“The mentality of the ones that enforce the law must change, but this can happen only in time” – interview with the Moldovan Government’s Representative to the ECHR Vladimir Grosu. SERIES OF ARTICLES “HOW WAS 2007” by Info-Prim Neo.

[- In the first ten months of 2007, the Republic of Moldova was found guilty in more cases than in the previous years altogether, according to the European Court of Human Rights (ECHR). Mr Vladimir Grosu, how do you think, what is the reason?] - Indeed, the European Court this year ruled against Moldova in more cases than in the previous years. And this can be explained by a number of reasons. One reason is the incompatibility of the Moldovan legislation with the European standards on human rights, if we refer to the cases concerning the appeal for annulment (article 6 of the European Convention on Human Rights) – the extraordinary way of appeal that was in force until June 2003 and was declared by the European Court as inefficient, or to the cases regarding prisoners’ right to private correspondence (article 8 of the Convention) and to the cases concerning arrest without warrant after lodging the case with the court (article 5 of the Convention). In all these cases the European Court ruled that the national regulations are not compatible with the European standards. Another cause is the shortcomings in the activity of different administrative bodies or courts of law in implementing the law. I mean the non-implementation of the court decisions by different bodies, the insufficient motivation of the court decisions in some cases etc. [- According to experts, the Republic of Moldova breaks the record by the number of applications to the ECHR per capita. Why do so many people appeal to the European Court? ] - According to the statistical data provided by the European Court, until yearend 2006 the Court received about 1,450 applications against Moldova. We do not possess official information at the moment as the European Court publishes such data at the end of the year as a rule, but I presume that the number of applications has increased. The Government was informed about 200 cases of these. The rising number of decisions against Moldova and of applications filed to the ECHR is worrying me. However, this thing must be examined from several angles. The people are more aware of their rights and of the way in which they can protect them compared with the previous years when not many knew about the Convention and the European Court, including among jurists. Year by year, the national courts have to deal with more and more cases. In all the cases heard in court, at least one of the sides does not agree with the decision or sentence pronounced. Therefore, the discontented side, sometimes groundlessly, decides to appeal to the European Court, especially because there is nothing to lose and no fees must be paid. Besides, we must not forget that we are a country of the former Soviet Union where the juridical traditions and values did not always coincide with the ones protected now by the European Convention. So, the mentality first of all of the ones that enforce the law must change, but this can happen only in time. From this angle, the situation in Moldova compares with the one in such states as Russia, Ukraine, Romania, Bulgaria, Poland and others. The historical context and the situation in these countries can be compared with ours. If we examine the applications lodged with the Court and the judgments pronounced by it against these countries we will see the same situation as in Moldova – the court decisions are not implemented, there are complaints about the non-observance of the right to property etc. Of course, you can say that Moldova can not be compared with these states by the number of inhabitants. Then how can we explain the fact that the ECHR received 2,700 applications from nationals of Slovenia, which has a population of about 2 million people? Or how can we explain the situation of Romania, which has over 12,300 pending cases in the ECHR? The fact that such states as France, the UK, Germany always top the list of the countries with the largest number of pending cases in the European Court, even if they are recognized as bastions of democracy, should shatter our illusions that the applications to the ECHR against Moldova will disappear or will decrease suddenly someday. Simply, the given situation must motivate us to continuously improve the internal policies and mechanisms for defending human rights so as they reach the standards set by the European Court. And we should not forget that these standards are constantly improved. [- What are the most frequent violations of the European Convention committed by Moldova as ascertained by the ECHR and what steps are taken at national level to prevent new fines for similar violations?] - Most of the petitions filed to the ECHR, including the decisions which say that the Convention was violated, are related to the non-implementation of the final judgments. The number of decisions convicting for the non-implementation or belated execution of the national court decisions make up about half of the total decisions against Moldova. These are followed by applications and decisions concerning the administration of justice, i.e. the violation first of all of article 6 – the right to a fair trail that refers to the access to the court which is guaranteed by the law, and in some cases the person should be exempted from paying the state tax, the acceptance of the appeals for annulment, the examination of cases in unreasonable terms, the non-observance of the right to protection of property and others etc. I am very worried about the increasing number of applications concerning the violation of the right to liberty and security (article 5) as the decisions regarding the reprimanding in custody are insufficiently motivated and about the applications in which the plaintiffs complain about ill-treatment on the part of law enforcement bodies, applications of which the Government is notified. Of course, measures are taken to rectify the situation in the future. First of all, there were modified a number of national normative documents such as the Penal Procedure Code so as to avoid the convictions under article 5. At the end of December 2006, the Code was amended with a view to extending the possibility of using the preventive measure of temporary placement under judicial control in addition to custody. A bill designed to change the situation regarding the possibility of exempting certain persons from paying the state tax in order to ensure access to the court is now worked out and will be sent for consideration. To improve the situation regarding the observance of article 3, i.e. inhumane and degrading treatment, of which Moldova is accused in the ECHR, an order issued by the Ministry of Justice concerning the improvement of detention conditions in prisons was published in the Official Gazette. Much larger funds have been allocated in 2007 for purchasing medicines and medical equipment in order to provide the prisoners with medical assistance. Several detention blocks in the prisons located in Rusca, Solonet, Taraclia and other settlements have been repaired. These are just some examples. Maybe this is not enough, but I assure you that every case in which there was found a violation of the Convention or not is examined