Translation from Romanian into English

Case No 10-320/10

DECISION In the name of Law

07.10.2010 The court President of the court session Secretary Prosecutor Attorney city of Chisinau sector Riscani, Chisinau A.Galben E. Ungureanu R. Eremciuc V. Andronic

after considering in open court session the complaint of the attorney Valeriu Andronic in defense of Mihail Aizin regarding the declaration of the ordinance of the Prosecutor General, Valeriu Balaban dated from 03.08.2004 null and void, according to which there was revoked the ordinance from 30.07.2004 regarding the termination of criminal prosecution on the criminal case No 2004990156 issued by the prosecutor of the Criminal Prosecution Control Department of the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu with the resumption of criminal prosecution,ESTABLISHED: The Direction of Special Missions of the Operation Services Department of Home Office started on 28.04.2004 a criminal prosecution in accordance with article 217 p. 3 letter b) of the Criminal Code, the criminal case No 2004990156 on the fact that on 28.04.2004 at 10:00am after the detention of Aizin Mihail Gdalia at the crossroad of Tighina street with Bucuresti street in Chisinau and within the search of the above person there has been detected a paper bag with four white pills inside MDMA Extazy with a total weight of 1.54 g, which are considered drugs and psychotropic substances, two tinfoil packets containing white-brown powder, which according to the act of expert chemical examination is found to be heroin with a total weight of 0.23g and is assigned to the category of narcotic drugs. By the ordinance of the prosecutor of the Criminal Prosecution Control Department in the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu, dated on 30.07.2004 the prosecution on criminal case No 2004990156 was terminated on the grounds that there are no present any elements of violation in Aizin Mihail Gdalias actions. By the ordinance dated on 03.08.2004 of the Prosecutor General Valeriu Balaban there was revoked the ordinance from 30.07.2004 regarding the termination of criminal prosecution on the criminal case No 2004990156 issued by the prosecutor of the Criminal Prosecution Control Department in the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu with the resumption of criminal prosecution. The ordinance dated on 03.08.2004 of the Prosecutor General Valeriu Balaban was contested by the attorney Valeriu Andronic under article 299/1 of the Criminal Procedure Code to the superior prosecutor but received no reply. Disagreeing with the ordinance dated on 03.08.2004 of the Prosecutor General Valeriu Balaban, the attorney Valeriu Andronic pursuant to article 313 of the Criminal Procedure Code appealed against it on 24.08.2010 at the law court of sector Riscani, Chisinau, requiring the contested ordinance to be declared null. As argument in support of the submitted complaint the petitioner has invoked that the alleged substances seized within the criminal case do not belong to Aizin Mihail and they had been placed improperly and illegally. The accusation, arrest warrant issue and indictment, as well as the requirement for extradition from Germany have been executed in the absence of any criminal offence; therefore it is to order the termination of the criminal prosecution and to take off Aizin Mihail from the criminal prosecution.

