CASE OF BUZADJI v. THE REPUBLIC OF MOLDOVA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Angelika Nußberger;Branko Lubarda;Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Nebojša Vučinić;Nona Tsotsoria;Paul Mahoney;Robert Spano;Vincent A. De Gaetano;Yonko Grozev
8. The applicant was born in 1947 and lives in Comrat, Republic of Moldova. 9. The applicant was a minority shareholder in and the CEO of a liquefied gas supply company from southern Moldova in which the State owned 82% of the shares. In July 2006 a criminal investigation was initiated in respect of an alleged unsuccessful attempt by the applicant to commit a fraud in connection with his activity at the company. In particular, he was accused of having, between 2000 and 2006, devised a scheme involving the importation of liquefied gas from Kazakhstan and Ukraine, as a result of which the company had sustained major financial losses. According to the accusation, instead of purchasing gas directly from the producers, he had called on the services of intermediary companies, resulting in a significant increase in the price of the gas. Those intermediary companies also had ties with his sons. Later, when his company was faced with a court claim from the intermediary companies amounting to 594,067 United States dollars plus penalties, he had acknowledged that debt in court proceedings. 10. In this connection, in July 2006 the investigating authorities summoned the applicant to appear before them and to make a statement. In his defence the applicant argued that his company could not purchase gas directly from the producers, because the minimum quantity which the producers agreed to sell exceeded his company’s needs for a period of five years. Therefore, it was impossible for his company to purchase the amounts of gas needed directly from the producers. Moreover, the producers only accepted 100% pre-payment and his company did not have the available funds. He submitted that all national gas importers used the same method of importing gas and that the price of the gas purchased by his company was lower than that on the free national market. He further argued that the difference in price between that of the producers and that paid by his company was explained by transportation costs, certification, handling, insurance and other factors. He also denied that his sons were in any way involved in the intermediary companies. 11. The applicant was summoned on several occasions and in each case appeared before the investigating authorities and cooperated with them. In October 2006 the applicant’s house was searched, his personal computer was seized and various documents were extracted from it. It does not transpire from the case file that there were any instances when the applicant did not comply with the instructions of the investigators and/or that he was ever accused of obstructing the investigation. 12. The applicant’s sons, who were also suspects in the criminal proceedings and were subsequently charged, were summoned to appear before the investigating authorities without being arrested. Later, fourteen different investigations were initiated in respect of the applicant and all of them were joined in a single procedure. 13. On 2 May 2007 the applicant was arrested and on 5 May 2007 he was formally charged with the attempted large-scale misappropriation of goods belonging to the company where he worked, namely with the facts described in paragraph 9 above. On the same date, the prosecutor in charge of the case applied to the Buiucani District Court for a thirty-day detention warrant on the following grounds: the seriousness of the offence, the risk of influencing witnesses and the risk of reoffending. 14. The applicant objected and argued that there was no reasonable suspicion that he had committed an offence. In particular, he submitted that the criminal proceedings against him were nothing but a means of influencing the outcome of pending civil proceedings concerning the debt owned by the State-owned company and the intermediary companies. In any event, the grounds relied upon by the prosecutor were stereotyped and the prosecutor had failed to explain the reasons for his belief that the applicant would attempt to influence witnesses and reoffend. He submitted that he was a well-known person in the region and that he had worked at his company for over thirty years. He had a permanent residence, had been cooperating with the investigation since July 2006 and had never attempted to abscond or hinder the investigation. Moreover, he relied on his age and on his poor state of health, submitting that he had suffered a heart attack and a stroke. 15. On 5 May 2007 the Buiucani District Court partly upheld the prosecutor’s application and ordered the applicant’s detention pending trial for a period of fifteen days. The court found that: “... the deed with which [the applicant] is charged is considered to be an exceptionally serious offence, 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 others (his sons, who have not been questioned) in order to take a common position. The other reasons relied upon by the prosecutor, namely the risk of absconding and influencing witnesses or that of destroying evidence, are not substantiated and are not very probable.” 16. The applicant appealed, contending that there was no reasonable suspicion that he had committed an offence. He reiterated his previous statement to the effect that the criminal proceedings pursued the ulterior motive of influencing the outcome of pending civil proceedings between the company at which he worked and a third company. He further argued that the ground relied upon by the court to order his detention on remand, namely the risk of his colluding with his sons, had not been invoked by the prosecutor. Moreover, his two sons had not been formally charged and, in any case, all of them had had plenty of time to collude between July 2006, when they first learned of the investigation, and May 2007 had they been so inclined. The applicant also relied on his serious medical condition and submitted that he was a well-known individual with a family, a residence and a job in Moldova, who had appeared before the investigating authorities whenever he had been summoned during the period from July 2006 to May 2007. 17. On 8 May 2007 the Chişinău Court of Appeal upheld the decision of 5 May 2007, essentially repeating the grounds given by the lower court without giving any reasons for dismissing the arguments put forward by the applicant. 18. On 11 May 2007 the prosecutor in charge of the case applied to the court for the prolongation of the applicant’s detention on remand by thirty days. He relied on such reasons as the gravity of the offence, the risk of influencing witnesses, the risk of reoffending and the risk of absconding. 19. The applicant objected, submitting that there was no reasonable suspicion that he had committed an offence and no reason to believe that he would influence witnesses who had already been questioned. He also emphasised that he had cooperated irreproachably with the investigation before his arrest and that he had a permanent residence. He therefore asked the court to order the replacement of the measure of detention with another less severe measure. One of his lawyers asked the court to order a less severe measure such as, for instance, house arrest, in place of the detention. 