TrustHLT/LaCour huggingface dataset:
GR1 (Government): And once the applicant appealed twice his detention at the very beginning of the criminal investigation and his arrest, he was allowed by the rule of exhaustion to bring the present case before the court, therefore leaving aside all other his procedural possibilities to reclaim his liberty in the domestic court.
GR1 (Government): That being said, allow me now to inquire on these two aspects, meaning whether the applicant was required to exhaust remedies and whether a line can be drawn between detention pending trial and the house arrest.
GR1 (Government): These aspects would clarify in the end whether there has been or not a violation of the convention in the present case.
GR1 (Government): It is no need to recall that the government already stopped to object before the grand chamber when non-exhaustion plea had been not raised before the chamber.
GR1 (Government): However, the government has their own reasons to ask to overrule this estoppel.
GR1 (Government): Firstly, the whole disagreement in the chamber referred to the question whether the applicant exhausted or not available domestic remedies.
GR1 (Government): So it would be unfair, in my opinion, for that case to reach the grand chamber on that account and eventually to overrule the exhaustion plea only because the government is procedurally stopped to raise it.
GR1 (Government): Secondly, the government perceived the scope of the present case only with the reference to those two months of detention, pretrial detention.
GR1 (Government): All the parties cross comments before the chamber referred to that period of detention.
GR1 (Government): And second period of house arrest was neither subjected to any comments, nor was the scope of the case.
GR1 (Government): Therefore, the government was not given a procedural possibility other than before the present grand chamber to raise their objections on the non-exhaustion and to raise the claim of inadmissibility of the application.
GR1 (Government): Thirdly, considering that the house arrest was the measure requested by the applicant himself in the alternative to his detention, the question of exhaustion rule could be so closely connected with the merits of the case.
GR1 (Government): There were sufficient precedents in the court case law when the non-exhaustion objections were examined together with the merits of the case.
GR1 (Government): The present case, I consider, is one of these cases.
GR1 (Government): And finally, the rule of exhaustion is subjected to many exceptions, such as the need to exhaust new remedies introduced while an application was pending before the present court, or to make use of an improved remedies, such as, for example, an updated case law of the domestic courts.
GR1 (Government): If the exhaustion rule can be subjected to some exceptions, I think that the procedural rules that govern this non-exhaustion rule also could be subjected to some exceptions.
GR1 (Government): Therefore, the government consider that they are not stopped to raise before the grand chamber their non-exhaustion plea.
GR1 (Government): And they consider that the present application is inadmissible for the following considerations.
GR1 (Government): In all previous cases against the Republic of Moldova, the court declared inadmissible applications once the applicant exhausted the appeal proceedings after having been arrested, say, for the first 30 days by the investigation judge.
GR1 (Government): In the present case, the applicant failed to appeal eight months of his house arrest.
GR1 (Government): So in the government opinion, the court in the present case may disregard that period of the house arrest and accept it from the whole period of detention.
GR1 (Government): The later consideration passes me to the next fundamental issue concerning the merits of the present case.
GR1 (Government): The government see the whole ambiguity of the present case in the question, should or not be a distinction drawn between two types of deprivations of liberty, house arrest and detention?
GR1 (Government): And if yes, do the state's obligations and the guarantees under Article V differ in this respect?
GR1 (Government): The government do not dispute that the house arrest should be considered as a deprivation of liberty within the general meaning of the Article V.
GR1 (Government): Indeed, it resembles a restriction on movement that are serious enough to fall within the ambit of that article of the convention.
GR1 (Government): However, and this is crucial for the present case, the court distinguish between the merit restrictions of liberty on account of their degree and intensity and not by legal qualifications given by the domestic law.
GR1 (Government): And the detention and house arrest are distinguishable because of their degree and intensity.
GR1 (Government): The procedural guarantees could also vary, and the government refer to the requirement, for example, which is the scope of the present case, to the requirement of the reasoning of the domestic judgments when one type of deprivation liberty or another.
GR1 (Government): Turning to the present case, I recall that the applicant himself was after the house arrest as an alleviation of his detention.
