Last Updated on September 15, 2022 by LawEuro
Information Note on the Court’s case-law 266
September 2022
Gilanov v. the Republic of Moldova – 44719/10
Judgment 13.9.2022 [Section II]
Article 5
Article 5-1
Lawful arrest or detention
Several months’ detention in the extraditing State lawful, despite 30-day period indicated in the detention order of the receiving State and counted from the date of extradition: no violation
Facts – The applicant had, for years, obtained temporary residence permits in Moldova, during which time he opened a foundation for cultural exchanges with North Korea. In 2006 he officially left Moldova and, on an unknown date, entered Belarus.
In 2007 a criminal investigation was opened into alleged fraud committed by the applicant during his time within the foundation. An arrest warrant was issued and a Moldovan court ordered the applicant’s detention for 30 days, starting from the moment of his arrest. The applicant was arrested by the Belarus authorities in May 2010 and was detained there for several months. He was extradited to Moldova in December 2010. His detention was extended pending trial and he was convicted in 2014. The judgment was subsequently quashed and sent for re-examination.
Law – Article 5 § 1: The applicant had argued that his detention in Belarus for more than 30 days had not been taken into account for the purpose of calculating the period of validity of his detention order.
The domestic court order for the applicant’s arrest had mentioned its validity for 30 days from the date of arrest. In the applicant’s view, that had implied that it had expired one month after he had been deprived of his liberty in Belarus. The Government had submitted that the usual practice of the courts had been to take the date of effective detention by the Moldovan authorities as the beginning of detention sanctioned by a detention order issued by a Moldovan court, regardless of the length of extradition procedures. That interpretation had been implicitly supported by the court of appeal when it had rejected the applicant’s appeal against the order, and was both reasonable and practical. It took into account the particular difficulty for the domestic courts – before being able to directly question the person – to verify such elements as the person’s character, morals, assets, links with the State in which they were being prosecuted and their international contacts.
To accept the applicant’s position would also have meant that the Moldovan courts would have had to extend the arrest warrant – again without ever seeing the person involved – at regular intervals. Moreover, since under Moldovan law a person could only be held in detention pending trial for a maximum of 12 months, in the case of any extradition process exceeding that period, the Moldovan authorities would have had to ask the authorities of the State in which the person was detained pending extradition to release him, without the courts ever having the possibility of questioning him. It was only after the Moldovan authorities had the applicant under their control that they could have assumed the full spectrum of their obligations towards him in the context of his pre-trial detention.
Accordingly, the practice of the domestic courts to count the period of “detention” as starting from the moment when a person was deprived of liberty by the domestic authorities (i.e. from the moment of extradition in the present case) was consistent with the requirements of Article 5 § 1.
Conclusion: no violation (four votes to three).
The Court also held, unanimously, that there had been a violation of Article 5 § 3, on the basis that the domestic court’s decision ordering the applicant’s detention pending trial had been stereotyped and abstract. The Court also found, unanimously, a violation of Article 5 § 4, for the decision in respect of his appeal against the detention order having been taken in the absence of a lawyer of his choice.
Article 41: EUR 3,000 in respect of non-pecuniary damage.
(See also Buzadji v. the Republic of Moldova [GC], 23755/07, 5 July 2016, Legal Summary)
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