Calculating the start of the period of “detention” from the day the detainee was deprived of his liberty by the national authorities did not infringe the right to personal liberty and security
JUDGMENT
Gilanov v. the Republic of Moldova 13.09.2022 (app. no. 44719/10)
SUMMARY
The applicant, a Georgian national, arrived in Moldova in 2000 and obtained a residence permit in the country. He officially left in 2006. In 2007, a criminal investigation was opened into alleged fraud committed by the applicant while working at an institution for cultural exchanges with North Korea. An arrest warrant was issued and the Moldovan court ordered his detention for 30 days, starting from the time of his arrest. The applicant was arrested by the Belarusian authorities in May 2010 and held there for several months. He was extradited to Moldova in December 2010. His detention was extended pending trial and he was sentenced in 2014. The decision was subsequently overturned and referred for review.
Relying on Article 5 §§ 1, 3, 4 (right to personal liberty and security), the applicant alleged, in particular, that his detention was ordered and carried out on the basis of an out-of-date court order, that the order was not sufficiently reasoned and that it was issued without be represented by a lawyer of his choice.
The applicant had argued that his detention in Belarus for more than 30 days had not been taken into account in calculating the period of validity of the decision to detain him. The ECtHR held that the practice of national courts to calculate the start of the period of “detention” from the moment a person was deprived of his liberty by the national authorities (ie from the moment of extradition in the present case) was in line with the requirements of Article 5 § 1 of the ECHR.
The Court found no violation of personal freedom.
However, the Court held that there had been a violation of Article 5 § 3, as the domestic court’s decision ordering the applicant’s detention pending trial was stereotyped and abstract. The ECtHR also found a violation of Article 5 § 4 because the decision on the applicant’s appeal against the detention order was made in the absence of a lawyer of his choice.
It awarded the appellant 3,000 euros for non pecuniary damage and 650 euros for legal costs.
PROVISIONS
Article 5 par. 1
Article 5 par. 3
Article 5 par. 4
PRINCIPAL FACTS
The applicant, Michael Gilanov, is a Georgian national who was born in 1959 and is currently under
the supervision of the courts in Chişinău.
Mr Gilanov came to Moldova in 2000 and obtained a residence permit, officially leaving in 2006. In
2007 an investigation was opened into his alleged fraud and his detention was ordered. The case
concerns his extradition from Belarus and detention.
Relying on Article 5 § 1 (right to liberty and security), Article 5 § 3 (right to liberty and security), and
Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the European
Convention on Human Rights, Mr Gilanov complains, in particular, that his detention was carried out
on the basis of an expired court order, that the order was not adequately reasoned, and it was
decided without a lawyer of his own choosing being present.
THE DECISION OF THE COURT…
Article 5 § 1: The applicant had argued that his detention in Belarus for more than 30 days had not been taken into account for the purpose of calculating the period of validity of his detention order.
The domestic court order for the applicant’s arrest had mentioned its validity for 30 days from the date of arrest. In the applicant’s view, that had implied that it had expired one month after he had been deprived of his liberty in Belarus. The Government had submitted that the usual practice of the courts had been to take the date of effective detention by the Moldovan authorities as the beginning of detention sanctioned by a detention order issued by a Moldovan court, regardless of the length of extradition procedures. That interpretation had been implicitly supported by the court of appeal when it had rejected the applicant’s appeal against the order, and was both reasonable and practical. It took into account the particular difficulty for the domestic courts – before being able to directly question the person – to verify such elements as the person’s character, morals, assets, links with the State in which they were being prosecuted and their international contacts.
To accept the applicant’s position would also have meant that the Moldovan courts would have had to extend the arrest warrant – again without ever seeing the person involved – at regular intervals. Moreover, since under Moldovan law a person could only be held in detention pending trial for a maximum of 12 months, in the case of any extradition process exceeding that period, the Moldovan authorities would have had to ask the authorities of the State in which the person was detained pending extradition to release him, without the courts ever having the possibility of questioning him. It was only after the Moldovan authorities had the applicant under their control that they could have assumed the full spectrum of their obligations towards him in the context of his pre-trial detention.
Accordingly, the practice of the domestic courts to count the period of “detention” as starting from the moment when a person was deprived of liberty by the domestic authorities (i.e. from the moment of extradition in the present case) was consistent with the requirements of Article 5 § 1.
Conclusion: no violation (four votes to three).
The Court also held, unanimously, that there had been a violation of Article 5 § 3, on the basis that the domestic court’s decision ordering the applicant’s detention pending trial had been stereotyped and abstract. The Court also found, unanimously, a violation of Article 5 § 4, for the decision in respect of his appeal against the detention order having been taken in the absence of a lawyer of his choice.
Article 41: EUR 3,000 in respect of non-pecuniary damage.