GR1 (Government): And what he asked for, he had been granted by the domestic courts.
GR1 (Government): Therefore, I suggest that the degree and intensity had proportionally discharged the domestic court's obligation to give reasons in their judgments ordering the house arrest.
GR1 (Government): Indeed, the government drew a line between the arrest pending trial and the house arrest from the view of their degree and intensity.
GR1 (Government): The first implies the authorities' custody, and it is the highest form of interference into the one's liberty.
GR1 (Government): The second is executed at home, where the degree of the authorities' interference into an individual liberty is limited to prohibition of contacts with outside world.
GR1 (Government): So the house arrest is less intrusive measure, and it is rather an alternative and alleviated form of deprivation of liberty.
GR1 (Government): In the latest sense, the applicant asserted in his submissions that the domestic legislation does not make any difference between the detention and a house arrest, and their legal status is equal in the domestic criminal procedure.
GR1 (Government): This is not true.
GR1 (Government): If the arrest procedure before the courts could be considered as equal, because only the investigation judge and eventually the court of appeal can order house arrest and the arrest pending trial, they, however, differ in substance.
GR1 (Government): The law cannot always regulate the full panoply of the facts, though the domestic laws actually draw a line between both types of deprivations.
GR1 (Government): For example, the house arrest has some additional restrictions, such as duty not to communicate with someone or to do something, which are similar to a genuine alternative measure at the discretion of the domestic judge and serve for a better individualization of that measure.
GR1 (Government): The detention, on the other hand, once applied, lacks any discretion or accompanied conditions except the authority's custody with no alternatives.
GR1 (Government): According to the court's interpretation, a justification for any period, no matter how short, must be convincingly demonstrated by the authorities.
GR1 (Government): On the other hand, the same Article V sets up a quite opposite requirement to consider first more alleviated an alternative measure when decided upon detention.
GR1 (Government): Therefore, it seems that an alternative measure may have no practical need in being so convincingly justified.
GR1 (Government): Accordingly, the domestic courts should compare any house arrest with detention and as a less severe measure of deprivation of liberty and therefore as an alternative measure comparing with that detention.
GR1 (Government): If yes, the detention period should not be taken as a whole and the reasons given by the domestic courts may be laconic and vary on case by case basis.
GR1 (Government): On the other hand, the length of the entire deprivation of liberty of the person is not the only criterion for the assessment of justification requirement.
GR1 (Government): The convention should be practical and effective and this means that it refers to the ever-changing realities.
GR1 (Government): The today realities reveal that the house arrest became an alternative measure to the detention, indeed one of the most effective and widely applicable, I may say, in Europe.
GR1 (Government): People are taking their jobs at home, so why not prefer to stay at home when you are subjected to investigation?
GR1 (Government): Do we really need to impose the same highest standards to our domestic judge who dismisses the prosecution request for detention of a person for detention pending trial and grants the applicants demands to stay at home, especially whereas the applicant himself accepts that measure?
GR1 (Government): Last and not least, I would like to address two aspects concerning the applicant's consent to be placed under the house arrest and whether this is relevant for his victim status.
GR1 (Government): It has been noted in vagrancy cases that the consent of an individual does not deprive that person of the guarantees of Article 5.
GR1 (Government): However, in the present case, the applicant's agreement on the house arrest could be treated as a relief he had asked for.
GR1 (Government): Therefore, it should ease the burden of the state's public responsibility.
GR1 (Government): Along with non-exhaustion, the applicant's consent is equal to release from his initial detention.
GR1 (Government): And being so, it is the reparation given by the domestic courts within the meaning of Article 5.
GR1 (Government): The convention requires that the applicant to be affected by the alleged violation.
GR1 (Government): It means harm.
GR1 (Government): So it appears that the applicant was asking for his own house arrest as in the alternative to his detention.
GR1 (Government): Was he so really affected?
GR1 (Government): Can he ask for his own harm at his own request?
GR1 (Government): The applicant argued in his submission that he was eventually acquitted on those counts of accusations for what he had been arrested.
