CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 juin 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sC986E16F { font-family:Arial; color:#ffffff } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sB6A7F5BF { width:17.54pt; display:inline-block } .s235C1871 { width:137.76pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 63588/17 Veaceslav PLATON against the Republic of Moldova   The European Court of Human Rights (Second Section), sitting on 4   June 2024 as a Committee composed of:   Jovan Ilievski , President ,   Diana Sârcu,   Gediminas Sagatys , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   63588/17) 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”) on 16 August 2017 by a Moldovan and Ukrainian national, Mr Veaceslav Platon, who was born in 1973 and lives in Chișinău (“the applicant”) and who was represented by Mr V. Pleşca, a lawyer practising in Chișinău; the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari; the parties’ observations; the decision of the Ukrainian Government not to make use of their right to intervene in the proceedings (Article   36   §   1 of the Convention); Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns an alleged breach of Article 5 § 4 of the Convention as the applicant had not been assisted by a lawyer of his own choice regarding his arrest, due to limitations on the meetings between the applicant and his lawyers and as the hearings concerning his detention pending trial were all held in camera. 2.     On 23 July 2016 a Moldovan court accepted the prosecutor’s request to order the applicant’s detention pending trial. The applicant, who was abroad, had not been informed of the hearing and his lawyer was not present. An ex ‑ officio lawyer represented the applicant at the hearing. 3.     On 29 July 2016 the applicant was extradited from Ukraine to the Republic of Moldova. When arrested in Moldova on that day he asked to be represented by B., a lawyer practicing in Chișinău. According to the Government, B. refused to represent the applicant and the prosecutor called an ex-officio lawyer, who represented him when being informed of the charges against him and registering his arrest. In a final decision of 4   August 2016 the Chișinău Court of Appeal rejected the applicant’s chosen lawyer’s appeal against the decision of 23 July 2016. 4.     Following the applicant’s arrest, he was placed in prison no. 13 in Chișinău based on the court order of 23 July 2016. His detention was regularly extended. 5.     During his detention, the applicant’s lawyers requested the prison authorities on many occasions to be allowed to meet the applicant in prison no. 13. On 1 September 2016 the applicant appeared before a judge in order to be officially informed of the decision of 23 July 2016 and of the arrest warrant issued on the same date. However, he was allegedly able to discuss with his lawyers only for three minutes before the hearing. The court rejected their request for more time, finding that the hearing was a 2 ‑ 3-minute procedure whereby the applicant was simply informed of the relevant decision. According to the applicant, his lawyers were systematically obstructed in obtaining meetings with him for frivolous reasons. In particular, they often had to wait for hours before being allowed to see the applicant, or the time allowed for such meetings was restricted, and sometimes they were unable to see him on the dates when they had requested such meetings, even if that was before a court hearing concerning the continuation of his detention. 6.     According to information from the prison’s administration, there were only five meeting rooms (later increased to seven) for lawyer-to-client meetings in prison no. 13, used by the lawyers of more than one thousand detainees, as well as by prosecutors and investigators who needed to carry out investigative measures with the participation of detainees. Whenever one of the applicant’s lawyers asked for a meeting with the applicant and there was no free meeting room, (s)he had to wait until a room became available. Subsequently, a bureau was reserved for the use by the applicant’s meetings with his lawyers. The applicant lodged numerous unsuccessful complaints about the limitation of the number and duration of meetings with his lawyers while in prison to the prison administration, the prosecution, the Ministry of Justice and the courts (for instance, on 14 December 2016 and 16 March 2017). He was informed that the reasons for the delays in allowing such meetings were the scarcity of meeting rooms in comparison to the large number of requests (at least 50 each day) by the lawyers of all detainees to have confidential meetings, the strict observance of visiting hours ensuring the normal work of the prison and the observance of the internal regulations concerning detainees’ activities. On 30 November 2016 the Chișinău Court (Centru) obliged the prison administration to ensure the applicant’s studying of the materials in the case. On 4 April 2017 the same court rejected inter alia his request to have daily meetings with his lawyers, referring to its decision of 30 November 2016 and the possibility of complaining about the failure to enforce it. On 10 May 2017 the same court rejected the applicant’s complaint, finding that he was seeking a court order to make the prison administration ensure unrestricted access by his lawyers, something that it already had to do under mandatory legal provisions. 7.     As for the publicity of the hearings, on 21 October 2016 the applicant asked the same court to examine in a public hearing the prosecutor’s request to extend his detention pending trial. He gave no details concerning the need for a public hearing. 8.     The applicant complained under Article 5 § 4 of the Convention that he had not been assisted by a lawyer of his own choice regarding his arrest, that the authorities had created obstacles to the meetings with his lawyers and that the hearings concerning his detention pending trial were all held in camera . THE COURT’S ASSESSMENT Complaint regarding the applicant’s legal assistance on 23 and 29   July 2016 9.     The applicant argued that he had not been assisted by the lawyer of his choice on 23   July 2016, when a court examined the prosecutor’s initial request for pre-trial detention in the applicant’s absence, and on 29 July 2016, when he was arrested. He had only had the assistance of an ex-officio lawyer who could not properly represent him and whose services he refused. 10.     The Government submitted that the lawyer chosen by the applicant on the day of his arrest (B.) had refused to represent him and his name never appeared thereafter in any document concerning the applicant. In view of the urgency of registering the applicant’s arrest late at night and in view of B.’s refusal to represent him, the prosecutor had to find an alternative in the form of an ex-officio lawyer. 11.     