FOURTH SECTION
DECISION
Applications nos. 20269/09 and 24065/09
by Gheorghe and Anatol STEPULEAC
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 16 March 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above applications lodged on 20 and 30 April 2009 respectively,
Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike the applications out of the list of cases and the applicants’ replies to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Gheorghe Stepuleac and Mr Anatol Stepuleac, are Moldovan nationals who were born in 1964 and 1971 respectively and live in Chişinău. The first applicant was represented before the Court by Ms J. Hanganu, a lawyer practising in Chişinău. The second applicant was represented before the Court by Ms A. Ursachi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. General background of the case
On 5 April 2009 a general election took place in Moldova. 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 the alleged falsification of the results of the election was held in the centre of Chişinău. In the early afternoon of 7 April 2009 some of the persons participating in the protest – allegedly several hundred provocateurs – became violent, and two Government buildings were attacked. On the same night, some 200 persons were arrested on account of their alleged participation in mass rioting and an attempted coup d’état. The main opposition parties were accused of orchestrating the violent attacks. More persons were arrested over the course of the following days, some at their homes and some directly at their universities or schools. Many of those arrested complained of ill-treatment by the police and three persons died, allegedly as a result of ill-treatment. Access to online independent media was blocked and a number of journalists were arrested.
In the evening of 7 April 2009, only several hours after the violent attacks on the public buildings in Chişinău and before any investigation into the facts could be carried out, the acting President of Moldova, Mr V. Voronin, in a speech aired on national TV, accused the opposition parties of having organised a coup d’état. On the same evening, the TV channels, TVM1 and NIT, commented that “...among the protesters were the Stepuleac brothers, known for their criminal past...” and “... members of a criminal gang known as the Stepuleac brothers could be seen [at the protests]...”. On 8 April 2009 the Moldova Suverană newspaper published an article noting, inter alia, that “... the Stepuleac brothers, who are well-known recidivists at loggerheads with the law could be seen [at the protests]...”
According to the second applicant, having discussed the matter with the relevant TV and newspaper editors-in-chief, he found out that those false accusations had originated at the Ministry of Internal Affairs and had come personally from either Minister Gh. Papuc or the leadership of the Operative Services Department (“O.S.D.”). On the same day, the second applicant asked for a meeting with the head of the O.S.D. The two met at 10 a.m. on 9 April 2009, and the head of the O.S.D. denied circulating any information about the Stepuleac family.
2. The arrest of the first applicant
On 9 April 2009 the first applicant was visiting his parents in the Ungheni region when he was arrested by the police. He was accused of having called on protesters on 7 April 2009 to actively resist the lawful orders of the police, participate in mass riots and attack persons in order to forcibly usurp and assume State power, contrary to Article 285 § 4 and Article 339 § 1 of the Criminal Code (see below).
On 12 April 2009 the Prosecutor General’s Office asked a court to order the first applicant to be held in detention pending trial for thirty days, essentially on the same grounds as those mentioned above.
On the same day, Judge S. C., the investigating judge of the Centru District Court, ordered the arrest of the first applicant and his detention pending trial for ten days. The reasons given by the court were that
“there is a reasonable suspicion that the applicant committed a crime for which the law provides a penalty of more than two years’ imprisonment; the applicant could warn other suspects and thus influence the normal course of the investigation, which is in its initial stage, and not all the circumstances contributing to the commission of the crime have been established; ... [the first applicant’s] arrest is necessary to protect public order, taking into consideration the social tension created by the acts of which [the applicant] is accused, acts which amount to crimes against public security and public order”.
The first applicant was not taken by the police to that hearing. His lawyer appealed against the decision ordering his detention pending trial. She referred, inter alia, to the case of Stepuleac v. Moldova (no. 8207/06, 6 November 2007), in which the Court had already found violations of Article 5 in respect of the first applicant’s previous arrests. She noted that there was no evidence in the file to support the prosecutor’s request and that, by the time the court had examined the request, the seventy-two-hour time-limit for the first applicant’s detention without a court order had already expired.
On 12 April 2009 two witnesses were heard and confirmed that, on 7 April 2009, the first applicant had spent approximately an hour (1.30-2.30 p.m.) in the restaurant in which they worked as waiters. According to the first applicant, he had spent that day in business meetings and at a hearing of the Court of Appeal, as proved by relevant evidence. He had arrived at the scene of the events after 3 p.m., by which time the violent part of the protest had already ended, and had spent more than an hour (5-6.30 p.m.) at the Prosecutor General’s Office.