GR1 (Government): Therefore, he suggested that the arrest was unnecessary and he was being affected.
GR1 (Government): It is a well-established case law of the present court that the final acquittal on the merits of criminal accusations should not lay doubts on the initial reasonable suspicion as a foundation of the initial arrest.
GR1 (Government): No one could guarantee and speculate on the outcomes of a criminal case because any criminal accusation is about what the prosecution could eventually and really could prove in a court of law.
GR1 (Government): Moreover, the applicant had many counts of accusations and he has found guilty on some of them.
GR1 (Government): He agreed with that and did not appeal his sentence.
GR1 (Government): So the applicant has no reason to assert that he was wrongly subjected to criminal investigation and respectively to arrest.
GR1 (Government): Furthermore, the outcomes of the merits of the applicant's accusations are irrelevant for the scope of the present case, which is to assess the reasons for his preliminary deprivation of liberty and not the foundation of his criminal accusations.
GR1 (Government): And finally, let us not forget about the merits of the applicant's detention.
GR1 (Government): And I refer here to the reason of his initial detention the first two months.
GR1 (Government): The court demands to provide an explanation concerning the reasons given by the domestic courts to the applicant's detention.
GR1 (Government): And the government in the present proceedings is bound by the findings of the judicial text.
GR1 (Government): I am restricted to that domestic judicial text of judgments and I cannot advance on behalf of the courts fresh or new reasons.
GR1 (Government): However, some reasons could be inferred from the coexistence of sufficiently strong, clear, and concordant interferences or unrebutted facts.
GR1 (Government): The domestic courts have considered them, but sometimes for the sake of procedural economy, their detailed description in the judgments seems to be unnecessary, especially when they are not contested by the parties.
GR1 (Government): Indeed, do we really need for a detailed description that in the criminal proceedings of the facts which are not contested by the parties?
GR1 (Government): And for example, in this case that the applicant and his sons were co-suspected in the same criminal accusations, in the same investigation, and his initial detention was aimed to avoid interferences between them, and the house arrest that he was initially proposed as an alternative to his detention would be at the outset devoid of purpose.
GR1 (Government): Once the fear of the courts disappeared that the interferences may already have been not in the place, the courts reviewed the judgments, and the applicant received his house arrest.
GR1 (Government): So he had so desired.
GR1 (Government): The domestic courts ordering the applicant detention pending trial were relying mostly on the complexity of the case, and the amount of evidence needed to be gathered.
GR1 (Government): The criminal case falls into the type of so-called white collar crimes.
GR1 (Government): And there is no need to describe this very aspect in detail, because this is a practical issue.
GR1 (Government): White collar crimes, we don't have in the legislation an explanation what means white collar crimes, though in practice we understand what it means.
GR1 (Government): The detailed descriptions of the government reasons were proposed in our written submissions, to which I fully subscribe.
GR1 (Government): In this sense, the government fully endorsed, for example, the recent Giuganaro case against the Republic of Moldova, where the chamber, the same chamber, on account of quite similar facts, declared that application inadmissible.
GR1 (Government): So the government would propose that case to be considered by the present grand chamber as probably as one persuasive authority, and to make a proper legal assessment of the facts, which is the scope of the present case.
GR1 (Government): In conclusion of my pleadings, the government invites the grand chamber to hold that the government can raise non-exhaustion plea, and that the applicant house arrest is outside of the scope of the case, because of that inadmissibility criteria on non-exhaustion.
GR1 (Government): Also, in the event if the court will, however, consider that period of the house arrest, the government note that the applicant's detention was fully justified.
GR1 (Government): And he cannot claim to be a victim, since he requested relief in that form of the house arrest, and the courts granted that request.
GR1 (Government): The whole period of the applicant's deprivation of liberty cannot be the sole criteria for the alleged lack of justification.
GR1 (Government): The domestic courts distinguished between the period of detention and the period of house arrest.
GR1 (Government): And the government invites the grand chamber to endorse that individual approach, domestic approach.
GR1 (Government): The initial detention was justified for the reasons of avoiding interferences, and because of the complexity of the case.