The Court considers that representation by an ex-officio lawyer instead of a chosen one is different from the issue of alleged obstacles to meetings between him and his chosen lawyers, which allegedly continued throughout the applicant’s detention. The issue of representation by ex-officio lawyers concerns only the events of July 2016. The final court decision in that respect was adopted on 4 August 2016, while the present application was lodged on 16   August 2017, more than six months later. 12.     Accordingly, the part of the complaint concerning representation by ex-officio lawyers must be rejected for non-compliance with the six-month time-limit, pursuant to Article   35 §§   1 and 4 of the Convention. Complaint regarding the obstacles to the applicant’s meetings with his lawyers 13.     The applicant complained that, during many months, the meetings with his lawyers, which under domestic law were not subject to any limitations as to their number and duration, were systematically limited. The lawyers had had to wait for hours on many occasions before being allowed to meet him, sometimes being unable to reach him at all on the day when they had requested a meeting. Occasionally his lawyers had been unable to meet him, or the duration of such meetings was limited, just before court hearings concerning his detention on remand, which prevented his proper preparation for those hearings. In particular, he was not allowed to discuss in confidence with his lawyers either before or during the court hearing of 1 September 2016 despite his express request. Finally, since the obstruction of his meetings with his lawyers was part of a pattern of similar actions lasting a long time, this had to be treated as a “continuous situation” for the purposes of calculating the six-month time-limit for lodging the application. 14.     The Government raised a preliminary objection, arguing that the complaints relating to the events prior to 16 February 2017 were out of time. As for the subsequent meetings between the applicant and his lawyers in prison no. 13, as was explained to him by that prison’s administration, the limits to lawyer-client-meetings stemmed exclusively from logistical limitations. In any event, the applicant had benefited from numerous visits by his many lawyers, as proved by documents from the prison: 16 times each month during the first two months after his arrest and not less than 8 times a month during the subsequent months. 15.     As for the limitations of the applicant’s meetings with his chosen lawyers, the Court considers that it is unnecessary to deal with the Government’s preliminary objection concerning the observance of the six ‑ month time-limit for lodging the application, because this part of the application is in any event inadmissible for the following reasons. 16.     The Court reiterates that the requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article   5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.   Thus, the proceedings must be adversarial and must always ensure “equality of arms” between the parties (see   A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 203-204, ECHR 2009 with further references, and Lutsenko v. Ukraine , no. 6492/11, § 96, 3 July 2012). It may also be essential that the individual concerned should not only have the opportunity to be heard in person but that he should also have the effective assistance of his lawyer (see   Bouamar v.   Belgium , 29 February 1988, § 60, Series A no. 129, and Lutsenko , cited above, § 96). 17.     In the present case, it is noted that there have been indeed a number of occasions when the applicant’s lawyers had had to wait for hours before meeting him and sometimes were unable to see him on the day when they had requested such a meeting. The repeated refusals, delays and interruptions of the applicant’s meetings with his lawyers had the potential of creating an atmosphere preventing the lawyers from properly briefing their client and thus adversely affecting his ability to prepare for the hearings concerning his detention pending trial (see, mutatis mutandis , Gilanov v. the Republic of Moldova , no.   44719/10, § 87, 13 September 2022). 18.     However, notwithstanding these limitations, the applicant has met regularly with his lawyers, as is clear from the Government’s submissions and annexed documents. The Court therefore considers that despite the above-mentioned limitations on the applicant’s right to meet his lawyers, he could in fact exchange with them at a considerable number of meetings (almost every second day during his first two months of detention and at least twice a week thereafter) and thus prepare for the hearings for judicial review of his detention on remand. It also notes that the hearing of 1   September 2016 was limited to formally informing the applicant of the decision of 23   July 2016, not to decide on any issue such as the applicant’s detention. As such, that hearing was not adversarial and thus, even assuming that the applicant was unable to see his lawyers in the days before that meeting as alleged, this particular lack of access to his lawyers did not affect his ability to properly present the case against his detention. 19.     More importantly, while regularly complaining to various authorities about the unlawful limitations on their meetings with the applicant (most often, delays in obtaining such visits or the limitation of their duration), the lawyers were able to keep the applicant informed and to obtain his instructions. Moreover, they were able to submit to the courts their detailed appeals, requests and complaints. 20.     Having examined the parties’ arguments and the case materials, the Court is not convinced that the obstacles to some of the meetings between the applicant and his lawyers had substantially affected the above-mentioned guarantees of judicial procedure or that the defence was unable to properly present its case and was at a disadvantage in comparison with the prosecution when debating in court the lawfulness of and reasons for the applicant’s pre ‑ trial detention. 21.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Complaint regarding the lack of publicity of the hearings concerning the applicant’s detention pending trial 22.     The applicant finally complained about the fact that the hearings concerning his detention pending trial had not been public. 23.     The Court recalls that though requiring a hearing for the review of the lawfulness of pre-trial detention, Article 5 § 4 of the Convention does not as a general rule require such a hearing to be public ( Reinprecht v. Austria , no.   67175/01, §   41, ECHR   2005-XII). It cannot be excluded that a public hearing may be required in particular circumstances ( ibid .). However, no such circumstances were shown to exist in the present case. 24.     It follows that this part of the application is equally manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 27 June 2024.     Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President