SECOND SECTION
\nCASE OF LITSCHAUER v. THE REPUBLIC OF MOLDOVA
\n(Application no. 25092\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n13 November 2018<\/p>\n
FINAL
\n13\/02\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Litschauer v. the Republic of Moldova,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 9 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 25092\/15) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by an Austrian national, Mr Martin Litschauer (\u201cthe applicant\u201d), on 12 May 2015.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A. Bivol and Ms E. Munteanu lawyers practising in Chi\u0219in\u0103u. The Moldovan Government (\u201cthe Government\u201d) were represented by their Agent, Mr O. Rotari.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that he had been remanded in custody in the absence of reasonable suspicion that he had committed a criminal offence and that his detention had been unlawful under domestic law. He also alleged that his detention had not been based on relevant and sufficient reasons. He relied on Article 5 \u00a7\u00a7 1 and 3 of the Convention.<\/p>\n 4.\u00a0\u00a0On 12 July 2017 the application was communicated to the Government.On the same date the Austrian Government were informed of their right to intervene in the proceedings in accordance with Article 36 \u00a7 1 of the Convention and Rule 44\u00a7 1(b), but they did not express a wish to avail themselves of this right.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1979 and lives in Chi\u0219in\u0103u.<\/p>\n 6.\u00a0\u00a0At the time of the events the applicant was the owner of a company, incorporated in Moldova, which ran anerotic video-chat business in Chi\u0219in\u0103u. It employed young female models who provided erotic shows via webcam to customers outside Moldova in exchange for payment.<\/p>\n 7.\u00a0\u00a0On 3 March 2015 the applicant was arrested and accused of pimping (proxenetism).<\/p>\n 8.\u00a0\u00a0On 7 March 2015, at the request of a public prosecutor, the Centru District Court ordered that the applicant be remanded in custody for a period of thirty days. The applicant appealed against the order and argued that his detention had not been based on a reasonable suspicion that he had committed an offence. He submitted that he could not be accused of pimping, in that the female models employed by him had not been engaged in prostitution. He argued that the prosecutor and the court which had ordered his detention hadapplied an extensive interpretation of the provisionsof the Criminal Code concerning the offence of pimping. He also argued thatthe existing case-law of the domestic courts did not contain anything which would enable erotic video-chat activityto be assimilated with prostitution and pimping. The applicant also contended that there were no relevant and sufficient reasons for remanding him in custody.<\/p>\n 9.\u00a0\u00a0On 16 March 2015 the Chi\u0219in\u0103u Court of Appeal dismissed the applicant\u2019s appeal and held that there had beengrounds to believe that hemight abscond or interfere with the investigation. The court did not respond to the applicant\u2019s argument about a lack of reasonable suspicion and the allegation of extensive interpretation of the criminal law.<\/p>\n 10.\u00a0\u00a0On 31 March 2015 the Centru District Court upheld a request by the PublicProsecutorand prolonged the applicant\u2019s detention for another thirty days. The applicant appealed on the same grounds as on the first occasion. However, his appeal was dismissed by the Court of Appeal on 7 April 2015.<\/p>\n 11.\u00a0\u00a0On an unspecified date the applicant lodged a habeas corpus request, which was upheld by the Centru District Court on 27 April 2015; the applicant was released from detention.<\/p>\n 12.\u00a0\u00a0During the proceedings the applicant explained that, prior to starting the video-chat business, he had consulted a lawyer to make sure that the activity was legal in Moldova, and he had been assured that it was not illegal. He also submitted that he had seen numerous similar businesses in Chi\u0219in\u0103u, which had strengthened his belief that the activity was not unlawful.<\/p>\n 13.\u00a0\u00a0On 30 December 2016 the Centru District Court found the applicant guilty as charged but ordered that the criminal proceedings against him be terminated on the basis of an amnesty law. One of the conditions for applying the amnesty law was for the applicant to admit his guilt and express remorse. The applicant did not appeal against this decision.<\/p>\n 14.\u00a0\u00a0In 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\u2019s 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 applicant could be considered acts of prostitution, in that their clients could obtain sexual gratification as a result of the models\u2019 performance and because the models were paid for those acts. Thus, thefact that the applicantobtained revenue from the above activity could be considered pimping.