He requires the termination of prosecution since there are no present any criminal offence elements and the rational and reasonable term has expired, as well as the time limitation for the institution of criminal proceedings. In the applications submitted to the prosecutor and those endorsed to the case materials, Aizin Mihail has been always stating that he hadnt tried and is not evading the prosecution, as he went to Germany because of his health state when the criminal case had been already terminated, notably he hadnt any obligation towards the state. Within the period of his staying in Germany, the ordinance of criminal prosecution termination was reopened in contradiction to art.6 p.44, 22 p.(2) and art. 287 of the Criminal Procedure Code and art.4 of the Protocol No7 of the European Convention on Human Rights and Fundamental Freedoms. In the event there are no new facts, or recently discovered facts and if there is no established any fundamental fault within the previous procedure. The value of these ant other guarantees makes the subject of Aizin Mihails application examined at the European Court of Human Rights. Thus, Aizin Mihail definitely does not evade the criminal prosecution as he went abroad legally for medical treatment and when the Republic of Moldova required his extradition, the German authorities pursuant to the Decision of the Supreme Court of Frankfort on the Main dated on 26.09.2006 refused it. In the Decision of the German court there are critically appreciated the grounds and circumstances pursuant to which the prosecutors of the Republic of Moldova have decided to revoke the ordinance of criminal prosecution termination from 30.07.2004 with its subsequent resumption. The case of Aizin Mihail is forged thats why he has been taken under the protection of the German State where he is in the asylum as a refugee now and that is the reason he cannot return to his country. Moreover, his national passport term of validity has expired in Germany and in the circumstances where hes been prosecuted the competent authorities following the law on the exit and entry in Moldova do not renew his passport, and so Aizin Mihail, by objective reasons, cannot return to Moldova. Thats why the arguments that he would have evaded the prosecution seem to be absolutely aberrant. Given the fact that he cannot come for the termination of the criminal case, as an alternative within the limits of the national legislation and procedural safeguards he states that the narcotic drugs either have been placed or havent been found at all, because it was manipulated in such a way with the detection, that he hadnt seen where from they were taken out, and that he hadnt kept them and hadnt even known about the contents of those packets, or that he hadnt ever used or bought drugs, so it would be a nonsense to hold them. He supposes that the drugs had been placed by the person who announced the police about the fact that he was holding those drugs, notably someone of his enemies, who in order to take vengeance on him, had intentionally placed the drugs, and then denounced Mihail Aizin and thus the police had grounds to detain him. In order to check this version there was enough time to examine the operation materials and to find the person who had denounced to the police the alleged fact, and from whom that person had found out, had personally seen, or had personally placed, or maybe someone else told him/her. Who is that someone else, he/she has to be asked the same questions, because in the absence of a denunciation, the police could have known about it only in the event if someone from the police had participated in the placement of drugs, thats why the prosecutor, relying on the operational materials, had to establish that fact as well. Or, it is obvious, that the information about an alleged offense is kept by that person who is related to it, or the one who was at least witness to that offense, either he/she had heard from the witness or the one who had placed the drugs into the paper bag. The police and the public procurator's office naivety gives proof of collusion. Anyway, there is not found the subjective aspect of Aizin Mihail that he would have known that somebody had put in his bag drugs or that they were exactly drugs. As Aizin Mihail has no any procedural safeguard and the public procurator's office doesnt wish to objectively investigate the above-stated facts that are already established by the German courts, which refused his extradition exactly for these reasons, and therewith, because he has no passport he cannot return to Moldova and cannot appear before the court for the criminal case the termination. At any confrontation with any of those who would be related to the criminal case forgery, the accused has informed the prosecutors about his refusal

