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FOURTH
SECTION
CASE OF
I.D. v. MOLDOVA
(Application
no. 47203/06)
JUDGMENT
STRASBOURG
30
November 2010
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 I. D. 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,
Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 47203/06) 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 I.D. (“the
applicant”), on 12 November 2006. The President of the Chamber
acceded to the applicant's request not to have his name disclosed
(Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Ms T. Petrusin, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that he had been ill-treated by the
police, detained in inhuman and degrading conditions of detention and
that he was not provided with proper medical care, in breach of
Article 3 of the Convention. He also complained under Article 13 of
the Convention taken in conjunction with Article 3 of the Convention
that he had not had an effective domestic remedy against the poor
conditions of detention.
- The
application was allocated to the Fourth Section of the Court. On
13 July 2009 the President of that Section decided to
communicate 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
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr I. D., is a Moldovan national who was born in 1977 and
is currently detained in Cricova prison.
- On
13 October 2003 the applicant was arrested on charges of theft. The
next day an investigating judge ordered his detention for a period of
ten days.
- During
detention the applicant was allegedly beaten on a regular basis by
police officers with a view to extracting confessions. According to
the applicant, he was beaten all over his body with rubber batons,
administered electric shocks, suspended on a metal bar and
suffocated.
- During
the seventh day of his detention he was taken to the office of B.R.
and L.C. where he was cuffed and raped with a bottle. One of the
police officers was photographing him during this time.
- On
24 October 2003 the applicant was taken to a judge for the
prolongation of his detention. The judge ordered the applicant's
examination by a doctor.
- The
same day the applicant was visually examined by a forensic doctor who
found numerous bruises on his body and limbs and concluded that they
could have been caused by a blunt object with a limited surface,
possibly in the circumstances indicated by the applicant.
- On
an unspecified date the applicant complained to the Prosecutor's
Office about his ill-treatment at the hands of the police.
- On
2 May 2006 the Prosecutor General's Office dismissed the applicant's
complaint. The applicant's appeal was dismissed by the Prosecutor
General's Office on 27 February 2007.
- In
the meantime the applicant was detained in four different detention
facilities of the Ministry of Interior Affairs and the Ministry of
Justice.
- Between
the date of his arrest and 23 October 2004 the applicant was detained
in the DGCCO detention facility. He was then transferred to the
Botanica Police Station where he was detained for twenty-three days.
Between November 2004 and December 2005 the applicant was detained in
Prison no. 13. Subsequently he was transferred to the Soroca Prison
where he was detained until 6 February 2006. Between 6 February and
October 2006 the applicant was again detained in Prison no. 13 in
Chişinău. After that he was transferred to the Cricova
Prison, where he is detained to date.
- According to the applicant the conditions of detention
in all the detention facilities amounted to inhuman and degrading
treatment. In respect of the DGCCO detention facility the applicant
did not describe the conditions of detention but only made reference
to the Court's Ostrovar v. Moldova judgment (no.
35207/03, 13 September 2005) in which the conditions were described.
As to the Botanica Police Station, the applicant submitted that the
conditions were similar to those in the DGCCO detention facility with
the exception that the cells were in the basement and were not
equipped with windows. In respect of his first detention in Prison
no. 13, the applicant submitted that an important aspect had been his
frequent transfer from one cell to another, which, in his view,
amounted of itself to inhuman and degrading treatment. Moreover, the
cells were overcrowded, poorly lit and humid. The prisoners were not
provided with bedding and had no laundry facilities. As to the
conditions in the Soroca prison, the applicant submitted that the
cells were overcrowded and humid. In respect of the Cricova prison,
the applicant complained about the conditions there for the first
time in his observations on the admissibility and merits of the case
in January 2010 and only about the period between October and
December 2006 when he had been detained in an overcrowded cell with
no heating. The Government disputed the applicant's description of
his conditions of detention.
- During
his second detention in Prison no. 13 the applicant suffered from
haemorrhoids and a urinary tract disorder. On 13 September 2006 he
underwent surgery to his anus by an independent doctor of his choice.
According to the applicant, he had to bear the costs of the surgery
and medication. After approximately two weeks he was transferred from
hospital back to Prison no. 13 where the cell was not appropriately
equipped for a person in his state of health. He had to climb to the
upper berth several times a day, which contributed to post-surgery
complications. He was not provided with an enema, the toilet in the
cell lacked a rim and he was unable to take care of his personal
hygiene.
- According
to the medical documents provided by the parties it appears that
following complaints by the applicant about pain in the region of his
bladder and difficulty in urinating he was seen by two independent
urologists in October 2006 who recommended a medical examination of
his kidneys, prostate and urinary tract. The investigation was
conducted in a prison hospital in December 2006 and, according to the
medical documents in the Court's possession, the applicant was found
to be healthy.
