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Buzadji v Moldova – requirements for ordering pre-trial detention

In Buzadj v. Moldova, the European Court of Human Rights has yet again reiterated the requirements for judicial decisions ordering pre-trial detention. It underscored that any decision to deprive somebody of his liberty must be supported by sufficient and relevant reasons. Merely re-phrasing the legal provisions on pre-trial detention is not sufficient.

Facts:

The applicant was the former director of a state owned company. In 2006, he had acknowledged a debt by the company in court proceedings. Following these proceedings, several investigative procedures were instigated against the applicant was well as against his sons. The prosecution office suspected that the applicant had defrauded the company or embezzled funds.

In the course of the investigation, the applicant was summoned several times to be questioned by the investigating authorities. He followed the summons on each occasion.

All investigative procedures were joined an in May 2007, the applicant was charged with fraud. On the same day the applicant was charged, the competent court upon request by the prosecution ordered pre-trial detention for a period of 15 days. It pointed out that the applicant was charged with an exceptionally serious crime and referred to the complexity of the case and the seriousness of the crime. It also stated that there were reasonable grounds to believe that the applicant could collude with other people – in particular his sons – to take a common position.

The applicant appealed against this decision. He argued that there was no evidence in the case file suggesting that he represented a flight risk and pointed out that he had family ties, a job and a residence in Moldova. He also submitted medical certificates stating that his health condition required treatment he could not obtain in pre-trial detention.

The competent court rejected the appeal. In its reasoning, it essentially repeated the reasons given by the lower court.

When the initially ordered period for pre-trial detention expired, the competent court extended it. It pointed out that in view of the ‘seriousness and complexity of the case and the need to protect public order’ it was premature to replace the pre-trial detention by another measure such as house-arrest. Upon appeal, the Chisinau Court of Appeal upheld this decision.

After the period for which pre-trial detention had been ordered had expired, the competent court extended the detention period again, in essence based on the same reasons it had already quoted. The decision was upheld upon appeal. Finally, in June 2007, the competent court accepted a request by the applicant and ordered house arrest instead of pre-trial detention. The prosecution appealed this decision and the Court of Appeal quashed it and ordered pre-trial detention.

After another extension of the pre-trial detention, the Court of Appeal ordered house arrest.

In total, the applicant had spent two-and-a-half months in pre-trial detention some 8 months in house arrest.

Law:

 

The European Court of Human Rights examined the case in light of article 5 paragraph 3 of the European Convention on Human Rights, which provides

Article 5 – Right to liberty and security

 

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 (…)

3)  Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

 

The Court reiterated that a person charged with an offense must always be released pending trial unless the state can show that there are sufficient and relevant reasons to justify the detention. While the court examining the necessity of pre-trial detention is not obliged to address every single argument advanced by the affected person in favour of his release, it must not disregard or treat as irrelevant facts which might be of importance of the question of pre-trial detention. The competent court must not confine itself to general and abstract reasons when giving reasons for ordering pre-trial detention.

The European Court of Human Rights pointed out that the domestic courts in Moldova had not examined any of the arguments advanced by the applicant. The domestic courts had repeated the wording of the criminal procedure code of Moldova without connecting the provisions to the particular circumstances of the case; the decisions had not been based on an analysis of concrete facts to be found in the case file, but rather on general and stereotypical considerations.

For these reasons, the Court found a violation of article 5 paragraph 3 ECHR.

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