According to the lawyer, the only evidence relied on by the prosecution in requesting an arrest warrant was a statement by a police officer who had been positioned near the Great National Assembly Square. According to him, the first applicant had asked him: “Why are you standing here? You should be elsewhere, defending the public buildings”.
On 16 April 2009 the Chişinău Court of Appeal rejected the appeal. The court found that
“the lower court took into consideration the complexity of the case, the accused’s personality, the nature and degree of dangerousness of the alleged facts which are grounds for the applicant’s detention and the fact that [the first applicant] committed a crime which is considered a serious offence for which the law provides for imprisonment of more than two years; there is a risk that the applicant may prevent the verification of facts, could put pressure on witnesses, destroy evidence or abscond to the territory of the Transdniester region, which is not controlled by the authorities of the Republic of Moldova; he could commit other crimes and additional investigative actions are needed. ”
At the prosecutor’s request, on 17 April 2009, the investigating judge of the Centru District Court ordered the first applicant to be detained for a further thirty days. The reasons given by the court were that
“the period of the applicant’s arrest will expire; the complexity of the case requires a number of investigative actions for which the prosecutor needs more time; there is a reasonable suspicion that the applicant committed a crime for which the law provides a penalty of more than two years’ imprisonment; [the first applicant] could collude with other suspects; his arrest is necessary to protect public order, taking into consideration the social tension caused by the acts of which [the first applicant] is accused, acts which amount to crimes against public security and public order”.
The first applicant’s lawyer appealed, relying on Article 5 of the Convention. She noted that, even though the prosecutor’s request was identical to his original request which had only been partly granted (ten days of detention pending trial), the court had decided to extend the detention for a further thirty days, without any evidence in the file. Moreover, the first applicant’s right to be presumed innocent had been violated and the court had failed to consider any other preventive measure provided for by law.
On 22 April 2009 the Chişinău Court of Appeal rejected the appeal for largely similar reasons as before. Judge A. T., one of the three judges who had examined the appeal, gave a separate opinion, in which he noted, inter alia, that the court had not been shown any evidence capable of persuading it of the existence of a reasonable suspicion that the first applicant had committed a crime and of substantiating the request for his detention pending trial. Moreover, the prosecutor described the first applicant’s alleged guilt in only vague terms, without sufficiently specifying the acts of which he was accused.
3. The arrest of the second applicant
On 9 April 2009, at approximately 5 p.m., the second applicant and two of his brothers were formally arrested in the office of the head of the O.S.D.
On 10 April 2009 the second applicant challenged in court the record of his arrest, claiming that it was unlawful and arguing that it had not included any of the formal reasons for arrest, exhaustively listed in Article 166 of the Code of Criminal Procedure. The prosecutor’s office did not respond to that complaint.
On 12 April 2009 the Prosecutor General’s Office asked a court to order the second applicant to be arrested and held in detention pending trial for thirty days. He was accused of having called on protesters on 7 April 2009 to actively resist the lawful orders of the police, participate in mass riots and attack persons in order to forcibly usurp and assume State power, contrary to Article 285 § 4 and Article 339 § 1 of the Criminal Code (see below).
On the same day the second applicant’s lawyer complained to the Centru District Court that the record of her client’s arrest had been unlawful. She also noted that more than seventy-two hours had passed since the time of his arrest, and that his detention therefore lacked a lawful basis, contrary to Article 166 § 5 of the Code of Criminal Procedure. Moreover, the prosecution had submitted its request for the detention pending trial of the second applicant at 4 p.m. on 12 April 2009, that is, one hour before the expiry of the initial seventy-two-hour period of detention. Under the law, such a request had to be submitted at least three hours before the detention period expired. Finally, the defence argued that the court could not examine the prosecutor’s request before examining the complaint that the record of arrest had been unlawful.
