CASE OF CEBOTARI v. MOLDOVA
Violation of Art. 5-1;Violation of Art. 18+5-1;Violation of Art. 34;Not necessary to examine Art. 5-3 and 5-4;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - partial award
Josep Casadevall
5. The applicant was born in 1947 and lives in Chişinău. He is an engineer. In 1997 he was the head of a Moldovan State-owned power distribution company called Moldtranselectro. 6. The background to this case lies in a series of complex contractual arrangements made in 1997 concerning importation of electricity from Ukraine to Moldova and involving, in addition to Moldtranselectro, a Ukrainian State-owned power distribution company, a Ukrainian private company and a Moldovan private company called Oferta Plus (see Oferta Plus SRL v. Moldova, no. 14385/04, § 7, 19 December 2006). The agreement to which Moldtranselectro was a party provided, inter alia, that Oferta Plus would pay the Ukrainian private company for the electricity supplied to Moldtranselectro in United States dollars (USD) and would later be paid back by Moldtranselectro in Moldovan lei (MDL) at the official exchange rate on the day of payment. 7. On unspecified dates between 1997 and 1998 Oferta Plus paid more than USD 33,000,000 for the electricity supplied to Moldtranselectro from Ukraine. 8. On an unspecified date Moldtranselectro paid Oferta Plus MDL 189,869,277. 9. On 3 March 1998 the Government of Moldova adopted Decision no. 243 by which the Ministry of Finance was authorised to issue nominative Treasury bonds (“Treasury bonds”) in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions. 10. On 25 March 1998 Moldtranselectro wrote a letter to the Ministry of Finance asking it to issue a Treasury bond with a value of MDL 20,000,000 in favour of Oferta Plus. The letter was signed by the applicant in his capacity as head of Moldtranselectro. 11. On 27 March 1998 the Ministry of Finance issued a Treasury bond valued at MDL 20,000,000 (USD 4,240,702 as of 27 March 1998) in favour of Oferta Plus, payable by 10 July 1998. The Treasury bond provided that Oferta Plus had to present it to the Ministry of Finance at least ten banking days before the date of payment. It also provided that Moldtranselectro had to present, by that date, to the Ministry of Finance, documents proving the supply of electricity to state institutions. 12. Oferta Plus presented the Treasury bond to the Ministry of Finance ten banking days before the date of payment. However, the latter refused to pay, on the ground that Moldtranselectro had failed to submit evidence concerning the payment by Oferta Plus for the imported electricity. 13. In October 1998 Oferta Plus initiated civil proceedings against both the Ministry of Finance and Moldtranselectro. The Ministry of Finance defended the action on the grounds set out in paragraph 12 above while Moldtranselectro declined all responsibility. 14. On 27 October 1999 the Chisinau Economic Court found in favour of Oferta Plus and confirmed its right to be paid MDL 20,000,000 by the Ministry of Finance, in accordance with the Treasury bond. It based its judgment on the finding that Oferta Plus had paid for energy supplied to Moldtranselectro from Ukraine in accordance with the agreement between them and that that energy had been consumed by state institutions. The court also decided to absolve Moldtranselectro of any responsibility. 15. Since an appeal by the Ministry of Finance was dismissed on 25 November 1999 for failure to pay court fees, a warrant for the enforcement of the judgment of 27 October 1999 was issued to Oferta Plus in November 1999. 16. On 14 February 2000 Oferta Plus officially requested a bailiff to start the enforcement procedure under the warrant. 17. On 27 April 2000 the Ministry of Finance requested an extension of the time-limit for lodging an appeal against the judgment of 27 October 1999 and its request was granted. The appeal was examined on its merits and dismissed by a judgment of the Appeals Chamber of the Economic Court of the Republic of Moldova on 4 October 2000. The Ministry of Finance lodged an appeal on points of law, reiterating that Moldtranselectro had not complied with its obligation in the Treasury bond. 18. On 7 February 2001 the Supreme Court of Justice dismissed the appeal and upheld the judgments of 27 October 1999 and 4 October 2000. It found it undisputed that Oferta Plus had paid for electricity supplied from Ukraine to Moldtranselectro and consumed, inter alia, by state institutions. 19. In March 2001, following a request by the Ministry of Finance, the Prosecutor General's Office introduced a request for annulment of the final judgment of the Supreme Court of Justice. On 7 May 2001 the Plenary Supreme Court of Justice dismissed the request and upheld the judgments favourable to Oferta Plus. It found, inter alia, that both during the proceedings before the lower courts and before the Plenary Supreme Court, it had been established that over MDL 20,000,000 worth of electricity had been supplied to state institutions. 20. On 26 April 2004 the Government Agent informed the Ministry of Finance about Oferta Plus's application to the Court concerning the non-enforcement of the final judgments in its favour and requested it to “take all the necessary steps in order to avoid a finding of a violation against the State by the Court, with the consequent impairment of the country's image”. 21. On 7 June 2004 the Ministry of Finance wrote to the Prosecutor General's Office, informing it, inter alia, that it considered the judgment in favour of Oferta Plus to be unlawful, but that it had complied with it partially so that Oferta Plus would not complain to the Court. The Government Agent had informed it that Oferta Plus had already complained to the Court. The Ministry asked the Prosecutor General's Office for advice. 22. On 8 June 2004 the Prosecutor General's Office wrote to the Ministry as follows: “...during the proceedings [between Oferta Plus, Moldtranselectro and the Ministry of Finance] Oferta Plus and Moldtranselectro presented invoices for MDL 15,608,692, of which by 24 April 1998 only MDL 6,226,504 had been paid. No other evidence as to the extent to which Oferta Plus had fulfilled its obligations under the agreement [of 1997] has been presented. Despite this the courts ruled in its favour. In that respect the Prosecutor General's Office has ordered an audit to verify the supply of electricity and the payments between Oferta Plus, Moldtranselectro and state institutions. A final decision will be adopted by the Prosecutor General's Office after the results of the audit become available to it and the Ministry of Finance will be informed accordingly.” An attempt to carry out this audit was made in August 2004 by a representative of the Ministry of Finance at the request of the Prosecutor General's Office. However, it was unsuccessful because, in accordance with book-keeping legislation, Oferta Plus had destroyed the accounting documents after three years. 