The present case concerns the applicants’ remand in custody pending trial and house arrest for an offence which was not clearly defined under domestic criminal law.
CASE OF BARABOI AND GABURA v. THE REPUBLIC OF MOLDOVA
(Application no. 75787/17)
27 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Baraboi and Gabura v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 75787/17) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Dumitru Baraboi and Ms Valeria Gabura (“the applicants”), on 17 October 2017;
the decision to give notice to the Moldovan Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 30 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The present case concerns the applicants’ remand in custody pending trial and house arrest for an offence which was not clearly defined under domestic criminal law.
2. The applicants were born in 1986 and 1994 respectively and live in Mereni and Trușeni. The applicants were represented by Mr A. Briceac, a lawyer practising in Chișinău.
3. At the time of the events the applicants ran an erotic video-chat business in Chișinău. They employed young female models who provided erotic shows via webcam to customers outside Moldova in exchange for payment.
4. On 15 June 2017 the applicants were arrested and accused of pimping (proxenetism).
5. On 16 June 2017, at the request of a public prosecutor, the Chișinău District Court ordered that the applicants be remanded in custody for a period of thirty days. The applicants appealed against the orders and argued that their detention had not been based on a reasonable suspicion that they had committed an offence. They submitted that they could not be accused of pimping, because the female models employed by them had not been engaged in prostitution. They argued that the prosecutor and the court which had ordered their detention had applied an extensive interpretation of the provisions of the Criminal Code concerning the offence of pimping. The applicants also contended that there were no relevant and sufficient reasons for remanding them in custody.
6. The Chișinău Court of Appeal dismissed the applicants’ appeals and held that there had been grounds to believe that they might abscond or interfere with the investigation. The court did not respond to the applicant’s argument about a lack of reasonable suspicion and the allegation of extensive interpretation of the criminal law.
7. The applicant’s detention on remand was prolonged on several occasions and subsequently was commuted to house arrest. The applicants’ deprivation of liberty ended on 16 October 2017.
8. On 14 November 2017 the Chişinău District Court found the applicants guilty as charged and sentenced to a suspended sentence of three years’ imprisonment.
9. In deciding the case, the court sought an opinion from the State Agency for the Protection of Morality as to whether the acts committed by the female models employed by the applicant could be qualified as prostitution and, thus, whether the applicant’s activity could be qualified as pimping. The opinion of 21 October 2015, which was the key element in convicting the applicant and was subsequently used in other similar cases, stated that the actions of the female models employed by the applicants could be considered acts of prostitution, in that their clients could obtain sexual gratification as a result of the models’ performance and because the models were paid for those acts. Thus, the fact that the applicants obtained revenue from the above activity could be considered pimping.
10. The applicants appealed against the above decision and argued, inter alia, that the facts of the case could not be qualified as pimping but rather as spreading of pornographic materials.
11. On 14 February 2018 the Chişinău Court of Appeal dismissed the applicants’ appeal and upheld the judgment of the first instance court.
12. On 3 July 2018 the Supreme Court of Justice upheld an appeal on points of law lodged by the applicants and quashed the above judgment of the Court of Appeal. In ordering the re-examination of the case by the Chişinău Court of Appeal, the Supreme Court instructed it to pay attention to the decision of the Constitutional Court no. 36 of 19 April 2018 (see paragraph 23 below).
13. On 4 October 2018 the Chişinău Court of Appeal upheld the applicants’ appeal against the judgment of the Chişinău District Court of 14 November 2017 and quashed the above judgment. In so doing, the Court of Appeal found that the applicants’ deeds could not be qualified as pimping because the online erotic shows could not be qualified as prostitution because there was no sexual contact (act sexual) as such between the online performers and their clients. The Court of Appeal considered that the applicants’ deeds could be qualified only as acts of spreading of pornography, a misdemeanour provided for by Article 90 the Code of Minor Offences. However, in view of the statute of limitations, the applicants could no longer be prosecuted for that misdemeanour.
