CASE OF IGNATENCO v. MOLDOVA
Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was a security guard who was born in 1969 and lived in Bălţi. 6. The applicant, together with Messrs Nicolae Ninescu and Anatolie Tripăduş who have also lodged applications with the Court, was involved in a series of complex commercial arrangements concerning the building of eighteen blocks of flats in Chişinău by a construction company (“the company”). 7. On 29 March 2004 S.F. and L.B. created the above-mentioned company with a capital of 5,400 Moldovan lei (MDL). Each of the parties was the holder of 50% of the company's shares. On 17 December 2004 L.B. sold 10% of her shares to S.F. and on 11 February 2005 the remaining 40% of her shares were sold to F.M., a German national. The relevant documents were registered by the State Registration Chamber. 8. On 14 February 2006 Mr Nicolae Ninescu, on behalf of F.M., brought an action against S.F., seeking the exclusion of the latter from the company on the ground that S.F. had not paid his part of the shares since 29 March 2004. 9. On 15 March 2006 the Bălţi District Court upheld F.M.'s action and ordered the exclusion of S.F. from the company. F.M. thus became the sole shareholder. On 31 March 2006 the judgment became final and enforceable. The court issued an enforcement warrant and on the same date the State Registration Chamber registered the changes in the company's statutory documents. 10. On 2 April 2006 F.M. sold 10% of his shares to the applicant and 70% of his shares to V.S., who in turn sold them to three other persons, who were represented by the applicant in these transactions. 11. On 3 April 2006 the Bălţi Territorial Office of the State Registration Chamber added 3,024,000 euros (EUR) to the company's capital. This corresponded to the value of the project documentation for the construction site which had been estimated at EUR 3,024,358.80 in an audit report dated 9 December 2005. 12. Later in 2006, on an unspecified date, S.F. appealed against the judgment of 15 March 2006. He asked the Bălţi Court of Appeal to strike the case out of its list on the grounds that Mr Nicolae Ninescu did not have the powers to bring an action on behalf on F.M. The Court of Appeal examined the appeal despite the fact that the appealed decision was final, since it found that the merits of the case had been examined by the Bălţi District Court in F.S.' absence, who had not been legally summoned to that hearing. On 30 May 2006 the Bălţi Court of Appeal dismissed the appeal and rejected the request to strike the case out of its list of cases. S.F. lodged an appeal on points of law. 13. On 11 July 2006 the Supreme Court of Justice upheld the appeal on points of law. It quashed the judgment of the Bălţi District Court of 15 March 2006 and the Bălţi Court of Appeal's decision of 30 May 2006 and ordered that the case be remitted to the first-instance court. 14. On 2 August 2006 the Chişinău Court of Appeal joined F.M.'s action to a counter action filed by S.F. against F.M. and the State Registration Chamber, seeking the annulment of all documents which had led to his exclusion from the founding members of the company and for an acknowledgement of his sole ownership of the company's shares. 15. By a final judgment of 19 October 2006 the Supreme Court dismissed F.M.'s action and upheld in full the action lodged by S.F. 16. Meanwhile, on 16 May 2006, the Prosecutor General's Office ordered the opening of a criminal investigation into the alleged forgery of the power of attorney whereby the applicant had represented the above-mentioned three individuals (see paragraph 10 above). A criminal investigation was also opened in relation to the alleged smuggling of the project documentation for the construction site, since it had not been drafted in Moldova and had to be registered with the customs when introduced into Moldova. The investigation revealed that the project documentation had been brought into Moldova by the applicant on 27 February 2006. It further appeared that the applicant had declared the value of the project documentation as being MDL 19,665 whereas it had been estimated at EUR 3,024,358.80 (see paragraph 11 above). 17. On 26 May 2006 S.F. filed a criminal complaint with the Prosecutor General's Office about having been excluded from the founders of the company and about being illegally dispossessed of his shares. 18. On the same date, the Buiucani police office opened a criminal investigation against Mr Nicolae Ninescu into the alleged misappropriation of S.F.'s assets. 19. On 9 June 2006 an officer of the Centre for Fighting Economic Crimes and Corruption (“CFECC”) ordered the opening of a criminal investigation into the allegations made by S.F. The CFECC only relied on S.F.'s allegations that following the judgment of the Bălţi District Court of 15 March 2006 S.F. had been excluded from the founders of the company and that F.M. had subsequently sold the company's shares to third parties, including the applicant. 20. On 26 June 2006 both criminal investigations instituted against Mr Nicolae Ninescu were joined. 21. On 17 July 2006 the criminal investigation started by the Prosecutor General's office on 16 May 2006 into the acts of smuggling and forgery was joined to the criminal investigation started by the CFECC on 9 June 2006. 22. On 8 August 2006 all the above-mentioned criminal investigations were joined in a single criminal investigation. 