Information Note on the Court’s case-law 250
April 2021
E.G. v. the Republic of Moldova - 37882/13
Judgment 13.4.2021 [Section II]
Article 3
Positive obligations
Failure by authorities to enforce sex offender’s sentence following grant and subsequent annulment of amnesty: violation
Article 8
Positive obligations
Failure by authorities to enforce sex offender’s sentence following grant and subsequent annulment of amnesty: violation
Article 35
Article 35-1
Six-month period
Account taken of entire period of failure to enforce sex offender’s sentence for purposes of six-month rule: preliminary objection dismissed
Facts – In December 2009 V.B. and two other individuals including R.G., who had all been released pending trial, were sentenced to five years’ imprisonment for sexually assaulting the applicant. However V.B. was not immediately arrested and detained.
In a final decision of the Court of Appeal dated 22 May 2012, V.B., who was still free, was granted an amnesty pursuant to the Amnesty Law of 2008. The amnesty was first annulled in June 2012 but later reinstated in December 2012. In November 2013 a second decision annulling V.B.’s amnesty was taken and at the end of January 2014, the public prosecutor informed the police and requested that he be located. However, it was observed that in November 2013 V.B. had left Moldova for Ukraine. Since then, in spite of an international arrest warrant, V.B. has not been located.
Law – Articles 3 and 8:
(a) Admissibility:
Not all continuing situations would be identical. In any event, applicants had to ensure that their claims were raised before the Court with the necessary expedition once it became clear that there was no realistic prospect of a favourable outcome in respect of their complaints at domestic level.
In response to the Government’s argument that the applicant should have filed an application with the Court within six months of the decision to grant the amnesty in May 2012, the Court noted that the main aspect of the applicant’s complaints under Articles 3 and 8 concerned the de facto impunity of V.B. for the sexual assault committed against her. The specific failings in relation to these complaints, namely the alleged unlawful grant of the amnesty and the alleged inaction of the authorities in locating V.B., were inextricably linked. For this reason, the entire period in which the authorities had failed to enforce the criminal sanction imposed on V.B. had to be considered for the purposes of applying the six-month rule.
Thus, the failings of the Moldovan authorities taken together could be regarded as a continuous situation. Moreover, the prospects of the Moldovan authorities enforcing V.B.’s sentence had not become unrealistic.
Conclusion: objection rejected (six-month rule).
(b) Merits:
Rape and serious sexual assault amounted to treatment falling within the ambit of Article 3 of the Convention, and these offences also typically implicated fundamental values and essential aspects of “private life” within the meaning of Article 8. The applicant’s complaints could thus be examined jointly under these two Articles.
Under Article 2 of the Convention, the requirement for the authorities to carry out an effective criminal investigation could also be interpreted as imposing an obligation on States to enforce the final sentence without undue delay. The enforcement of a sentence imposed in the context of the right to life was an integral part of the State’s procedural obligation. The same approach had to be applied in the present case and States had a positive obligation inherent in Articles 3 and 8 to enforce sentences for sex offences.
Amnesties and pardons should not be tolerated in cases of torture or ill-treatment by State agents. This principle also applied to acts of violence committed by private individuals. However, amnesties and pardons were essentially a matter for the domestic law of the member States and, in principle, they were not incompatible with international law, except where they concerned acts which constituted serious violations of fundamental human rights. The sexual assault committed against the applicant had constituted a serious breach of her right to protection from bodily harm and mental distress, and the granting of an amnesty to one of the perpetrators of that assault was, in the particular circumstances of the case, at odds with the respondent State’s obligations under Articles 3 and 8 of the Convention
There was no uniform practice of the Court of Appeal in relation to the application of the 2008 Amnesty Law. R.G., who had been in a similar situation to V.B. and had already served part of his sentence, had been denied the benefit of the amnesty. In the case of V.B. the judges of the Court of Appeal had thus exercised their discretion in minimising the consequences of an extremely serious illegal act rather than showing that such acts could not be tolerated in any way.
Whilst the granting of the amnesty to V.B. had ultimately been annulled, the fact that he had benefited from it for a total period of approximately one year was at odds with the procedural requirements of Articles 3 and 8, particularly as it had enabled him to leave Moldova shortly before the adoption of the last decision annulling the benefit of the amnesty.
As to the question whether the measures adopted by the authorities to enforce V.B.’s sentence, outside the periods when the amnesty was applicable, were sufficient, the Court observed that the State authorities appeared to have disregarded the first decision, on 29 June 2012, to annul the benefit of the amnesty. They had arrested him on 22 October 2012, but had released him that same day on the basis of the 22 May 2012 decision, which had already been annulled and which no longer had force of law at that time. The Court saw this as, at best, a lack of coordination between the different State services, resulting in V.B.’s release without a valid legal basis.
The last decision to annul the benefit of the amnesty, taken on 18 November 2013, had been transmitted to the authority competent to conduct the search for V.B. more than two months after its adoption. In the opinion of the public prosecutor’s office this time-frame had not complied with domestic rules. Even though it had subsequently been established that V.B. had left the country by 18 November 2013, the issuance by the authorities of their wanted notice within the Commonwealth of Independent States must have been delayed accordingly. Moreover, the international wanted notice had not been issued until 2015 and there was no explanation in the file for this delay. These delays were inconsistent with the requirement of reasonable diligence and expedition.
Consequently, the measures taken by the State for the enforcement of V.B.’s sentence had not been sufficient in the light of its obligation to enforce criminal sentences handed down against the perpetrators of sexual assaults.
In conclusion, the granting of an amnesty to V.B. and the authorities’ failure to enforce his sentence had been incompatible with the positive obligations of the Moldovan State under Articles 3 and 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
(See also M.C. v. Bulgaria, 39272/98, 4 December 2003, Legal summary; Marguš v. Croatia [GC], 4455/10, 27 May 2014, Legal summary ; Kitanovska Stanojkovic and Others v. "the former Yugoslav Republic of Macedonia", 2319/14, 13 October 2016, Legal summary; Akelienė v. Lithuania, 54917/13, 16 October 2018, Legal summary; Makuchyan and Minasyan v. Azerbaijan and Hungary, 17247/13, 26 mai 2020, Legal summary)
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This summary by the Registry does not bind the Court.
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