SECOND SECTION
CASE OF E.G. v. THE REPUBLIC OF MOLDOVA
(Application no. 37882/13)
 
JUDGMENT
 
Arts 3 and 8 • Authorities breaching procedural positive obligations as to enforcement of sentence for sexual assault after offender’s amnesty granted then revoked • Amnesty and pardon lying within province of domestic law; not contrary to international law unless relating to acts amounting to grave breaches of fundamental human rights • Amnesty enabling offender to leave country • Lack of coordination between State authorities • Unjustified delay in issuing wanted notices for offender
Art 35 § 1 • Period of non‑enforcement of criminal sanction taken as a whole for purposes of six‑month rule • Authorities’ failures inextricably interlinked and amounting to a continuing situation

 
STRASBOURG
13 April 2021
 
FINAL
 
13 July 2021
 
 
This judgment has become final pursuant to Article 44 § 2 of the Convention. It is subject to editorial revision. In the case of E.G. v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Marko Bošnjak,
 Aleš Pejchal,
 Valeriu Griţco,
 Carlo Ranzoni,
 Pauliine Koskelo,
 Saadet Yüksel, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 37882/13) 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 dual Moldovan and Romanian national, Ms E.G. (“the applicant”), on 9 May 2013;
the decision to notify the Moldovan Government (“the Government”) of the complaints under Articles 3 and 8 of the Convention relating to non‑enforcement of a sentence of imprisonment and to declare the remainder of the application inadmissible;
the decision not to disclose the identity of the applicant;
the submissions of the parties; and
the decision of the Romanian Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention),
Having deliberated in private on 16 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. This case concerns the non‑enforcement of a sentence imposed on one of the perpetrators of a sexual assault against the applicant. It raises issues under Articles 3 and 8 of the Convention. THE FACTS
2. The applicant was born in 1977 and lives in Chișinău. She was represented by counsel, Mr S. Burlaca. 3. The Government were represented by their agents, in order of time Mr L. Apostol, Mr M. Gurin and Mr O. Rotari. 4. On the night of 9-10 February 2008 the applicant was sexually assaulted by three individuals. 5. On the basis of a complaint lodged by the victim, the public prosecution service instituted criminal proceedings against P.G., R.G. and V.B. They were initially placed in pre-trial detention but were released pending the outcome of their case. V.B. specifically was released on 12 March 2008 against a deposit of security. 6. On 17 June 2009 the Centru District Court in Chișinău convicted the three defendants of gang sexual assault contrary to Article 172 § 2 (c) of the Criminal Code and sentenced them to suspended terms of imprisonment. The applicant appealed. 7. By a judgment of 2 December 2009 the Chișinău Court of Appeal affirmed the lower court’s findings; it further convicted P.G. and R.G. of the offence of gang rape contrary to Article 171 § 2 (c) of the Criminal Code and sentenced them to terms of imprisonment of six and five and a half years, respectively. It also imposed on V.B. a sentence of five years’ imprisonment. The judgment was immediately enforceable. 8. The State authorities took P.G. and R.G into custody that day from the courtroom of the Chișinău Court of Appeal. As he was not present at the trial V.B. was not taken into custody. 9. By a decision having final effect of 7 December 2010, the Supreme Court of Justice affirmed the judgment of the Court of Appeal. 10. In the meantime, on 14 May 2010, the authorities had issued a wanted notice for V.B. 11. On 18 April 2011 V.B. made an application through his lawyer to be discharged from his sentence pursuant to the Amnesty Act 2008. 12. A similar amnesty claim lodged by R.G. was rejected by the Chișinău Court of Appeal in a decision having final effect of 5 October 2011. The court noted inter alia that R.G.’s conviction post-dated the commencement of the Amnesty Act and that section 5 of the Act was not applicable to him. 13. On 20 December 2011 the Centru District Court in Chișinău rejected V.B.’s amnesty application for the same reason. He appealed. On the appeal the public prosecution service supported his claim for amnesty. 14. By a decision having final effect of 22 May 2012, the Chișinău Court of Appeal reversed the judgment of the lower court and granted V.B.’s amnesty claim. It expressed the view that section 5 of the Amnesty Act 2008 (see paragraph 28 below) was applicable because, among other reasons, the offence had pre-dated the commencement of the Act. 15. On 29 June 2012 the Chișinău Court of Appeal granted an application from the public prosecution service to have V.B.’s amnesty case reconsidered on fresh evidence. The court reopened the proceedings, set aside the decision it had given on 22 May 2012 and affirmed the judgment of 20 December 2011 (see paragraph 13 above). The public prosecution service and V.B.’s lawyer made applications to have that decision set aside on review. 16. By a decision of 4 December 2012 the Supreme Court of Justice granted their applications. It set aside the Court of Appeal decision of 29 June 2012 for lack of subject-matter jurisdiction and remitted the case. 17. On 7 March 2013 the Chișinău Court of Appeal ruled that the public prosecution service’s application for reconsideration on fresh evidence could not be entertained. 18. Meanwhile, on 22 October 2012, the authorities had arrested V.B. They had released him that same day on the basis of the decision of the Chișinău Court of Appeal of 22 May 2012. 19. By a judgment of 4 September 2013 the Centru District Court in Chișinău granted a further application by the public prosecution service for reconsideration on fresh evidence, reopened V.B.’s amnesty proceedings and set aside the decision of the Chișinău Court of Appeal of 22 May 2012. The Chișinău Court of Appeal affirmed that judgment on 18 November 2013. It noted inter alia that the court that had given the decision of 22 May 2012 had been unaware of V.B.’s breach of the conditions on which he had been released against security. 20. The applicant subsequently enquired whether V.B. had been found and was serving his sentence. The police inspectorate informed her lawyer by a letter of 10 January 2014 that no wanted notice had been issued for V.B. and no steps taken to find him as neither the competent prosecuting authority nor the Chișinău Court of Appeal had directed that a search should be made for him. 21. On 28 January 2014 the public prosecution service asked the police to enforce the decision setting aside the grant of amnesty to V.B. 22. On 31 January 2014 the police resumed their investigation into the whereabouts of V.B. They determined that he had left Moldova on 16 November 2013 for Ukraine. 23. In a letter to the applicant of 4 February 2014, the public prosecution service opined that the courts had failed to discharge their duty to forward the Court of Appeal decision having final effect of 18 November 2013 to the competent police authority for enforcement purposes within ten days. 24. The police issued a Commonwealth of Independent States (CIS) wanted notice for V.B. on 20 February 2014 and an international notice on 29 April 2015. 25. According to the Government’s most recent submissions, received by the Court on 2 March 2020, V.B. has yet to be found. RELEVANT DOMESTIC LEGAL FRAMEWORK