II. RELEVANT DOMESTIC LAW
Domestic remedies invoked by the Government
- In Drugalev v. the Ministry of Internal Affairs and
the Ministry of Finance (final judgment of the Chişinău
Court of Appeal of 26 October 2004), three years after being
released from detention on remand, the applicant claimed and obtained
compensation of 15,000 Moldovan lei (MDL) (approximately 950 euros
(EUR)) for having been held in inhuman and degrading conditions for
approximately six months. The case was examined by only two
instances, since the judgment of the Chisinau Court of Appeal was not
challenged before the Supreme Court of Justice and the overall length
of the proceedings was approximately 1 year and 5 months. The court
based its award on Articles 2 and 3 of the Convention.
- In Ciorap v. the Ministry of Finance, the
applicant initiated court proceedings claiming compensation for the
damage caused to him as a result of his ill-treatment upon his
arrest, the failure to investigate his complaint about ill-treatment,
the failure to give him medical treatment while in detention and
inhuman conditions of detention. On 19 January 2007 the Buiucani
District Court found in favour of the applicant and awarded him MDL
30,000 for non-pecuniary damage. On 21 June 2007 the Chişinău
Court of Appeal upheld the appeal of the Ministry of Finance and
reduced the amount of compensation to MDL 3,000.
- In
Ipate v. the Ministry of Finance, the applicant initiated
court proceedings claiming compensation for inhuman and degrading
conditions of detention in Prison no. 13 in 2006 and for the prison
administration's failure to register his hunger strike declaration.
On 16 December 2008 the Centru District Court dismissed the
applicant's complaint about the poor conditions of detention but
upheld the other complaint. The applicant was awarded MDL 350 for
non-pecuniary damage.
- In Gristiuc v. the Ministry of Finance, the
applicant initiated civil proceedings claiming compensation for
inhuman and degrading conditions of detention in Prison no. 13
between 2000 and 2003. On 19 November 2008 the action was finally
upheld by the Supreme Court of Justice and the applicant was awarded
MDL 10,000 for non-pecuniary damage.
THE LAW
- The
applicant complained under Article 3 of the Convention that he had
been ill-treated by the police during his arrest and detention. He
also complained that the conditions of his detention between his
arrest and October 2006 amounted to inhuman and degrading treatment
and about the authorities' failure to provide him with appropriate
medical care while in detention. Article 3 of the Convention reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant argued that he had no effective remedies to complaint about
the poor conditions of detention and alleged a violation of Article
13, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ....”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint under Article 3 of the Convention
concerning the poor conditions of detention
- The
applicant contended that the conditions of his detention in the DGCCO
detention facility, the Botanica Police Station, Prison no. 13 and
Soroca Prison amounted to inhuman and degrading treatment.
- The Government submitted that the applicant had not
exhausted all the domestic remedies available to him. In particular,
they maintained that he did not make use of the provisions of the
Constitution and the Civil Code to claim compensation for the alleged
poor conditions of detention. Moreover, he could have invoked
directly Article 3 of the Convention. In support of their submission
the Government relied on the case-law of the domestic courts (see
paragraphs 19-22 above).
- The
Court recalls that the object of the six month time-limit under
Article 35 is to promote legal certainty, by ensuring that cases
raising issues under the Convention are dealt with within a
reasonable time and that past decisions are not continually open to
challenge. In cases where there is a continuing situation, the
six-month period runs from the cessation of the situation (B. and
D. v. the United Kingdom, no. 9303/81, Commission decision of 13
October 1986, Decisions and Reports (DR) 49, p. 44). The concept of a
“continuing situation” refers to a state of affairs which
operates by continuous activities by or on the part of the State so
as to render the applicant a victim (see, Montion v. France,
no. 11192/84, Commission decision of 14 May 1987, DR 52, p. 227,
and Hilton v. the United Kingdom, no. 12015/86,
Commission decision of 6 July 1988, DR 57, p. 108). Normally, the
six-month period runs from the final decision in the process of
exhaustion of domestic remedies. Where it is clear from the outset
however that no effective remedy is available to the applicant, the
period runs from the date of the acts or measures complained of (see,
D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26
June 2001).
- In
Koval v. Ukraine ((dec.), no. 65550/01, 30 March
2004) and in Mikhaniv v. Ukraine ((dec.), no. 75522/01, 20 May
2008) where the applicants were also detained in several different
detention facilities the Court held that each period of detention
referred to specific events which occurred on identifiable dates and
that therefore they could not be construed as a “continuing
situation”. The Court concluded that the six-month period
envisaged by Article 35 § 1 of the Convention must be counted
from the date on which each particular period of detention ended.