GR1 (Government): The domestic courts took individual approach to the applicant case, and applied the alternative measure to his detention when it was needed.
GR1 (Government): Being an alternative measure in the government's opinion, on account of lesser degree and intensity, the house arrest has to have easier standards of justification in contraria with the detention.
GR1 (Government): The domestic courts applied all this consideration in their judgments to the particular individual applicant situation.
GR1 (Government): And therefore, in the government's opinion, there has been no violation in the present case, or at least the applicant's claims are manifestly ill-founded.
GR1 (Government): Thank you for your attention, and the government rests.
Nebojša Vučinić (Judge): I would ask both parties for very short comments about concerning the situation from 29 June of 2007 when Kishnev Court of Appeal quashed the decision from 26 June of 2007 about house arrest and reordered applicants detention in jail pending the trial for next 20 days.
Nebojša Vučinić (Judge): I would ask for very short comments in the context of both exhaustion of domestic remedies and effectiveness of domestic remedies.
Dean Spielmann (JudgeP): Thank you, Judge Wojtyczek.
Krzysztof Wojtyczek (Judge): I have two questions.
Krzysztof Wojtyczek (Judge): The first question for both parties.
Krzysztof Wojtyczek (Judge): I would like to have more detailed information about the regime of the house arrest in the Republic of Moldova.
Krzysztof Wojtyczek (Judge): What are the exact obligations imposed on a person placed under house arrest?
Krzysztof Wojtyczek (Judge): This is the first question.
Krzysztof Wojtyczek (Judge): The second question is for the government.
Krzysztof Wojtyczek (Judge): The government has emphasized that the residents did not provide any resources to contest the decision to assign residents.
Krzysztof Wojtyczek (Judge): I would like to ask the residents to respond to this argument and perhaps also to explain that they were right not to provide resources to contest the decision to assign residents.
Dean Spielmann (JudgeP): Merci beaucoup, Griţco.
Valeriu Griţco (Judge): So my first question is, I'd like to find out whether, from the point of view of the government, the preventive measures during the domestic criminal proceedings against the applicant represented a continuing situation.
Valeriu Griţco (Judge): And the second question, in the paragraph 69 of the government memorial to the Grand Chamber, it stated that from the point of view of the government, the applicant requests and consent to be placed under the house arrest, I'm citing, can decrease the domestic court's duty for the justification of the arrest measure.
Valeriu Griţco (Judge): In that respect, could you please give an example of legal provision, if any, from the Moldovan legislation and or from the domestic judicial practice and or from the case law of the European court in favor of this statement?
Valeriu Griţco (Judge): And the last question, take into account your pleadings before today, I mean today, I'd like to find out where in the Moldovan legislation is stated that the house arrest represent, by itself, an alternative measure to the detention pending trial.
Dean Spielmann (JudgeP): Judge De Gaetano.
Vincent A. De Gaetano (Judge): I have two very short questions arising out of what was said by the two distinguished counsel for the applicant and the government.
Vincent A. De Gaetano (Judge): And this is irrespective of what we have in our dossier.
Vincent A. De Gaetano (Judge): It's simply to help me clarify my ideas, to make sure I understand everything.
Vincent A. De Gaetano (Judge): The first question is addressed to counsel for the applicant.
Vincent A. De Gaetano (Judge): You said, if I understood you correctly, that the domestic courts did not adequately consider alternative measures, by which I understand alternative measures apart from house arrest.
Vincent A. De Gaetano (Judge): What other alternative measures do you have in mind in this respect, presumably alternative measures which are available under domestic legislation?
Vincent A. De Gaetano (Judge): And the second question is for counsel for the government.
Vincent A. De Gaetano (Judge): And it, I suppose, reflects more or less another question which has already been put by one of my colleagues.
Vincent A. De Gaetano (Judge): Does the government consider, in effect, that there was a reasonable prospect of the applicant being released on bail after he had been placed on house arrest, that is, considering the previous insistence of the prosecution on the tension on the one hand and the court's repeated agreement with the prosecution's point of view on the other?
