SECOND SECTION
 
 
 
 
 
 
 
CASE OF SECRIERU v. THE REPUBLIC OF MOLDOVA
 
(Application no. 20546/16)
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
23 October 2018
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Secrieru v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Paul Lemmens, President,
 Valeriu Griţco,
 Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 2 October 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 20546/16) 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, Mr Sergiu Secrieru (“the applicant”), on 6 April 2016. 2. The applicant was represented by Mr A. Procopovici a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari. 3. On 12 July 2017 the complaints concerning Articles 3 and 5 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Government did not object to the examination of the application by a Committee. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1985 and lives in Nicoreni. 6. In January 2012 the applicant had an agreement with a person (“X”) according to which he promised to help him apply for a Spanish visa at the Spanish consulate in Moscow. They were to travel to Moscow by train, however, X did not show up at the train station at the time of leaving and the applicant left for Moscow alone with the money he had previously obtained from X in the amount of 520 euros. He did not return to Moldova until October 2015. 7. In the meantime X lodged a criminal complaint against the applicant accusing him of fraud. Criminal proceedings were initiated against the applicant in March 2012 on the basis of that complaint. 8. Since the prosecutor in charge of the case could not locate the applicant, he applied to an investigating judge for a detention warrant in respect of the applicant for a period of thirty days. The prosecutor argued in support of the remand that the applicant had been hiding from the investigating authorities. 9. On 8 February 2013 the Râșcani District Court ordered the applicant’s remand in custody for a period of thirty days. In support of its decision, the court argued that the applicant had been absconding from the investigating authorities and that he could hinder the investigation and influence witnesses. 10. On 9 October 2015 the applicant returned to Moldova from the Russian Federation. At the border he was informed that he was being wanted by the police and that he had to present himself at the Râșcani Police Station. The applicant telephoned the police station and agreed to come on 13 October 2015. 11. On 13 October 2015 the applicant went to the Râșcani Police Station where he was immediately arrested and placed in detention. 12. On 15 October 2015 the applicant appealed against the order of 8 February 2013. He argued, inter alia, that he had not been aware of the criminal investigation against himself and that he had learned about it upon his return to Moldova. Moreover, after learning about the investigation he had immediately contacted the Police Station and presented himself there. He also submitted that there were no reasons to believe that he would abscond or interfere with the investigation. 13. On 2 November 2015 the Chișinău Court of Appeal dismissed the applicant’s appeal. It did not give an answer to the applicant’s argument that he had not been aware of the criminal investigation against him. 14. The applicant’s detention was prolonged on several other occasions until 16 March 2016 on identical grounds and all his appeals were dismissed. 15. In the meantime the applicant was detained in Prison no. 13. According to him, he was detained in an overcrowded cell; the cell was equipped with a squat toilet which was not properly separated; the food was insufficient and of poor quality; he could have only one hour of outside exercise per day and only one shower per week. 16. By a final judgment of the Supreme Court of Justice of 12 July 2017 the applicant was convicted of fraud and given a suspended sentence of four years imprisonment. II. RELEVANT DOMESTIC LAW
17. According to Article 176 of the Code of Criminal Procedure, the preventive measure of detention pending trial can be imposed only when there are reasonable grounds to believe that the suspect could abscond from the investigating authorities, hinder the discovery of the truth or re-offend. 18. According to Article 238 of the Code of Criminal Procedure, a person shall be summoned at his or her home address. If the address is unknown, then the summons shall be sent to his or her place of work. If the person to be summoned declared another address during the proceedings, then the summons shall be sent to that address. The summoning of persons who live abroad shall be carried out in accordance with the provisions of the treaties concerning judicial assistance. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
19. The applicant complained that, contrary to Article 5 §§ 1 and 3 of the Convention, that his remand in custody had not been based on relevant and sufficient reasons and that his detention had been arbitrary. The Court shall examine the above complaint under Article 5 § 3 of the Convention which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
20. 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
21. The applicant submitted that his detention was not necessary because the reasons relied upon by the Moldovan courts to order his detention pending trial had not been relevant and sufficient. 22. The Government disagreed and argued that the detention order had been necessary because he had absconded from the investigation by leaving the country and not showing up when summoned by the prosecutors. They argued that the applicant knew about the criminal proceedings against him because he had been informed by the Russian authorities. 23. The Court reiterates that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The requirement for the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87 and 102, ECHR 2016 (extracts)). Furthermore, when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see, for example, Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012). 24. Justifications which have been deemed “relevant” and “sufficient” reasons in the Court’s case-law have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see, for instance, Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7; Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9; Letellier v. France, 26 June 1991, § 51, Series A no. 207; Toth v. Austria, 12 December 1991, § 70, Series A no. 224; Tomasi v. France, 27 August 1992, § 95, Series A no. 241‑A; and I.A. v. France, 23 September 1998, § 108, Reports of Judgments and Decisions 1998‑VII). 25. The presumption is always in favour of release. The national judicial authorities must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5 of the Convention, and must set them out in their decisions on applications for release.

Outcome for Article 3: violation