THIRD SECTION
CASE OF DANALACHI
v. THE REPUBLIC OF MOLDOVA
(Application no.
25664/09)
JUDGMENT
STRASBOURG
17 September 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Danalachi v. the Republic of Moldova,
The European Court of Human Rights (Chamber), sitting as a Chamber
composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Luis López Guerra,
Nona Tsotsoria,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 27 August 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
25664/09) 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, Ms Angela Danalachi (“the
applicant”), on 29 April 2009.
The applicant, who had been granted legal aid,
was represented by Mr I. Grecu, a lawyer practising in Cahul. The Moldovan
Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The applicant alleged, in particular, that she
had been unlawfully detained because she could not pay a fine and that her procedural
rights had been infringed.
On 10 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1972 and lives in Cantemir.
On 3 March 2008 the Cantemir District Court found
the applicant guilty of unlawfully appropriating money (1,400 Moldovan lei
(MDL)) collected by her community to fund certain celebrations. She was ordered
to pay a fine of 600 conventional units (each such unit being equal to MDL 20;
overall MDL 12,000 (approximately 775 euros (EUR) at the time) and was barred
from holding public office for two years and a half.
On 7 July 2008 the Cahul Court of Appeal partly upheld
that judgment, relying on a different paragraph of the Criminal Code, but
preserving the sentence. That judgment was upheld by the Supreme Court of
Justice in a final judgment of 26 November 2008.
The applicant asked for an extension of the
payment period as she did not have the money, being a single mother with an
underage child and, at that time, experiencing difficulties with a pregnancy, for
which she received hospital treatment during the period between 1 September
2008 and 3 February 2009. The court accepted her request and allowed her a
two-month extension. However, the applicant failed to pay the fine by this new
deadline.
On 20
February 2009 a bailiff from the Cantemir enforcement office asked the Cantemir
District Court to replace the fine with detention owing to the applicant’s failure
to pay. The applicant, who was not represented by a lawyer, asked the court to
replace the fine with unpaid community service stating that she would try to
pay the fine before the end of the year. On the same day the court accepted the
bailiff’s request and ordered the applicant’s detention for twelve months (one
month for every 50 conventional units - see paragraph 14 below), noting that
the law prohibited imposing a community service order on pregnant women such as
the applicant.
The applicant was arrested on the same day and imprisoned.
According to her submission, her underage child was left at home without
supervision. On 21 February 2009 her lawyer appealed against the sentence.
On 12 March
2009 the Cahul Court of Appeal accepted the lawyer’s appeal and quashed the
lower court’s decision, sending the case for retrial by the Cantemir District
Court. It found that the applicant had not been given legal representation
during the hearing of 20 February 2009, even though that right was guaranteed
by law and she had expressly requested it. Therefore, the lower court had
“committed a serious violation of the rules of criminal procedure, which is the
basis for annulling the decision ...”. The court noted in the operative part of
its decision, inter alia, that the applicant was to continue being kept in
detention.
On 25 March 2009 the applicant’s lawyer lodged a
request with the Cantemir District Court for an urgent examination of the case,
stating that the fine had been paid in full on 12 March 2009 and enclosing a
payment order as proof. He claimed that his client was therefore being detained
illegally.
On 31 March 2009 the Cantemir District Court
accepted the applicant’s lawyer’s request and discontinued the proceedings
initiated by the bailiff. The applicant was released on that day.
II. RELEVANT DOMESTIC LAW
The relevant
provisions of the Criminal Code read as follows:
Article 64 (Fines)
“...
(5) If a convicted person deliberately fails to pay
the fine imposed on him or her as the main or ancillary punishment, the court
may replace the unpaid sum with imprisonment, within the scope of sentencing
set out in Article 70. The fine shall be replaced with imprisonment on the
scale of one month of imprisonment for every 50 conventional units”
The relevant
provisions of the Code of Criminal Procedure read as follows:
Article 176
“(1) Preventive measures may be applied by the prosecuting
authority or by the court only in those cases where there are serious grounds
for believing that an accused ... will abscond, obstruct the establishment of
the truth during the criminal proceedings or reoffend, or they can be applied
by the court in order to ensure the enforcement of a sentence.
(2) Detention on remand and alternative preventive
measures may be imposed only in cases concerning offences in respect of which
the law provides for a custodial sentence exceeding two years. In cases
concerning offences in respect of which the law provides for a custodial
sentence of less than two years, they may be applied if ... the accused has
already committed the acts mentioned in paragraph (1) above.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant submitted that she had been
detained unlawfully, contrary to Article 5 § 1 of the Convention, the relevant
part of which 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:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation 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
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government submitted, that with regard to
the period after the quashing of the decision of 20 February 2009 by the Court
of Appeal on 12 March 2009, the domestic court had had both the power and
a clear reason to order the applicant’s detention as a preventive measure since
she had failed to pay the fine, despite having been given a two-month extension
and despite her having a salaried job.
