FOURTH SECTION
DECISION
Application no. 24163/09
by Sergiu MOCANU
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 24 August 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 11 May 2009,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergiu Mocanu, is a Moldovan and Romanian national who was born in 1961 and lives in Chişinău. He was represented before the Court by Mr Ion Dron, a lawyer practising in Chişinău. The Government were represented by their Agent, Mr Vladimir Grosu.
The applicant is a Moldovan politician. Between 2004 and 2007 he was adviser to the President of Moldova. After 2007 he attempted to create a political party which was intended to be an opposition party to the ruling Communist Party. However, the Ministry of Justice refused to register it. Court proceedings contesting the refusal are still pending before the domestic courts.
According to the applicant, as a result of the criticism of President Voronin and of the governing party, he and his family became victims of reprisals. On 20 September 2008 the applicant's two sons were arrested on charges of participating in a fight in a discotheque. The applicant and his sons refuted the accusations and argued that the authorities' actions had been politically motivated. On 25 September 2008 the applicant's sons' detention was changed to house arrest. The same day, they went to the Romanian Embassy in Chişinău and asked for protection as Romanian nationals. They are on the premises of the embassy to date and the Romanian Government have refused their extradition to Moldova.
On 5 April 2009 general elections took place and the Communist Party, which had a majority of votes in the outgoing Parliament, won 60 seats out of a total of 101.
On 6 and 7 April 2009 a protest against alleged electoral fraud took place in the centre of Chişinău. The protest was initially peaceful. However, in the afternoon of 7 April 2009 some of the protesters became violent. Clashes with the police took place and the building of the Parliament and the Presidential Palace were damaged by stone throwing. A large number of police officers and protesters were injured. At a certain moment the police forces, largely outnumbered by the protesters, abandoned the two buildings, allowing several hundred persons to enter. Those persons destroyed and pillaged the buildings, setting parts of the Parliament alight. Two persons assisted by police officers placed the flags of the European Union on the top of the buildings of the Parliament and Presidency next to the Moldovan flags. Unknown persons placed the flag of Romania on the roofs of the two buildings. On the same night some 200 persons were arrested on charges of large-scale disorder. The opposition was accused of an attempted coup d'état.
The applicant peacefully participated in the protest of 7 April 2009. When the crowd entered the building of the Presidency, he, together with a member of the Chişinău Municipal Council, attempted to calm the protesters. From a video submitted by the applicant, they can be seen addressing the people in the entrance hall of the building through a megaphone and calling on them not to yield to calls to violence coming from provocateurs. They called on everyone to avoid any acts of vandalism and to leave the building and hold a peaceful demonstration in front of it. After holding the speech inside the Presidency building, the applicant left the premises and did not participate in any way in the acts of violence.
On 8 April 2009 the Prosecutor General's Office initiated criminal proceedings against the applicant on charges of attempted usurpation of State power. On the same date the applicant was arrested. Later the Prosecutor General's Office changed the charges to organising and conducting actions aimed at mass disorder and violence.
On 10 April 2009 the applicant was taken to the Buiucani District Court where an investigating judge ordered his detention for twenty-five days. The judge dismissed the applicant's request to be afforded time in order to produce video evidence of his innocence and found that there was sufficient evidence to support the suspicion that the applicant had committed the offence imputed to him. The judge did not specify, however, what that evidence was. He further found that since the applicant possessed Romanian nationality he might abscond. The judge dismissed the applicant's submission that he was ready to surrender his Romanian passport in order to guarantee that he would not leave the country. The judge also considered that the detention was necessary in order to allow the prosecutor to obtain evidence without hindrance.
The applicant challenged the detention order before the Chişinău Court of Appeal and argued, inter alia, that his detention had been groundless since there was no reasonable suspicion that he had committed the alleged offence.
On 16 April 2009 the Chişinău Court of Appeal dismissed the applicant's appeal.
On 30 April 2009 the Buiucani District Court ordered the prolongation of the applicant's detention for another twenty-five days. The court found that there were witnesses who could confirm the applicant's guilt; however, it did not refer to any statements taken from such witnesses. It also found that if released, the applicant could take refuge in the Romanian Embassy as his sons had done.
The applicant challenged the judgment and submitted that since his arrest he had never been questioned or confronted with any witnesses. He reiterated that his detention was groundless and politically motivated.
On 7 May 2009 the Court of Appeal dismissed the applicant's appeal without relying on any new grounds. The applicant's detention continued until 31 July 2009.
COMPLAINTS
1. The applicant complains under Article 5 § 1 of the Convention that there was no reasonable suspicion to justify his arrest and detention.
2. He also complain under Article 18 of the Convention that his detention has a purpose other than that provided for in Article 5 § 1 (c) of the Convention.
THE LAW
On 19 May 2010 the Court received the following declaration from the Government:
“I, Vladimir Grosu, Agent for the Government of Republic of Moldova, declare that the Government of Moldova accepts that there has been a breach of Article 5 § 1 of the Convention in the present case and offer to pay the sum of EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage and EUR 3,000 (three thousand euros) in respect of costs and expenses to Mr Sergiu MOCANU with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum will be converted into Moldovan lei at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 19 May 2010 the Court received the following declaration signed by the applicant:
“I, Ion Dron, the applicant's representative in the above case, note that the Government of Moldova accept that there has been a breach of Article 5 of the Convention in the present case and are prepared to pay the sum of EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage and EUR 3,000 (three thousand euros) in respect of costs and expenses to Mr Sergiu Mocanu with a view to securing a friendly settlement of case pending before the European Court of Human Rights.
These sums will be free of any taxes that may be applicable. They will be converted into Moldovan lei at the rate applicable on the date of payment. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.
I accept the proposal and waive any further claims against Moldova in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı Nicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy