The ECHR ruling of April 13, 2021 in the case "E.G. v. the Republic of Moldova" (application No. 37882/13).
In 2013, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to the Republic of Moldova.
In the case, an application was successfully considered about the inability of the authorities of the Republic of Moldova to enforce the sentence against a person found guilty of a sexual crime after the announcement and subsequent cancellation of the amnesty. The case involved a violation of the requirements of article 3 of the Convention.
CIRCUMSTANCES OF THE CASE
In December 2009, V.B. and two other people, including R.G., who were all at large awaiting trial, were sentenced to five years in prison for sexual violence against the applicant (E.G.). However, V.B. was not detained in the courtroom and was taken into custody.
In the final decision of the Court of Appeal of May 22, 2012, V.B., who was still at large, was granted amnesty under the Amnesty Law of 2008. In June 2012, the amnesty was canceled, but then applied again in December 2012. In November 2013, a second decision was issued to cancel the amnesty against V.B. At the end of January 2014, the prosecutor reported this to the police and demanded to establish the whereabouts of V.B. However, it turned out that in November 2013 V.B. left the Republic of Moldova for Ukraine. Since then, despite an international arrest warrant issued, V.B.'s whereabouts have not been established.
Regarding compliance with articles 3 and 8 of the Convention.
(a) The admissibility of the complaint. Not all ongoing situations are identical. In any case, applicants should ensure that their complaints are submitted to the European Court with due urgency, as soon as it becomes obvious that there are no real prospects for satisfying their claims at the domestic level.
In response to the Moldovan authorities' argument that the applicant should have applied to the European Court within six months from the date of the amnesty order in May 2012, the European Court noted that the applicant's complaints about violations of Articles 3 and 8 of the Convention concerned mainly de facto impunity of V.B. for the attack on the applicant. They were inextricably linked with complaints about other violations, namely the allegedly illegal application of amnesty and the alleged inaction of the authorities to establish the location of V.B. Based on this, in order to apply the six-month rule, the entire period when the authorities of the Republic of Moldova did not execute the criminal punishment imposed by V.B. will be taken into account.
Thus, the shortcomings in the actions of the authorities of the Republic of Moldova, considered in aggregate, can be considered a continuing situation. Moreover, the prospect of execution by the authorities of the Republic of Moldova of the criminal punishment imposed by V.B. remained real.
The objection of the authorities of the Republic of Moldova regarding the violation of the six-month rule for filing a complaint with the European Court must be rejected.
(b) The substance of the complaint. Rape and violent acts of a sexual nature are treatment falling within the scope of article 3 of the Convention, and also these crimes usually affect the fundamental values and essential aspects of "private life" within the meaning of article 8 of the Convention. Consequently, the applicant's complaints can be considered in accordance with the two articles of the Convention at the same time.
According to article 2 of the Convention, the requirement for the authorities to conduct an effective criminal investigation can also be interpreted as imposing an obligation on States to execute a court verdict that has entered into force in due time. The execution of a sentence applied in the context of the protection of the right to life is an integral part of the procedural obligation of the State. This approach should have been applied in the present case, and the authorities of the Republic of Moldova had a positive obligation, provided for in articles 3 and 8 of the Convention, to execute the sentence imposed by the court verdict for sexual crimes.
Amnesty and pardon, according to the European Court, are unacceptable in cases of torture or ill-treatment by government officials. This principle also applies to cases of violence committed by private individuals. However, issues related to amnesties and pardons are within the discretion of the States parties to the Convention, and in principle they do not contradict international law, except for those situations that relate to acts that are grave violations of fundamental human rights. The sexual violence to which the applicant was subjected was a serious violation of her right to physical and moral integrity, and the amnesty of one of the perpetrators of such an act contradicted, taking into account the circumstances of the case, the obligations of the authorities of the Republic of Moldova provided for in articles 3 and 8 of the Convention.
In the practice of the Court of Appeal, no uniform approach was developed regarding the application of the Amnesty Law of 2008. R.G., who was in the same position as V.B., and had already served part of his sentence in the form of imprisonment, was not subject to amnesty. Thus, in the case of V.B., the judges of the Court of Appeal exercised their right to discretion while minimizing the consequences of committing a particularly serious criminal act, and did not demonstrate that such actions cannot be tolerated.
Although the amnesty for V.B. was eventually canceled, the fact that the amnesty was extended to V.B. for about a year contradicted the procedural requirements of articles 3 and 8 of the Convention, especially since this situation allowed V.B. to leave the Republic of Moldova shortly before the decision to cancel the amnesty for him.
As to whether the measures taken by the Moldovan authorities to enforce the sentence against V.B. during the absence of the decision on amnesty of the convicted person were sufficient, the European Court noted that the Moldovan authorities apparently ignored the first decision of June 29, 2012 on the cancellation of the amnesty. On October 22, 2012, the authorities of the Republic of Moldova detained V.B., but released him on the same day on the basis of a decree of May 22, 2012, which had already been canceled and was not subject to execution at the time in question. The European Court regarded this, at least, as a lack of coordination in the actions of various state bodies, which led to the release of V.B. from custody without any legal grounds.
The last resolution on the cancellation of the amnesty dated November 18, 2013 was submitted to the state authority authorized to search for V.B., almost two months after its issuance. According to the Prosecutor's Office, this period did not comply with the legislation of the Republic of Moldova. Although it was later established that as of November 18, 2013, V.B. had already left the country, the processing of a search request by the authorities in the Commonwealth of Independent States was also delayed. Moreover, an international search warrant was issued only in 2015, and there are no explanations for this delay in the case materials. These periods of inactivity did not meet the requirements of reasonable urgency and thoroughness.
Consequently, the measures taken by the authorities of the Republic of Moldova for the execution of the sentence against V.B. were not sufficient in light of the obligation of the authorities to execute the sentence in a criminal case imposed on persons guilty of committing a sexual crime.
In conclusion, the application of amnesty to V.B. and the inability of the authorities of the Republic of Moldova to execute the sentence imposed on him did not correspond to the positive obligation of the authorities of the Republic of Moldova provided for in articles 3 and 8 of the Convention.
The case involved a violation of the requirements of articles 3 and 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 10,000 euros in compensation for non-pecuniary damage.