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 15.\u00a0\u00a0Prostitution 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 Contraven\u021bional), which reads as follows:<\/p>\n Engaging in prostitution(Practicarea prostitu\u021biei)<\/p>\n \u201c(1)\u00a0\u00a0Engaging in prostitution shall be punishable by a fine of [800 \u2013 1,200 Moldovan lei] or 20 to 40 hours of community work.<\/p>\n (2)\u00a0\u00a0An individual engaged in prostitution against his or her will shall not be held criminally liable.\u201d<\/p>\n 16.\u00a0\u00a0At the same time, pimping is an offence incriminated under Article\u00a0220 of the Criminal Codeand is punishable by up to ten years\u2019imprisonment. 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.<\/p>\n 17.\u00a0\u00a0In 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.<\/p>\n 18.\u00a0\u00a0Article 3 of the Criminal Code, entitled \u201cThe Principle of Legality\u201d, reads as follows:<\/p>\n \u201cNo 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.<\/p>\n Extensive interpretation to the detriment of the accused and application of criminal law by analogy shall be prohibited\u201d.<\/p>\n 19.\u00a0\u00a0On 18 June 2015 the Centru District Court adopted an acquittal judgment in criminal proceedings against Briscoe and Zagnitco (case\u00a0no.\u00a01\u2011279\/15); the defendants had been accused of pimping for running an erotic webcam business identical to that in the applicant\u2019s case. Some of the relevant parts of the court\u2019s judgment read as follows:<\/p>\n \u201cThe criminal law of the Republic of Moldova lacks an official interpretation of the notion of prostitution …<\/p>\n As in the case of prostitution, the Criminal Code does not contain a definition of the notion of \u201csexual contact\u201d(act sexual)…<\/p>\n Although the online broadcast of pornographic shows might procure sexual gratification, this cannot be considered a \u201csexual contact\u201d which falls under the provisions of the Criminal Code … An essential element of \u201csexual contact\u201d 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.<\/p>\n It follows that [the defendants] cannot be held liable for [pimping].\u201d<\/p>\n 20.\u00a0\u00a0On 30 October 2015 the Chi\u0219in\u0103u 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\u2019s case. Both defendants were sentenced to two years and eight months\u2019 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.<\/p>\n 21.\u00a0\u00a0On 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 anerotic webcam business identical to that in the applicant\u2019s 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.<\/p>\n 22.\u00a0\u00a0On 13 September 2016 the Chi\u0219in\u0103u Court of Appeal quashed the above judgment. It found the defendant guilty ofpimping but ordered that the criminal proceedings against him be terminated on the basis of an amnesty law.<\/p>\n 23.\u00a0\u00a0In 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 asthe dissemination of pornography.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION<\/p>\n 24.\u00a0\u00a0The applicant complained that his detention between 3 March and 27\u00a0April 2015 had not been lawful and\/or based on a reasonable suspicion that he had committed a criminal offence or on relevant and sufficient reasons, as required by Article 5 \u00a7\u00a7 1 and 3 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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:<\/p>\n (a)\u00a0\u00a0the lawful detention of a person after conviction by a competent court;<\/p>\n (b)\u00a0\u00a0the 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;<\/p>\n (c)\u00a0\u00a0the 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;<\/p>\n (d)\u00a0\u00a0the 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;<\/p>\n (e)\u00a0\u00a0the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;<\/p>\n (f)\u00a0\u00a0the 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.<\/p>\n …<\/p>\n 3.\u00a0\u00a0Everyone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(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.<\/p>\n …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 25.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 26.\u00a0\u00a0The applicant argued that his detention had notbeen lawful and\/or based on a reasonable suspicion that he had committed the offence of pimping. At the time that he operated his business there were no legal provisions in the Criminal Code making it clear thatthe provision of erotic video-chat services could be considered prostitution. The two cases relied upon by the Government came before the domestic courts one year later, so it had been impossible to foresee that his activity might be held to be criminal in nature.<\/p>\n 27.