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FOURTH
SECTION
CASE OF MALAI v. MOLDOVA
(Application
no. 7101/06)
JUDGMENT
STRASBOURG
13 November 2008
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Malai v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7101/06) 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 a Moldovan national, Mr Nicolai Malai (“the
applicant”), on 2 February 2006.
- The
applicant, who had been granted legal aid, was represented by Mr R.
Zadoinov, a lawyer practising in Chişinău. The Moldovan
Government (“the Government”) were represented by their
Agent, Mr V. Grosu.
- The
applicant complained about his pre-trial detention and about various
alleged violations in that connection, namely of Article 3
(conditions of detention), Article 5 § 3 (insufficient reasons
given by the courts for pre-trial detention) and Article 5 § 4
(failure to examine a habeas corpus request).
- On
17 October 2006 the Fourth Section of the Court, to which the case
was allocated, decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Chişinău. On
28 November 2004 he was charged with unlawful fishing and
misappropriation of seventy-three kilograms of fish.
- On
21 December 2004 the Orhei District Court, in a closed sitting, heard
an application to remand the applicant in custody, which it granted.
The reasons for remanding him in custody relied upon by the court
were that he had changed his address and that he might re-offend.
Neither the applicant nor his lawyer was present at the hearing and
they found out about the detention order only one year later, when
the applicant was arrested.
- On
22 December 2005 at approximately 6 p.m. the applicant was arrested
at his home in Chişinău and taken to the Orhei District
Court where an investigating judge saw him and confirmed the
detention warrant of 21 December 2004. He was then taken to the Orhei
detention centre.
- According
to the applicant, he was kept in a small cell called the “aquarium”
until approximately 10 p.m. the next day, when he was moved to cell
no. 9. The “aquarium” was approximately two metres long
and 0.80 metres wide and did not have a bed, chair, toilet or sink.
It was intended for periods of detention not longer than three hours.
Cell no. 9 was located below floor level and did not have windows.
There was no ventilation. The electric light was always on, although
it was so weak that it was difficult to distinguish the faces of the
co-detainees. The cell was approximately seven metres long and three
metres wide and there were six detainees in it. The cell was not
equipped with a toilet but instead had a big bucket in a corner which
was not separated from the rest of the cell. There was no sink and
the detainees had to keep water in plastic bottles which they were
allowed to refill once in a while outside the cell. There were no
beds, but only a brick shelf a little higher than the floor on which
four people could sleep. The cell was not provided with any bedding
and the applicant alleged that he was only able to sleep for one hour
per day. The cell was infested with insects, with the result that the
applicant was covered with painful bites, some of which later became
wounds. The applicant sent the Court photographs showing the bites on
his body. The food was insufficient and of very poor quality. The
detainees were fed only once a day from dirty plates and the
applicant was permanently hungry. His relatives were not allowed to
bring him food because he would not confess to the charges against
him. The applicant was unable to have any contact with his relatives
and the outside world. He did not have any paper, pen or envelopes.
The room was not provided with a radio or television and due to the
lack of natural light the applicant never knew what time of day it
was.
- On
4 January 2006 the applicant's wife hired a lawyer and learned about
the detention warrant of 21 December 2004. On 5 January 2006 the
applicant's lawyer challenged the detention order before the Chişinău
Court of Appeal. He complained, inter alia, under Article 3 of
the Convention, of the inhuman and degrading conditions of the
applicant's detention. After giving a detailed description of the
conditions in which the applicant was being detained, he asked the
court to find that the applicant's rights guaranteed by Article 3 of
the Convention had been breached and to award him compensation.
- On
13 January 2006 the applicant's lawyer repeated the habeas corpus
request and the complaint under Article 3 of the Convention before
the Chişinău Court of Appeal. The above complaints have
never been examined by the Chişinău Court of Appeal.
- In
the meantime the applicant complained on several occasions to the
prison authorities and to the sanitation department about the poor
conditions of detention. However, his complaints were unsuccessful.
- On
12 January 2006 the applicant's lawyer complained to the Orhei
district prosecutor about the applicant's poor conditions of
detention. As a result of that complaint the prison authorities moved
the applicant to another cell without disinfecting it and reported to
the prosecutor that the problem had been remedied. According to the
applicant, the only shower in the prison was fixed then.
- On
20 January 2006 the detention warrant expired and the applicant was
released.
- The
criminal proceedings against the applicant ended with the judgment of
the Chişinău Court of Appeal of 5 October 2006, by which
the applicant was ordered to pay a fine of 3,000 Moldovan lei (the
equivalent of 178 euros (EUR)).