to participate in any procedural acts, including those provided by art. 281 and 282 of the Criminal Procedure Code, the imputation and indictment, because he has and uses this procedural right provided by p. 11) par. (2) of art. 64 and p.12) par.(2) art. 66 of the Criminal Procedure Code. He also refuses to submit the criminal case materials, to make acquainted with them, the hearing of the accused, the criminal case termination, and this right of his has to be executed by his attorney, notably by the undersigned, thats why, in the event there is no wish to restore the rule of law, weve asked the prosecutor to send the criminal case to the court where it has to be essentially, examined because the procedural rights provided by p. 11) par. (2) of art. 64 and p.12) par.(2) art. 66 of the Criminal Procedure Code give him the opportunity to resign even the rights to participate in the hearing of the case within the court session. He requires establishing and declaring null and illegal the ordinance of the Prosecutor General, in accordance to which there has been revoked the ordinance on the criminal case termination dated on 30.07.2004 with the resumption of the criminal prosecution concerning Aizin Mihail that hasnt been brought to his notice. In the court session the attorney Valeriu Andronic in defense of Aizin Mihail has fully sustained the submitted complaint and required the reinstatement term for contestation pursuant to art. 313 of the Criminal Procedure Code by invoking that he hadnt been notified about the ordinance on the reopening of the criminal case in relation to Aizin Mihail and that it has to be declared. The prosecutor of the Criminal Prosecution Department in the Home Office main bodies and SV of the Prosecutor General's Office, Roman Eremciuc, has required the withdrawal of the complaint as it being unjustified, stating that the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 issued by the prosecutor of the Criminal Prosecution Control Department in the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu with the resumption of criminal prosecution, is legal and there is no foundation to declare it null. The revocation of the ordinance from 30.07.2004 on the criminal case termination No2004990156 hasnt affected the any of the petitioners rights. After hearing the parties and examining the materials of the criminal case No2004990156 the court considers that the complaint of the attorney, Valeriu Andronic, in defense of Aizin Mihail regarding declaring null the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 issued by the prosecutor of the Criminal Prosecution Control Department in the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu with the resumption of criminal prosecution should be admitted. Article 313 par. 1 of the Criminal Procedure Code provides that the complaints against the illegal actions and acts of the prosecuting agency and other operation investigations agencies may be submitted to the judge on criminal cases by the suspect, accused, defendant, victim, and other participants in the trial, or by other persons whose legal rights and interest have been violated by these agencies in the event the person does not agree with the result of ones complaint examination by the prosecutor or didnt get any answer to ones complaint within the period prescribed by the law. As provided by article 287 par.2 of Criminal Procedure Code the resumption of the criminal prosecution may be prescribed by the judge as well in case of admission of the compliant submitted against the prosecutors ordinance on criminal prosecution termination, criminal case cessation or withdrawal of accusation. Paragraph 4 of the same article provides that inn cases when the ordinances (resolution) on criminal cases termination, criminal case cessation or withdrawal of accusation have been legally adopted the resumption of the prosecution may take place only if there result new or recently discovered facts, or a fundamental fault within the previous prosecution that have affected the given resolution. In case of a fundamental fault detection the prosecution may be renewed not later that 1 year after the entry into force of the ordinance on the prosecution termination, criminal case cessation and withdrawal of accusation. Article 4 par.1 of the additional Protocol 7 of the European Convention on Human Rights and Fundamental Freedoms also states that none can be prosecuted or criminally punished by

the jurisdictions of the same state for the commission of a crime for which one has already been acquitted or convicted by a final decision in compliance with the law and the criminal procedure of that state. As provided by article 4 par.2 of the additional Protocol 7 of the European Convention the provisions of the above article do not impede the reopening of the procedure in compliance wit the law and the criminal procedure of that state if new or recently discovered facts, or a fundamental fault within the previous procedure may affect the pronounced decision. At the same time paragraph 3 of the same article expressly states that no derogation from this article is allowed under article 15 of the Convention. As provided by article 467 par.1 of the Criminal Procedure Code the prosecutors ordinances on the prosecution termination are mandatory for all physical and legal persons of the country and have executive power on the whole territory of the Republic of Moldova. There cannot be invoked as grounds for declaring null the ordinance dated on 30.07.2004 on the prosecution termination on the criminal case No2004990156 issued by the prosecutor of the Criminal Prosecution Control Department in the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu with the resumption of criminal prosecution, the fact that the prosecution hasnt been completely and objectively achieved, without the existence of circumstances as grounds for decision making. Pursuant to p. 5.4. of the Decision of the Supreme Court Plenum No7 from 04.07.2005 on the practice of judicial review ensuring by the judge on criminal cases within the criminal prosecution there can be cases when a person may also appeal against a procedural act according to which there has been enacted the beginning or resumption of a prosecution, such as the existence of other circumstances provided by law that condition the beginning of prosecution or, if the case is, exclude it. The right of not being prosecuted, judged or punished several times is a principle of legal relationship and criminal procedure settlement. There was not established the existence of any foundation provided by article 287 par.4 of the Criminal Procedure Code and art.4 par.2 of the additional Protocol 7 of the Convention in the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 with the resumption of criminal prosecution that would have allowed the resumption of the prosecution, but the has been made reference to article 287 of Criminal Procedure Code with the motivation expressed by the lack of the fact that has led to the decision making from 30.07.2004. The ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 contravenes to the provisions of article 7 par.2 of the Criminal Code, which specifies that nobody can be twice subject to the prosecution and criminal punishment for the same criminal act and article 22 par.1 of the Criminal Procedure Code, which provides that none can be prosecuted by the prosecution bodies, judges or punished by the court several times for the same criminal act. Paragraph 2 of the same article states that the decision of the prosecution body on the withdrawal of accusation or criminal prosecution termination, as well as the final court decision impedes the resumption of the prosecution, imputing a more serious accusation or the establishment of a more serious punishment for the same person for the same act, except if new or recently discovered facts or a fundamental fault within the prosecution has affected the pronounced decision. The court states that by the decision of the European Court of Human Rights from 04.08.2005 on the case of Stoianova and Nedelcu in Romania, there was established that if the resumption of the prosecution had been ordered on the grounds that the initial investigation wasnt completed, then such gaps on the part of authorities cannot be imputed to the claimants and shouldnt put them in conclusion in a disadvantageous situation. The court also states that by the Decision of the Court of Appeal in Chisinau from 11.04.2005 regarding Aizin Mihail there was applied the measure of restraint as provisional arrest by issuing the arrest warrant for a period of 30 days starting from the moment of detention. Mihail Aizin was detained on 09.02.2006 in Frankfort Germany, but according to the decision of the Supreme Court of Frankfort-onMein from 26.09.2006 his extradition was declared inadmissible. One of the reasons of Mihail Aizin extradition refusal was the resumption of the prosecution by the competent authorities of the Republic of Moldova, after all the