\u00a0\u00a0The Government submitted that the notion of prostitution had no definition in domestic law and had therefore to be interpreted by the judges. In final judgments of 21 June 2016 and 13 September 2016 respectively,the Supreme Court and the Chi\u0219in\u0103u Court of Appeal had found in the cases of Briscoe and Zagnitco and Isachi that the activities of erotic video-chat models amounted to prostitution within the meaning of Article 89 of the Code of Minor Offences. Consequently, the fact that the applicant was earning revenue from the acts of prostitution committed by his employees amounted to pimping. Since the applicant did not deny the facts imputed to him, there had been a reasonable suspicion that he had committed the offence of pimping.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 28.\u00a0\u00a0Where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of \u201clawfulness\u201d set by the Convention, a standard which requires that all law be sufficiently precise to allow the person \u2013 if need be, with appropriate advice \u2013 to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Medvedyev and Othersv. France [GC], no. 3394\/03, \u00a7 80, ECHR 2010;Creang\u0103 v. Romania [GC], no. 29226\/03, \u00a7 120, 23 February 2012;Del R\u00edo Pradav. Spain [GC], no. 42750\/09, \u00a7 125, ECHR 2013; and Khlaifia and Others v. Italy [GC], no. 16483\/12, \u00a7 92, 15 December 2016).<\/p>\n 29.\u00a0\u00a0Turning to the facts of the present case, the Court notes that the applicant was detained for fifty-five days on suspicion of having committed the offence of pimping. The Court will first examinewhether the acts imputed to himfell within a definition of a criminal offence which was sufficiently accessible and foreseeable.<\/p>\n 30.\u00a0\u00a0The applicant\u2019s main defence argument during the remand proceedings and subsequent criminal proceedings was that he could not be held liable for pimping because the video-chat models employed by him were not engaged in prostitution. The main debate in the criminal proceedings thus concerned the question whether the selling of erotic shows over theinternet could be construed as prostitution for the purposes of Article 89 of the Code of Minor Offences. The courts which conducted the remand proceedings did not consider it necessary to express a view on that issue and met the applicant\u2019s argument with silence.<\/p>\n 31.\u00a0\u00a0It is not disputed between the parties that the domestic law does not contain a definition of prostitution and that it contains no provisions pertaining to erotic video-chat shows. It is, however, the Government\u2019s case that the consequences of the applicant\u2019s behaviour were foreseeable on the basis of the domestic courts\u2019 case-law.<\/p>\n 32.\u00a0\u00a0The Courthas examined the relevantdomestic case-law and notes that the first casesimilar to the present one was that Briscoe and Zagnitco, which ended withthe judgment of the Centru District Court of 18\u00a0June 2015 (see paragraphs 19 and 20 above), i.e. several months after the end of theremand proceedings in the present case. In that case, the court considered that selling erotic video-chat performancesviathe internet could not be considered prostitution in that no sexual contact took place between the models and their clients. The above decision was overturned by the Chi\u0219in\u0103u Court of Appeal in a judgment of 30\u00a0October 2015, on the basis of a different interpretation of the notion of sexual contact and prostitution by the State Authority for the Protection of Morals. On 21 June 2016 the Supreme Court upheld the decision of the Court of Appeal.<\/p>\n 33.\u00a0\u00a0In the case of Isachi, on 14 July 2015 the Ciocana District Court adopteda similar approach in interpreting the notion of prostitution as the first-instance court had in the case of Briscoe and Zagnitco,and acquitted the accused (see paragraphs 21 and 22 above). The judgment was later reversed by the Chi\u0219in\u0103u Court of Appeal on 13\u00a0September 2016. As can be seen, both judgments were adopted after the remand proceedings in the present case had ended.<\/p>\n 34.\u00a0\u00a0The debate concerning the interpretation of the notion of prostitution appears to be ongoing in Moldova, given the intervention of the Constitutional Court (see paragraph 23 above), which expressed a different opinion to the effect that, in the absence of physical contact, erotic video-chat performances could not be considered acts of prostitution.<\/p>\n 35.