II. RELEVANT NON-CONVENTION
MATERIAL
15. The
relevant findings of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT,
unofficial translation) read as follows:
a. Visit to Moldova of 10-22 June 2001:
“B. Establishments visited
... - EDP of Chişinău Police Inspectorate
(Follow-up visit)
... b. remand centres (EDPs)
53. In its report on the 1998 visit
(paragraph 56), the CPT was forced to conclude that material
conditions of detention in the remand centres (EDPs) visited
amounted in many respects to inhuman and degrading treatment and, in
addition, constituted a significant risk to the health of persons
detained. While recognising that it was not possible to transform the
current situation in these establishments overnight, the CPT
recommended a certain number of immediate palliative measures to
guarantee basic conditions of detention that respect the fundamental
requirements of life and human dignity.
54. Unfortunately, during the 2001 visit, the
delegation found barely any traces of such palliative measures, in
fact quite the opposite. ...
55. One can only regret that in their efforts
to renovate these premises - which under the current economic
circumstances deserve praise - the Moldovan authorities have paid no
attention to the CPT recommendations. In fact, this state of affairs
strongly suggests that, setting aside economic considerations, the
issue of material conditions of detention in police establishments
remains influenced by an outdated concept of deprivation of liberty.
56. Turning to the other EDPs visited across
Moldova, with very few exceptions the delegation observed the same
types of disastrous and insalubrious material conditions. A detailed
description is superfluous, since it has all been highlighted already
in paragraphs 53 to 55 of the report on the 1998 visit.
In Chişinău EDP, these conditions were
exacerbated by serious overcrowding. At the time of the visit, there
were 248 prisoners for 80 places, requiring nine persons to cram into
a cell measuring 7 m² and between eleven and fourteen persons
into cells of 10 to 15 m².
57. The delegation also received numerous
complaints about the quantity of food in the EDPs visited.
This normally comprised tea without sugar and a slice of bread in the
morning, cereal porridge at lunch time and hot water in the evening.
In some establishments, food was served just once a day and was
confined to a piece of bread and soup. ...
...Concerning the issue of access to toilets in due
time, the CPT wishes to stress that it considers that the practice
according to which detainees comply with the needs of nature by using
receptacles in the presence of one or several other persons, in a
confined space such as the EDP cells which also serve as their living
space, is in itself degrading, not only for the individual concerned
but also for those forced to witness what is happening. Consequently,
the CPT recommends that clear instructions be given to surveillance
staff that detainees placed in cells without toilets should –
if they so request – be taken out of their cell without delay
during the day in order to go to the toilet.
59. The CPT also recommends that steps be
taken to:
- reduce the overcrowding in Chişinău EDP as
rapidly as possible and to comply with the official occupancy level;
- supply persons in custody with clean mattresses and
clean blankets;
- authorise persons detained in all EDPs to receive
packages from the outset of their custody and to have access to
reading matter.
In the light of certain observations made, particularly
in the EDP of the Chişinău Police Inspectorate, the CPT
also reiterates its recommendation concerning strict compliance, in
all circumstances, with the rules governing separation of adults and
minors.”
b. Visit to Moldova of 20-30 September
2004
“4. Conditions of detention.
a. Institutions of the Ministry of Internal
Affairs
41. Since 1998, when it first visited
Moldova, the CPT has serious concern for the conditions of detention
in the institutions of the Ministry of Internal Affairs.
The CPT notes that 32 out of 39 EDPs have been subjected
to “cosmetic” repair and that 30 have been equipped with
places for daily walks. Nevertheless, the 2004 visit did not allow
lifting the concern of the Committee. In fact, most recommendations
made have not been implemented.
42. Whether one refers to the police stations
or EDPs visited, the material conditions are invariably subject to
the same criticism as in the past. Detention cells had no access to
daylight or a very limited such access; artificial light – with
rare exceptions – was mediocre. Nowhere did the persons obliged
to pass the night in detention receive mattresses and blankets, even
those detained for prolonged periods. Those who had such items could
only have obtained them from their relatives...
45. As for food ... in the EDPs the
arrangements made were the same as those criticised in 2001 (see
paragraph 57 of the report on that visit): generally three modest
distributions of food per day including tea and a slice of bread in
the morning, a bowl of cereals at noon and tea or warm water in the
evening. Sometimes there was only one distribution of food per day.
Fortunately, the rules for receiving parcels have been relaxed, which
allowed detainees with relatives outside to slightly improve these
meagre daily portions.