Also on 12 April 2009 the investigating judge of the Centru District Court granted the prosecutor’s request and ordered the detention pending trial, for ten days, of the second applicant. The reasons given by the court were that
“there is a reasonable suspicion that [the second applicant] committed a crime for which the law provides a penalty of more than two years’ imprisonment; [the second applicant] could collude with other suspects and thus influence the normal course of the investigation, which is in its initial stage, and not all the circumstances contributing to the commission of the crime have been established; [the second applicant’s] arrest is necessary to protect public order, taking into consideration the social tension caused by the acts of which [the second applicant] is accused, acts which amount to crimes against public security and public order”.
None of the arguments of the defence was mentioned.
The second applicant’s lawyer appealed, noting, inter alia, that the prosecutor had not submitted to the court any evidence in support of his request. She referred to the testimony of two witnesses, confirming that the second applicant had been in another area of the city between 12 a.m. and 2 p.m. on 7 April 2009, as well as to her request for the prosecutor to obtain from the mobile telephone company information making it possible to determine precisely where the second applicant had been at the relevant time. She had received no reply to that request and the lower court had not commented. She finally complained that she had not been allowed to discuss the case with the second applicant after he had been formally charged, thus they were unable to fully prepare for the court hearing.
On 16 April 2009 the Chişinău Court of Appeal rejected the appeal, referring to the same grounds as the lower court, while adding that “[the second applicant] can abscond from the investigating authority and the court, and can reoffend and that additional investigative actions are needed”.
On 17 April 2009 the Prosecutor General’s Office asked a court to order the second applicant to be detained for a further thirty days, relying on the same grounds as before. On the same day the Centru District Court rejected the request. The court repeated the previous grounds for detention, but found that, because the second applicant had three children to care for, including an eight-month-old baby, he should instead be placed under house arrest for thirty days.
The second applicant’s lawyer appealed, referring to the absence of any reaction by the lower court to her arguments in respect of the deprivation of her client’s liberty. Most importantly, there was no reply to the evidence that her client had not been present in the city centre during the violent protests, contrary to what had been stated by the prosecutor.
On 22 April 2009 the Chişinău Court of Appeal rejected the second applicant’s appeal. The court relied on grounds similar to those referred to earlier in its judgment and also noted that four witnesses had confirmed that the second applicant had participated in the mass rioting on 7 April 2009 and had called on others to commit violent acts. At the same time, the evidence submitted by the second applicant may have confirmed his whereabouts between 12 p.m. and 12.30 p.m. and after 5 p.m., but he had had the opportunity to participate in the riot between these times. However, the court also found that
“there is much plausible and relevant evidence in the file confirming that, if released, [the second applicant] will not abscond and will not put pressure on witnesses or interfere with the investigation or the criminal proceedings; ... there is no evidence of any previous attempt by [the second applicant] or his relatives to interfere with the investigation or put pressure on witnesses or victims; ... there is no danger that [the second applicant] will abscond, because his detention pending trial will be replaced with house arrest, thus ensuring his presence at the trial.”
Judge A. T., one of the three judges who examined the appeal, gave a separate opinion in which he noted, inter alia, that the court had not been shown any evidence capable of persuading it that there existed a reasonable suspicion that the second applicant had committed a crime and of substantiating the request for his detention pending trial. Moreover, the prosecutor described the second applicant’s alleged guilt in only vague terms, without sufficiently specifying the acts of which he was accused. The judge added that the application of a milder preventive measure was still a limitation of the second applicant’s rights and could be ordered only if there was a reasonable suspicion that he had committed a crime.
The second applicant submits that on 7 April 2009 he had not been in the centre of Chişinău, where the protests were taking place, except for a very short time, as proved by witness statements and other evidence concerning his minute-by-minute movements on that day.
According to the second applicant, he and members of his family have been persecuted by the authorities since 2005, when they openly expressed their democratic views which conflicted with those in power, in particular the Minister of Internal Affairs, whom they had openly accused of persecuting their family. Two of the Stepuleac brothers had earlier been arrested on the basis of fabricated criminal cases. Having been fully acquitted, they brought a series of court cases against high-ranking officers and the second applicant represented them in those proceedings. The family has been threatened with long-term deprivation of their liberty. The Minister of Internal Affairs and the family share a mutual hostility.
COMPLAINTS
1. The applicants complained under Article 5 § 1 of the Convention that they had been arrested in the absence of a reasonable suspicion of having committed a crime and that they had been offered an immediate release on condition that they signed statements to the effect that the opposition parties had paid them to participate in the protests.