23. On 18 December 2006 an expert report commissioned by the CFECC concluded that it could not firmly establish whether the power of attorney whereby the applicant had represented the above-mentioned three individuals (see paragraph 10 above) had properly been signed by the director of the company or whether the signature had been forged. 24. On 3 May 2007 an investigating judge of the Buiucani District Court granted the CFECC's application for a search warrant to search the applicant's domicile in Bălţi. The search was conducted on 4 May 2007. 25. On 19 June 2007, at 12.15 p.m., the applicant was arrested and placed in the remand centre of the CFECC. 26. On 22 June 2007, at 8.55 a.m., the prosecutor applied to the Buiucani District Court for an arrest warrant for the applicant. The application recorded that the applicant lived in Bălţi. It further noted that on 31 March 2006 F.M. had asked the State Registration Chamber urgently to enforce the judgment of 15 March 2006, i.e. as soon as it had become final and enforceable. This request had been made without notice to S.F. and, in the prosecutor's view, in order to erase all evidence of an offence. Relying on “investigative information” (măsuri operativ-investigative) that the applicant, together with F.M. and Mr Nicolae Ninescu, had executed the orders of Mr Anatolie Tripăduş against S.F., the prosecutor alleged that the applicant had committed the offence of misappropriation of another's property. The prosecutor's application did not refer to any other evidence in support of a reasonable suspicion that the applicant had committed the offence. Nor did it refer to any reasons for his detention or that he might abscond or put pressure on witnesses. 27. Later on the same day, at 2.40 p.m., the applicant's lawyer lodged an application for the applicant's release on the ground that the period of his detention had ended at 12.15 p.m. earlier that day. 28. At 4 p.m., however, an investigating judge of the Buiucani District Court ordered the applicant's remand for a period of 10 days. The judge gave the following reasons for the applicant's detention: “[the court] takes into consideration the character and the degree of the alleged offence ... its seriousness, the necessity to protect public order, the sense of shock which may be caused to society by the applicant's release, ... the existence of a danger of absconding from law enforcement authorities, the risk of influencing the outcome of the investigation and collusion between the accused and the creation of exculpatory evidence, which result from the nature of the offence ... and the personality of the accused and his conduct during the criminal proceedings. ... the court dismisses the argument that the applicant had to be released after 72 hours ... because the delay in the opening of the hearing was due to the examination of other remand warrants and the delay in examining the prosecutor's request was due to the courts' efforts to observe the procedural rights of the defence party. ... at this stage, the court considers that the relevance of the prosecution's reasoning has priority and will contribute to the normal conduct of the criminal proceedings. ... The court orders the prosecutor to ensure ... the applicant's proper medical care.” 29. The applicant appealed on 25 June 2007. The applicant did not, however, complain in his written submissions about the delay in releasing him on 22 June 2007. 30. On 26 June 2007 the police informed the CFECC that the applicant had not been living at his given address in Bălţi for four years. 31. On 28 June 2007, at 9.30 a.m., the applicant was officially indicted on charges of misappropriation of another's property and forgery. The indictment stated that S.F.'s 60% shares in the company were worth MDL 20,165,034 (EUR 1,327,083) on 1 January 2006. 32. On the same day, at 10 a.m., the Chişinău Court of Appeal examined the appeal against the decision of 22 June 2007 and dismissed the applicant's appeal. It did not consider the applicant's arguments about the lack of a reasonable suspicion against him or deal with other submissions in favour of release. However, the court endorsed the reasons given by the investigating judge of the Buiucani District Court for remanding the applicant in custody and stated that he could abscond through the uncontrolled territory of Transdniestria. 33. Still on 28 June 2007, at 10.40 a.m., the prosecutor applied to the Buiucani District Court for an extension of the applicant's detention for another 30 days. The grounds for the extension were similar to those relied upon in the initial application for a remand warrant. It further stated that the identity of all the persons who could have been aware of the offence were unknown. An investigating judge of the Buiucani District Court ordered the extension of the applicant's detention for another 20 days for the reasons given by the prosecution later on that day. Relying on Article 186 § 3 of the Code of Criminal Procedure (“the CCP”) the judge further stated that in exceptional circumstances, depending on the complexity of the case, the severity of the offence and the risk of the applicant's absconding, the detention could be prolonged. He further noted that the criminal investigation was still ongoing and that several other measures had to be taken in order to complete it. The judge however did not consider any of the arguments put forward by one of the applicant's lawyers that the applicant's wife was eight months' pregnant, that he would not abscond and that he did not intend to influence witnesses. The applicant appealed. 34. On 10 July 2007 the Chişinău Court of Appeal rejected the appeal lodged against the decision of 28 June 2007 and found that the investigating judge of the Buiucani District Court had observed the correct procedure. It did not adduce any new reasons for the applicant's detention. 35. On 12 July 2007 the applicant's lawyer made a fresh habeas corpus application, submitting that there was no reason for the applicant's further detention on remand. He stated that there was no risk of collusion between the accused or of influencing witnesses, since the criminal proceedings had been instituted on 9 June 2006 and during that period the prosecution had done enough to obtain evidence. 36. On 16 July 2007 the prosecutor filed a new application with the Buiucani District Court for the prolongation of the applicant's detention for an additional 30 days. The prosecutor also relied on the risk that the applicant would forge identity papers and documents in order to hinder the investigation and that the identity of all the persons who could have been aware of the offence was unknown. 37. On 18 July 2007 an investigating judge of the Buiucani District Court upheld the prosecutor's request and relying on Article 186 § 3 of the CCP prolonged the applicant's detention for 20 days. The investigating judge endorsed the reasons given by the prosecutor in favour of the applicant's further detention. As to the habeas corpus application, the investigating judge found that the reasons put forward by the prosecution for extending the applicant's detention outweighed the reasons put forward by the defence. Again, the applicant's lawyer's argument that his wife was pregnant and that therefore he was unlikely to abscond was ignored. Similarly, the investigating judge did not heed the argument that the applicant was willing to give up his passport as an assurance that he would not leave the country. The applicant appealed. 38. On 25 July 2007 the Chişinău Court of Appeal dismissed the appeal without adducing any new reasons. It noted however that the identity of the persons who could have been aware of the offence were unknown. 39. On 7 August 2007 an investigating judge of the Buiucani District Court upheld a new request of the prosecution for a prolongation of the applicant's detention and ordered a further 20 days' detention. In particular, the investigating judge dismissed the argument that the applicant's wife was pregnant on the ground that she was on maternity leave and that there was no evidence that she required any assistance or medical treatment. The applicant appealed, invoking again his wife's poor health. On 9 August 2007 the Chişinău Court of Appeal dismissed the appeal. Neither the prosecution nor the courts adduced new reasons for the applicant's further detention. 40. On 17 August 2007 the investigation ended and the criminal file was referred to the Buiucani District Court. 41. On 22 August 2007 the prosecutor applied for a further extension of the applicant's detention for 90 days on the ground that the applicant would hinder the proceedings before the court and would commit other offences. 42. On 28 August 2007, at 4 p.m., the Buiucani District Court upheld the prosecutor's request in full without relying on any new reasons for the applicant's further detention. It did not examine the applicant's contention that the prosecutor had failed to submit any evidence to substantiate his request. 43. The applicant appealed and argued that the decision had been issued at 4 p.m., after the expiry of the previous remand warrant at 12.15 p.m. Relying on Boicenco v. Moldova (no. 41088/05), Şarban v. Moldova (no. 3456/05) and Becciev v. Moldova (no. 9190/03) he argued that the domestic courts had failed to provide relevant and sufficient reasons for his detention. 44. On 30 August 2007 the applicant's lawyer was given the annex with the prosecution's list of evidence. It included, inter alia, addresses of witnesses, copies of documents related to the company and the construction site, verbatim records of the examination of compact discs with recordings of telephone conversations of A.T. with other co-accused and minutes of searches. 45. On 10 September 2007 the Chişinău Court of Appeal dismissed the appeal. Besides the reasons outlined in the prosecutor's request, the court stated that although a search had been conducted of the applicant's domicile, there was no proof that he had been permanently residing there. The applicant's application for release was considered as an attempt to influence the investigation. As to the applicant's detention after 12.15 p.m. on 28 August 2007, the court found that he had been lawfully detained, since the hearing had been opened at 10 a.m. that day. Finally, the court stated: “Moreover, [the applicant's] intention to undermine the normal conduct of the proceedings ... is highlighted by the fact that constant reference is made to cases examined by the European Court of Human Rights, and which are not related to the present case. Those cases are totally different from the present case and therefore the declarations are designed to indirectly influence the courts to release the applicant.” 46. On 17 September 2007 the applicant's lawyer made a fresh habeas corpus request, submitting that there was no reason for his further detention on remand. On the same date the Buiucani District Court dismissed it without providing any relevant reasons. 47. On the same day, the Buiucani District Court ordered an official medical examination of the state of health of Mr Anatolie Tripăduş, who was one of the applicant's co-accused in the criminal proceedings. The court also suspended the criminal proceedings pending the medical examination and the delivery of a report. 48. On 23 November 2007, without resuming the suspended proceedings, the Buiucani District Court upheld a fresh request of the prosecution for a prolongation of the applicant's detention and ordered a further 30 days' detention. It also dismissed a new habeas corpus request made by the applicant. On 4 December 2007 the Chişinău Court of Appeal dismissed the appeal. Neither the prosecutor nor the courts adduced new reasons for the applicant's further detention. 49. On 14 December 2007 the Buiucani District Court resumed the criminal proceedings which had been suspended on 17 September 2007 and the prosecutor requested a further prolongation of detention for 90 days. 50. On 20 December 2007, the Buiucani District Court ordered the extension of the applicant's detention for 60 days. The applicant appealed. 51. On 29 December 2007, the Chişinău Court of Appeal quashed the extension order. In particular, the Court of Appeal stated that the applicant had his permanent residence in Chişinău, that there was no risk that he would abscond or that he would undermine the conduct of the criminal proceedings by influencing witnesses. However, the Court of Appeal prohibited the applicant from leaving the city for 60 days. 52. On 6 March 2008 the Buiucani District Court granted the prosecutor's request that one of applicant's co-accused be examined by a doctor. Accordingly, the criminal proceedings were suspended. 53. The relevant domestic law has been set out in Şarban v. Moldova (no. 3456/05, §§ 51-56, 4 October 2005) and Muşuc v. Moldova (no. 42440/06, § 22, 6 November 2007). 54. In addition, the relevant provisions of the Code of Criminal Procedure ('the CPP') read as follows: “(1) A person may be arrested and taken into police custody for a short period of time not exceeding 72 hours and under the conditions established by law. (2) The following persons may be arrested and taken into police custody: a) persons suspected of having committed a criminal offence punishable by a sentence of imprisonment of over 1 year...” “(1) The criminal investigation body shall be entitled to arrest and take into custody a person suspected of having committed a crime for which the law prescribes a punishment of deprivation of liberty of over a year, only in the following cases: 1) when he or she has been caught in the act; 2) if the eye witness, including the injured party, indicates that the person has committed the crime; 3) if obvious traces of the crime are discovered on his body or clothes, or in his home or vehicle; (2) If a person is suspected of having committed a crime in other circumstances, the person can be arrested and taken into custody only if he or she tried to abscond; or if he or she does not have a permanent residence; or if his or her identity could not be established. ... (5) The arrest and detention in police custody of a person in accordance with the present article shall not exceed 72 hours from the moment of his deprivation of liberty. ... (7) A person who has been detained under this article shall be brought promptly, and before the expiry of the 72-hour period, before the investigating judge, who will decide whether he or she should be remanded in custody or, if appropriate, whether he or she should be released. The application for pre-trial detention of such a person must be lodged by the prosecution at least three hours before the expiry of the 72-hour detention period.” “(1) A person who has been arrested and detained in police custody shall be released in the following circumstances: 1) the suspicion that the person has committed a crime is not confirmed; 2) there are no grounds for his or her continued deprivation of liberty; 3) the criminal investigation body establishes that the person was arrested and detained in police custody in flagrant breach of the law; 4) the 72-hour detention period has expired; 5) the 72-hour detention period has expired and the court has not authorised the person's arrest...” “... (3) Any criminal investigation action shall not be allowed after the suspension of the criminal investigation.” “... (2) The application for pre-trial detention or house arrest shall be examined without delay by the investigating judge in a closed hearing with the participation of the representative of the criminal prosecution, counsel for the defence and the suspect. In presenting his application in court, the representative of the criminal prosecution shall ensure the participation of the suspect at the court hearing; he shall notify counsel for the defence and the suspect's legal representative of the hearing. If defence counsel so notified does not appear at the hearing, the investigating judge shall ensure that an ex officio counsel is appointed to defend the interests of the suspect...” “(1) The court shall suspend the proceedings if an accused suffers a serious illness which prevents his participation at the hearing. The court shall issue a decision to suspend or to resume the proceedings. (2) If there are several co-accused and one of them is seriously ill, the court shall suspend the proceedings only in respect of the latter, but will continue the proceedings in respect of the others. The lawyer of the accused, in respect of whom the proceedings have been suspended, shall attend with his clients the proceedings in respect of the other co-accused, if the offence had been committed by participation.”