CASE OF BUZADJI v. THE REPUBLIC OF MOLDOVA
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1947 and lives in Comrat. 6. In March 2006 the applicant, who was the director of a State company (referred to herein as “B-G”), acknowledged in court that the company owed a private company 594,067 United States Dollars (USD) plus penalties (the total sum being USD 842,404) as a result of purchasing liquefied gas from that private company. On 26 May 2006 he was dismissed from his job. 7. According to the applicant, in July 2006 the investigating authorities summoned him to appear before them and to make a statement in connection with the alleged defrauding of B-G. He was subsequently summoned on several occasions and always appeared before the investigating authorities and cooperated with them. According to the materials submitted by the parties, thirteen different criminal investigations were initiated against the applicant and his two sons: the first two were initiated on 15 and 29 September 2006, but most of the others on 5 April 2007. On 25 May 2007 all the investigations were joined. It can also be observed in the case file that the applicant’s sons were summoned to appear before the investigating authorities in May 2007 and were questioned as suspects in the case. It appears that the applicant’s sons were never arrested. On 13 September 2006 an invoice allegedly used for defrauding B-G was seized from the company. On 30 October 2006 the applicant’s personal computer was seized and various documents were recovered which allegedly proved the defrauding of B-G by the applicant. 8. On 26 October 2006 the Economic Court of Appeal upheld an application to initiate bankruptcy proceedings which had been brought against B-G. 9. On 21 December 2006 the Supreme Court of Justice quashed the lower courts’ judgments because it had been established that the debt to the private company was fictitious. The court relied, inter alia, on the results of a review of the economic and financial activities of B-G. The case was sent for retrial by the lower courts and is still pending. 10. On 23 March 2007 a further review of the economic and financial activities of B-G was carried out. 11. On 2 May 2007 the applicant was arrested. On 5 May 2007 he was formally charged with defrauding B-G. 12. On 5 May 2007 the Buiucani District Court accepted an application made by the prosecutor and ordered the applicant’s detention pending trial for fifteen days. The court found that: “... the offence with which [the applicant] is charged is considered an exceptionally serious crime, which allows for detention pending trial, [the court] takes into account the nature and seriousness of the offence and the complexity of the case, and considers that at this incipient stage of the investigation there are reasonable grounds to believe that the accused could collude with other people (his sons, who have not been interviewed) in order to take a common position. The other statements of the prosecution concerning the possibility that the accused may abscond, the danger of influencing witnesses or of destroying evidence are not substantiated by any specific information and are not very probable.” 13. The applicant appealed, referring to the ongoing civil proceedings concerning the debt owed by B-G to the private company, as well as to a confirmation of that debt by an administrator appointed in the meantime by the court. He further relied on the absence of any material in the file suggesting that he would abscond or interfere with the investigation in any manner. Moreover, as confirmed by medical certificates, the applicant (who was sixty at the time) suffered from a number of illnesses requiring in-patient treatment, which was unavailable in pre-trial detention. He was a well-known individual with a family, a residence and a job in Moldova and who had appeared before the investigating authorities every time he had been summoned during the period from July 2006 to May 2007. He further argued that the court had not even had the case file concerning the investigation in question before it when it had decided on his detention pending trial. The judge had only seen several documents concerning the charges against the applicant and the review of the economic activity of B-G (referred to above). The applicant added that his two sons had not been formally charged with any crime and that in any event if they had wished to collude they had had plenty of time to do so since July 2006 when they first learned of the investigation. 14. On 8 May 2007 the Chişinău Court of Appeal upheld the decision of 5 May 2007, essentially repeating the reasons given by the lower court. 15. On 16 May 2007 the Buiucani District Court extended the applicant’s detention pending trial by twenty days. After recapitulating the parties’ positions and citing the applicable provisions of the law, the court found that: “... the grounds relied on when applying the preventive measure [of detention] remain valid, the majority of the investigative actions have been carried out, but a number of additional measures requiring [the applicant’s] participation are still necessary in order to send the case to the trial court. The court considers that the application on the part of the defence to replace the preventive measure [with house arrest] is premature, taking into account the seriousness and complexity of the case and the need to protect public order and the public interest, as well as to ensure the smooth and objective course of the investigation.” The applicant appealed, relying on essentially the same arguments as he had done earlier. 