CEDH · CASELAW;CLIN;ENG — 6 novembre 2007

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Moldova - 8207/06 Judgment 6.11.2007 [Section IV] Article 5 Article 5-1-c Reasonable suspicion Applicant's arrest and pre-trial detention without verifying whether the complaints against him were prima facie well-founded: violation   Article 3 Positive obligations Lack of investigation into complaints about intimidation of a remand prisoner in solitary confinement: violation   Facts : The applicant was a director of a private company which provided security services. He was first arrested in November 2005 following the opening of a criminal investigation into allegations by one of his employees of blackmail and threats of violence. He was detained in a remand centre of the investigating authority - a subdivision of the Ministry of Internal Affairs. His company's licence was revoked at the request of the Ministry of Internal Affairs, on the grounds that the company had breached the rules about guards wearing uniforms of certain colours and that the applicant had been involved in criminal activities. In December 2005 the applicant was released on bail. He told the media that he had been arrested as a result of efforts by the Ministry to monopolise the security services market by destroying competitors, including his company. Some days later, he was again arrested on the ground that two other persons had accused him of blackmail. The complaint was registered by the same officer as had registered the previous complaint against him. The applicant unsuccessfully appealed against his detention. He complained to the Prosecutor General's Office that, in the absence of his lawyer, unidentified persons had come to his cell and put pressure on him to give up his business. However, he received no response. He also complained to no avail of poor detention conditions and a lack of medical assistance, claiming that he was suffering from bronchitis. In March 2006 he was transferred to a Ministry of Justice detention centre. In May 2006 he was released against an undertaking not to leave the city. Law : Article 3 – The applicant had been detained for over three months without adequate medical assistance, sufficient food and heating, free access to tap water and a toilet or access to daylight for up to 22 hours a day. As regards the alleged intimidation of the applicant in his cell, the Court did not have sufficient evidence before it. However, the applicant had been detained in solitary confinement, where he felt particularly vulnerable, without a court order. Moreover, keeping an accused person in a detention centre under the same authority as the one prosecuting him (the Ministry of Internal Affairs) created the potential for abuse. Despite all this, the authorities had not taken any steps to properly investigate his complaints. Conclusion : violations (unanimously). Article 5 § 1 – As regards the applicant's first arrest, none of the courts examining the prosecutor's actions and requests for arrest had dealt with the issue of whether there had been a reasonable suspicion that the applicant had committed a crime, despite the applicant's claim that he was innocent. Given the lack of an explicit statement on this point in the domestic courts' decisions, the Court had to be particularly thorough in its own review. The only ground for the applicant's arrest and pre-trial detention was that the victim – the applicant's employee – had directly identified him as the perpetrator of a crime. However, he had not directly indicated the applicant's name in his complaint. It was unclear why the applicant had been considered an alleged perpetrator at the very start of the investigation and before further evidence could be obtained. He had never been accused of condoning illegal activities on his company's premises, which might have explained his arrest as a director of the company, but of personal participation in blackmail. The Government had stated that the victim had identified the applicant some time after lodging his complaint. However, they had submitted no supporting documents, despite the fact that identification procedures should be properly documented in accordance with the law. There were also reasons to doubt the victim's credibility. The conflict he had had with the company's administration gave further reasons to doubt his motives. However, the authorities had not verified the information he had provided. That lent support to the applicant's claim that the investigating authorities had not genuinely verified whether there were reasonable grounds for suspecting him of a crime, but had rather pursued his arrest, allegedly for private interests. It was noteworthy that the investigating authority had asked for and had obtained the withdrawal of the company's licence on the ground of the applicant's participation in illegal activities before any court had established his guilt. As regards the applicant's second arrest, it was based on an alleged crime which had been committed during a period ending in September 2005. Had the applicant indeed committed the crime and had he wanted to pressure the victim or witnesses or destroy evidence, he would have had plenty of time to do so before his arrest in December 2005, and no evidence had been submitted to the Court of any such actions on the part of the applicant. Therefore, there had been no urgent need for an arrest in order to stop ongoing criminal activity. Instead of such verification, the applicant had been arrested the day the investigation had started. More disturbingly, it followed from the statements of the two alleged victims that one of the complaints had been fabricated and the investigating authority had not verified with him whether he had indeed made and signed that complaint, while the other was the result of the direct influence of the officer. Both complaints were therefore irrelevant for the purposes of determining the existence of a reasonable suspicion that the applicant had committed a crime. The Court also found similarities between the applicant's two arrests. On each occasion the only ground for his arrest had been a complaint by an alleged victim; no other evidence to support a reasonable suspicion that the applicant had committed a crime had ever been submitted. All of the above had created a very troubling impression that the applicant had been deliberately targeted. Conclusion : violations (unanimously). Article 41 – EUR 12,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes