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THIRD
SECTION
DECISION
Application no. 32530/07
Malhaz DJAPARIDZE
against Moldova
The
European Court of Human Rights (Third Section), sitting on 31 January
2012 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Mihai Poalelungi,
Kristina Pardalos, judges,
and
Santiago Quesada, Section
Registrar,
Having
regard to the above application lodged on 1 August 2007,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The applicant, Mr Malhaz Djaparidze, was a stateless
person who had been born in 1964 and until his death on 26 April 2008
lived in Chişinău. The applicant is represented before the
Court by Mr V. Ţurcan and
Mr A. Beruciaşvili, lawyers
practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- On
30 April 2008 the Registrar was informed of the applicant’s
death. On 23 November 2009 the applicant’s son, Mr Gheorghii
Djaparidze, informed the Registrar that he wanted the proceedings to
continue and wished to participate in them, retaining the applicant’s
lawyers as his representatives. For practical reasons, Mr Malhaz
Djaparidze will continue to be referred to in this decision as “the
applicant”, although Mr Gheorghii Djaparidze is now to be
regarded as having this status (see the Vocaturo v. Italy
24 May 1991, § 2, Series A no. 206-C).
1. The applicant’s detention in 2007 and his
subsequent disappearance
- The
applicant was accused of consuming narcotic drugs while serving a
sentence. On 12 July 2007 the Buiucani District Court discontinued
the criminal proceedings against him and ordered his immediate
release.
- After
leaving the court building the applicant was arrested again by the
police. The reason was that he had been found walking in the street
without documents and had no permanent abode or means of support. The
applicant then gave personal details, including his permanent address
in Chişinău, to a police officer. He indicated that he did
not have any identity documents, which were all still with the prison
administration.
- The
applicant was placed in a centre for homeless people (“the
Centre”). His lawyers complained that he had been detained
unlawfully.
- On 17 July 2007 the applicant’s lawyers made a
complaint of unlawful detention to the Rîşcani District
Court. The court postponed two hearings (on 19 and 24 July 2007) at
the request of the applicant’s lawyers, who had asked for
documents concerning the reasons for the applicant’s arrest
from the prosecution.
- On
17 July 2007 the applicant signed an authority form for his lawyers
to represent him before the Court.
- On
18 July 2007 it became clear that he was no longer at the Centre. A
criminal investigation was opened against two officers, who were
accused of taking the applicant out of the Centre during the night of
17-18 July 2007 to a place on the outskirts of Chişinău,
from where he had fled. At the same time, the applicant was declared
a wanted person.
- On 1 August 2007, the Rîşcani District Court
found that the applicant’s arrest and detention had been
unlawful since none of the legal grounds cited by the prosecution
applied. The court relied expressly on Articles 5 and 13 of the
Convention. That decision was final.
2. Events after the applicant’s re-arrest in 2008
- On
13 February 2008 the applicant was expelled from Ukraine at the
border with Moldova, even though his extradition to Moldova had been
refused by the Odessa County Appeal Court on 24 March 2008. On
25 March 2008 he was arrested when crossing the border with
Moldova.
- Following
his arrest the applicant was placed in the detention facility of the
Operational Services Department of the Ministry of Interior
(“the DSO”). On 31 March 2008 his lawyers complained
to the Prosecutor General’s Office that the DSO administration
had refused to allow him to receive any food or clothes. They noted
that he was suffering from hepatitis and required a special diet and
that there was a risk of deterioration of his state of health. They
asked for their client to be transferred to prison no. 13 so
that he could obtain appropriate medical treatment.
- On
4 April 2008 the applicant’s lawyers complained to the
Prosecutor General’s Office, noting the risk to his state of
health in the inhuman conditions of detention of the DSO detention
facility. On 10 April 2008 the applicant was transferred to
prison no. 13 in Chişinău.
- On 18 April 2008 the applicant’s lawyers asked
the authorities at prison no. 13 to inform them of the reasons for
placing their client in a solitary cell. On 12 May 2008 they were
informed that upon his arrival the applicant had been placed in
solitary confinement for fifteen days, in order for him to undergo
examinations aimed at establishing the state of his health and for
medical treatment to be prescribed if found to be necessary. On
25 April 2008 the applicant was transferred to an ordinary cell.
- In
the morning of 26 April 2008 two detainees who shared the cell with
the applicant alerted the prison guards that he was not showing any
signs of life. Thereafter the prison doctor pronounced the applicant
dead.
- Between 29 April and 15 July 2008 a medical expert
examined the applicant’s body. He found that the cause of death
had been cardiac-pulmonary deficiency which had been caused by
ischemic cardiopathy and pulmonary fibrocavital tuberculosis. The
medical expert also found marks on the cadaver’s back which
were interpreted as light injuries caused while the applicant was
alive. He was also found to have been under the influence of a minor
degree of alcohol intoxication at the time of his death.
- On
30 April 2008 the applicant’s lawyers informed the Court of
their client’s death.
- On
25 July 2008 a Chişinău Prosecutor’s Office
prosecutor decided not to initiate a criminal investigation in the
absence of any evidence that a crime had been committed. The
prosecutor referred to the statements made by the applicant’s
cellmates and the head of the detention block in which he had died.