20. On 16 May 2007 the Buiucani District Court extended the applicant’s detention on remand 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 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.” 21. The applicant appealed, relying on essentially the same arguments as he had done previously. 22. 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 done in its decision of 8 May 2007, namely the gravity and the complexity of the case, the risk of absconding or influencing witnesses and the risk of destroying documentary evidence which have not yet been collected by the prosecutors. 23. On 1 June 2007 the prosecutor in charge of the case applied for a further prolongation of the applicant’s detention on remand of another thirty days. He argued that the case was complex and that new charges had been brought against the applicant in the context of the same proceedings: he had now been charged also with abusing his position and overstepping his duties. As on previous occasions, the prosecutor argued that the extension of the detention was necessary in order to avoid the risk of the applicant’s influencing witnesses and reoffending. 24. The applicant objected and asked the court to replace the measure of detention with another measure. He submitted the same reasons as before and added that his health had considerably deteriorated during detention and that he needed medical care. 25. On 5 June 2007 the Buiucani District Court extended the applicant’s detention on remand by another twenty days, stating that the reasons for his continued detention remained valid. 26. The applicant appealed, submitting inter alia that the complexity of the case invoked by the prosecutor had been deliberately generated by the latter’s refusal to conduct an audit of the company or to question the witnesses cited by the applicant. He also challenged the allegation concerning the gravity of the offence imputed to him, pointing out that he was only being accused of attempting to commit an offence, not of committing it. He claimed that no actual loss had been caused to the company and that the court had failed to take into consideration the accused’s individual circumstances. 27. 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 punishable by imprisonment from ten to twenty-five years and that the investigation was still ongoing. The court held that if released the applicant might be able to abscond or to influence witnesses. 28. On 21 June 2007 the prosecutor in charge of the case applied again for a further thirty-day extension of the applicant’s detention. 29. The applicant objected on the basis that there were no reasons to believe that he would abscond or influence witnesses. He stressed that the prosecutor had not conducted any investigative measures for a long time and that the investigation was virtually completed. He reiterated that he had a permanent residence and that he had agreed to appear before the investigators whenever necessary. He presented a medical report dated 18 June 2007, according to which it was established inter alia that he had arterial hypertension and a slight paralysis of his right leg as a result of a stroke. The doctor recommended treatment in a neurological clinic. The applicant asked the court to dismiss the prosecutor’s application and to apply a less severe measure such as conditional release or house arrest. 30. On 26 June 2007 the Buiucani District Court rejected the prosecutor’s application and accepted the applicant’s request, 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 implausible 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 using the telephone; prohibition from discussing his case with any other person. 31. The applicant was immediately taken home, where he remained for three days. However, the prosecutor lodged an appeal against the above-mentioned decision and invoked as one of the reasons for the applicant’s continued detention in custody the fact that the applicant refused to confess to having committed the offence imputed to him. 32. 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, in order to make them change their statements; the applicant has received visits from doctors and can obtain medical assistance in prison.” 33. On 11 July 2007 the prosecutor in charge of the case applied again to the court for an extension of the applicant’s detention on remand. He relied on the same reasons as before. 34. On 16 July 2007 the Buiucani District Court extended the applicant’s detention pending trial by another twenty days. It argued again that the applicant was accused of a serious offence and that he could abscond or hinder the investigation. 35. The applicant appealed, advancing essentially the same arguments as he had done earlier. 36. 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”. The court also prohibited the applicant from communicating with persons who had any link with the criminal case against him and from leaving his house, and obliged him to phone the prosecutor’s office every day. 37. On 14 September 2007 the Comrat District Court examined the prosecutor’s application to prolong the applicant’s house arrest by ninety days. The applicant did not object to the prolongation of the house arrest provided that the measures concerning the limitation on his communication with relatives were discontinued. The court upheld the prosecutor’s request and ordered the prolongation of the house arrest for ninety days. It also upheld the applicant’s request and discontinued the limitation on his communication with his relatives. The only reason invoked by the court was the seriousness of the offence imputed to the applicant. 38. On 14 December 2007 the Comrat District Court again prolonged the applicant’s house arrest for ninety days. The only reason given by the court was the seriousness of the offence imputed to the applicant. The applicant did not object provided that he was allowed to visit the hospital and the court in order to study the case file. 39. On an unspecified date the applicant lodged a habeas corpus request with the Comrat District Court asking for the measure of house arrest to be changed for that of provisional release or release on bail. He argued that he had never breached the rules of the house arrest and that he undertook to further comply with all the instructions issued by the investigation organs. 40. On 12 March 2008 the Comrat District Court decided to release the applicant on bail, observing that he had been detained for over ten months and had never breached any of the restrictions imposed on him. 41. On 9 June 2011 the applicant was acquitted of the charges for which he had been detained between 2 May 2007 and 12 March 2008. The court found that no offence had taken place in regard to the facts imputed to him. At the same time he was acquitted of thirteen other charges brought against him and was found guilty on one count, namely that of having illegally sold liquefied gas which had been seized by a bailiff, for which he was sentenced to a fine of 20,000 Moldovan lei (approximately 1,000 euros). Neither the applicant nor the prosecutor appealed against that judgment, which became final. The applicant’s sons were acquitted.