14. On 16 April 2019 the Supreme Court of Justice dismissed the appeal on points of law lodged by the prosecutor in charge of the case and upheld the above judgment. The Supreme Court noted that the practice of online erotic video shows could not amount to prostitution because there was no contact between the bodies of the persons involved. The amendment made by Parliament to the text of Article 89 of the Code of Minor Offences (see paragraph 15 below) was irrelevant because the imputed deeds took place before that modification, when the prostitution was not defined to include online interactions of a sexual nature.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
15. Prostitution is illegal in Moldova but it is not a criminal offence. It is considered to be a misdemeanour under Article 89 of the Code of Minor Offences (Codul Contravențional), which at the material time read as follows:
Engaging in prostitution (Practicarea prostituției)
“(1) Engaging in prostitution shall be punishable by a fine of [800 – 1,200 Moldovan lei] or 20 to 40 hours of community work.
(2) An individual engaged in prostitution against his or her will shall not be held criminally liable.”
On 9 December 2018 Parliament made an amendment to the above provision and defined prostitution as including also online interactions of a sexual nature.
16. At the same time, pimping is an offence incriminated under Article 220 of the Criminal Code and is punishable by up to ten years’ imprisonment. It is defined as encouraging or inducing another person to engage in prostitution or obtaining revenue as a result of another person engaging in prostitution.
17. In the Commentary of the Criminal Code, edited in 2005 and written by senior judges and law professors, the chapter concerning the offence of pimping describes prostitution as engaging in sexual contacts (raporturi sexuale) in return for payment.
18. Article 3 of the Criminal Code, entitled “The Principle of Legality”, reads as follows:
“No one shall be declared guilty of having committed a criminal offence nor be subjected to a criminal punishment other than on the basis of a decision of a court and in strict compliance with the criminal law.
Extensive interpretation to the detriment of the accused and application of criminal law by analogy shall be prohibited”.
19. On 18 June 2015 the Centru District Court adopted an acquittal judgment in criminal proceedings against Briscoe and Zagnitco (case no. 1‑279/15); the defendants had been accused of pimping for running an erotic webcam business identical to that in the applicant’s case. Some of the relevant parts of the court’s judgment read as follows:
“The criminal law of the Republic of Moldova lacks an official interpretation of the notion of prostitution …
As in the case of prostitution, the Criminal Code does not contain a definition of the notion of “sexual contact” (act sexual) …
Although the online broadcast of pornographic shows might procure sexual gratification, this cannot be considered a “sexual contact” which falls under the provisions of the Criminal Code … An essential element of “sexual contact” is the physical contact between two bodies. However since no such thing occurred in the present case, the [actions of the webcam models] cannot be considered prostitution.
It follows that [the defendants] cannot be held liable for [pimping].”
20. On 30 October 2015 the Chișinău Court of Appeal overturned the above judgment, finding that the acts of the webcam models had been acts of prostitution, and convicted the defendants of pimping. In reaching its conclusion, the Court of Appeal relied on the same opinion of the State Agency for the Protection of Morality as that in the applicant’s case. Both defendants were sentenced to two years and eight months’ imprisonment, but the sentence was suspended in respect of one of them. The Supreme Court of Justice upheld the conviction in a final judgment of 21 June 2016.
21. On 14 July 2016 the Ciocana District Court adopted an acquittal judgment in the criminal proceedings against Isachi (case No. 1-449/15); the defendant was accused of pimping for running an erotic webcam business identical to that in the applicant’s case. The court found that since no sexual intercourse had taken place between the webcam models and their clients, they had not committed an act of prostitution. Consequently, their employer, the defendant, could not be accused of pimping.
22. On 13 September 2016 the Chișinău Court of Appeal quashed the above judgment. It found the defendant guilty of pimping but ordered that the criminal proceedings against him be terminated on the basis of an amnesty law.
23. In decision no. 36 of 19 April 2018 the Constitutional Court of Moldova expressed an opinion similar to that in the commentary on the Criminal Code (see paragraph 17 above), namely that, in view of the lack of physical contact, the fact of engaging in erotic video-chat could not be considered prostitution. According to the Constitutional Court, such an act could be classified as the dissemination of pornography.
