SARUPICI v. THE REPUBLIC OF MOLDOVA AND UKRAINE AND GANEA AND GHERSCOVICI v. THE REPUBLIC OF MOLDOVA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ganna Yudkivska;Ján Šikuta;Josep Casadevall;Nona Tsotsoria
The applicant in the first case, Mr Iaroslav Şarupici, is a Moldovan national, who was born in 1969 and lives in Chişinău. The applicants in the second case, Mr Anatolie Ganea and Ms Aurelia Gherşcovici, are Moldovan nationals, who were born in 1961 and 1967 respectively and live in Vatra and Chişinău. All three applicants were represented before the Court by Mr V. Ţurcan, a lawyer practising in Chisinau. 1. The facts of the case, as submitted by the parties, may be summarised as follows. 2. On 27 May 2002 Ms Gherşcovici’s husband, B.G., was found dead in his house. 3. On 2 July 2002 Mr Ganea was arrested on unrelated charges. While he was in administrative detention, he was questioned about the circumstances of the death of B.G. On 10 July 2002 he made a written statement about the commission of the murder, in which he provided details of the circumstances of the murder and the identities of the persons whom he alleged were involved. A lawyer was appointed to represent him and Mr Ganea subsequently confessed to having planned the death of B.G. He later stated that Mr Şarupici had committed the murder of B.G. 4. On 15 July 2002 Ms Gherşcovici was arrested on charges of instigating, aiding and abetting the murder of B.G. 5. On 23 July 2002 an arrest warrant was issued in respect of Mr Şarupici. 6. According to Mr Şarupici, in October 2002 he was living with his uncle and aunt in Tsurupinsk, Ukraine. On 18 October 2002 he was arrested by the Ukrainian police in the presence of his uncle and aunt. He alleged that the police officers did not inform him of the reasons for his arrest or provide him with any documents attesting to its lawfulness. Despite the fact that he complied with the request of the police officers, they forcibly twisted his arms behind his back, beat him on the back and handcuffed him. He was searched without a report being drawn up and his mobile phone was seized. 7. Mr Şarupici alleged that he was then taken to Tsurupinsk police station where he was handed into the custody of the Moldovan police. The Moldovan police put the applicant in a car with Moldovan registration plates and crossed the Ukrainian-Moldovan border at the Palanca customs post. He had to sit handcuffed in the back of the car. He was not provided with any extradition request nor did the police officers present him with any document or show his identity papers to the border guards when crossing the border. 8. According to the Moldovan Government, Mr Şarupici was arrested on 19 October 2002 in Palanca, Moldova. On the same day he was brought to Chişinău and placed in the remand centre of the Ministry of Internal Affairs. 9. A lawyer was appointed to represent Mr Şarupici and on 24 October 2002 Mr Şarupici confessed that he had murdered B.G. He subsequently claimed that police officers had exerted psychological pressure on him and tortured him to make him confess. 10. Meanwhile, on 8 August 2002 Mr Ganea lodged a complaint with the prosecutor alleging that he had been ill-treated in order to make him confess and that on 2 July 2002 he had not been provided with a lawyer of his choice. His complaint was dismissed. 11. On 4 January 2003 the prosecutor registered a complaint by Mr Şarupici regarding his alleged ill-treatment by police officers while in detention. On 21 January 2003 a prosecutor informed him that his allegations of ill-treatment had not been upheld and that it had been decided not to institute criminal proceedings. Mr Şarupici challenged the decision, attaching statements from his cellmates. On 1 August 2003 the Chişinău Prosecutor informed Mr Şarupici that there were no new circumstances which could influence the lawfulness of the decision of 21 January 2003. 12. On 30 June 2003 Mr Şarupici lodged a complaint about the ban on receiving visits from his family and other persons. 13. Meanwhile, on 2 April 2003, Mr Şarupici’s lawyer requested the Prosecutor General to provide him with information concerning the circumstances of Mr Şarupici’s arrest and extradition. On 14 April 2003 the Chişinău Prosecutor informed him that there was no information to indicate that Mr Şarupici had been arrested on the territory of Ukraine. 14. On 16 May 2003 Mr Şarupici asked the Prosecutor General of Ukraine to conduct an investigation into his alleged unlawful arrest by the Ukrainian police and his abduction by the Moldovan police on 18 October 2002. He named his uncle and aunt as witnesses to the events of that date. By letter of 18 August 2003 the Kherson Regional Prosecutor’s Office informed Mr Şarupici that no violation of the law by the Ukrainian police had been established. On 13 November 2003 the Kherson Regional Prosecutor’s Office explained that on 18 October 2002 Mr Şarupici had been arrested by the Moldovan police and denied that Mr Şarupici had been brought to Tsurupinsk police station. 