He also cited the findings of the medical and toxicology experts and
relied on video recordings, which showed that nobody had entered or
left the cell during the night. He noted the presence of marks on the
cadaver’s back, without making any comment in that respect.
- On 11 August 2008 the applicant’s lawyers asked
the Prosecutor General’s Office to revoke the decision of 25
July 2008. They mentioned, inter alia, that important
questions had not been answered during the preliminary investigation,
such as whether their client’s life could have been saved had
he been correctly diagnosed and treated in prison no. 13.
- On
15 September 2008 the Chişinău Prosecutor’s Office
replied that the decision of 25 July 2008 had been taken correctly.
- The
applicant’s lawyers challenged the decisions of 25 July and
15 September 2008 before the Centru District Court.
- On 7 November 2008 the Centru District Court rejected
the complaint, on the ground that it had not established that any
breaches of fundamental rights had occurred. One of the applicant’s
lawyers was present at the hearing. That decision was final.
- On 23 November 2009 the applicant’s son
expressed his wish to continue with the case lodged by his father and
raised in essence a complaint under Article 2 concerning the
incompletely established circumstances of his father’s death.
COMPLAINTS
- The
applicant complained under Article 5 of the Convention that he had
been detained illegally after a court order for his release had been
issued on 12 July 2007.
- He
also complained under Article 6 of the Convention that his complaint
lodged with the court on 17 July 2007 had never been examined and
about the lengthy period of examining the same complaint.
- He
finally complained under Article 13 of the Convention that he had not
had an effective remedy in respect of his complaints under Articles 5
and 6 of the Convention.
- The
applicant’s son in essence complained under Article 2 of the
Convention that the investigation into his father’s death had
not been thorough.
THE LAW
A. Complaint under Article 2 of the Convention
- The
Court notes that the applicant died on 26 April 2008. On 23 November
2009 his son lodged a new complaint under Article 2 of the Convention
which for obvious reasons had not been part of the original
complaints lodged by the applicant.
- The
Court observes that the applicant’s son made a complaint under
Article 2 of the Convention on 23 November 2009, one year after the
Centru District Court rejected, in a final decision of 7 November
2008, the applicant’s lawyers’ challenge to the
prosecutor’s refusal to launch a criminal investigation (see
paragraphs 21 and 22 above).
- It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
B. The complaint under article 5 § 1 of the
convention
- The applicant complained under Article 5 of the
Convention that he had been detained illegally after a court order
for his release had been issued on 12 July 2007 and that his
complaint in that regard, lodged on 17 July 2007, had never been
examined by a court. He also argued that his complaint of 17 July
2007 had no basis in law and was aimed solely at obtaining access to
materials against him, which had not been disclosed to the defence.
The court had exceeded its powers in adopting its decision of
1 August 2007. He considered that that decision had been taken
to prevent any complaint to the Court under Article 5.
- The
Government submitted that the unlawfulness of the first applicant’s
detention had been fully and expressly confirmed by the final
decision of the Rîşcani District Court of 1 August 2007.
Given such an express recognition of a violation of his Article 5
rights, the first applicant could have initiated civil court
proceedings seeking compensation.
- The
Court reiterates that it has already found that the domestic law and
practice in Moldova allow for compensation to be paid to a person
whose detention has been declared unlawful by a final court decision
(see Mătăsaru
and Saviţchi v. Moldova, no. 38281/08, §§
69-75, 2 November 2010).
- The
Court is unconvinced by the applicant’s argument that the
Rîşcani District Court exceeded its powers in adopting its
decision of 1 August 2007 (see paragraph 30 above). Even
assuming that the applicant’s request lacked a proper basis in
domestic law, it is to be noted that the court relied expressly on
Article 5 of the Convention. Under Article 4 of the Moldovan
Constitution, international human rights treaties take precedence
over domestic law when in contradiction with the latter. It follows
that the court had the power to declare his detention unlawful,
regardless of what the domestic law provided in that respect.
Accordingly, the applicant could claim compensation at the domestic
level, which he did not do.
- In
view of the findings above, the Court considers that the applicant
did not exhaust available domestic remedies, because he had failed to
initiate a civil court action claiming compensation.
It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
C. The complaints under Article 6 of the convention
- The
applicant complained under Article 6 of the Convention that his
complaint lodged with the court on 17 July 2007 had never been
examined. He also complained, under the same Article, that the court
had taken an excessive length of time to examine his complaint of 17
July 2007. His lawyers’ requests to postpone the hearings had
been caused by the prosecutor’s failure to disclose information
concerning the reasons for their client’s detention.
The
Court considers that these complaints should be examined under
Article 5 § 4 of the Convention, as they relate to
detention pending trial rather than to the main criminal proceedings.
- Having
regard to the domestic courts’ findings that the applicant’s
detention had been unlawful, the Court considers that the other
complaints, essentially made under Article 5 § 4 of the
Convention, do not raise issues separate from those already examined
under Article 5 § 1 above.
It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
D. The complaint under Article 13 of the Convention
taken in conjunction with Articles 5 of the Convention
- The
Court notes that the complaints under various aspects of Article 5
of the Convention have been declared inadmissible. In view of this
finding, the Court considers that the applicant had no arguable claim
under Article 13 of the Convention taken together with Article
5.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall Registrar President