Dean Spielmann (JudgeP): The court will now rise for 15 minutes, following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to the judges' questions.
Dean Spielmann (JudgeP): Please be seated. The hearing is now resumed and I call Mr. Nagacevschi.
AP1 (Applicant): Je commencerai avec les réponses aux questions accordées par le juge en mon parti.
AP1 (Applicant): Donc en ce qui concerne l'épuisement, le non-épuisement et l'efficience de recours internes après la décision de la Cour d'appel du 29 juin 2015.
AP1 (Applicant): Bien sûr qu'après la décision de la Cour d'appel du 29 juillet 2015, il n'existait pas aucun recours contre cette décision parce que cette décision a un caractère irrévocable.
AP1 (Applicant): De même, nous n'avons pas un recours dans cette espèce et après la décision de la Cour d'appel du 20 juillet 2015, décision qui a été prononcée en base de recours de requérants et en base de laquelle il a été changé la mesure préventive sous forme d'arrestation préventive dans la forme d'arrestation à la domicile.
AP1 (Applicant): De même, ici, je veux mentionner une norme du Code de procédure pénale, c'est l'article 188, la lignée 6 du Code de la procédure pénale de la République de Moldova, où est mentionné expressément que le terme, le mode d'application et le prolongement de l'arrestation à la domicile se fait dans les mêmes conditions que l'arrestation préventive.
AP1 (Applicant): Aussi, en ce qui concerne la question sur le régime de l'arrestation à la domicile, ici, je veux mentionner qu'en conformité avec la loi procédure Moldova, la personne placée en arrestation à la domicile, à lui, peut être interdite de communiquer personnel, par téléphone, par fax, par internet, avec d'autres personnes.
AP1 (Applicant): Aussi, il est interdit, il est possible d'appliquer l'interdiction de...
AP1 (Applicant): De...
AP1 (Applicant): De sortir de la maison.
AP1 (Applicant): Et il existe d'autres formes d'interdiction qui sont appliquées par les juges, mais ce sont des formes les plus importantes.
AP1 (Applicant): De même que dans l'espèce, par la décision de la Cour d'appel Kishinev du 20 juillet 2015, quand le récarrant a été placé en arrestation à la domicile, il a été expressément prescrit qu'il a l'interdiction de communiquer avec les personnes qui sont impliquées dans ce dossier pénal.
AP1 (Applicant): De même, il a été interdit qu'il quitte son maison sans accord express du procureur.
AP1 (Applicant): En ce qui concerne les mesures préventives alternatives qui sont prescrites par la loi, à l'espèce, peut-être, elles sont importantes.
AP1 (Applicant): Par exemple, l'obligation de ne pas quitter la localité ou le pays, la garantie personnelle, la libération sous contrôle judiciaire ou par caution.
AP1 (Applicant): La libération par caution, il a été appliqué au récarrant.
AP1 (Applicant): Après mars 2008, il a été libéré de l'arrestation à la domicile.
AP1 (Applicant): De même, en ce qui concerne la question sur l'arrestation à la domicile et sur l'effet de démarche de récarrant en ce qui concerne son placement en arrestation à la domicile.
AP1 (Applicant): Comme j'ai mentionné, l'arrestation à la domicile s'applique dans les conditions de la loi.
AP1 (Applicant): Et la loi Moldav ne prescrit pas la possibilité d'appliquer l'arrestation à la domicile à la démarche du récarrant.
AP1 (Applicant): Il existe une seule exception.
AP1 (Applicant): Par exemple, le juge, pendant le séance judiciaire, pendant l'examen du fond, a placé le client ou le récarrant pour 3 mois en arrestation préventive.
AP1 (Applicant): Et après un mois, s'il se change les circonstances pour le placement de l'arrestation préventive, le récarrant a la possibilité de solliciter lui-même le changement de l'arrestation préventive en arrestation à la domicile ou autre mesure préventive.
AP1 (Applicant): C'est le seul cas où l'arrestation à la domicile a un quelque effet pour le juge en ce qui concerne la solution de la mesure préventive.