SECOND SECTION

CASE OF PAȘA v. THE REPUBLIC OF MOLDOVA

(Application no. 50473/11)

JUDGMENT

STRASBOURG

15 May 2018

This judgment is final but it may be subject to editorial revision.

 PAȘA v. THE REPUBLIC OF MOLDOVA JUDGMENT 1

In the case of Pașa v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 10 April 2018,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 50473/11) against the
Republic of Moldova lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Moldovan national, Mr Iurie Pașa (“the applicant”),
on 1 August 2011.
2. The applicant was represented by Ms A. Procopciuc, a lawyer
practising in Bălți. The Moldovan Government (“the Government”) were
represented by their Agent at the time, Mr L. Apostol.
3. The applicant complained in particular that his rights guaranteed by
Article 5 §§ 1 and 4 of the Convention had been breached.
4. On 22 May 2013 the complaints concerning Article 5 §§ 1 and 4 of
the Convention were communicated to the Government and the remainder
of the application was declared inadmissible pursuant to Rule 54 § 3 of the
Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1984 and lives in Bălți.

6. On 5 February 2011 at 1.30 p.m. the applicant was arrested on
suspicion of trafficking in human beings and placed in detention for a period
of seventy-two hours, which is the maximum duration of detention under
the Moldovan law before a detainee is brought before a judge.
7. On 8 February 2011 at 10.20 a.m. the prosecutor applied to a judge
for the applicant’s remand in custody and at 2 p.m. the applicant was
brought before a judge, who ordered his remand in custody for thirty days.
It is not clear at what time the decision was adopted, but there is a
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handwritten note on it which states it had been presented to the applicant at

3.50 p.m., followed by the applicant’s signature.
8. The applicant appealed against the above decision and argued, inter
alia, that the detention which had taken place before the court’s decision of
8 February 2011 had been longer than seventy-two hours, which was the
maximum duration provided for by law. He also submitted that he had not
been given access to the materials in the case-file relied upon by the
prosecutor when requesting his remand in custody.
9. On 17 February 2011 the Bălți Court of Appeal dismissed the
applicant’s appeal. The court did not pay attention to the applicant’s
allegation that he had no access to the materials in the case-file.
10. On 5 March 2011 the prosecutor in charge of the case applied to a
judge for a prolongation of the applicant’s detention for another thirty days.
A judge examined and upheld it on the same date. He ordered the
applicant’s detention until 6 March 2011.
11. On an unspecified date, the same judge issued a new decision
rectifying the date of the validity of the applicant’s order for remand in
custody from 6 March to 6 April 2011. The applicant appealed.
12. On 16 March 2011 the Bălți Court of Appeal upheld the applicant’s
appeal and quashed the decision of the lower court, after having found that
the second decision modifying the date from 6 March to 6 April 2011 had
not been taken in accordance with the procedure prescribed by the Code of
Criminal Procedure. The court found therefore that the applicant’s detention
had been unlawful since 6 March and ordered his immediate release.
13. It appears from the materials contained in the case file that the
applicant has been convicted at first instance and that the proceedings are
still pending before the Bălți Court of Appeal. According to the information
provided by the parties, the applicant is currently wanted by the authorities.

II. RELEVANT DOMESTIC LAW

14. The relevant domestic law has been set out in Ignatenco v. Moldova,
no. 36988/07, § 54, 8 February 2011.
15. The relevant provisions of Law no. 1545 (1998) on compensation for
damage caused by illegal acts by the criminal investigation authorities,
prosecution and courts have been set out in this Court’s judgment in Sarban
v. Moldova, no. 3456/05, § 54, 4 October 2005.
 PAȘA v. THE REPUBLIC OF MOLDOVA JUDGMENT 3

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

16. The applicant complained under Article 5 § 1 of the Convention that

his detention on 8 February 2011 between 1.30 p.m. and 3.50 p.m. after the
expiry of the 72 hours’ period of detention without a warrant should be
considered unlawful. He further submitted that his detention between 6 and
16 March 2011 was also unlawful. The relevant part of Article 5 reads as
follows:
“1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;”