15. On 11 May 2005 Mr Şarupici complained in writing to the General Prosecutor’s Office of Ukraine disagreeing with the replies received from the Ukrainian law-enforcement authorities. He requested the institution of criminal proceedings. His request received no response. 16. In a statement made before a notary public on 1 December 2005, Mr Şarupici’s uncle and aunt stated that on 18 October 2002 their nephew had been arrested in the town of Tsurupinsk by Ukrainian and Moldovan police officers. 17. On an unspecified date the trial proceedings commenced at the Botanica District Court. In its judgment of 12 September 2003 the District Court found all three applicants guilty of B.G.’s murder. 18. The applicants and the prosecutor appealed the judgment. 19. The appeals were heard before the Court of Appeal. On 14 May 2004 the court dismissed the appeals lodged by the prosecutor and by Mr Ganea and Mr Şarupici. However, it upheld the appeal lodged by Ms Gherşcovici and acquitted her. 20. Mr Ganea, Mr Şarupici and the prosecutor appealed the judgment. 21. On 21 December 2004 the Supreme Court upheld all three appeals and ordered that the case against the applicants be retried by the Court of Appeal. 22. All three applicants were subsequently retried before the Court of Appeal. On 16 June 2005 the Court of Appeal found them guilty of the murder of B.G. 23. The applicants appealed the judgment. 24. On 13 December 2005 the Supreme Court upheld the applicants’ appeals and ordered that the case be retried a second time by the Court of Appeal. It found that the Court of Appeal had not complied with the instructions of the Supreme Court when retrying the case. 25. All three applicants were retried a second time before the Court of Appeal. On 18 April 2006 the court found Mr Ganea and Mr Şarupici guilty of the murder of B.G. and acquitted Ms Gherşcovici. 26. Mr Ganea, Mr Şarupici and the prosecutor appealed the judgment. 27. On 1 March 2007 the Supreme Court acquitted Mr Ganea and Mr Şarupici on the ground of lack of elements constituting an offence in their actions and upheld the judgment of the Court of Appeal of 14 May 2004 as regards Ms Gherşcovici. 28. On 19 September 2007 the Deputy Prosecutor General lodged a request for annulment of the judgment of 1 March 2007. 29. On 24 December 2007 the plenary of the Supreme Court upheld the Deputy Prosecutor General’s request for annulment and ordered that the case be retried by the Supreme Court. 30. The applicants were retried a third time, this time before the Supreme Court. On 23 December 2008 the Supreme Court delivered its judgment in the retrial and acquitted the applicants. The decision was final. 31. In particular, the court found that Mr Ganea had signed the written statement of 10 July 2002 at a time when he had not been arrested for the crime and had not been assisted by a lawyer, which was incompatible with the law. Further, he had not been advised of his right to remain silent. As regards Mr Şarupici, the court held that he had been arrested in Ukraine by the Ukrainian police on 18 October 2002, that the authorities had failed to comply with the extradition procedure set out in the relevant mutual legal assistance treaty and that Mr Şarupici had been illegally brought into Moldova. It also found that lawyers appointed to assist him did not have licences at the relevant time and that his right to a fair trial had therefore been breached. As to the allegations of ill-treatment, the court emphasised the obligation on the authorities promptly to take all reasonable steps at their disposal to investigate allegations of ill-treatment and secure relevant evidence. The court concluded that the investigation conducted by the prosecutor did not meet the requirements of the Convention. Evidence obtained as a result of the ill-treatment was therefore inadmissible. 32. On 30 December 2011 the applicants lodged a civil action at the Court of Appeal claiming damages the violation of their right to a fair hearing within a reasonable time pursuant to Law no. 87 of 21 April 2011 (see paragraph 38 below). 33. On 7 June 2012 the Court of Appeal rejected the applicants’ claim. It considered that the criminal proceedings against the applicants were particularly complex, highlighting the seriousness of the charge; the number of accused in the case; the prejudicial character of the offence; and the importance of the process. 