FOURTH SECTION
DECISION
Application no. 5470/03
by Oleg ŢVETCOV
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 30 May 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrK. Traja,
MrS. Pavlovschi,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 11 December 2002,
Having regard to the decision to apply the procedure under Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the declaration of friendly settlement of 17 February 2006 received from the parties,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleg Ţvetcov, is a Moldovan national who was born in 1966 and lives in Călăraşi.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1995 the applicant was the executive director of a private company, which took a loan from a bank. Having left the company in spring 1997, he settled in Russia where his relatives lived. He re-married there and became a teacher, without changing his name and staying at the same address until his arrest in 2001.
On 28 January 1998 a criminal investigation was opened against the applicant and other unidentified persons in respect of the illegal appropriation of credit and the failure to return it. On 3 September 1998 a court issued a warrant for the applicant’s remand for 30 days. He was declared a wanted person.
On 28 August 2001 he was arrested by the Russian authorities on the basis of the 1998 arrest warrant. He was extradited to Moldova on 6 March 2002.
On 5 April 2002 the Centru District Court prolonged his remand until 18 June 2002, finding that detention was necessary because:
“The grounds on which the detention on remand was ordered remain valid: [the applicant] is suspected of having committed a serious offence, he does not have a domicile in Moldova, he could abscond from law enforcement authorities or the court if released. Consequently, the isolation of the suspect from society is absolutely necessary”.
On appeal, he declared his intention to live permanently at his mother’s house in Moldova throughout the investigation and argued that her deteriorating state of health required his assistance.
The Chişinău Regional Court gave reasons similar to those of the lower court in rejecting the applicant’s appeal on 11 April 2002, adding that he had been wanted for a long time. The court did not mention his lack of residence in Moldova as a ground for the continued need to remand him.
The applicant’s remand was prolonged four more times in 2002: from 17 June until 19 July, 9 August until 10 September, 6 September until 10 October and 9 October until 10 November. The extensions and the rejections of his appeals against those extensions were based on grounds similar to those invoked in the judgment of 5 April 2002.
In his appeal of 9 September 2002 the applicant argued that the extension of his detention after 28 August 2002 was unlawful because it contravened the Constitution and the Code of Criminal Procedure (“CCP”, Article 79), as well as Article 6 of the Convention. According to Article 25 (4) of the Constitution and Article 79 (2) CCP, detention on remand could not be extended beyond a period of 12 months from the date of arrest.
On 13 September 2002 the Chişinău Regional Court rejected that appeal. The court found that the period during which the applicant had been brought to the Moldovan authorities from Russia after absconding from the criminal investigation (28 August 2001 until 6 March 2002) could not be counted as a period of detention on remand for the purposes of Article 25 of the Constitution and Article 79 CCP by virtue of Article 79 (5) CCP.
In his appeal of 11 October 2002 the applicant argued that Article 79 (5) CCP did not apply as it had not been proven that he had absconded from the criminal investigation. He had left the country before the investigation started and had no knowledge thereof; he lived under his own name at a stable address with his relatives in Russia and was a teacher in a public school. He also claimed that in fact between 6 March 2002 and 10 October 2002 he had spent 190 days on remand, and that because the extensions only amounted to 150 days he had accordingly been remanded for 40 days without any legal basis.
On 17 October 2002 the Chişinău Regional Court rejected his complaint, finding that:
“The grounds on which the detention on remand was ordered remain valid. No violations of the criminal procedure have been committed during the investigation and none of the accused’s constitutional rights was violated”.
On 7 November 2002 the criminal investigation was completed and the case was submitted to the trial court.
COMPLAINTS
1. The applicant complained under Article 5 § 1 of the Convention that his detention for a period exceeding 12 months was unlawful.
2. He also complained in essence of insufficient reasoning given by the courts in prolonging his remand, contrary to Article 5 § 3 of the Convention.
THE LAW
1. On 21 February 2006 the Court received the following signed declaration from the parties:
“FRIENDLY SETTLEMENT AGREEMENT
in the case of
ŢVETCOV AGAINST THE REPUBLIC OF MOLDOVA
Application no. 5470/03
Chişinău, 17 February 2006
The present friendly settlement agreement is entered into under section 13 of the Government Agent Act (Law no. 353-XV) of 28 October 2004, between the Government of the Republic of Moldova (“the Government”), represented by their Agent, Mr Vitalie Pârlog, of the one part, and Oleg Ţvetcov (“the applicant”), of the other part, hereinafter referred to as “the parties”.
The parties hereto;
Having regard to the fact that the European Court of Human Rights has on its docket the case of Ţvetcov v. Moldova (application no. 5470/03), in which the applicant alleges that there has been a violation by the State authorities of the rights guaranteed by the provisions of Article 5 (right to liberty and security) of the European Convention on Human Rights and Fundamental Freedoms, and claims that:
- the provisions of Article 79 § 5 of the Code of Criminal Procedure (of 1961, repealed on 12 June 2003) are not applicable to his case, because there was no evidence before the court to confirm that he had absconded from criminal proceedings;
- he remained in custody after the final time-limit for the extension of his pre-trial detention had been reached, on 10 November 2002;
- the term of his pre-trial detention exceeded the maximum term permitted under Article 25 of the Constitution and Article 79 of the Code of Criminal Procedure;
- in the period between 6 March 2002 and 10 October 2002 he was unlawfully held for 40 days;
- the reasons given for his detention by the Centru District Court of Chişinău and the Chişinău Regional Court were ill-founded;
Having regard to the fact that, in the criminal proceedings against the applicant, he was acquitted on 28 December 2005, under Article 1231 of the Criminal Code (of 1961, repealed on 12 July 2003), and that although found to be guilty of participating in the offence provided for in Article 17 and Article 189 § 2 of the Criminal Code (of 1961, repealed on 12 July 2003), he was exempted from criminal responsibility on this account in view of the time bar;
Having regard to the fact that the Code of Criminal Procedure (1961) in force at the material time was repealed on 12 June 2003, with the entry into force of the new Code of Criminal Procedure;
Hereby agree as follows:
1. The Government undertake to pay the applicant, with a view to reaching a friendly settlement of the dispute at issue, the sum of 10,000 (ten thousand) lei[1], in compensation for any damage that may have been sustained, within three months from the date of the decision to strike out application no. 5470/03 (Ţvetcov v. Moldova) from the list of the European Court of Human Rights.
2. The payment of the said sum shall constitute the final settlement of this dispute.
3. The applicant declares that he has secured satisfaction in respect of his claims and undertakes to withdraw application no. 5470/03 (Ţvetcov v. Moldova) to the European Court of Human Rights, communicated to the Government on 16 November 2005.
4. The applicant declares that in the future he shall raise no further pecuniary or non-pecuniary claims against the Government in connection with the present case.
5. The parties shall inform the European Court of Human Rights of the existence of this agreement and shall request that the application be struck out of its list.
This agreement is drawn up in three counterparts, each being equally authentic and authoritative.
Signed:Vitalie PârlogOleg Ţvetcov
Agent of the GovernmentApplicant”
The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Decides to strike the case out of the list.
T.L. EarlyNicolas Bratza
RegistrarPresident
[1] The equivalent of 650 Euros.
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