Last Updated on September 8, 2022 by LawEuro
The case is about the applicant’s deprivation of liberty for over three months allegedly in the absence of a reasonable suspicion that he had committed the offence imputed to him.
SECOND SECTION
CASE OF SALINSCHI v. THE REPUBLIC OF MOLDOVA
(Application no. 37760/18)
JUDGMENT
STRASBOURG
6 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Salinschi v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 37760/18) 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”) on 16 July 2018 by a Moldovan national, Mr Victor Salinschi, born in 1961 and living in Chișinău (“the applicant”), who was represented by Mr A. Briceac, a lawyer practising in Chișinău;
the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari;
the parties’ observations;
Having deliberated in private on 28 June 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case is about the applicant’s deprivation of liberty for over three months allegedly in the absence of a reasonable suspicion that he had committed the offence imputed to him.
2. In 2011, the applicant who is a doctor, purchased an industrial building at a public auction. Later he intended to privatise the land adjacent to the building (“land”) but there were obstacles, including other interested parties. He agreed with his cousin that he was to sell to him one half of the building and transfer to him one half of the adjacent land in exchange for the latter’s legal and financial assistance in the process of privatisation of the land. They concluded a contract to that effect and the applicant’s cousin paid the applicant the amount of 53,000 Euro (EUR) in instalments, representing the price of one half of the value of the building. They also agreed that the cousin was to support the cost of the privatisation and the applicant issued handwritten receipts in which it was explained that in exchange for the money, he promised to transfer into his cousin’s property half of the building and half of the land after the privatisation of the latter.
3. The process of privatisation of the land took more than seven years and was stalled inter alia by judicial proceedings with other interested parties and by bureaucracy. On 30 January 2018 the process ended, and a dispute arose between the applicant and his cousin concerning the money to be paid to the State for the privatisation of the land. Since the cousin refused to pay for the privatisation, as agreed, the applicant had to take a bank loan and to pay it himself. In February 2018, the applicant obtained an expert report concerning the possible manner of division of the building into two equal parts and an authorisation concerning the division of the adjacent land into two equal parts.
4. Since the applicant did not rush to transfer the title over the property due to the dispute concerning the money for the privatisation of the land, on 5 March 2018 the applicant’s cousin lodged a criminal complaint against him in which he complained that the applicant had obtained from him EUR 53,000 by way of deception and abuse of confidence under the pretext of selling him immovable property in Chișinău. No other details were given.
5. On the same day, a prosecutor ordered the initiation of criminal proceedings against the applicant and heard the applicant’s cousin in his capacity of alleged victim. In his explanations, the victim submitted that the deal had been for him to help the applicant privatise the land and to receive in exchange half of the building and of the land free of charge. However, the applicant did not keep his promise and forced him pay EUR 53,000, which he did. Moreover, in 2013 the title of the property was transferred to the applicant’s son, but later in 2017 it was transferred back to him. He also heard rumours that the applicant was not intending to give him half of the property as agreed but was looking for other interested buyers. In 2018, after the process of privatisation and registration of the property had ended, the applicant started avoiding him.
6. On 12 March 2018 the applicant was arrested, and, on 13 March 2018, the Râșcani District Court ordered his remand in custody for a period of thirty days. In so doing, the court ruled, inter alia, that there was a reasonable suspicion that he had committed the offence imputed to him, namely that he had attempted to misappropriate EUR 53,000 from his cousin, and referred to evidence obtained by the prosecutor, but without specifying which evidence and without describing its content.
7. The applicant appealed and argued inter alia that there was no reasonable suspicion that he had committed an offence and argued that the dispute between him and his cousin was purely of a civil nature. He maintained that he had no intention of defrauding his cousin and indicated to different measures undertaken by him with a view to dividing the building in question before the beginning of the criminal proceedings (see paragraph 3 in fine above).
8. On 21 March 2018 the Chișinău Court of Appeal dismissed the applicant’s appeal and ruled that there was a reasonable suspicion that he had committed an offence which was confirmed by the evidence accumulated by the prosecutor.
9. On 10 April 2018 the Râșcani District Court prolonged the applicant’s remand in custody for another thirty days. In so doing, the court held again that there was a reasonable suspicion that the applicant had committed the offence imputed to him and referred to the materials of the case-file. The applicant appealed and argued inter alia that there was no reasonable suspicion that he had committed the offence imputed to him.
10. On 19 April 2018 the Chișinău District Court dismissed the applicant’s appeal.
11. On 10 May 2018 the Râșcani District Court ordered the prolongation of the applicant’s remand in custody by thirty days on the basis of the same grounds as in its previous decisions. On 24 May 2018 the Chișinău Court of Appeal dismissed the applicant’s appeal.
12. On 7 June 2018 the Râșcani District Court examined the prosecutor’s application for the prolongation of the applicant’s remand in custody and ordered his house arrest for a period of thirty days.
13. On 19 June 2018 the Chișinău Court of Appeal admitted the applicant’s appeal and ordered his release.
14. On 22 June 2020 the Râșcani District Court acquitted the applicant after finding that the facts imputed to him did not constitute a criminal offence. The proceedings are pending to date.