A. Admissibility

17. The Government argued that the complaints were ill-founded and
that in any event the applicant had failed to exhaust domestic remedies,
namely to make use of the remedy provided for by Law 1545.
18. In so far as the Government’s non-exhaustion objection is
concerned, the Court recalls that it has already dismissed similar objections
of the respondent Government based on Law no. 1545, finding that the law
is applicable only to persons who have been acquitted or in respect of whom
a criminal investigation has been discontinued (see Sarban, cited above,
§ 59). Since this is not the case with the applicant, the Court is not satisfied
that the remedy under Law no. 1545 would have been effective in respect of
the applicant’s complaints. Therefore, the Government’s objection is
dismissed.
19. The Court further notes that the complaint concerning the applicant’s
detention on 8 February 2011 between 1.30 p.m. and 3.50 p.m. is identical
to the complaint under Article 5 § 1 examined in Ignatenco, cited above,
§§ 65-68. Since the applicant did not adduce any arguments to distinguish
the present case from Ignatenco, and since the Court is not aware any
reasons to do so, it considers this complaint to be manifestly ill-founded and
inadmissible within the meaning of Article 35 § 3 (a) of the Convention.
20. In so far as the remaining complaint under Article 5 § 1 of the
Convention is concerned, i.e. the one concerning the applicant’s detention
between 6 and 16 March 2011, the Court notes that it is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention and
4 PAȘA v. THE REPUBLIC OF MOLDOVA JUDGMENT

that it is not inadmissible on any other grounds. It must therefore be

declared admissible.

B. Merits

21. The applicant submitted that his detention between 6 and 16 March
2011 had been unlawful because, as found by the Bălți Court of Appeal, the
decision modifying the date from 6 March to 6 April 2011 had not been
taken in accordance with the procedure prescribed by the Code of Criminal
Procedure.
22. The Government did not submit any comments in respect of this
complaint.
23. As the Court has stated on many occasions, Article 5 of the
Convention is, together with Articles 2, 3 and 4, in the first rank of the
fundamental rights that protect the physical security of the individual. Its
key purpose is to prevent arbitrary or unjustified deprivations of liberty (see,
for example, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84,
ECHR 2016 (extracts)).
24. It is undisputed among the parties that the applicant’s detention
between 6 and 16 March 2011 was not in accordance with the domestic law.
The domestic courts came to the same conclusion and the Court sees no
reason to depart from their findings. It recalls that a detention which is not
in accordance with the domestic law is contrary to Article 5 § 1 of the
Convention.
25. The Court further notes that in spite of the finding that the
applicant’s detention had been contrary to domestic law, no award of
compensation was made by the domestic courts in favour of the applicant.
The Court recalls that a decision or measure favourable to an applicant is
not, in principle, sufficient to deprive the individual of his or her status as a
“victim” unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the Convention
(see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and
Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44,
ECHR 1999-VI). Since the applicant was not afforded any compensation, he
can still claim to be a victim of a violation of Article 5 § 1 of the
Convention.
26. Accordingly, there has been a violation of Article 5 § 1 of the
Convention, which arises from the unlawful detention of the applicant
between 6 and 16 March 2011.
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II. ALLEGED VIOLATION OF ARTICLE 5 § 4 AND ARTICLE 13 OF

THE CONVENTION

27. The applicant complained under Article 5 § 4 of the Convention

about the courts’ refusal to present him with a copy of the materials in the
case-file, which had been relied upon by the prosecutor in his application
for remanding him in custody. The applicant also complained under
Article 13 of the Convention that he did not have any effective remedy in
respect of the breaches of his Article 5 rights. Article 5 § 4 of the
Convention reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.”
28. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
29. The Court considers at the outset that the complaint under Article 13
falls to be examined solely under Article 5 § 4 of the Convention, which
provides a lex specialis in relation to the more general requirements of
Article 13 (see Amie and Others v. Bulgaria, no. 58149/08, § 63,
12 February 2013).