23. The Ministry of Finance did not wait for a final reply from the Prosecutor General's Office and on 15 June 2004 lodged with the Plenary Supreme Court of Justice a request for revision of the judgments in favour of Oferta Plus. The request did not specify any reasons for revision. 24. On 12 July 2004 the Plenary Supreme Court of Justice upheld the revision request, following a hearing at which the Ministry of Finance was represented by the Deputy Prosecutor General. It quashed the judgments in favour of Oferta Plus and ordered the reopening of the proceedings. The re-opened proceedings ended with a judgment of the Supreme Court of Justice of 10 February 2005 in favour of the Ministry of Finance. 25. In the meantime, on 19 October 2004, the Prosecutor General's Office, having examined the letter from the Ministry of Finance of 7 June 2004 (see paragraph 21 above), initiated criminal proceedings against Oferta Plus and against the applicant on charges of large-scale embezzlement of State property. The Prosecutor General's Office referred to the results of the audit which it had attempted to carry out in August 2004 (see paragraph 22 above) and stated, inter alia, that according to the results of that audit, Oferta Plus had not paid for electricity supplied to state institutions. 26. On 15 April 2005 the Chief Executive Officer of Oferta Plus (“C.T.”) was questioned by the Prosecutor General's Office. 27. On 20 April 2005 the offices of Oferta Plus were searched and some documents seized. 28. On 25 October 2005 the criminal proceedings were discontinued. The prosecutor in charge of the criminal case stated in his decision of discontinuation, inter alia, the following: “According to the evidence obtained during the audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus reached MDL 202,644,866... The materials gathered [during the investigation] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied. ... Taking into consideration the evidence gathered, [the prosecution concludes] that the acts of Oferta Plus's management do not disclose any signs of the offence [of large-scale embezzlement] or of other offences.” 29. On 15 February 2006 the Court communicated the case of Oferta Plus to the Moldovan Government. 30. On 26 April 2006 the Deputy Prosecutor General quashed the decision of 25 October 2005. He submitted, inter alia, that on 1 January 2001 Moldtranselectro's debt to the applicant company for the electricity supplied had been MDL 38,454,671. He argued that while Oferta Plus had paid the Ukrainian partner more than MDL 20,000,000 for the electricity supplied to Moldtranselectro, it appeared that the energy for which it had paid had not been supplied exclusively to state institutions. 31. On 9 August 2006 the applicant was declared a suspect in the criminal proceedings. In particular he was accused of having written the letter of 25 March 1998 to the Ministry of Finance asking it to issue a Treasury bond in favour of Oferta Plus (see paragraph 10 above) while knowing that the energy supplied to Moldtranselectro, for which the Treasury bond was to be issued, had not been consumed by state institutions as stipulated in the Government's Decision of 3 March 1998 (see paragraph 9 above). On the same date C.T. was indicted on similar charges. 32. On the same date the applicant and C.T. were arrested and remanded in custody for ten days on the grounds, inter alia, that they could influence witnesses and hinder the investigation. According to the applicant, before being arrested the investigator made it clear to him that his arrest or release depended on whether he would agree to make the declarations expected of him. 33. Both the applicant and C.T. appealed against the detention order and argued, inter alia, that there had been no reasonable suspicion that they had committed an offence and that the criminal proceedings against them had been a form of pressure to persuade Oferta Plus to abandon its application before the Court. The applicant argued that he had been arrested because he had refused to make the declarations he had been asked to make by the investigating officer and in order to induce him to make such declarations. He also argued that the criminal proceedings had been pending since October 2004 and that since that date he had never failed to appear before the investigating authorities when summoned. On 15 August 2006 the applicant's appeal was dismissed without any reasons being given for rejecting the arguments relied on by the applicant. 34. The applicant's detention was subsequently extended and all his habeas corpus requests rejected. It continued until 19 November 2006 when he was released on bail. 35. Throughout his detention the applicant was detained in the detention centre of the Centre for Fighting Corruption and Economic Crimes (“CFECC”). The room used for meetings between lawyers and detainees had a glass partition to keep them separated. The applicant complained before the domestic courts of the impossibility of holding confidential meetings with his lawyer, but his complaints were dismissed. He did not want the domestic authorities to know about his application to the Court and therefore his application and the power of attorney had to be signed by his wife. 36. On 27 June 2007 the applicant was acquitted by the Centru District Court of all the charges brought against him. 37. The relevant domestic law concerning pre-trial detention was set out in the Court's judgment in Sarban v. Moldova, no. 3456/05, § 52, 4 October 2005. 38. It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre, the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass joined together. Both plates have small holes pierced with a drill; however the holes do not coincide, so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for passing documents between the lawyer and his client. 39. Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any proceedings regarding persons detained in the CFECC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126). 40. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a committee of inspection of the CFECC detention centre. During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices. They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration had rejected the proposal.