\u00a0\u00a0In the light of the above considerations, the Court notesfirstlythat the facts of the present case pre-date the case-law relied upon by the Government in support of their position. Secondly,it appears that the issue of whether erotic video-chat performances amount to sexual contacts and thus to prostitution for the purposes of Article 89 of the Code of Minor Offences is still being debated. In such circumstances, the Court concludes thatthe 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 \u201clawfulness\u201d set out by the Convention (see, a contrario, Steel and Others v. the United Kingdom, 23 September 1998, \u00a7\u00a055, Reports of Judgments and Decisions 1998\u2011VII). Thus, the applicant could not reasonably have been expected to foresee, even with appropriate legal advice, the consequences of his conduct. This being so, the Court comes to the conclusion that the applicant\u2019s detention was not lawful under domestic law and that there has been a breach of Article 5 \u00a7 1 of the Convention.<\/p>\n 36.\u00a0\u00a0In view of the above findings the Court does not consider it necessary to examine separately whether the applicant\u2019s detention was based on a reasonable suspicion that he had committed an offence and, consequently, the applicant\u2019s complaint under Article\u00a05\u00a0\u00a7\u00a03 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 37.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 38.\u00a0\u00a0The applicant claimed 15,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 39.\u00a0\u00a0The Government contested the amount of non-pecuniary damage claimed by the applicant, alleging that was excessive.<\/p>\n 40.\u00a0\u00a0The Court considers that the applicant must have suffered stress and frustration as a result of the violation found and awards himEUR 8,000 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 41.\u00a0\u00a0The applicant also claimed EUR 2,000 in respect of the costs and expenses incurred before the Court.<\/p>\n 42.\u00a0\u00a0The Government considered this amount excessive.<\/p>\n 43.\u00a0\u00a0Regard 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.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 44.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT,<\/strong><\/p>\n 1.\u00a0\u00a0Declares,unanimously, the application admissible;<\/p>\n 2.\u00a0\u00a0Holds, by five votes to two, that there has been a violation of Article 5 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds,unanimously, that there is no need to examine the complaint under Article 5 \u00a7 3 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds, by fivevotes to two,<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 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:<\/p>\n (i)\u00a0\u00a0EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 2,000 (two thousandeuros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 5.\u00a0\u00a0Dismisses,unanimously, the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 13 November 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stanley Naismith\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano ________________<\/p>\n In accordance with Article\u00a045 \u00a7\u00a02 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the joint dissenting opinion of Judges Spano and Kj\u00f8lbro is annexed to this judgment.<\/p>\n R.S. JOINT DISSENTING OPINION<\/strong> 1.\u00a0\u00a0The legal question raised by the present case is whether the applicant was detained from 3 March 2015, when he was arrested, until 27 April 2015, when he was released from pre-trial detention, \u201con reasonable suspicion of having committed an offence\u201d, more specifically the offence of pimping. In the view of the majority, that was not the case and, in consequence, they have found a violation of Article 5 \u00a7 1 (c) of the Convention. For the reasons elaborated below, we respectfully disagree. In our view, the applicant\u2019s detention was lawful within the meaning of Article\u00a05 \u00a7 1 (c).<\/p>\n 2.\u00a0\u00a0A \u201creasonable suspicion\u201d that a criminal offence has been committed, referred to in Article 5 \u00a7 1 (c) of the Convention, has a factual aspect and a legal aspect.<\/p>\n 3.\u00a0\u00a0As to the factual aspect, a \u201creasonable suspicion\u201d presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence. As a rule, problems in this area arise at the level of the facts. The question then is whether the arrest and detention were based on sufficient objective elements to justify a \u201creasonable suspicion\u201d that the facts at issue had actually occurred (see, for example, W\u0142och v. Poland, no. 27785\/95, \u00a7 108, ECHR 2000\u2011XI). This aspect of a \u201creasonable suspicion\u201d is not an issue in the present case, where it is undisputed that the applicant ran an erotic video-chat business employing young female models who provided erotic shows via webcam to customers in exchange for money.<\/p>\n 4.