A. Admissibility

The Court notes that the complaint under Article 5 § 4 is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention and
that they are not inadmissible on any other grounds. They must therefore be
declared admissible.

B. Merits

30. The Government submitted that there has been no breach of

Article 5 § 4 of the Convention because the applicant had the possibility to
lodge an appeal.
31. The applicant argued that he had been refused access to the
documents regarding the application for his detention and was thus unable
to properly challenge the reasons for his detention.
32. The Court reiterates that in the case of a person whose detention falls
within the ambit of Article 5 § 1 (c), a hearing is required. In view of the
dramatic impact of deprivation of liberty on the fundamental rights of the
person concerned, proceedings conducted under Article 5 § 4 of the
Convention should in principle meet, to the largest extent possible under the
6 PAȘA v. THE REPUBLIC OF MOLDOVA JUDGMENT

circumstances of an ongoing investigation, the basic requirements of a fair

trial (see Shishkov v. Bulgaria, no. 38822/97, § 77, ECHR 2003-I
(extracts)).
33. Equality of arms is not ensured if counsel is denied access to those
documents in the investigation file which are essential for an effective
challenge to the lawfulness, in the sense of the Convention, of his client’s
detention (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58,
ECHR 1999-II, and Garcia Alva v. Germany, no. 23541/94, § 39,
13 February 2001). The concept of lawfulness of detention is not limited to
compliance with the procedural requirements set out in domestic law, but
also concerns the reasonableness of the suspicion on which the arrest is
grounded, the legitimacy of the purpose pursued by the arrest, and the
justification of the ensuing detention. The Court acknowledges the need for
criminal investigations to be conducted efficiently, which may imply that
some of the information collected during them is to be kept secret in order
to prevent suspects from tampering with evidence and undermining the
course of justice. However, this legitimate goal cannot be pursued at the
expense of substantial restrictions on the rights of the defence (see Ţurcan
and Ţurcan v. Moldova no. 39835/05, § 60, 23 October 2007, and Musuc
v. Moldova, no. 42440/06, § 54, 6 November 2007).
34. In the present case, the court which ordered the applicant’s detention
on 8 February 2011 did not give the applicant access to the materials
presented by the public prosecutor in support of the necessity to remand him
in custody. The Court of Appeal did not answer the applicant’s complaint in
that respect.
35. The Court notes that no reasons were given by the district court or
by the Court of Appeal for withholding this information, and that, therefore
the applicant was unable to challenge properly the reasons for his detention.
In such circumstances, it cannot be said that the principle of “equality of
arms”, within the meaning of Article 5 of the Convention, was observed in
the present case. There has, accordingly, been a violation of Article 5 § 4 of
the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
 PAȘA v. THE REPUBLIC OF MOLDOVA JUDGMENT 7

A. Damage

37. The applicant claimed 825 euros (EUR) in respect of pecuniary

damage and 5,000 EUR in respect of non-pecuniary damage.
38. The Government submitted that there was no causal link between the
pecuniary damage claimed and the alleged violation. As to the
non-pecuniary damage claimed, the Government argued that it was
excessively high.
39. The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards the applicant the entire amount claimed in respect of
non-pecuniary damage.

B. Costs and expenses

40. The applicant also claimed EUR 650 for the costs and expenses
incurred before the Court.
41. The Government claimed that the amount claimed was excessive.
42. Regard being had to the documents in its possession, the Court
considers it reasonable to award the entire amount claimed for costs and
expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 5 § 1 of the Convention
concerning the applicant’s unlawful detention between 6 and 16 March
2011 and under Article 5 § 4 of the Convention admissible and the
remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 5 § 4 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months
the following amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 650 (six hundred and fifty euros), plus any tax that may
be chargeable, in respect of costs and expenses;
8 PAȘA v. THE REPUBLIC OF MOLDOVA JUDGMENT

(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 May 2018, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Paul Lemmens

Deputy Registrar President