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
24. The applicants complained that their deprivation of liberty between 15 June and 16 October 2017 had not been lawful and/or based on a reasonable suspicion that they had committed a criminal offence or on relevant and sufficient reasons, as required by Article 5 §§ 1 and 3 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
25. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
26. The applicants submitted that their case was similar to Litschauer v. the Republic of Moldova (no. 25092/15, 13 November 2018) and asked the Court to take the same approach in it. They submitted that as in Litschauer, the relevant legal rules on the basis of which they had been deprived of their liberty did not provide sufficient guidance and were not formulated with a degree of precision required by the Convention so as to satisfy the requirement of lawfulness set out by the Convention. Thus, they could not reasonably have been expected to foresee, even with appropriate legal advice, the consequences of their conduct. This being so, their detention was not lawful under domestic law and it was not based on a reasonable suspicion that they had committed a criminal offence.
27. The Government constructed their defence around the minority dissenting opinion in Litschauer (cited above) and argued that the facts of the present case took place later than those in Litschauer, thus giving the applicants the benefit of a more developed domestic case-law, namely the domestic case-law in the case of Litschauer, which could have let them understand that the practice of erotic video-chat could be treated as prostitution and thus led them to foresee that their own behaviour could have been considered as amounting to pimping.
28. The Court recalls that in Litschauer (cited above) it was called to examine a similar complaint based on similar facts. After having examined the case-law of the domestic courts and having noted the ongoing debate on the issue of whether erotic video-chat performances amounted to sexual contacts and thus to prostitution, the Court concluded that the relevant legal rules did not provide sufficient guidance and were not formulated with the degree of precision required by the Convention so as to satisfy the requirement of “lawfulness” set out by the Convention. Thus, the Court concluded that the applicant could not reasonably have been expected to foresee, even with appropriate legal advice, the consequences of his conduct (see Litschauer, cited above, § 35). That being so, the Court came to the conclusion that the applicant’s detention was not lawful under domestic law and that there has been a breach of Article 5 § 1 of the Convention.
29. In the present case, the Government did not adduce any arguments which would allow the Court to depart from its conclusion in Litschauer. On the contrary, the decisions of the domestic courts in the applicants’ case only endorced and strenghened the Court’s conclusion in Litschauer that the legislation was unclear and the debate was ongoing. Indeed, the Court of Appeal and the Supreme Court decided to requalify the accusation against the applicant from pimping to spreading of pornographic materials, after having disagreed with the inferior court on the interpretation to be given to the notion of prostitution.
30. In such circumstances, the Court does not consider it possible to depart from its conclusion in Litschauer (cited above) and comes to the conclusion that in this case too the applicants’ deprivation of liberty was not lawful under domestic law and that there has been a breach of Article 5 § 1 of the Convention.
31. In view of the above findings the Court does not consider it necessary to examine separately whether the applicants’ deprivation of liberty was based on a reasonable suspicion that they had committed an offence and, consequently, the applicant’s complaint under Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
32. The applicants also complained that the conditions of their detention in Prison No. 13 amounted to inhuman and degrading treatment contrary to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
33. The Court recalls its findings in Draniceru v. the Republic of Moldova ((dec.), no. 31975/15, §§ 10 and 41, 12 February 2019) to the effect that the new remedy introduced by Law No. 163 of 20 July 2017 and Law No. 272 of 29 November 2018 was effective against poor conditions of detention (see Draniceru, cited above, § 41). Since the applicants failed to exhaust this remedy, their complaint under Article 3 must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
35. The applicants claimed 30,000 euros (EUR) each in respect of non‑pecuniary damage.
36. The Government contested the amount of non-pecuniary damage claimed by the applicant, alleging that it was excessive.
37. The Court considers that the applicants must have suffered stress and frustration as a result of the violation found and awards EUR 8,500 to each of them in respect of non-pecuniary damage.
B. Costs and expenses
38. The applicants also claimed EUR 3,000 in respect of the costs and expenses incurred before the Court.
39. The Government considered this amount excessive.
40. Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed in respect of costs and expenses.
C. Default interest
41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning Article 5 §§ 1 and 3 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
3. Holds that there is no need to examine the complaint under Article 5 § 3 of the Convention;
(a) that the respondent State is to pay the applicants, within three months, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 8,500 (eight thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each applicant;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses jointly;
(b) that 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;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 27 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Deputy Registrar President