SECOND SECTION
CASE OF RIMSCHI AND OTHERS v. THE REPUBLIC OF MOLDOVA
(Applications nos. 6492/14 and 46577/14)
JUDGMENT
STRASBOURG
12 November 2024
This judgment is final but it may be subject to editorial revision.
In the case of Rimschi and Others v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jovan Ilievski, President,
Diana Sârcu,
Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the applications against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;
the decision to give notice of the complaints under Article 5 § 1 (regarding pre-trial detention beyond twelve months) and Article 6 of the Convention made by V. Rimschi and A. Balachin in application no. 6492/14 and the complaint under Article 6 of the Convention concerning entrapment in application no. 46577/14 to the Moldovan Government (“the Government”) represented by their Agent at the relevant time, Mr O. Rotari, and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 15 October 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applications concern the alleged unfairness of criminal proceedings against the applicants, namely the alleged incitement by the authorities to commit an offence which the applicants would not otherwise have committed and the failure to reason properly their convictions.
2. In 2005 Mr Rimschi (the first applicant) was convicted of failing to report a third person’s offence of manufacturing counterfeit banknotes. In the autumn of 2008 the first applicant, Mr Juravliov (the third applicant) and Mr Paniciuc (the fourth applicant) moved to a rented house, with previously prepared equipment allegedly received from V.F., a former police officer and undercover informer. They used it to manufacture 20,000 counterfeit United States dollar (USD) bills (100 dollar bills). It was subsequently determined in an expert report that the bills were of rather poor quality, lacking virtually any protection against counterfeiting, being printed on paper and glued together, some bills bearing the inscription “This tissue is tender to all dogs, public and private”. More than half of those bills remained unfinished (printed on A4 paper and not cut to size). The first applicant took some of the bills, and the remainder – both finished and unfinished – together with the equipment used to manufacture them, were buried in the garden.
3. On 1 July 2009 the police started operation “Dollar”, with the prosecution’s approval, to uncover a criminal organisation specialising in counterfeiting banknotes. As part of that operation, on 13 July 2009 V.F. was arrested on suspicion of counterfeiting banknotes. The Government submitted that he then agreed to cooperate with the authorities in uncovering the entire criminal operation. On 14 July 2009 a court ordered his house arrest for 10 days.
4. On 15 July 2009 V.F. met with the first applicant in the city and gave him genuine USD bills worth USD 2,500, in exchange for counterfeit USD bills worth USD 64,400. On 16 July 2009 V.F. bought from the first applicant more counterfeit bills worth USD 122,500 (for genuine USD bills worth USD 3,000) and on 17 July 2009 more counterfeit USD bills worth USD 355,400 (for genuine USD bills worth USD 6,000).
5. On 20 July 2009 V.F. gave the first applicant genuine USD bills worth USD 14,500 and was promised counterfeit USD bills worth USD 900,000. Since the first applicant did not have that amount in finished counterfeit banknotes, he contacted the third and fourth applicants and told them to go to the rented house and recover the equipment and materials with the aim of finishing the manufacture of the uncut banknotes in the amount required. On 21 July 2009 the third and fourth applicants started working on the unfinished banknotes and were apprehended by the police while doing so.
6. On 20 January 2012 the Ialoveni District Court convicted 14 persons, including the applicants, of manufacturing and circulating counterfeit banknotes. Relying on Article 6 of the Convention and the Court’s case-law, it excluded four episodes against some co-accused, including the second applicant (controlled purchases of 3, 7 and 13 July 2009 and 21 August 2009), finding that in each of them V.F. had incited the commission of the offence. In respect of the remaining charges, including those against the applicants, the court found that the authorities had acted lawfully, within the limits of their competence, and that there had been no other means of uncovering the truth and proving the offence, hence their actions had not constituted entrapment.
7. The judgment of 20 January 2012 was upheld by the higher courts. In its decision of 10 April 2013, the Chișinău Court of Appeal reproduced the lower court’s reasoning concerning the absence of entrapment, adding that the undercover agents had intervened only after the accused had already assembled the necessary equipment and consumables and had manufactured counterfeit banknotes in the autumn of 2008.
8. During the same set of criminal proceedings another group of persons, including Mr Balachin (the second applicant), was convicted of circulating counterfeit banknotes. The second applicant’s conviction was based on three sets of events: (a) that together with three other accused (including G.) he had attempted to convince witness R.P. to sell counterfeit banknotes during a meeting with her (the second applicant argued that R.P. was an undercover agent and was used to incite the co-accused to commit offences), (b) that on another occasion the same four accused “transferred counterfeit money via G.” to R.P., as confirmed by materials secretly recorded by the police showing the moment when G. offered counterfeit bills to R.P. in the street, and (c) that he had participated in circulating counterfeit Russian roubles between V.F. and S.V. (an undercover agent) on 21 August 2009. In respect of the third charge, the court found that this was one of the four occasions where V.F. had entrapped the accused. It therefore dismissed this charge.
9. R.P. was never heard in a trial court, despite express requests by the co‑accused. The courts replied that she had already been heard by the investigating judge and that the co-accused had not asked questions at the time.
THE COURT’S ASSESSMENT
10. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
11. On 5 August 2019 Mrs Iuliana Rimscaia-Alhazov, the first applicant’s daughter, informed the Court of his death in 2019 and expressed her wish, as his heir, to continue the application on his behalf. The Court considers that the applicant’s daughter, as his heir, has standing to continue the proceedings in the applicant’s stead (compare Mile Novaković v. Croatia, no. 73544/14, §§ 33-34, 17 December 2020, with further references), although for practical purposes the judgment will continue to refer to Mr Rimschi as the first applicant.
12. The Court notes that on 29 April 2014 the second applicant declared wishing to withdraw his application.
13. On 5 September 2014 he submitted that his lawyer had misled him to believe that such a withdrawal would allow his release, which was not the case. He asked to maintain his application before the Court.
14. The Government did not comment.
15. The Court considers that the second applicant’s statements must be examined in the light of Article 37 § 1 (a) of the Convention. It observes that the second applicant’s withdrawal of the application was submitted while he was detained. The Court reiterates that an applicant’s position might be particularly vulnerable when in custody with limited contact with his family or the outside world (see, in the context of Article 34, Knyazev v. Russia, no. 25948/05, § 116, 8 November 2007, with further references). The Court must therefore view the applicant’s letter stating his intention not to pursue his application with caution. The fact that some four months later he firmly contested that withdrawal and continued corresponding with the Court with a view to pursuing the application clearly shows that he has not lost interest in this case.
16. In such circumstances, the Court does not consider that by the second applicant’s statement of 29 April 2014 his intention to withdraw from the proceedings instituted before the Court has been unequivocally established (see, conversely, Berlusconi v. Italy (dec.) [GC], no. 58428/13, § 65, 27 November 2018). That statement cannot therefore be regarded as valid grounds capable of justifying the striking out of the application in his regard in accordance with Article 37 § 1 (a) of the Convention (compare X and Y v. North Macedonia, no. 173/17, § 35, 5 November 2020).
17. The Court observes that the lawyers of the applicants T. Prozor, A. Prozor, S. Odajiu and D. Odajiu (the fifth to eighth applicants) failed to respond to the Registry’s letters to confirm these applicants’ willingness to pursue their applications. The Court considers that, in these circumstances, these applicants may be regarded as no longer wishing to pursue their applications, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the cases. In view of the above, it is appropriate to strike the application out of the list in so far as it was lodged by the fifth to eighth applicants.
18. The applicants complained that they had been incited to commit a crime which they would not otherwise have committed.
19. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
20. The general principles concerning entrapment have been summarised in Matanović v. Croatia (no. 2742/12, §§ 122-35, 4 April 2017) and Akbay and Others v. Germany (nos. 40495/15 and 2 others, §§ 109-24, 15 October 2020).
21. As for the substantive test of incitement, in view of the many meetings at which V.F. bought counterfeit money from the first applicant, the case clearly falls into the category of “entrapment cases” (compare Grba v. Croatia, no. 47074/12, § 105, 23 November 2017). In determining whether the authorities exerted such an influence on the applicants as to incite the commission of an offence that would otherwise not have been committed, the Court observes that there was no indication in the file that the authorities had had any information about prior unlawful conduct by the third and fourth applicants or their propensity to commit crimes such as circulating counterfeit money. As for the first applicant, he had in the past been convicted for failing to report a third person’s offence of manufacturing counterfeit banknotes, but not for involvement in such activities. It was only after V.F., who was a police informer, reported to the police the alleged readiness of the first applicant to sell counterfeit banknotes that he became the focus of the investigation.
22. The Court further notes that initially the first applicant was able to sell counterfeit banknotes to V.F., thus showing his capacity to produce such items at short notice. However, V.F. insisted upon buying increasingly large quantities of counterfeit notes, to the point where the first applicant no longer had enough of them and had to manufacture more from reserves that had been left unfinished and unused for many months. To do that, he had to involve the third and fourth applicants. It is questionable whether the latter would have participated in the first applicant’s activities in 2009 had V.F. not offered to buy such large amounts of counterfeit banknotes as to require them to recover their buried equipment and consumables. Moreover, rather than arresting the first applicant after the first purchase, the authorities directed V.F. to ask for much larger sums, always at his initiative and not that of the first applicant, thus extending the scope of the offence (compare Grba, cited above §§ 110‑6).