material evidences within the criminal case have been destroyed and while the witnesses J. Javgarean, C, Ciobanu and Iu. Crudu are exculpating the person wanted by the police. In the same time, the court emphasizes that according to the report of the prosecutor of the Main Department of Criminal Prosecution of Home Office, Vitalie Rufanda, dated on 04.02.2010 (case sheets 81-85 Vol. III), the indications of the head of the Department for exercise of prosecution on exceptional cases of Criminal Prosecution Department of Home Office, Gheorghe Malic (case sheets 109-116 Vol. III), the report of the prosecutor of the Main Department of Criminal Prosecution of Home Office, Vitalie Rufanda, dated on 04.02.2010 (case sheets 81-85 Vol. III), the report of the prosecutor of the Main Department of Criminal Prosecution of Home Office, Vitalie Rufanda, dated on 06.04.2010 (case sheets 117-124 Vol. III), the report of the prosecutor of the Main Department of Criminal Prosecution of Home Office, Vitalie Rufanda, dated on 09.06.2010 (case sheets 141-148 Vol. III), the report of the prosecutor of the Main Department of Criminal Prosecution of Home Office, Vitalie Rufanda, dated on 22.07.2010 (case sheets 156-163 Vol. III), there was requested the prosecution termination regarding Aizin Mihail Gdalia, as it has been obviously started illegally and improperly in order to exclude the delay of the reasonable time for the prosecution carrying out. Therewith, the court specifies that pursuant to art. 6 p.44 of the Criminal Procedure Code the fundamental fault within the previous procedure that has affected the pronounced decision means the essential breach of rights and freedoms guaranteed by the European Convention on Human Rights and Fundamental Freedoms and other international treaties, as well as by the Constitution of the Republic of Moldova and other national laws. The motivation of the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 with the resumption of criminal prosecution by the fact that the criminal prosecution hasnt been carried out completely and objectively without the existence de facto of circumstances that served as basis for the decision making, are not about essential breach of human rights guaranteed by the European Convention on Human Rights, thats why they cannot be considered as fundamental fault within the criminal prosecution that have affected the previous decision and would give ground to resume the legal proceedings on the criminal case No2004990156. While declaring null the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 issued by the prosecutor of the Criminal Prosecution Control Department of the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu with the resumption of criminal prosecution there are declared null all the prosecution actions carried out after the issuance of the above mentioned ordinance. By the decision of the Court of Appeal Chisinau from 11.04.2005 regarding Aizin Mihail there was applied the measure of restraint as provisional arrest by issuing the arrest warrant for a period of 30 days starting from the moment of detention. Article 195 par.5 p.2 of the Criminal Procedure Code provides that the measure of restraint ceases to be effective since the withdrawal of the person from criminal prosecution, the criminal prosecution cessation or person discharge. By declaring null the ordinance Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 with the resumption of criminal prosecution there is abolished de jure the measure of restraint applied to Aizin Mihail Gdalia by the Court of Appeal Chisinau on 11.04.2005. The court specifies that the criminal case No 2004990156 was stared on 28.04.2004 by the Direction of Special Missions of the Operation Services Department of Home Office pursuant to article 217 par.3 letter b) of the Criminal Code. From 28.04.2005 till 30.07.2005 and from 03.08.2004 until present the criminal case on the accusation of Aizin Mihail Gdalia is in the proceedings of the criminal prosecution body. Article 20 par.1 of the Criminal Procedure Code provides that the trial of criminal cases is made within reasonable terms. Paragraph two of the same article provides that the criteria for the reasonable time estimation of criminal cases settlement are as follows: 1) the case complexity;

