right to do so, means that he did not exhaust available domestic remedies. It follows that his complaint under Article 8 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
73. As concerns the second applicant, the Court notes that the highest Moldovan court repeatedly found relevant the argument that he had not been acquitted of all the charges. Moreover, under Moldovan case-law, Law no. 1545 did not apply if a person had not been fully acquitted or all the charges against him or her had been dropped (see paragraph 39 above). Accordingly, in view of the position of the Supreme Court of Justice that discontinuing criminal proceedings for expiry of the limitation period did not mean full acquittal (see paragraph 36 above), it cannot be said that the second applicant had clear chances of success in requesting application of Law no. 1545 in his case. It is also noted that Articles 524 and 525 of the Code of Criminal Procedure essentially refer back to Law no. 1545.
74. Accordingly, the Government’s objection must be rejected.
75. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
Merits76. The second applicant argued that he had been secretly and unlawfully recorded. He claimed that various pieces of information which came to his knowledge suggested that such secret surveillance had taken place between January and July 2005.
77. Having relied on their preliminary objection of non-exhaustion, the Government did not advance any arguments as to the merits of this complaint.
78. The Court reiterates that there are a number of elements relevant to a consideration of whether a person’s private life is concerned by measures effected outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor in this assessment (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001-IX; Bărbulescu v. Romania [GC], no. 61496/08, § 73, 5 September 2017; and Antović and Mirković v. Montenegro, no. 70838/13, § 43, 28 November 2017 ). As to the monitoring of an individual’s actions using photographic or video devices, the Convention institutions have taken the view that the monitoring of the actions and movements of an individual in a public place using a camera which did not record visual data does not constitute in itself a form of interference with private life (see Herbecq and the Association “Ligue des Droits de l’Homme” v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, Decisions and Reports 92-B, p. 92, and Perry, cited above, § 41). Private-life considerations may arise, however, once any systematic or permanent record of such personal data comes into existence, particularly pictures of an identified person (see Peck v. the United Kingdom, no. 44647/98, §§ 58-59, ECHR 2003‑I; Perry, cited above, §§ 38 and 41; and Vukota-Bojić v. Switzerland, no. 61838/10, §§ 55 and 59, 18 October 2016). As the Court has stated in this connection, a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009, De La Flor Cabrera v. Spain, no. 10764/09, § 31, 27 May 2014, and López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, § 89, 17 October 2019).
79. In the present case, while the applicants were photographed and filmed in public places, it is clear that they were specifically targeted, and pictures plus video recordings were preserved. The Court therefore concludes that there had been an interference with the second applicant’s private life as a result of such targeted recording.
80. The Court further reiterates that the expression “in accordance with the law” as used in the second paragraph of Article 8 requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 228-230, ECHR 2015, with further references, and Tortladze v. Georgia, no. 42371/08, § 50, 18 March 2021).
81. The Court observes that under Moldovan law operative investigative surveillance measures affecting the private life of individuals could only be carried out when authorised by an investigating judge (see paragraph 42 above). Indeed, in the present case an investigating judge authorised such measures on 7 June 2005. However, surveillance measures had also been taken before that date (see paragraphs 11 and 16 above). In the absence of any information from the parties concerning the existence of any other authorisation by an investigating judge to carry out surveillance measures prior to the decision of 7 June 2005, it is apparent that the surveillance having taken place before that date had been contrary to Article 303 of the Code of Criminal Procedure (see paragraph 42 above).
82. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the second applicant’s rights under Article 8 of the Convention was not “provided by law”. In such circumstances, the Court does not need to examine the proportionality of the interference.
83. There has accordingly been a violation of Article 8 of the Convention in respect of the second applicant.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
84. 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.”
85. The Court notes that since it did not find any breach of the first applicant’s rights in the present case, it will not examine his claims for just satisfaction.
Non-pecuniary damage86. The second applicant claimed EUR 200,000 in respect of non‑pecuniary damage caused to him, referring to the almost six years which he had spent in unlawful detention and other breaches of his rights.
87. The Government argued that the sum claimed was excessive and unsubstantiated.
88. In view of its finding of violations of Articles 3 and 8 of the Convention in respect of the second applicant, it awards him EUR 24,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
Costs and expenses90. The second applicant made no claims in this respect.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaints of the second applicant under Articles 3 and 8 of the Convention admissible, and the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention in respect of the second applicant;Holds that there has been a violation of Article 8 of the Convention in respect of the second applicant;Holds(a) that the respondent State is to pay the second applicant, within three months, EUR 24,000 (twenty-four thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicants’ claim for just satisfaction.Done in English, and notified in writing on 1 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Deputy Registrar President