- A
different approach was taken by the Court in Guliyev v. Russia
(no. 24650/02, 19 June 2008) where it considered two different
periods of detention to amount to a “continuing situation”
because the main characteristic of both periods of detention was the
severe overcrowding in the cells.
- In
the present case the Court notes that there were common
characteristics in the description given by the applicant regarding
the conditions of his detention throughout the entire period of his
detention, such as poor material conditions. At the same time, the
Court notes that the main negative feature of each period of
detention was different. In particular, the applicant put emphasis on
his very frequent transfers from one cell to another when describing
his first detention in Prison no. 13 and submitted that that fact of
itself amounted to a violation of his rights guaranteed by Article 3
of the Convention. When referring to his second detention in Prison
no. 13 the applicant focused on the alleged insufficient medical
assistance. In such circumstances, the Court concludes that each
period of detention referred to specific events which occurred on
identifiable dates and cannot therefore be construed as a “continuing
situation”.
- The
Court notes that the application was lodged with the Court in
November 2006. There is nothing to suggest that the applicant was in
any way impeded by the authorities from complaining before that date
regarding his detention in the DGCCO detention facility, the Botanica
Police Station, his first period of detention in Prison no. 13 and in
Soroca Prison. Consequently the complaint in so far as it refers to
these periods has been lodged more than six months after the alleged
breach took place and must be declared inadmissible under Article 35
§§ 1 and 4 of the Convention. A similar approach must be
taken in respect of the complaint concerning the conditions in
Cricova prison which was introduced more than four years after the
alleged breach took place (see paragraph 16 above).
- In
so far as the conditions of the applicant's second detention in
Prison no. 13 are concerned the Court will examine whether the
applicant had at his disposal domestic remedies which he should have
exhausted before complaining to the Court.
- The Court recalls that under Article 35 § 1 of
the Convention normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged. The existence of the remedies in
question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, among other authorities, the Akdivar and
Others v. Turkey judgment of 16 September 1996, §
66, Reports of Judgments and Decisions 1996-IV).
- The assessment of whether domestic remedies have been
exhausted is normally carried out with reference to the date on which
the application was lodged with the Court (Prodan v. Moldova,
no. 49806/99, § 39, ECHR 2004 III (extracts)).
- Having examined the case-law of the domestic courts
invoked by the Government, the Court notes that at the time of the
introduction of the present application only the judgment in the case
of Drugalev had been adopted by the domestic courts. It does
not appear that Drugalev formed part of a consistent policy of
the domestic courts offering real remedies against breaches of
Article 3 of the Convention on account of poor conditions of
detention to persons whose detention had come to an end. The Court
considers, therefore that the Government have not shown that an
effective remedy was available in theory and in practice at the
relevant time. Accordingly, the complaint under Article 3 of the
Convention cannot be declared inadmissible for non-exhaustion of
domestic remedies and the Government's objection must be dismissed.
B. The complaint under Article 3 of the Convention
concerning inadequate medical assistance during detention
- The
applicant submitted that he was not provided with appropriate medical
care. The Government denied this contention.
- The
Court notes that the applicant was allowed to have surgery by an
independent surgeon of his choice; he was later allowed to be
examined by two independent urologists and a medical examination was
carried out in a prison hospital in accordance with their
recommendation. The applicant failed to adduce evidence in support of
his allegation that he was in need of medical treatment which was not
provided to him or that he had to bear the cost of his treatment. The
mere statements by the applicant in the absence of any supporting
documents are not sufficient for the Court to accept the allegation.
In so far as the applicant's allegations that the prison cell in
which he was detained after his surgery was not suitable for his
condition, the Court will examine this allegation together with the
complaint concerning the conditions of detention in Prison no. 13.
- Accordingly,
the Court concludes that the complaint concerning the alleged
inadequate medical assistance is manifestly ill-founded and therefore
inadmissible within the meaning of Article 35 §§ 3 and 4 of
the Convention.
C. The rest of the complaints
- As
to the rest of the complaints, the Court considers that they raise
questions of fact and law which are sufficiently serious for their
determination to depend on an examination of the merits, and that no
grounds for declaring them inadmissible have been established. The
Court therefore declares the rest of the application admissible. In
accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider their merits.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE APPLICANT'S ILL-TREATMENT BY POLICE
- The
Government declared that they were unable to provide a plausible
explanation for the injuries sustained by the applicant in custody
and that they were ready to concede that there had been a breach of
the applicant's rights guaranteed by Article 3 of the Convention.
- The
Court refers to its case-law in Buzilov v.