\u00a0\u00a0As to the legal aspect, which is the aspect in issue in the present case, the existence of a \u201creasonable suspicion\u201d requires that the facts relied on can be reasonably considered as constituting a criminal offence, that is, falling under one of the sections describing criminal behaviour in the Criminal Code. Thus, there could clearly not be a \u201creasonable suspicion\u201d if the acts or facts held against a detained person did not constitute a crime at the time when they occurred. The issue in the present case is whether the applicant\u2019s detention was \u201clawful\u201d within the meaning of Article 5 \u00a7 1. The Convention refers here essentially to national law, but it also requires that any measure depriving the individual of his liberty be compatible with the purpose of Article 5, namely to protect the individual against arbitrariness (see, for example, W\u0142och v. Poland, cited above, \u00a7 109).<\/p>\n 5.\u00a0\u00a0If the Court, exercising its supervisory control over compliance with domestic law, reaches the conclusion that the facts relied on cannot be reasonably considered as falling under any of the criminal provisions relied on by the domestic authorities, it will reach the conclusion that the detention was unlawful (see, for example, Lukanov v. Bulgaria, 20 March 1997, \u00a7\u00a7\u00a043-45, Reports of Judgments and Decisions 1997\u2011II, and Kandzhov v.\u00a0Bulgaria, no. 68294\/01, \u00a7 59-62, 6 November 2008). Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 \u00a7 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see, inter alia, Mooren v.\u00a0Germany [GC], no. 11364\/03, \u00a7 73, 9 July 2009). That being said, the Court will as a rule accept domestic courts\u2019 interpretation and application of domestic law unless it is arbitrary or manifestly unreasonable (see, for example, Paci v. Belgium, no. 45597\/09, \u00a7 73, 17 April 2018)<\/p>\n 6.\u00a0\u00a0The applicant was charged with the offence of \u201cpimping\u201d. Under Article 220 of the Criminal Code, pimping is defined as \u201cencouraging or inducing another person to engage in prostitution or obtaining revenues as a result of another person engaging in prostitution\u201d. In other words, the offence of \u201cpimping\u201d is closely linked to \u201cprostitution\u201d. In Moldova, prostitution is considered to be a misdemeanour under Article\u00a089 of the Code of Minor Offences, which does not, however, provide a definition of \u201cprostitution\u201d or \u201cengaging in prostitution\u201d.<\/p>\n 7.\u00a0\u00a0The prosecutor was of the view that acts committed by the applicant, namely running an erotic video-chat business employing young female models who provided erotic shows via webcam to customers in exchange for payment, amounted to pimping. The applicant, on the other hand, was of the view that the models were not engaged in prostitution, since erotic video-chat activity could not be assimilated with prostitution.<\/p>\n 8.\u00a0\u00a0In finding a violation, the majority relies on the following arguments: (1) domestic law does not contain a definition of \u201cprostitution\u201d (see paragraph 31 of the judgment); (2) the facts of the applicant\u2019s case predate the subsequent case-law development on the meaning of \u201cprostitution\u201d (see paragraph 32); (3) the meaning of \u201cprostitution\u201d was debated at domestic level (see paragraphs 32-33); and (4) the Constitutional Court in a decision of 19\u00a0April 2018 expressed the opinion that, given the lack of physical contact, the practising of erotic video-chat could not be considered prostitution (see paragraph 34), (a view that seems to be in conflict with the Supreme Court\u2019s judgment of 21 June 2016). In our view, these arguments are insufficient to reach the conclusion that the applicant was not detained on a \u201creasonable suspicion\u201d of having committed the offence of \u201cpimping\u201d.<\/p>\n 9.\u00a0\u00a0The fact that domestic legislation did not contain a definition of \u201cprostitution\u201d is not in itself decisive. Furthermore, the fact that the applicant\u2019s case may have been the first of its kind and that there were no relevant precedents is not decisive for assessing \u201creasonable suspicion\u201d and the lawfulness of the detention.<\/p>\n 10.\u00a0\u00a0Thus, under Article 7 of the Convention, in assessing the foreseeability of a judicial interpretation, the Court has repeatedly found that no importance should be attached to a lack of comparable precedents (see K.A. and A.D. v. Belgium, nos. 42758\/98 and 45558\/99, \u00a7\u00a7 55-58, 17\u00a0February 2005, and Huhtam\u00e4ki v. Finland, no. 54468\/09, \u00a7\u00a7 46-54, 6\u00a0March 2012). Where the domestic courts are called on to interpret a provision of criminal law for the first time, an interpretation of the scope of the offence which was consistent with the essence of that offence must, as a rule, be considered as foreseeable (see Jorgic v. Germany, no. 74613\/01, \u00a7\u00a0109, ECHR 2007\u2011III). Even a new interpretation of the scope of an existing offence may be reasonably foreseeable for the purposes of Article\u00a07, provided that it is reasonable in terms of domestic law and consistent with the essence of the offence (see see Khodorkovskiy and Lebedev v. Russia, nos.