CASE OF GOREA v. THE REPUBLIC OF MOLDOVA
(Application no. 63507/11)
22 January 2019
This judgment is final but it may be subject to editorial revision.
In the case of Gorea v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paul Lemmens, President,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 18 December 2018,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 63507/11) 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 a Moldovan national, Mr MihailGorea (“the applicant”), on 1 September 2011.
2. The applicant was represented by Mr A. Donică, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr M. Gurin.
3. The applicant alleged, in particular, that he had been unlawfully detained.
4. On 1 December 2015 the complaint concerning Article 5 § 1 of the Convention was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1962 and lives in Costesti.
6. On 16 July 2008 the Ialoveni District Court found the applicant guilty of disrespectful conduct towards a police officer and sentenced him to five days’ administrative arrest. The applicant appealed.
7. On 12 August 2008 the Chișinău Court of Appeal quashed theabove‑mentioned judgment and returned the case for a re‑examination on the merits.
8. On 11 February 2009 the Ialoveni District Court discontinued the proceedings against the applicant as a result of the expiry of the time-limit for applying an administrative sanction. Meanwhile, the applicant had already served his sentence. The applicant appealed.
9. On 13 March 2009 the Chișinău Court of Appeal quashed the judgment of the district court and discontinued the administrative proceedings in respect of the applicant for lack of corpus delicti.
10. The applicant brought an action under Law no. 1545 seeking 300,000 Moldovan lei (MDL) (the equivalent of 18,750 euros (EUR)) in compensation for non-pecuniary damage. On 11 May 2011 the Supreme Court of Justice concluded that the applicant’s administrative arrest had been unlawful and thus awarded him MDL8,000 (equivalent to EUR 500) as compensation for the damage caused.
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
11. The applicant complained of a violation of Article 5 § 1 of the Convention as a result of his unlawful detention for five days. The relevant parts of 5 § 1 read as follows:
Article 5 § 1
“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:
(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;
12. The Government submitted that the applicant had lost his victim status as a result of being compensated in the civil proceedings. The applicant disagreed and argued that the amount of compensation awarded to him by the domestic courts had been too small.
13. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III).
14. In the instant case it is true that the Supreme Court of Justice held that there had been a violation of the applicant’s rights guaranteed by Article 5 of the Convention and that it awarded him compensation. That said, the Court finds that the question of the applicant’s victim status as regards redress for the violation of his rights is inextricably linked to the merits of the complaints. Therefore, it considers that both questions should be joined and examined together.
15. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. They must therefore be declared admissible.
16. The applicant argued that the compensation awarded by the Supreme Court of Justice in respect of the breach of Article 5 of the Convention had not been adequate and proportionate to the severity of the breaches of his rights. In support of this contention the applicant cited cases in which the Court had found breaches of Article 5 of the Convention and the awards made had been considerably higher than that of the Supreme Court of Justice in his case. In his view, as a result of the insufficient amount of compensation awarded by the Supreme Court of Justice, he still had the victim status within the meaning of Article 5 § 1 of the Convention.
17. The Government expressed a different opinion and argued that the applicant lost his victim status.
18. As the Court has stated on many occasions, Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, for example, Buzadji v. the Republic of Moldova[GC], no. 23755/07, § 84, ECHR 2016 (extracts)).
19. There is no doubt, and it is undisputed between the parties, that the applicant suffered a breach of his rights guaranteed by Article 5 § 1 of the Convention. In this respect, the Court sees no reason to depart from the conclusion of the national courts, which acknowledged the violation of this Article. The Court shares this opinion and does not consider it necessary to re-examine the merits of this complaint. The Court also notes that the domestic courts awarded the applicant compensation for non‑pecuniary damage. It thusremains to be seen whether the award in question was proportionate to the damage the applicant sustained.
20. The Court notes that the Supreme Court awarded the applicant the equivalent of EUR 500 in respect of non-pecuniary damage. This amount is considerably below compared to the amounts awarded by the Court in cases in which it has found a violation of Article 5 § 1 of the Convention (see, for a recent example, Ialamov v. the Republic of Moldova, no. 65324/09, 12 December 2017 where the Court awarded the applicant EUR 4,500 in respect of unlawful detention).
21. In the light of the foregoing, the Court considers that the applicant can still claim to be a victim of a violation of Article 5 §1 of the Convention. It therefore dismisses the Government’s objection.
22. It also finds that there has been a violation of Article 5 § 1 of the Convention, which arises from the unlawful detention of the applicant for five days.
II. ALLEGED VIOLATION OF ARTICLES 5 § 5 OF THE CONVENTION
23. The applicant complained that he had no effective remedy against the breach of his rights guaranteed by Article 5 of the Convention. He relied on Articles 5 § 5 of the Convention, which reads as follows:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
24. The Court reiterates that the right to compensation set forth in Article 5 § 5 of the Convention presupposes that a violation of one of the other paragraphs of that Article has been established, either by a domestic authority or by the Convention institutions (see N.C. v. Italy[GC], no. 24952/94, § 49, ECHR 2002‑X, and Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012).
25. The Court notes that an award of MDL 8,000 was made to the applicant by the Supreme Court in respect of the violation it had found. It reiterates that Article 5 § 5 does not confer a right to a particular amount of compensation, provided that the award made is not derisory or wholly disproportionate (see Cumber v. the United Kingdom, no. 28779/95, Commission decision of 27 November 1996, Attard v. Malta (dec.), no. 46750/99, 28 September 2000, Novoselov v. Russia (dec.), no. 66460/01, 16 October 2003, Shilyayev v. Russia (dec.), no. 9647/02, § 21, 6 October 2005, and Borg v. Malta (dec.), no. 39783/15, § 37, 5 September 2017), or considerably lower than what the Court would have awarded in the event of finding of a similar violation (see Ganea v. Moldova, no. 2474/06, § 30, 17 May 2011, Cristina Boicenco v. Moldova, no. 25688/09, § 43, 27 September 2011).
26. The Court found that the amount awarded by the Supreme Court is considerably below the amounts awarded by the Court in cases in which it found a violation of Article 5 § 1 of the Convention (see paragraph 18above). However, it does not lose sight of the fact that there may be differences in approach between assessing the loss of victim status under Article 5 § 1 on account of the quantum of compensation awarded at national level, on the one hand, and the matter of effectiveness of a right to compensation in terms of Article 5 § 5, on the other hand.
27. As regards Article 5 § 5, the threshold for a violation to have occurred on account of the quantum of a domestic award is a stringent one. In the present case, the Court considers that the amount awarded to the applicant was not so low as to undermine the right to compensation (compare Borg, cited above, § 37).
28. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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.”
30. The applicant considered that he was entitled to compensation in the amount of 8,000 euros (EUR).
31. The Government considered that amount to be excessive.
32. In the light of all the circumstances, the Court awards the applicant EUR 4,000 in respect of non‑pecuniary damage.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government’s preliminary objection concerning the applicants’ victim status, rejects it and declares admissible the complaint under Article 5 § 1 of the Convention;
2. Declares inadmissible the remainder of the application;
3. Holds that there has been a violation of Article 5 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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. Dismissesthe remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 22 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Paul Lemmens
Deputy Registrar President