SECOND SECTION
DECISION
Application no. 40799/09
Anatol CÎŞLARU and Others
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 23 January 2018 as a Committee composed of:
Paul Lemmens, President,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 27 July 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
A list of the applicants is set out in the appendix. They were represented before the Court by V. Gribincea, a lawyer practicing in Chișinău.
The Moldovan Government (“the Government”) were represented by their Agent, Ms R. Revencu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were shareholders in a company. Following a transaction involving shares they were accused of fraud and the measure of detention pending trial was applied to them. They spent between one and two months in custody.
On 4 April 2017 the Supreme Court of Justice acquitted all applicants.
B. Relevant domestic law
The relevant provisions of Law No. 1545 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts”, in force since 4 June 1998, read as follows:
“Article 1
(1) In accordance with the present law, individuals and legal entities are entitled to compensation for non-pecuniary and pecuniary damage caused as a result of:
a) illegal detention, illegal arrest, illegal indictment, illegal conviction;
b) illegal search carried out during the investigation phase or during the trial of the case, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the persons’ rights;
c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine;
d) the carrying out of operative investigative measures in breach of lawful procedure;
e) illegal seizure of accounting documents, other documents, money, or stamps as well as the blocking of bank accounts.
(2) The damage caused shall be fully compensated, irrespective of the degree of culpability of the agents of the criminal investigation organs, prosecution and courts.”
“Article 4
A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met:
a) the pronouncement of an acquittal judgment;
b) the dropping of charges or discontinuation of an investigation on the ground of rehabilitation;
c) the adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation;
d) the adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova;
...”
COMPLAINTS
The applicants complained under Articles 5 and 18 of the Convention and Article 1 of Protocol No. 1 that the criminal proceedings against them and their detention in custody had not been based on a reasonable suspicion that they had committed an offence, but had pursued the goal of having them lose their shares in the company.
THE LAW
The Government submitted that the applicants had failed to exhaust domestic remedies. In particular, following their acquittal by the domestic courts, they could have claimed compensation relying on Law No. 1545.
The applicants argued that the remedy provided for by Law No. 1545 was not effective.
The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015).
An 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. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)).
The Court notes that after the applicants’ acquittal, a new remedy became available to them, namely that provided for by Law No. 1545. The Court is mindful of the fact that this remedy only became available to the applicants after the introduction of the present application and that only exceptional circumstances may compel the applicant to exhaust such a remedy. It observes, however, that in Burghelea v. Moldova ((dec.), no. 36084/07, 12 January 2016), where the same remedy became available to the applicant in similar circumstances, it has ruled that the applicant had to exhaust it.
In view of the above and since the applicants did not make use of the mechanism provided for by Law No. 1545, their application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 February 2018.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Appendix
1. Anatol Cîșlaru born in 1951 and living in Chișinău;
2. Galina Florea born in 1958 and living in Chișinău;
3. Ala Bogdanova born in 1948 and living in Chișinău.
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