thoroughly so as to draw the appropriate conclusions and, if possible, to submit proposals to amend the legislation. At the same time, all the relevant authorities (courts of law, department for enforcing judgments, the Superior Council of Magistracy, the Ministry of Finance, the Prosecutor General) and the authorities connected somehow with the cases are informed about all the lost cases because they should be the first to draw conclusions from the violations identified by the ECHR so as such practices could be avoided in the future. [- What do you think about the proposal to introduce amendments to the Constitution so that the Constitutional Court examines citizens’ applications before they reach the ECHR?] - Such an idea was put forward two-three years ago, but it was rejected because such a step was considered to be an obstacle more than support in defending people’s rights. I think that the proposal should be reconsidered. A trial in the European Court can last for three-four years and even more. The people become disappointed when they think they can obtain justice in a distant future, even if at European level. As for me, the proposed mechanism is rather beneficial as the people would have the possibility of looking for justice in the country in a nearer future and would not go to the ECHR to wait for a judgment that might be pronounced in a farther future. Anyway, they will not be deprived of the possibility of appealing further to the European Court. For instance, such countries as Greece, France and Germany have a national institution, as a rule the Constitutional Court, which acts as a filter before the citizens reach the ECHR. But this filter is not a hindrance, but an instrument intended to hasten the ascertaining of the violation and the making of justice so as the citizens enjoy the fair satisfaction they deserve. In addition, the ECHR is in favour of such a practice because the principal reason for the delayed examination of the cases in the European Court is the considerable number of applications lodged by persons from all the Council of Europe member states. The total number of pending cases in the ECHR is now about 105,000. [- The Law No. 238 took effect on 14 April 2006. Under the Law, the state has the right of regress against the persons whose activity, intentionally or through serious fault, served as reason for the ECHR to award damages or when the damages must be paid by amicable agreement. How many regress actions were taken until present and which are they?] - I think that the Prosecutor General is the most competent to answer such a question because he is empowered by the law to take such actions. As regards the obligation of the Governmental Agent, I assure you that from April 2006 until present, the Prosecutor General was informed about all of the cases in which Moldova was obliged to pay damages by strike off decisions made by the ECHR. [- What do you think about the given law in general? Many experts consider that it does not establish a clear and viable mechanism for putting it into practice? ] - I consider that such a law was necessary because it will make the people entrusted with the task to deal with problems related to human rights be more responsible. We will see in the near future how this instrument works in reality because the drawbacks are better noticed in the implementation process. [- How many cases has Moldova lost in the ECHR until present and how many cases have been solved by amicable agreement?] - There is an important detail to which the mass media did not pay attention – the European Court passes judgments and decisions. As a rule, by a judgment the Court finds or not a violation of the rights guaranteed by the Convention or the Additional Protocols. But most of the applications are rejected by decisions as the claims of the plaintiff are groundless or do not meet certain criteria for admission. About 70% of the applications to the ECHR against Moldova are declared inadmissible from the start. The Government is informed about the other about 30% of the cases, which we also know because they are broadly reported on. In 102 cases of the total number of applications of which the Government was notified from September 1997 until present, the European Court ascertained the violation of at least one right. At the same time, in most of the cases the ECHR determines the non-violation of other rights alongside the ascertained violations. In many cases, the representatives of the plaintiffs, including the ones that we know very well, withdraw the applications before the ECHR passes judgement because the applications include unsupported charges and the Court could ascertain non-violations on the bases of them. There are 57 ECHR decisions by which the applications were stuck off and declared inadmissible either as a result of unilateral declarations formulated by the Government or as a result of amicable agreements between the plaintiff and the Governmental Agent. In over 20 cases, the Governmental Agent, the European Court or the plaintiff suggested solving the cases by amicable ways. Which are the advantages? First of all, after reaching such an agreement, the plaintiff can achieve a result in a shorter period of time. Sometimes the plaintiff agrees that the initial claims described in the application are exaggerated. After the Government submitted its observations, in eight of the 57 cases the plaintiffs did not answer the summons of the ECHR as they probably understood that their positions expressed in the applications to the European Court were unfounded or that their rights were not so seriously violated as initially supposed, as well as for other reasons. I do not want to address the problem only from this viewpoint because any application lodged with the ECHR can reveal a problem existing in our state, or a shortcoming in the relevant national mechanisms and this is a reason for concern. Even if Moldova was not found guilty of violating the human rights in some of the cases effort is made to remove the existing drawbacks so as to achieve the key goal – to make the people feel that the national courts also do justice. [INFO-PRIM NEO NOTE:] In 2007, the Government of Moldova lost over 60 cases of the over 100 filed to the ECHR since Moldova became a party to the European Convention on Human Rights. Among the most widely reported cases is “SA Bimer versus Moldova”, in which the State was obliged to pay damages totalling half a million euros. This year, the Court in Strasbourg ruled in favour of the leader of the Social Democratic Party Eduard Musuc, the former president of Victoriabank Victor Turcanu, the former prosecution officer Grigore Gorea, the former deputy mayor Ion Paladi, the chief architect of Chisinau municipality Vladimir Modarca. The Court ruled that the plaintiffs were held under arrest in degrading conditions and without clear legal arguments. Also, the Government was found guilty in cases of torture. The most known such case is “Colibaba versus Moldova” in which the plaintiff, who was maltreated by the police, suffered considerable physical and psychical disorders. Moldova was also convicted for violating the right to free expression. A relevant example is the case “Timpul Info-Magazin and Anghel versus Moldova”. Recently, Moldova’s President Vladimir Voronin has stated that Moldova might neglect ECHR’s rulings.