23. Furthermore, there is no evidence that the first applicant and his accomplices tried to sell any of the counterfeit banknotes to anyone other than V.F. (compare Grba, cited above, § 114). Their very poor quality was a major obstacle to their successful circulation as genuine banknotes. Even assuming that V.F. knew for certain that the first applicant had counterfeit banknotes for sale and informed the police of this, it is unclear why the police did not simply monitor the first applicant in order to determine whether he was involved in illegal activities and the identity of his possible accomplices. Rather, two days after V.F.’s arrest they directed him to contact the first applicant, setting in motion several transactions which took place exclusively with that informant.
24. It is also apparent that the last purchase initiated by V.F. involved a sum of genuine money which was rather large at the time in the Republic of Moldova (USD 14,500). As such, it could be regarded as a form of additional inducement for the first applicant and – through him – on the third and fourth applicants (see Lalas v. Lithuania, no. 13109/04, § 45, 1 March 2011), to commit the larger scale offence, since the perceived reward was also quite high.
25. Given the first applicant’s ability to produce counterfeit banknotes at a short time’s notice and the preparations made in 2008, the Court cannot reach a definitive conclusion whether he had been the subject of entrapment at the initial stage (compare Grba, cited above, § 116). However, the fact of continuing to order increasingly higher numbers of counterfeit banknotes and offering substantial sums of genuine money in return incited the first applicant to commit a greater offence than the one he was capable of committing without such incitement, with the already prepared banknotes (compare Matanović v. Croatia, no. 2742/12, § 123, 4 April 2017, and Grba, cited above, §§ 99-102). Also, the third and fourth applicants were only involved after V.F. ordered those high numbers of banknotes. The Court concludes that, at the second stage of the operation, the first, third and fourth applicants were subject to entrapment by V.F., who acted on police directions and did not merely “join” an ongoing offence, but instigated one on a larger scale (compare Malininas v. Lithuania, no. 10071/04, § 37, 1 July 2008).
26. As for the procedural test, in determining whether the necessary steps to uncover the circumstances of the applicants’ arguable plea of incitement were taken by the domestic courts, it is noted that the authorisation for the entire undercover operation and all its steps had been given by a prosecutor, with no judicial supervision whatsoever. For instance, no judge was involved in the decision to expand the operation by ordering increasingly higher numbers of counterfeit banknotes and correspondingly offering very substantial sums of genuine money to the first applicant (compare also Grba, cited above, § 113). Even though this was in accordance with the law at the time, the courts had to pay additional attention to the entire procedure because of the lack of initial judicial supervision. However, when the domestic courts tried the case, they made a rather short analysis of the alleged incitement to commit the offence (see paragraph 6 above). Not only was the first-instance court’s analysis short, but it essentially lacked relevant reasons, amounting to the sole argument that, but for infiltrating the criminal organisation, the police were left without any alternative way to discover the truth. While keeping this argument, the appellate court added that the accused had already assembled their equipment and manufactured a part of the counterfeit banknotes in the autumn of 2008, well before the authorities intervened in July 2009. The Court notes, however, that having done all that, they then buried the equipment and some of the finished and unfinished banknotes, and had not used them for many months. This could mean that the applicants had renounced their intention of circulating the banknotes (the manufacture of banknotes without the aim of circulating them was not an offence). Since they apparently changed their minds and attempted to sell the banknotes precisely in reaction to V.F.’s offers in 2009, the domestic courts could not simply rely on the manufacture of the counterfeit banknotes in 2008 as ruling out incitement by V.F. to finish a significant portion of those unfinished banknotes and to put them into circulation.
27. One particular issue that required rigorous examination was the role of V.F., given that the courts had established his propensity to engage in incitement on at least four occasions within the same criminal case and during the time when he engaged with the first applicant. It is striking that V.F. was able to meet the first applicant in public places and carry out “controlled purchases” from him, even though V.F. was under house arrest throughout the relevant period. The domestic courts made no specific analysis of his actions, nor verified whether, in dealing with the first applicant, he was in breach of his obligations under the house arrest order. The role of the officers who were in charge of the operation and directed V.F.’s actions was also not properly analysed.
28. In view of the above, in particular the unverified role of V.F. and his confirmed propensity to incite the commission of offences, and the short and rather general analysis of the entrapment issue made by the domestic courts, the Court finds that the domestic courts failed to comply with their obligation to examine effectively the applicants’ plea of entrapment. Therefore, the applicants were not afforded a fair trial within the meaning of Article 6 § 1 of the Convention. There has accordingly been a violation of that provision in respect of the first, third and fourth applicants.
29. The second applicant was convicted for his role in circulating counterfeit money as part of a four-person group, separate from the actions of the three applicants above, but in the same criminal proceedings.