In respect of the period after the applicant’s
lawyer had informed the court of the payment in full of the fine on 25 March
2009, the Government submitted that the investigating judge had been unable to
order the applicant’s release without hearing all the parties concerned and
without verifying that the payment had indeed been made (the applicant’s lawyer
having only submitted a copy of the payment order). Therefore, the judge had ordered
the applicant’s release as soon as it was possible to hold a hearing.
The applicant submitted that her detention had
been unlawful after the Court of Appeal had quashed the decision of 20 February
2009. In her opinion, the Court of Appeal could not, without stating any reasons
in its judgment, have lawfully ordered her detention in the absence of a court
decision replacing her fine with detention. She also noted that her detention
after that date had not been referred to as a preventive measure and that, in
any case, the courts did not have the power to apply preventive measures
without giving any reasons. She also argued that she had been illegally
detained after 12 March 2009, when the full amount of the fine had been paid.
2. The Court’s assessment
The Court reiterates that the expressions
“lawful” and “in accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to conform to
the substantive and procedural rules thereof. However, the “lawfulness” of
detention under domestic law is not always the decisive element. The Court must
also be satisfied that any detention during the period under consideration was
compatible with the purpose of Article 5 § 1 of the Convention, which is to
prevent people from being deprived of their liberty in an arbitrary fashion
(see Anguelova v. Bulgaria, no. 38361/97, § 154, ECHR 2002-IV; Fedotov
v. Russia, no. 5140/02, § 74, 25 October 2005; and Levinţa v.
Moldova (no. 2), no. 50717/09, § 29, 17 January 2012).
In the present case, the Court notes that on 12
March 2009 the Court of Appeal quashed the decision of 20 February 2009 and
sent the case for retrial by the first-instance court (see paragraph 11 above). From that moment the applicant was no longer subject to “lawful detention
after conviction by a competent court” (Article 5 § 1 (a) of the
Convention), given that her initial conviction did not call for a sentence of
detention. Accordingly, the applicant’s deprivation of liberty after 12 March
2009 had to be based on other grounds for detention provided for in Article 5 § 1
of the Convention than those under Article 5 § 1(a), so as to observe the
principle that no one should be arbitrarily deprived of their liberty (see Levinţa
(no.2), cited above, § 31).
The Court considers that it is primarily for the
domestic courts to decide whether a person is to be detained in particular
circumstances. However, in every case the legal ground for detention must be
clear and the courts must give reasons for such detention. It observes that in the
decision of 12 March 2009 the Court of Appeal did not devote any effort to
analysing the legal grounds and the justification for the applicant’s detention
(see, by contrast, Mooren v. Germany [GC], no. 11364/03, §§ 82-89, 9 July 2009). In
fact, the extension of the applicant’s detention was mentioned only in the
operative part of the judgment, without any reasons given. Moreover, the court
failed to specify the period of time during which she should be detained.
In the absence of any justification for the
applicant’s detention in the decision of the Court of Appeal of 12 March 2009
in the present case, it is impossible to verify which of the specific grounds
listed exhaustively in Article 5 § 1, if any, were relied on.
The foregoing considerations are sufficient to
enable the Court to conclude that the applicant’s detention after 12 March 2009
was not compatible with the purpose of Article 5 § 1 of the Convention (see Levinţa
(no.2), cited above, § 35).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also made complaints under
Articles 6, 7 and 13 of the Convention concerning her allegedly wrongful
conviction in 2008 in the absence of evidence that she had committed a crime. She also complained under Article 6 § 3 of the
Convention that she had not been represented by a lawyer at the hearing of 20
February 2009. She finally complained under Article 1 of Protocol No. 4
to the Convention that she had been imprisoned for her inability to repay her
debts.
Having regard to all the material in
its possession, the Court finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the Convention.
It follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The applicant claimed 100,000 euros (EUR) in
damages for her illegal detention and wrongful conviction.
The Government argued that the amount claimed
was unjustified and also excessive in the light of the Court’s case-law on
Article 5.
The Court awards the applicant EUR 5,000 in respect
of non-pecuniary damage.
B. Costs and expenses
The applicant, who had been granted legal aid,
made no claim under this head.
C. Default interest
The Court considers it appropriate that the default
interest rate should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 5 § 1
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
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