15. The applicant complains under Article 1 of Protocol No. 4 that he was imprisoned for a debt and that the buyer made use of criminal law instruments in order to achieve his goals in the civil law dispute between them. He also complains under Article 5 § 1 that there was no reasonable suspicion that he had committed a criminal offence and under Article 5 § 3 that there were no relevant and sufficient reasons for ordering and prolonging his detention on remand.
THE COURT’S ASSESSMENT
I. DISJOINDER OF THE APPLICATION
16. In his initial application, the applicant also complained under Article 3 of the Convention about the poor conditions of detention that he allegedly suffered during his remand in custody. In view of similar complaints, in 2019 the Court decided to join this application with forty-one other applications (see Bulgacov and Others v. the Republic of Moldova (dec.) [committee], nos. 54187/15 and 41 other applications, 19 March 2019) and declared this complaint inadmissible.
17. The Court now considers that it is necessary to disjoin this application from the other forty-one and to examine it separately.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
19. The general principles concerning house arrest and the necessity to have a reasonable suspicion that someone has committed an offence in order to be able to deprive him or her of liberty have been summarized in Buzadji v. the Republic of Moldova ([GC] (no. 23755/07, § 104, 5 July 2016) and in Selahattin Demirtaş v. Turkey (no. 2) ([GC] (no. 14305/17, § 314, 22 December 2020) respectively.
20. The Government submitted that there had been a reasonable suspicion that the applicant had committed the offence imputed to him and referred to the materials of the domestic case-file.
21. The Court notes that the domestic courts did not explain in their decisions what in their view the reasonable suspicion that the applicant had attempted to defraud his cousin was based upon. They simply stated that the existence of a reasonable suspicion was supported by the materials of the case-file. Having perused those materials, the Court notes that they simply contained the applicant’s cousin’s unsupported allegations. In particular, the cousin alleged that according to the agreement between the two of them, the applicant was under an obligation to transfer into his property half of the building and of the land free of charge and that there had been no consideration for his paying the applicant EUR 53,000 (see paragraph 5 above). However, this allegation appears to contradict the content of the contract concluded with the applicant and the receipts issued upon payment in which the applicant acknowledged having received that amount in exchange for one half of the building (see paragraph 2 above).
22. The applicant’s cousin further alleged that after the conclusion of the privatisation of the land, the applicant had failed to take steps with a view to fulfilling his part of the agreement, namely of transferring into his ownership one half of the property. In this regard, it is to be noted that it does not appear that the prosecutor and the courts have paid any attention to the fact that there was no deadline stipulated in the contract or the receipts for the applicant to fulfil his part of the agreement, nor is there any evidence to the effect that there were attempts of a civil nature made by the applicant’s cousin with a view to speeding up the process. Moreover, this allegation seems to be at odds with the applicant’s actions, namely with the fact that in the very month preceding the initiation of the criminal proceedings, he had undertaken specific steps with a view to dividing the building and the adjacent land into two equal parts, as provided in the contract with his cousin (see paragraph 3 above). However, the prosecutor and the courts appear to have turned a blind eye to that very important fact. Most importantly, it does not appear from the materials of the case that the prosecutor and the courts paid any attention to the fact whether the applicant’s cousin had fulfilled his part of the obligations, namely the financing of the privatisation, that he apparently refused to do (see paragraph 3 in limine above), before claiming a default on the part of the applicant.
23. In such circumstances, the Court considers that the material put forward by the prosecuting authority and relied upon by the domestic courts to deprive the applicant of his liberty for over three months was not sufficient to persuade an objective observer that the applicant might have committed the offence imputed to him (see, O.P. v. the Republic of Moldova, no. 33418/17, § 39, 26 October 2021). It concludes therefore that the applicant’s detention between 12 March and 19 June 2018 was not based on a reasonable suspicion that he had committed an offence and thus that there has been a violation of Article 5 § 1 of the Convention.
III. OTHER COMPLAINTS
24. The applicant also complained under Article 5 § 3 of the Convention and under Article 1 of Protocol No. 4 that his deprivation of liberty had not been based on relevant and sufficient reasons and that he had been imprisoned for a debt. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that the applicant’s remaining complaints are admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; Moldoveanu v. the Republic of Moldova, no. 53660/15, § 58, 14 September 2021).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
25. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage and EUR 4,760 in respect of costs and expenses.
26. The Government contested the above amounts and argued that they were excessive.
27. The Court considers that, in view of the violation found above, the applicant is entitled to compensation for non-pecuniary damage and awards him EUR 7,500. Having regard to the documents in its possession, the Court awards the applicant EUR 1,500 for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Disjoins the application from the others to which it was joined;
2. Declares the remainder of the application admissible;
3. Holds that there has been a violation of Article 5 § 1 of the Convention;
4. Holds that there is no need to examine the remaining complaints;
5. Holds
(a) that the respondent State is to pay the applicant, 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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand and five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Registrar President
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