CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 septembre 2013

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margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5E34492 { width:18.86pt; display:inline-block } .sB2998F02 { width:154.72pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       THIRD SECTION             CASE OF DANALACHI v. THE REPUBLIC OF MOLDOVA   (Application no. 25664/09)           JUDGMENT         STRASBOURG   17 September 2013     FINAL   17/12/2013   This judgment has become final under 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 1.     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. 2.     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. 3.     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. 4.     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 5.     The applicant was born in 1972 and lives in Cantemir. 6.     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. 7.     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. 8.     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. 9 .     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. 10.     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. 11 .     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. 12.     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. 13.     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 14 .     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” 15 .     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 16.     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 17.     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 18.     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. 19.     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. 20.     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 21.     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). 22.     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). 23.     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. 24.     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. 25.     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 26.     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 27.     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 28.     The applicant claimed 100,000 euros (EUR) in damages for her illegal detention and wrongful conviction. 29.     The Government argued that the amount claimed was unjustified and also excessive in the light of the Court’s case-law on Article 5. 30.     The Court awards the applicant EUR 5,000 in respect of non-pecuniary damage. B.     Costs and expenses 31.     The applicant, who had been granted legal aid, made no claim under this head. C.     Default interest 32.     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