2. They also complained, under Article 5 § 3 of the Convention, that the courts had not given relevant and sufficient reasons for ordering and extending their detention pending trial (house arrest).
THE LAW
On 29 October 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
The declaration provided as follows:
“... 2. On 30 September 2009 the Minister of Justice made public a declaration on behalf of the Government at an event which included the presence of the mass media and all the applicants who had complained of the infringement of their rights in connection with the events of 7 April 2009. According to those declarations, made by a high ranking official, the Government directly expressed their regrets concerning the disproportionate actions of the domestic authorities, which took place after 7 April 2009, in respect of all persons involved in the events concerned, and particularly regarding the applicants who had complained to the Court (..., and the present application).
3. Respectively, the Government of the Republic of Moldova clearly expressed their intention and availability to settle the above-mentioned ... cases.
4. The Government, after having analysed the Court’s case-law, make the following unilateral declaration:
The Government acknowledge that there was an infringement of the applicants’ rights guaranteed by Article 5 § 1 (c) of the Convention because the criminal prosecution authorities and the domestic courts had applied the arrests in respect of the first and second applicants without taking into consideration the absence of a reasonable suspicion of having committed a crime of which the applicants were accused. Also, the Government acknowledge that the national courts have not given relevant and sufficient reasons for their decisions ordering and then extending the applicants’ detention pending trial (house arrest), in breach of Article 5 § 3 of the Convention. ...
5. ... the Government consider that the simple acknowledgement of a violation of the applicants’ rights would serve as partial just satisfaction, particularly for non-pecuniary damage...
6. Thus, according to the specific circumstances of the present case, the Government propose the following sums of money as just satisfaction:
a. to the first applicant (Gheorghe Stepuleac) – a global sum of 6,000 euros;
b. to the second applicant (Anatol Stepuleac) – a global sum of 4,000 euros.
7. The Government declare that the Court’s awarded amounts, as just satisfaction, 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 of 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 a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the 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.”
In a letter dated 10 December 2009 the Government amended paragraph 6(b) of their initial declaration, which should read:
“b. to the second applicant (Anatol Stepuleac) – a global sum of 6,000 euros.”
The applicants asked the Court to reject the Government’s proposal on the basis that the criminal investigation into their alleged participation in the events of 7 April 2009 had still not been discontinued. Moreover, in the absence of a judgment adopted by the Court, they would be deprived of a judicial determination of the facts in their cases. In addition, in their declaration, the Government had failed to acknowledge that innocent persons, such as the applicants, had been arrested and prosecuted without any reason other than persecution.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It notes that, under Article 38 § 2 of the Convention, friendly settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government outside the framework of the friendly-settlement negotiations.
The Court notes that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court to strike a case out of its list in particular if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court also notes that, under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI, and Melnic v. Moldova, no. 6923/03, §§ 22-25, 14 November 2006).
The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Article 5 §§ 1 and 3 of the Convention (see, for instance, Sarban v. Moldova, no. 3456/05, §§ 95-104, 4 October 2005, and Stepuleac v. Moldova, no. 8207/06, §§ 68-81, 6 November 2007). In the present case, the Court notes that the subject of the two applications under consideration has never been the applicants’ guilt or innocence or the existence of the criminal investigation against them as such, but rather compliance with article 5 §§ 1 and 3 of the Convention, in which respect the Government made a very clear acknowledgment of violations of the applicants’ rights.
Having regard to the nature of the admissions contained in the Government’s unilateral declaration, as well as the amount of compensation proposed by the Government to each applicant, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar, cited above, and Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005).
In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications.
Accordingly, the applications should be struck out of the list.
The Court has a discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court). In the present case, taking into account the relatively straightforward nature of the issues involved and the similarities between the two applications, but also the amount of work carried out by the applicants’ lawyers, it decides to award 1,000 euros (EUR) to each applicant in respect of legal costs and expenses.
For these reasons, the Court
1. Decides unanimously to strike the application out of its list of cases;
2. Holds
(a) that the respondent State is to pay each applicant EUR 1000 (one thousand euros), plus any tax that may be chargeable on the applicants, in respect of costs and expenses, to be converted into Moldovan lei at the rate applicable at the date of settlement;
(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.
Lawrence Early Nicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy