CASE OF IURCOVSCHI AND OTHERS v. THE REPUBLIC OF MOLDOVA
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
Paul Lemmens;Stéphanie Mourou-Vikström
5. The applicants were born in 1969, 1977 and 1980, respectively, and are currently absconding from the Moldovan authorities. 6. At the time of the events, the applicants were police officers. According to the materials of the domestic judgments, the applicants found out that a person from the Transdniestrian region of Moldova, P., intended to come to Chișinău on 8 December 2010, carrying a large amount of cash money, in order to conclude a transaction concerning immovable property. On 8 December 2010, the applicants attempted to apprehend P. in the staircase of an apartment block building. P. managed to escape, however he was chased and apprehended by the applicants, was thrown to the ground and severely beaten up until he lost consciousness. After that, he was carried by the applicants and put into a car. Several persons witnessed P.’s apprehension and beating. P. was never seen alive after that and several years later his body was found in a well. 7. The applicants claimed that they believed P. to be a criminal and intended to take him to the police station for questioning. After chasing him, they arrested him and drove him to the police station. However, P. managed to escape from their car at a busy road crossing and ran away after having waded across a small river. They submitted that they did not chase him again because the traffic light turned green and because they did not want to soil their cloths chasing P. across the river. 8. On 7 February 2011 the applicants were arrested and charged with kidnapping, murder and abuse of their authority as police officers. 9. The same day the public prosecutor applied to the Centru District Court for a warrant for the applicants’ detention in custody. The reasons relied upon by the public prosecutor were that the applicants could abscond from prosecution, interfere with the criminal investigation and re-offend. The applicants’ representative sought access to the materials submitted by the public prosecutor in support of his requests but to no avail. 10. The same day the Centru District Court issued a detention order for thirty days. In court the applicants argued that the allegations presented by the public prosecutor were not supported by any facts or materials and that no materials whatsoever were presented by the prosecution. The court found that in view of the gravity of the accusations against the applicants, of the fact that the investigation was at its initial stage and of the applicants’ position in the Ministry of Internal Affairs, there was a serious risk of absconding and of interfering with the investigation by influencing witnesses, misleading the investigation and increasing the volume of work. 11. On 9 February 2011 the applicants appealed and argued, inter alia, that the orders for detention lacked reasoning and that the court had relied only on suppositions. The applicants further noted that the court had refused to provide their representative with any materials from the file other than the prosecutor’s requests. 12. On 17 February 2011 the Chișinău Court of Appeal dismissed the applicants’ appeals. The court found that the materials in the file provided sufficient grounds for a reasonable suspicion that the applicants had committed the crimes they were charged with. The risk of interference with the investigation was determined by the fact that the investigation had just started and the risk of absconding resulted from the fact that the applicants were police officers and thus knew how the investigating authorities operated. The Court of Appeal did not answer the applicants’ complaint about the alleged lack of access to the materials in the case-file, relied upon by the first instance court to order their detention. 13. On 5 March 2011 the Centru District Court extended the applicants’ detention by thirty days for the same reasons as it had done earlier. The court noted that on this occasion the applicants’ representative had been given access to the materials in the file. 14. The applicants appealed and argued, inter alia, that the investigation was not advancing as claimed by the public prosecutor and that the risk of interference could just as well be mitigated by the applicants’ house arrest. On 14 March 2011 the Chișinău Court of Appeal upheld the decision of the Centru District Court of 5 March 2011 for the same reasons as it had done earlier. 15. On 16 March 2011 the charges of murder were dropped in respect of all applicants because the victim’s body was not yet found. On 29 March 2011 the case was committed for trial. 16. On 29 March 2011 the prosecutor applied for the extension of the applicants’ detention by ninety days. The prosecutor cited the same reasons as before: risk of absconding, of interfering with the investigation and of reoffending. 17. On 7 April 2011 the applicants lodged a habeas corpus request, arguing that the risk of interfering with the investigation was no longer valid because the criminal investigation had been concluded and that there had not been any evidence indicating that the applicants might abscond. 18. The same day, judge V. of the Rîșcani District Court extended the applicants’ detention by ninety days considering that the three risks invoked by the public prosecutor resulted from the character of the charges against the applicants. 19. The applicants appealed and argued, inter alia, that the court had failed to refer to any evidence in support of the alleged risks justifying their detention. 20. On 20 April 2011 the Chișinău Court of Appeal upheld the decision of the Rîșcani District Court of 7 April 2011. The court relied on the fact that the applicants were police officers and considered that they could influence the witnesses or destroy evidence. The court also cited the risk of absconding. 21. On 10 May 2011 the applicants lodged a habeas corpus request, arguing that there were no grounds to assume that the applicants would abscond, re-offend or interfere with the trial. 22. On 25 May 2011 judge V. had withdrawn from the case because he had previously worked together with the third applicant. It is not clear from the materials of the case-file in which manner that fact affected judge V.’s impartiality and when did he realise that. 23. On 6 June 2011 the applicants lodged another habeas corpus request, noting that their previous request had still not been examined. They argued that, on 25 May 2011, judge V. had withdrawn from the case, whereas his ineligibility had existed on 7 April 2011, when he had ordered the extension of their detention and thus affected the lawfulness of that order. 24. On 5 July 2011 judge M. from the Rîșcani District Court extended the applicants’ detention by ninety days for the same reasons as had been done earlier. The court rejected the applicants’ habeas corpus request of 6 June 2011 by noting that none of the previous grounds for detention had lost their validity because the trial had not yet started. The court did not make any reference to the habeas corpus request of 10 May 2011. 25. On 6 July 2011 the applicants appealed and argued, inter alia, that the court had not examined their habeas corpus requests “speedily” as required under Article 5 § 4 of the Convention and had not replied to their contention that the detention order of 7 April 2011 had been unlawful because it had been ordered by judge V. who lacked impartiality. 26. On 15 July 2011 the Chișinău Court of Appeal upheld the decision of the Rîșcani District Court of 5 July 2011 for the same reasons as it had done before. 27. On 30 September 2011 the Rîșcani District Court acquitted the applicants of all charges and released them in the court room. 28. On 11 March 2013 the Chișinău Court of Appeal quashed that judgment, convicted the applicants of kidnapping and abuse of office and sentenced them to seven years of imprisonment. On 12 November 2013 the Supreme Court of Justice upheld that judgment in absentia. 29. It appears that on an unspecified date after the victim’s body was found, a new set of criminal proceedings based on murder charges was initiated against the applicants. The parties did not inform the Court about the outcome of those proceedings.