16. On 22 May 2007 the Chişinău Court of Appeal upheld the decision of 16 May 2007. The court gave essentially the same reasons as it had in its decision of 8 May 2007, adding that: “the risk that the applicant may destroy evidence persists, since the prosecutor has declared that not all the documents relating to the financial and economic activities [of the company] have been seized in order to be subjected to an expert analysis.” 17. On 5 June 2007 the Buiucani District Court extended the applicant’s detention pending trial by another twenty days. It gave the same reasons as it had done earlier. The applicant appealed, relying on essentially the same arguments as he had done earlier. 18. On 11 June 2007 the Chişinău Court of Appeal upheld the lower court’s decision, finding that it had been adopted in compliance with the law. The court also noted that the applicant was accused of a particularly serious offence which had allegedly caused damage to B-G of almost 9 million Moldovan lei (MDL, approximately 553,000 euros (EUR) at the time) and which was punishable by a prison term of ten to twenty-five years, that he had been charged with thirteen different offences, and that the investigation was still ongoing. If released he might be able to abscond or to influence witnesses who were staff at B-G and over whom he had influence. 19. On 26 June 2007 the Buiucani District Court rejected a further application by the prosecutor for an extension of the applicant’s detention pending trial and accepted the applicant’s request by ordering that he be placed under house arrest for thirty days. The court found that: “... the applicant has been detained for fifty-five days and has participated in all the necessary investigative actions; ... Article 5 § 3 of the Convention imposes a presumption that an accused be freed while he awaits his trial; ... certain evidence, which may have been sufficient earlier to justify [detention] or to render alternative preventive measures inadequate, could become less convincing with the passage of time; ... it is for the prosecutor to prove the existence of a risk of absconding, and such a risk cannot be proved only by reference to the severity of the potential punishment; [the court referred to the applicant’s medical problems and his age, the lack of a criminal record, his permanent residence and married status]; the [European Court]’s case-law provides that detention pending trial should be exceptional, always objectively reasoned and must correspond to the public interest; the court finds that it is improbable that [the applicant] will abscond, influence witnesses or destroy evidence, and that the normal course of the criminal investigation is possible while the accused is under house arrest.” The court set the following conditions for the applicant’s house arrest: prohibition from leaving his house; prohibition of having phone calls; prohibition from discussing his case with any person. 20. On 29 June 2007 the Chişinău Court of Appeal quashed the decision of 26 June 2007 and adopted a new one, ordering the applicant’s detention pending trial for twenty days. The court found that: “... the lower court did not take into account the complexity of the case and the seriousness of the offence with which [the applicant] is charged; the court considers that while under house arrest [the applicant] could communicate with the other accomplices, who are not under arrest and who are, moreover, his sons; he could abscond by fleeing to the [self-proclaimed and unrecognised “Moldovan Republic of Transdniestria”], which is not under the control of the Moldovan authorities; he could influence witnesses, who are his former staff, in order to make them change their statements; the applicant has received visits from doctors and can obtain medical assistance in prison.” 21. On 16 July 2007 the Buiucani District Court extended the applicant’s detention pending trial by another twenty days. It gave the same reasons as it had done earlier. The applicant appealed, relying on essentially the same arguments as he had done earlier. The court recalled the prosecutor’s position, including the fact that the investigation had already been finalised and the file was ready to be presented to the applicant and his lawyers so that they could prepare for the trial. It also noted that “the preventive measure of arrest was applied due to the seriousness of the offence with which [the applicant] is charged, the need to ensure the proper conduct of the criminal proceedings and of securing public order, as well as the existence of reasons to believe that he could exert negative influence on the course of the proceedings or abscond.” The court then cited article 186 (3) of the Code of Criminal Procedure and found that “the grounds relied on by the prosecutor are applicable”. 22. On 20 July 2007 the Chişinău Court of Appeal quashed the lower court’s decision and adopted a new one, changing the preventive measure to house arrest. The court found that: “the prosecutor did not provide any evidence confirming the continued need to detain [the applicant], did not submit additional materials confirming the probability that he could exert influence on witnesses who have already been heard; [the applicant] promises to appear before the investigating authorities whenever summoned; there is no specific information concerning any risk of absconding”. 23. The house arrest was maintained by the decisions of the Comrat District Court of 14 September and 14 December 2007. On 12 March 2008 the same court decided to release the applicant on bail, finding that he had been detained and then under house arrest for over ten months and never breached any of the restrictions imposed on him.