\u00a011082\/06 and 13772\/05, \u00a7\u00a7 791-821, 25 July 2013). The Court has adopted a similar approach in assessing the lawfulness of an interference under other provisions of the Convention (see, for example, Kudrevi\u010diusand Others v. Lithuania [GC], no. 37553\/05, \u00a7 115, ECHR 2015, concerning Article 11 of the Convention).<\/p>\n 11.\u00a0\u00a0What is decisive is whether the domestic authorities, first the prosecutor in requesting detention and subsequently the domestic courts in ordering detention, could \u201creasonably [have] believe[d]\u201d that the acts committed by the applicant constituted pimping (compare Kandzhov v.\u00a0Bulgaria, no.\u00a068294\/01, \u00a7 60, 6 November 2008) or, to use the terminology of Article\u00a07, whether it was to a reasonable degree \u201cforeseeable\u201d that the acts committed could be considered to fall within the scope of pimping and whether the domestic courts\u2019 interpretation of domestic law was consistent with the \u201cessence\u201d of the offence.<\/p>\n 12.\u00a0\u00a0In our view, it is a matter of interpretation whether \u201cprostitution\u201d requires direct physical contact or whether it may also include the obtaining of sexual gratification as a result of a model\u2019s performance, displayed by means of erotic video-chat and in return for payment. In our view, there is nothing arbitrary or unreasonable in the latter and more extensive interpretation, adopted by the domestic courts in the applicant\u2019s case. In addition, such an interpretation of the notion \u201cprostitution\u201d seems consistent with the essence of the offence, which is to protect persons, in particular women, from sexual and economic exploitation. The interpretation adopted by the District Court and the Court of Appeal, ruling on the applicant\u2019s detention, was in accordance with the subsequent opinion of 21 October 2015 from the State Agency for the Protection of Morality, according to which the actions of the female models employed by the applicant could be considered acts of prostitution, in that their clients were able to obtain sexual gratification as a result of the models\u2019 performance and because the models were paid for those acts (see paragraph 14 of the judgment). It was also confirmed subsequently, not only in the judgment of 30 December 2016 convicting the applicant (see paragraph 13), a judgment that the applicant did not challenge by lodging an appeal, but also in other similar cases (the Court of Appeal\u2019s judgments of 30 October 2015 and 13\u00a0September 2016 (see paragraphs 20 and 22 respectively)) and, importantly, by the Supreme Court in a judgment of 21 June 2016 (see paragraph 20).<\/p>\n 13.\u00a0\u00a0In our view, therefore, the applicant was lawfully detained \u201con reasonable suspicion of having committed an offence\u201d, and there was nothing arbitrary or unreasonable in the domestic courts\u2019 interpretation of domestic law (see W\u0142och v. Poland, cited above, \u00a7 116), and this interpretation seems reasonably foreseeable (see Kandzhov v. Bulgaria, cited above, \u00a7 60) and consistent with the essence of the offence of pimping (see Jorgic v. Germany, cited above, \u00a7 109).<\/p>\n 14.\u00a0\u00a0To conclude, we find the reasoning of the majority problematic for the following reasons. Firstly, the majority do not pay sufficient attention to the wording of Article 5 \u00a7 1 (c) of the Convention, which requires only a \u201creasonable suspicion\u201d, not a sufficient basis for a conviction, and it is first and foremost for the domestic courts to interpret and apply domestic law. Secondly, it follows logically, and at least implicitly, from the majority\u2019s reasoning, according to which the applicant \u201ccould not have reasonably been expected to foresee, even with appropriate legal advice, the consequences of his conduct\u201d (see paragraph\u00a035), that not only the applicant\u2019s detention, but also his subsequent conviction were, in the majority\u2019s view, unlawful. For the reasons set out above, we voted against finding a violation of Article 5 \u00a7 1 (c). In our view, a certain deference should be afforded to the domestic authorities, including prosecutors and domestic courts, as they interpret and apply domestic law in the light of present-day conditions and changing circumstances in society, provided that such an interpretation is sufficiently foreseeable and consistent with the essence of the offence, in the present case the provision of sufficient protection to vulnerable women against sexual and economic exploitation.<\/p>\n
\nJulia Laffranque,
\nLedi Bianku,
\nI\u015f\u0131l Karaka\u015f,
\nValeriu Gri\u0163co,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\nS.H.N.<\/p>\n
\nOF JUDGES SPANO AND KJ\u00d8LBRO<\/strong><\/p>\n