26. The relevant provisions of the Criminal Code which were in force at the material time read as follows:
Article 171 – Rape
“ ... 2. Rape:
... (c)  committed by two or more persons;
...
shall be punished by a term of imprisonment of between 5 and 15 years.
...”
Article 172 – Violent acts of a sexual character
“1.  ... the satisfaction of sexual desire in perverse forms [obtained] through physical or mental coercion or by taking advantage of a person’s inability to defend himself or herself or to express his or her will
[shall be] punished by a term of imprisonment of between 3 and 7 years. 2. The same acts:
... (c)  committed by two or more persons;
...
shall be punished by a term of imprisonment of between 5 and 15 years.”
27. Article 468 § 1 of the Code of Criminal Procedure requires the court to forward any immediately enforceable decision, within ten days, to the authority competent to enforce the sentence. 28. The relevant parts of section 5 of the Amnesty Act (Law no. 188), which came into force on 18 July 2008, read as follows:
Section 5
“Any person who has been sentenced to a term of imprisonment of seven years or less and who at the commencement of this Act has not reached the age of twenty-one years ... shall be discharged from serving his or her sentence.”
THE LAW
ALLEGED VIOLATION OF CONVENTION ARTICLES 3 AND 8
29. Relying on Articles 3 and 8 of the Convention, the applicant alleged that the State had not discharged what she saw as its positive obligations requiring it to give actual effect to the decision whereby V.B. had been convicted and sentenced for sexual assault. In particular, she complained of the decision to grant him amnesty and, in respect of the periods during which he had not had amnesty, of a failure by the authorities to conduct an effective search for him. So far as relevant, the Articles relied on read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”
Admissibility
30. The Government objected that the application had not been lodged within the six-month time-limit. They pointed to the fact that the applicant’s chief complaint concerned the grant of amnesty to V.B. by the Chișinău Court of Appeal in its decision having final effect of 22 May 2012. In their view, the six months had to run from that date, and, for the purposes of reckoning that period, no account was to be taken of the applications for review of that decision. Thus, they argued, the application had been lodged out of time. 31. The applicant was silent on this point. 32. The Court notes that the applicant’s complaints comprise two limbs. The first limb concerns the grant of amnesty to V.B. and the second the fact that there were no actual steps taken, when V.B. did not have amnesty, to give effect to the decision whereby he had been convicted and sentenced. The Court must ascertain whether a distinction falls to be drawn between the two limbs for the purposes of reckoning the six‑month time‑limit under Article 35 § 1 of the Convention. 33. In this connection the Court would draw attention to the concept of a “continuing situation” – meaning a state of affairs which operates by continuous activities performed by or on the part of the State to render the applicant a victim – and would observe that the six‑month period does not start to run so long as a continuing situation exists (see Iordache v. Romania, no. 6817/02, §§ 49-50, 14 October 2008, and Călin and Others v. Romania, nos. 25057/11 and 2 others, § 57, 19 July 2016). However, not all continuing situations are the same (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 262, ECHR 2014 (extracts)). The Court would reiterate that, while there are obvious distinctions between different continuing violations, the applicant’s complaint must in any event be lodged “without undue delay” once it is apparent that there is no realistic prospect of a favourable outcome or progress of the complaint domestically (see Sokolov and Others v. Serbia (dec.), nos. 30859/10 and others, § 31 in fine, 14 January 2014). 34. In this case the Court notes that the nub of the applicant’s complaints under Articles 3 and 8 of the Convention concerns V.B.’s de facto impunity for the sexual assault on her. In the Court’s opinion, the specific failures pointed to by the applicant in relation to those complaints – that is to say the purportedly unlawful grant of amnesty and the authorities’ alleged inaction in taking no steps to locate V.B. – are inextricably linked. For that reason the Court considers that in the circumstances of the present case the period of non‑enforcement of the criminal sanction imposed on V.B. must be taken as a whole for the purposes of the six‑month rule. 35. In conclusion, the Court considers that the set of failures for which the applicant seeks to hold the Moldovan authorities responsible amounted to a continuing situation (compare, regarding a failure to give effect to administrative court judgments, Hornsby v. Greece, 19 March 1997, § 35, Reports of Judgments and Decisions 1997‑II, and Sabin Popescu v. Romania, no. 48102/99, § 51, 2 March 2004). Moreover, the Court observes that it is not apparent from the material before it that there had ceased to be any realistic prospect of the Moldovan authorities’ enforcing V.B.’s sentence. The Government’s objection must therefore be dismissed. 36. The Court furthermore finds that the present complaints are neither manifestly ill‑founded nor inadmissible on any other ground under Article 35 of the Convention and accordingly declares them admissible.

Article of the Convention at issue: Article 3
Outcome: violation