47. In sum, the material conditions remain
problematic in the police stations; they remain disastrous in EDPs,
continuing in many aspects to amount, for the detainees, to inhuman
and degrading treatment.”
a. Visit to Moldova of 14-24 September
2007
“II. Institutions of the Ministry of
Internal Affairs
In so far as the conditions of detention in the police
establishments are concerned, it appears that this is the field in
which the least progress has been achieved. It is not necessary to
enumerate here in detail all the shortcomings observed by the
delegation, which are more or less the same as those observed during
past visits (and of which the Ministry of Internal Affairs is
perfectly aware). ... Numerous persons are still detained overnight
in police establishments, in cells which should not be used to detain
persons for more than a few hours. It is high time to remedy these
problems, in particular by placing accused persons under the
supervision of institutions of the Ministry of Justice and building
new prisons corresponding to CPT standards and to the norms laid down
by the Moldovan legislation.”
- According
to Article 313 of the Code of Criminal Procedure, a party to criminal
proceedings can contest the actions or inactions of the criminal
investigator before the investigating judge.
THE LAW
- The
applicant complained under Article 3 of the Convention that he had
been detained in inhuman and degrading conditions. Article 3 of the
Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- He
also complained under Article 5 § 3 of the Convention that the
Orhei District Court had not given relevant and sufficient reasons
for his pre-trial detention and that he had not been brought before a
judge after his arrest. The relevant part of Article 5 § 3
reads:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
applicant also complained under Article 5 § 4 that the Court of
Appeal had failed to examine his habeas corpus request.
Article 5 § 4 of the Convention reads:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
- The
applicant complained under Article 13 of the Convention that he had
not had an effective remedy in respect of the alleged breach of
Article 3 of the Convention. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
I. THE GOVERNMENT'S REQUEST TO
STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- The
Government, in their additional observations of 24 May 2007,
submitted a unilateral declaration similar to that in the case of
Tahsin Acar v. Turkey
((preliminary objection) [GC],
no. 26307/95, ECHR 2003 VI)
and informed the Court that they were ready to accept that there had
been a violation of the applicant's rights under Articles 3, 5 and 13
of the Convention. The Government proposed paying him
EUR 2,000 in respect of non-pecuniary
damage and argued that this amount would constitute sufficient just
satisfaction in the present case, bearing in mind the intensity and
duration of the applicant's suffering, the fact that the applicant's
health had not been affected as a result of it and the Court's
case-law in such cases as Sarban v. Moldova (no.
3456/05, 4 October 2005) and Becciev v. Moldova (no. 9190/03,
4 October 2005). With regard to costs and
expenses, the Government argued that the applicant had received legal
aid from the Court and that, in their opinion, that amount was
sufficient. The Government invited the Court to strike out the
application in accordance with Article 37 of the Convention.
- The
applicant disagreed with the Government's proposal and argued that
the amount proposed by them was too small. Referring to Sarban
and Becciev,
he submitted that the conditions of detention in the Orhei detention
centre were more severe than those in Chişinău. He gave an
example of the case-law of the Moldovan Supreme Court (the case of
D.G.) in which the court had awarded the applicant EUR 9,500 for
non-pecuniary damage suffered as a result of the quashing of a final
judgment under a Brumarescu-type
procedure and EUR 1,000 for costs and expenses. According to the
applicant the violations in his case were more serious than in that
case and the lawyer had had to spend more time.
- The Government argued that the
applicant could not know how much time had been spent by the lawyer
in the G.D. case and the level of suffering of the applicant in that
case. They argued that the amount proposed by them was reasonable.
- The
Court refers to the principles established in its case-law (see, for
instance, Melnic v. Moldova, no. 6923/03, §§
20-31, 14 November 2006) regarding the
examination of unilateral declarations. It recalls, in particular,
that it will “depend on the
particular circumstances whether the unilateral declaration offers a
sufficient basis for finding that respect for human rights as defined
in the Convention does not require the Court to continue its
examination of the case (Article 37 § 1 in
fine)”.
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court notes that the Government conceded that there
had been a violation of Articles 3, 5 and 13 of the Convention and
offered to pay the applicant non-pecuniary damage. Bearing in mind
the circumstances of the present case, the Court considers that the
amount proposed by the Government does not bear a reasonable
relationship to the level of suffering endured by the applicant. It
therefore considers that respect for human rights as defined in the
Convention and its Protocols requires the Court to continue its
examination of the case (see, by contrast, Akman
v. Turkey (striking out), no.
37453/97, §§ 23-24, ECHR 2001 VI).
- That
being so, the Court rejects the Government's request to strike the
application out under Article 37 of the Convention and will
accordingly pursue its examination of the admissibility and merits of
the case.