Moldova (no. 28653/05, 23 June
2009) where, in similar factual circumstances, it found breaches of
Article 3 of the Convention. In the light of the above case-law and
in view of the Government's clear acknowledgement of a breach, the
Court concludes that there has been a violation of Article 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF POOR CONDITIONS OF DETENTION
- The
Government argued that in Prison no. 13, all the cells were equipped
with electricity, toilets and sinks. The equipment and the sewage
system were in good working order. According to the Government, the
conditions of detention in this prison did not attain the minimum
threshold of severity to trigger a violation of Article 3 of the
Convention.
- The
applicant disagreed with the Government and submitted that the
material conditions in Prison no. 13 were very poor. The cells were
overcrowded, the natural lighting was very poor, there was no
ventilation, the walls were damp and the air was humid. The inmates
were not provided with bedding. Electricity in the cells was
available only for four hours a day and the inmates had to spend
twenty-three hours daily in their cells.
- The
Court reiterates that the general principles concerning conditions of
detention have been set out in Ostrovar v. Moldova (no.
35207/03, §§ 76 79, 13 September 2005).
- As
to the conditions of detention in Prison No. 13 between February and
October 2006, the Court recalls that in Ţurcan v. Moldova
(no. 10809/06, §§ 35-39, 27 November 2007) it found a
violation of Article 3 of the Convention in respect of the
applicant's poor conditions of detention in the same detention
facility between February and September 2006.
- In
such circumstances the Court considers that the hardship endured by
the applicant during his detention went beyond the unavoidable level
inherent in detention and reached a threshold of severity contrary to
Article 3 of the Convention. Accordingly, there has been a
violation of Article 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that no effective remedies existed to contest his
inhuman and degrading conditions of detention.
- The
Government reiterated their submissions concerning the non-exhaustion
of domestic remedies (see paragraph 26 above).
- 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 notes that the Government failed to submit evidence as to the
existence of any effective domestic remedies (see paragraph 35
above). Accordingly, the Court considers that it has not been shown
that effective remedies existed in respect of the applicant's
complaint and that there has been a breach of Article 13 of the
Convention in respect of the applicant's conditions of his detention
in Prison no.13.
V. 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. Pecuniary damage
- The
applicant claimed EUR 116,350 in respect of pecuniary damage, the
amount representing his expenses for treatment of his diseases, the
cost of the loss of his dwelling, partial loss of his earning
capacity, inflation and the cost of rehabilitation treatment and
psychological adaptation. The applicant argued that he contracted
diseases while in detention and that his mother had to mortgage her
house in order to pay for his surgery. She could not repay the debt
and eventually lost her house.
- The
Government submitted that the applicant was not entitled to any
compensation because there was no causal link between the breach
found in the case and the alleged pecuniary damage claimed by the
applicant.
- The
Court notes that the applicant did not submit any evidence to show
the existence of a causal link between his claims under this head of
just satisfaction and the breaches found above. Accordingly, the
claim must be rejected as unsubstantiated.
B. Non-pecuniary damage
- The
applicant claimed EUR 200,000 in respect of non-pecuniary damage,
arguing that he experiences feelings of anxiety and that it will take
a long time for his health and social life to recover.
- The
Government disagreed and argued that the amount claimed was excessive
in the light of the Court's case-law in similar cases.
- Having
regard to the violations found above and their gravity, the Court
considers that an award for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis the Court awards
him EUR 15,000.
C. Costs and expenses
- The
applicant also claimed EUR 2,000 for the costs and expenses.
- The
Government contested this amount and argued that it was excessive and
unsubstantiated.
- In
accordance with its case-law, the Court must consider whether the
costs and expenses claimed were actually and necessarily incurred by
the applicant and are reasonable as to quantum (see Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR
1999-VIII). It may have regard in that connection to such matters as
the number of hours worked and the hourly rate sought (see Iatridis
v. Greece (just satisfaction) [GC], no. 31107/96, §
55, ECHR 2000-XI).
In
the instant case, however, the applicant has not produced any
evidence in support of his claims. The Court therefore decides not to
award any sum under this head.
D. 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
- Declares by a majority the applicant's complaint
regarding the poor conditions of detention before his second period
of detention in Prison no. 13 inadmissible;
- Declares unanimously the applicant's complaints
regarding the poor conditions of his second period of detention in
Prison no. 13, the absence of an effective remedy in this connection
and his ill-treatment by the police admissible and the remainder of
the application inadmissible;
- Holds unanimously that there has been a
violation of Article 3 of the Convention on account of the
applicant's ill-treatment by the police;
- Holds unanimously that there has been a
violation of Article 3 of the Convention on account of the poor
conditions of the applicant's second period of detention in Prison
no. 13;
- Holds unanimously that there has been a
violation of Article 13 of the Convention taken together with Article
3 on account of lack of effective domestic remedies in respect of the
poor conditions of the applicant's second period of detention in
Prison no. 13;
- Holds unanimously
(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 15,000
(fifteen thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 30 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