2) the behavior of the parties to the proceeding; 3) the criminal prosecution body and the court s behavior; 4) victims age under 18 years. In the Decision of the European Court on Human Rights on the case of Stogmuller c. Austria from 10th of November 1969 he has reminded that within criminal proceedings the right to be convicted within a reasonable term has the purpose no to allow that an accused stays too long in a state of incertitude as regards his/her fate. The examination of the criminal case by the criminal prosecution body for more than 6 (six) years, in the absence of criteria expressly provided by article 20 par.2 of the Criminal Procedure Code, art. 46 of the Constitution of the Republic of Moldova ad art. 6 of the European Convention on Human Rights and Fundamental Freedoms is qualified as breach of the reasonable term at the examination of the criminal case on the accusation of Aizin Mihail Gdalia in strict compliance with the principles and norms universally recognized of the international law, especially the free access to justice. According to art.313 par.1 of the Criminal Procedure Code the complaints against the illegal actions and acts of the criminal prosecution body and other bodies exercising operation investigation activity may be submitted to the judge on criminal cases by the suspect, accused, defendant, victim, and other participants in the trial, or by other persons whose legal rights and interest have been violated by these agencies in the event the person does not agree with the result of ones complaint examination by the prosecutor or didnt get any answer to ones complaint within the period prescribed by the law. Therewith, pursuant to article 313 par.5 of the Criminal Procedure Code the judge on criminal cases considering the complaint well-founded, adopt a conclusive decision that binds the prosecutor to eliminate all the discovered infringements of a physical or legal person rights and freedoms, and if the case is, declares the nullity of the appealed procedural act or deed. By declaring null the act contested by the petitioner there have been liquidated the infringements of Aizin Mihail Gdalias rights and there is no need to bind the prosecutor to liquidate the above infringements unless to conform to the decision and to take measures for the termination of the criminal prosecution. Pursuant to article 41, 313 of the Criminal Procedure Code the court,DECIDES: To renew the term and to admit the complaint of the attorney Valeriu Andronic in defense of Mihail Aizin. To declare null the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 issued by the prosecutor of the Criminal Prosecution Control Department of the Home Office main bodies and Customs Service of the Prosecutor General's Office, Silvian Mahu with the resumption of criminal prosecution. To declare null all the actions of criminal prosecution carried out on the criminal case No 2004990156 after the issue of the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004. By declaring null the ordinance of the Prosecutor General, Valeriu Balaban, dated on 03.08.2004 in accordance to which there was revoked the ordinance from 30.07.2004 on the criminal case termination No2004990156 with the resumption of criminal prosecution there is abolished the measure of restraint applied to Mihail Aizin Gdalia by the Decision of the Court of Appeal Chisinau from 11.04.2005. To bind the persecutor to liquidate all the above-mentioned infringements. The conclusive decision is irrevocable. Judge on criminal cases of the Court sector Riscani, Chisinau /signature/ Anatolie GALBEN

SEAL: MINISTRY OF JUSTICE OF THE REPUBLIC OF MOLDOVA COURT OF SECTOR RISCANI, CHISINAU