30. It is apparent from the domestic court judgments that V.F. entrapped the second applicant on 21 August 2009 by asking him to transfer counterfeit banknotes to another undercover agent. This charge against him was thus dismissed by the trial court. The only two remaining charges against him consisted of the accusation that the second applicant and others tried to involve R.P. in circulating counterfeit money and that the second applicant and the three other accused subsequently “transferred counterfeit bills via G.” to R.P. In addition, V.F. saw the second applicant together with the three other accused at the home of one of them, but discussed counterfeit banknotes only with G.
31. It is apparent that, apart from the episode of 21 August 2009 excluded from the accusation, there is no evidence of the second applicant participating in any illegal activity, except for the statements by R.P., whom the second applicant accused of having incited him to commit offences. R.P.’s statements are contradicted by the statements of all four accused and are not supported by any other evidence. It is, moreover, unclear how it was proved that when G. sold counterfeit banknotes to R.P., in doing so he was in fact representing the second applicant and the other co-accused; the second applicant’s name was never mentioned during those exchanges. Even V.F., who subsequently entrapped the second applicant, only mentioned having seen the second applicant together with the other three accused but did not state that the second applicant had discussed counterfeit banknotes. Moreover, even though her testimony was essentially the only evidence against the second applicant, R.P. was never heard by any trial court, despite express requests and appeals made by the applicants. While the applicants could have asked her questions when she was heard by the investigating judge at the pre-trial stage, the defence had not had access to the evidence in the domestic case file at that stage, thus limiting the possibility of properly testing R.P.’s testimony (compare Chernika v. Ukraine, no. 53791/11, § 70, 12 March 2020).
32. In the light of the above considerations, the Court finds that the domestic courts failed to comply with their obligation to examine effectively the second applicant’s plea of entrapment, as required under the procedural test of incitement under Article 6 § 1 of the Convention. They convicted the second applicant while relying on the statements of V.F. without any reserve, despite his role in entrapping the second applicant and other co-accused. In convicting the second applicant they also relied on the statements by R.P., the main witness and participant to the test purchase, without hearing her (compare Grba, cited above, § 119, and Pătraşcu v. Romania, no. 7600/09, § 50, 14 February 2017). They also have failed to explain how they had established that when G. sold R.P. counterfeit money he was doing so also on behalf of the applicant.
33. In view of the above, the Court concludes that there has been a breach of Article 6 § 1 of the Convention also in the case of the second applicant.
34. The first applicant also raised a complaint under Article 5 § 1 of the Convention concerning his unlawful detention pending trial for more than 12 months, as prohibited by the Constitution. The Court notes that this applicant was convicted by the first-instance court on 20 January 2012. From that moment on, he was no longer detained pending trial, but rather as a convicted person. Accordingly, his detention pending trial ended on that day. However, this complaint was lodged on 12 December 2013, more than 6 months after the end of his detention. The Court therefore finds that this complaint was lodged out of time. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
35. The first and second applicants also complained under Articles 6 §§ 1 and 3 of the Convention of the failure to hear witnesses. Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine this remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
36. After having lodged their application, some of the applicants made additional complaints in their correspondence with the Court under various aspects of Articles 5, 6 and 13 of the Convention, as well as under Article 4 of Protocol No. 7 to the Convention, notably about the refusal of the domestic courts to reopen the proceedings. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
37. The first and second applicants (application no. 6492/14) claimed 100,000 euros (EUR) each in compensation for the non-pecuniary damage caused to them. The applicants in application no. 46577/14 claimed EUR 15,000 (third applicant) and EUR 10,000 (fourth applicant) in compensation for the non-pecuniary damage caused to them, as well as EUR 2,790 jointly in respect of legal costs.
38. The Government submitted that the sums claimed were exaggerated.
39. The Court awards the applicants the amounts indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay each applicant, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of non-pecuniary damage and in respect of costs and expenses, to be converted into Moldovan lei at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated in the appended table at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 12 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President
APPENDIX
List of cases
Application no. | Case name | Lodged on | Applicant | Represented by | Award (EUR) in respect of non‑pecuniary damage | Award (EUR) in respect of costs and expenses | |
1. | 6492/14 | Rimschi and Others v. the Republic of Moldova | 12/12/2013 | Valentin RIMSCHI Alexandr BALACHIN
Troian PROZOR 1954 Chișinău
Artur PROZOR 1982 Chișinău
Dumitru ODAJIU 1960 Chișinău
Stelian ODAJIU 1982 Chișinău | Gheorghe NEDOV
Eduard MARKOV
Ilie ROTARU
Angela BALAN
Angela BALAN
| 5,000
7,500
-
-
-
- | -
-
-
-
- |
2. | 46577/14 | Juravliov and Paniciuc v. the Republic of Moldova | 03/06/2014 | Anatoli JURAVLIOV Iurie PANICIUC | Sorina MACRINICI and Angela BALAN | 5,000
3,600 | 2,000 jointly to Mr Juravliov and Mr Paniciuc |