II. ADMISSIBILITY OF THE CASE
A. The complaint under Article 5 § 1 of the
Convention
- In
his initial application, the applicant complained under Article 5
§ 1 of the Convention that his arrest and detention had
been unlawful. However, in his observations on the admissibility and
merits, he asked the Court not to proceed with the examination of
this complaint. The Court finds no reason to examine it.
B. The complaint under Article 5 § 4 of the
Convention
- The
applicant complained under Article 5 § 4 of the Convention that
the domestic courts had failed to examine his appeal against the
decision by which the detention order was issued.
- The
Court reiterates that Article 5 § 4 guarantees no right, as
such, to appeal against decisions ordering or extending detention as
the above provision refers to “proceedings” and not to
appeals. The intervention of one organ satisfies Article 5 § 4,
on condition that the procedure followed has a judicial character and
gives to the individual concerned guarantees appropriate to the kind
of deprivation of liberty in question (see Ječius
v. Lithuania, no. 34578/97, § 100, ECHR 2000-IX). It
follows that the complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 §
4.
C. The remaining complaints
- The
Court considers that the applicant's remaining complaints raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and that
no other grounds for declaring them inadmissible have been
established. The Court therefore declares these complaints
admissible. In accordance with its decision to apply Article 29 §
3 of the Convention (see paragraph 4 above), the Court will
immediately consider the merits of the complaints.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained of his conditions of detention in the Orhei
detention centre. He argued that in contesting the fact of his
detention in the “aquarium”, the Government had failed to
provide any evidence such as records concerning the occupancy of the
cells. Moreover, the Government's contention that in October-November
2005 the Orhei detention centre had been refurbished was false. The
Government had failed to produce any evidence in support of it. They
had not presented any evidence concerning the financing of the
refurbishment work, any copy of a contract with a contractor or any
evidence concerning the moving of the detainees to another location
during the alleged work. Referring to the Government's decision of
2003, the applicant argued that it concerned the refurbishment of
prisons for convicted prisoners, but not of detention centres.
Moreover, the Government had failed to make any comments concerning
the photographs showing insect bites on the applicant's body and the
fact that immediately after his release from detention a doctor had
concluded that his body was covered in insect bites and that he had
pneumonia.
- The
Government argued that the applicant had been placed from the very
beginning in cell no. 9 and not in the “aquarium”.
According to them, cell no. 9 was located on the ground floor of the
detention centre. It measured 5.4 x 2.5 metres and three to four
persons were detained in it at the time of the applicant's detention.
According to the Government, the cell was equipped with a heating
device and a window through which natural light passed. The cell had
all the necessary sanitary facilities. In October-November 2005 the
Orhei detention centre had undergone complete refurbishment. The
heating system had been repaired. A boiler for heating water had been
installed. The wooden beds had been repaired and mattresses bought.
The cells had been equipped with ventilation and new windows through
which natural light would pass. Once a week the cells were
disinfected. According to the Government the CPT reports relied on by
the applicant were no longer up to date. They submitted that in 2003
the Government of Moldova had adopted a decision setting out plans
for reforming the penitentiary system.
- The
Court recalls that the general principles concerning conditions of
detention have been set out in Ostrovar v. Moldova (no.
35207/03, §§ 76 79, 13 September 2005).
- It
notes that all the applicant's submissions are consistent with the
findings of the CPT in its reports relating to the detention
establishments of the Moldovan Ministry of Internal Affairs. The
findings of the CPT provide at least to some degree a reliable basis
for the assessment of the conditions in which the applicant was
imprisoned (see, for another example of the Court's taking into
account the reports of the CPT, Kehayov v. Bulgaria,
no. 41035/98, § 66, 18 January 2005). The Government denied
most of the allegations by arguing that the CPT reports were outdated
and that the prison had been refurbished one month before the
applicant's detention there. However, they did not submit any
evidence to substantiate their submissions concerning the
refurbishment (compare Ostrovar, cited above, § 80).
Moreover, the Government did not dispute some of the allegations made
by the applicant, such as the lack of adequate food, the fact that a
very weak electric light was always on in the cell, the fact that the
sanitary facilities were not separated from the rest of the cell and
the fact that the applicant's body had been covered with insect bites
on his release from detention.
- In
such circumstances the Court considers that the hardship endured by
the applicant went beyond the unavoidable level inherent in detention
and reached a threshold of severity contrary to Article 3 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant submitted that the court that issued the detention warrant
order on 21 December 2004 had not relied on relevant and sufficient
reasons.