34. On 25 October 2012 the applicants lodged an appeal. On 5 December 2012 the Supreme Court upheld the appeal. It considered that the proceedings had begun on 27 May 2002 and had terminated on 23 December 2008, when the final judgment acquitting the applicants had been handed down. It found the length of the proceedings to be excessive and attributable to the acts of the authorities. Taking into account the complexity of the case and this Court’s case-law under Article 41 of the Convention, including the Court’s award of 600 euros (EUR) for proceedings which lasted six years in Deservire SRL v. Moldova, no. 17328/04, 6 October 2009, it awarded each of the applicants 10,000 Moldovan lei (approximately EUR 625) in damages. 35. On 14 December 2011 the applicants lodged a civil action at the Botanica District Court claiming damages for violations of their Convention rights pursuant to Law no. 1545 of 25 February 1998 (see paragraph 37 below). They claimed non-pecuniary damage in respect of, inter alia, unlawful detention; unlawful arrest; unlawful subjection to criminal responsibility; unlawful conviction; unlawful search and seizure of property; and unlawful secret investigative measures. 36. On 17 December 2012 the applicants were asked by the judge rapporteur, pursuant to Rule 49 § 3 (a) of the Rules of Court, to confirm whether their claim under Law no. 1545 of 25 February 1998 sought compensation in respect of all the complaints lodged before this Court; and if not, for which alleged violations of the Convention compensation was sought. In their response, the applicants did not provide the details sought. However, they confirmed that nothwithstanding the Supreme Court’s judgment of 5 December 2012 in respect of their claim under Law no. 87 (see paragraph 34 above), it was open to them to seek compensation for moral damages suffered as a consequence of the excessive length of the proceedings in the context of their pending civil claim. They also confirmed that the claim remained pending before the Botanica District Court. 37. Law No. 1545 of 25 February 1998 provides for compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts to be paid to persons acquitted in criminal proceedings. The relevant provisions of the Law were set out in this Court’s judgment in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. 38. Law no. 87, which created a new remedy to address complaints of unreasonable length of proceedings, entered into force on 1 July 2011. Further details of the Law are set out in this Court’s decision in Balan v. Moldova (dec.), no. 44746/08, 24 January 2012. 39. The Prosecution Service Act of 1 December 1991 provides a mechanism to challenge acts of authorities involved in conducting searches, inquiries and pre-trial investigations. Section 5 provides that the Public Prosecutor’s Office is entrusted with a number of functions, including supervision of the observance of laws by organs conducting operative search activities, inquiries and pre-trial investigations. 40. Section 12 of the law provides that the public prosecutor is responsible for examining applications and complaints about violations of rights of individuals and legal entities, except for those complaints which are within the competence of the court. It further stipulates that a decision taken by the public prosecutor can be appealed to a higher public prosecutor or a court. 41. Article 94 of the Code of Criminal Procedure in Ukraine, in force until 12 June 2003, allowed criminal proceedings to be instituted on the basis of, inter alia, applications or communications from individuals. Pursuant to Article 97, upon receipt of an application the prosecutor could agree or refuse to institute criminal proceedings, if necessary after a preliminary inquiry into the facts. Article 99 allowed an appeal against the prosecutor’s decision to a higher prosecutor. Refusal of that prosecutor to annul the decision could be appealed to the court under the procedure set out in Article 236-1 of the Code. 42. Article 248 of the Code of Civil Procedure of 18 July 1963 (“1963 CCP”), in force until 1 September 2005, set out the right to complain to a court about decisions, acts and omissions of public authorities. Article 2 of the Code of Administrative Justice of 6 July 2005 (“2005 CAJ”), which entered into force on 1 September 2005, provides that decisions, actions or inaction on the part of public authorities can be challenged in administrative courts. Article 1167 of the Civil Code sets out the right to payment of nonpecuniary damage for unlawful decisions, acts or omissions. Nonpecuniary damage is to be paid irrespective of guilt in cases concerning illegal imprisonment.