CASE OF VASILICIUC v. THE REPUBLIC OF MOLDOVA
Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
5. The applicant was born in 1959 and lives in Athens, Greece. 6. Because of the difficult economic situation in Moldova, in 1997 the applicant left that State for Greece where she found employment; she was engaged by a family to take care of a disabled child. She used to visit Moldova on holiday every two to three years and she kept an apartment in Causeni. 7. On 15 September 2008, after a visit to Moldova, the applicant was returning to Greece from Chisinau Airport when she was stopped by customs officers because she had on her twenty-nine pieces of non-identical jewellery such as rings, bracelets, necklaces and pendants. The applicant was wearing seven pieces of the jewellery and the rest were in a jewellery box in her handbag. Since the applicant had failed to declare the jewellery, she was taken to the airport police station. There she stated that she had not been attempting to smuggle the jewellery through customs and that she had honestly believed that no declaration was necessary for goods whose value was less than 5,000 euros (EUR). She also submitted that the jewellery in question had been brought to Moldova from Greece. She was informed that she only had the right to take five pieces of non-identical jewellery out of country, no matter their value. She also submitted that she had not been asked to declare anything by the customs officers. The police drew up a report according to which the applicant had in her possession twenty-nine pieces of jewellery made of precious metals and stones with a total value of 55,582 Moldovan lei (MDL – approximately EUR 3,284). All the jewellery, including the pieces allowed by law to be transported over the border, was seized by the police. 8. The applicant missed her flight and spent two weeks in Moldova during which time she went to the police station on several occasions. There she made an official declaration and signed a formal undertaking to appear before the prosecuting authorities and courts when necessary. She informed the authorities about her intention to leave the country and obtained their permission. She also gave her Greek address and telephone number. 9. On 1 October 2008 the applicant returned to Greece because she could no longer be absent from work. She had no difficulties in leaving the country through the same airport. 10. On 7 October 2008 the Chişinău airport police formally initiated criminal proceedings against the applicant for attempted smuggling of jewellery. The offence was considered to be a minor one (infracțiune ușoară) with a maximum penalty of 6,000 Moldovan lei (approximately EUR 430) or 240 hours community service or imprisonment of two years. The applicant was not aware of the initiation of the criminal proceedings against her. 11. Subsequently, the applicant was summoned to appear before the investigating authorities via her Moldovan address. Since she did not appear, the prosecutors contacted her adult son and a relative of hers and asked them about the applicant’s whereabouts. Both of them stated that the applicant was in Greece and that they did not know when she intended to return to Moldova. It does not appear from the material in the case-file that the prosecutors asked the applicant’s relatives for her contact information in Greece or to inform her that she had to appear before them. 12. On 16 June 2009 the prosecutor’s office applied to the Botanica District Court for a detention order in respect of the applicant. The reason relied upon by the prosecutors was that the applicant had absconded from prosecution when she left the country on 1 October 2008, in spite of her having given a written undertaking to appear when summoned. A public defender was appointed to represent the applicant. On 19 June 2009 the Botanica District Court ordered the applicant’s detention for a period of fifteen days. The reason relied upon by the court was that the applicant had failed to appear before the investigating authorities when summoned. The publicly appointed lawyer did not challenge that decision. 13. The applicant learned of the detention order against her in the summer of 2010 and employed a Moldovan lawyer to challenge it. On an unspecified date the applicant’s representative lodged a habeas corpus application with the Botanica District Court in which it was argued, inter alia, that the applicant had not been aware of the criminal proceedings against her, that she had never been summoned to appear before the prosecutor’s office and that she had not been informed that she could not leave the country. She asked the court to revoke the detention order and, in exchange, promised to appear before the court when necessary and to surrender her passport. 14. On 18 September 2010 the Botanica District Court rejected the applicant’s habeas corpus application relying, inter alia, on the fact that the applicant had formally undertaken to appear before the prosecuting authorities and courts and later failed to abide by the undertaking. The applicant’s representative appealed, arguing, inter alia, that according to the law the undertaking had not been valid because no criminal proceedings had been formally instituted at that time. The appeal was dismissed by the Chişinău Court of Appeal on 30 September 2010. 15. In July 2011, after the communication of the present case to the Government, the Moldovan authorities applied to Interpol for an international arrest warrant for the applicant. As a result, the applicant was arrested in Greece and held in detention pending extradition proceedings for a period of twenty-three days. In the documents ordering the applicant’s arrest and detention, the Greek authorities made specific reference to the detention order issued by the Botanica District Court on 19 June 2009 (see paragraph 12 above). The extradition proceedings ended on 21 September 2011 when the Athens Court of Appeal rejected the Moldovan authorities’ extradition request and ordered the applicant’s release from detention. The Athens Court of Appeal found that according to Article 5 of the European Convention on Extradition, persons suspected of offences in connection with taxes, duties and customs could be extradited only if the Contracting Parties have so decided in respect of any such offence or category of offences. In the absence of any such agreement between Moldova and Greece, the extradition request could not be upheld. It appears that the applicant has not returned to Moldova ever since.