- The
Government argued that the detention warrant had been issued by an
investigating judge, within the limits of his competence, who had
relied on the fact that the applicant had changed his address and
that he might re-offend. The offence of which the applicant was
suspected was an extremely serious one, punishable by imprisonment of
up to twenty years. According to the Government, there had been no
violation of Article 5 § 3 of the Convention.
- The
Court refers to the general principles established in its case-law on
Article 5 § 3 of the Convention regarding, in particular, the
need for relevant and sufficient reasons for depriving someone of his
or her liberty (see, among others, Castravet v. Moldova, no.
23393/05, §§ 29-33, 13 March 2007, and Sarban,
cited above, §§ 95-99).
- In
the present case the domestic courts, when ordering the applicant's
detention, cited parts of the relevant law without showing the
reasons why they considered the allegations that the applicant was
liable to abscond or re-offend to be well-founded. Hence, the
circumstances of this case are similar to those in Becciev
(cited above, §§ 61-62) and Sarban (cited above, §§
100-101), in which this Court found violations of Article 5 § 3
of the Convention on account of insufficient reasons given by the
courts for the applicants' detention. Since the Government presented
no reasons for distinguishing this case from the above cases, the
Court considers that the same approach should be adopted in the
present case.
- In the light of the above, the Court considers that
the reasons relied on by the Orhei District Court in its decision
concerning the applicant's pre-trial detention were not “relevant
and sufficient”.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention in this respect.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that no effective remedies existed against
inhuman and degrading conditions of detention. According to him,
inhuman conditions of detention constituted an administrative
practice in Moldova, since all the prisons were in the same situation
as the one in which he had been detained. According to the applicant
all the cells in the Orhei detention centre were similar and there
was nothing the authorities could have done to put an immediate end
to his suffering. The authorities were well aware of the conditions
of detention but did nothing.
- The
Government disputed the applicant's submissions and argued that it
was open to the applicant under Moldovan law to complain about
illegal actions of the criminal investigator in accordance with
Article 313 of the Code of Criminal Procedure. According to the
Government, there had been several such complaints in the districts
of Drochia and Criuleni, whereby persons had complained about acts of
torture and ill-treatment by police officers, but they had all been
dismissed.
- As
the Court has held on many occasions, Article 13 of the Convention
guarantees the availability at national level of a remedy to enforce
the substance of the Convention rights and freedoms in whatever form
they may happen to be secured in the domestic legal order. The effect
of Article 13 of the Convention is thus to require the provision of a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate
relief.
- The
Court recalls that it has examined on numerous occasions the issue of
domestic remedies by which to complain of poor conditions of
detention in Moldova (see Sarban, cited above, §§
57-62; Holomiov v. Moldova, no. 30649/05, §§
101-107, 7 November 2006; Istratii and Others v. Moldova, nos.
8721/05, 8705/05 and 8742/05, § 38, 27 March 2007; Modarca
v. Moldova, no. 14437/05, § 47, 10 May 2007; and Stepuleac
v. Moldova, no. 8207/06, § 46, 6 November 2007), and
concluded on each occasion that the remedies suggested by the
Government were not effective. The present case is no exception as it
is clear that Article 313 of the Code of Criminal Procedure has
nothing to do with conditions of detention but merely affords the
possibility to challenge the actions or inactions of investigation
officers.
- In
such circumstances, the Court considers that it has not been shown
that effective remedies existed in respect of the applicant's
complaint under Article 3. There has therefore been a breach of
Article 13 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 12,000 for non-pecuniary damage.
- The
Government contested the claim and argued that it was ill-founded and
excessive.
- Having
regard to the violations found above, the Court considers that an
award of compensation for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis, the Court awards
the applicant EUR 3,500.
B. Costs and expenses
- The
applicant's lawyer claimed EUR 10,705 for the costs and expenses
incurred before the Court. He submitted a detailed time-sheet.
- The
Government considered the amount claimed excessive and disputed the
number of hours worked by the applicant's lawyer.
- The
Court awards EUR 1,500 for costs and expenses, less EUR 850
already paid in legal aid by the Council of Europe.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Rejects the Government's unilateral declaration;
- Declares the complaint under Article 5 § 4
of the Convention inadmissible and the remainder of the application
admissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention taken together with Article 3;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500 (three thousand
five hundred euros) in respect of non-pecuniary damage and EUR 1,500
(one thousand five hundred euros), less EUR 850 (eight hundred and
fifty euros) already received in legal aid, in respect of costs and
expenses, plus any tax that may be chargeable, to be converted into
the currency of the respondent State 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 above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
