DRACI v. THE REPUBLIC OF MOLDOVA AND RUSSIA - 5349/02 (Judgment : No violation of Prohibition of torture (Degrading treatment Inhuman treatment Positive obligations) (...) [2017] ECHR 897 (17 October 2017)

In the case of Draci v. the Republic of Moldova and Russia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Robert Spano, President,
          Julia Laffranque,
          Ledi Bianku,
          Işıl Karakaş,
          Paul Lemmens,
          Valeriu Griţco,
          Dmitry Dedov, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 26 September 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 5349/02) against the Republic of Moldova and the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Alexandru Draci (“the applicant”), on 24 September 2001.

2. The applicant was represented by Mr V. Țurcan and Mr V. Nagacevschi, lawyers practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Government at the European Court of Human Rights at the relevant time.

3. The applicant alleged, in particular, that he had been held in inhuman conditions, without adequate medical treatment, and that his detention and conviction had been unlawful as they had been ordered by unlawfully created authorities of the “Moldavian Republic of Transdniestria”.

4. Having been invited to intervene in the proceedings, pursuant to Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court, the Ukrainian Government did not submit any observations concerning the present case.

5. On 11 July 2014 the complaints mentioned in paragraph 3 were communicated to the respondent Governments and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1956 and lives in Toronto, Canada.

7. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant’s arrest and conviction

8. The applicant was the director of a company (D.) registered in Ukraine. In 1996, in the name of D., he concluded a contract with a collective farm (N.), situated in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT” - for further details about the “MRT”, see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-VII, and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)). Under the contract, N. undertook to send D. 15 tonnes of paprika and 5 tonnes of butter, while D. undertook to send N. 275 tonnes of diesel fuel as payment.

9. Subsequently, N. sent the paprika, but according to the applicant some of it was of poor quality and D. suffered financial losses as a result. Consequently, D. refused to send the diesel fuel.

10. On 22 December 1996 the applicant was summoned to the Department for the Fight against Organised Crime in Crivoi Rog, Ukraine, and asked to give an explanation for his refusal to send the diesel fuel. On 24 January 1997 he was summoned again. After the second interview he was taken, allegedly against his will and without his passport, to the “MRT”.

11. The applicant was accused of fraud by the “MRT” authorities. On 30 December 1999 he was convicted and sentenced to ten years’ imprisonment by the Ribnita People’s Court, which was under the jurisdiction of the “MRT”. He did not appeal against that judgment, which then became final.

12. On 2 March 2002 the applicant was released from prison on the basis of an amnesty act.

2. Conditions of detention

13. While in detention pending trial and after his conviction, the applicant was initially held in solitary confinement for more than two years. The cell was a concrete box with no windows or ventilation, and no natural light, toilet or tap water.

14. According to the applicant, after his transfer to an ordinary cell and until his release, he was detained in cells with persons who were ill with tuberculosis. During his detention several detainees died from tuberculosis. He was given food once a day - some 250 grams of soup (containing no protein or vitamins), 100 grams of porridge of the same quality, and 250 grams of bread. As a result of the lack of food the applicant developed constant hunger pains, which he viewed as tantamount to torture. The cell was infested with blood-sucking parasites. Their bites caused him discomfort and itching, which in turn created wounds that bled after being scratched. As a result, he caught the skin disease streptodermia. The lack of medical treatment left him suffering and he was only able to cure himself by taking medication borrowed from another detainee. The lack of medication caused him to constantly fear that he might fall ill with no possibility of being treated.

3. Complaints to the Moldovan, Russian and Ukrainian authorities

15. On an unknown date in 1997 the applicant’s lawyer complained to the Moldovan Prosecutor General’s Office of the unlawful detention of his client ordered by the “MRT” authorities. In a letter dated 21 January 1998 the Office replied that the complaint had been accepted and that an action had been brought in the Supreme Court of Justice for the annulment of any “MRT” court sentence that might be imposed in respect of the applicant.

16. On 14 November 2000, in reply to a complaint by the applicant’s lawyer, the Moldovan Prosecutor General’s Office informed him that it had initiated a criminal investigation into his client’s abduction. It noted that the investigation was aimed at establishing whether the applicant had indeed been abducted, and if so by whom and precisely from where.

17. On 19 February 2001, the Moldovan Prosecutor General’s Office informed the applicant’s lawyer that on 17 January 2001 a previously adopted decision to discontinue the investigation had been annulled; the documents relevant to the investigation of the complaint of kidnapping from Ukrainian territory had been sent to Ukrainian prosecutors.

18. In reply to a complaint concerning his client lodged on an unknown date with the Russian President, on 25 September 2002 the applicant’s lawyer was informed that the complaint had been forwarded to the Moldovan Supreme Court of Justice.

II. RELEVANT DOMESTIC LAW AND PRACTICE OF THE REPUBLIC OF MOLDOVA AND OTHER RELEVANT MATERIALS

19. Reports (regarding, inter alia, conditions of detention) of inter-governmental and non-governmental organisations, relevant domestic law and practice from the Republic of Moldova concerning conditions of detention, and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 61-77, ECHR 2016).

THE LAW

20. The applicant complained of a breach of Article 3 of the Convention since he had been detained in inhuman conditions and had not been provided with the medical assistance that his condition required. He also complained that his detention by unconstitutional authorities had been unlawful, contrary to Article 5, and that he had not had a fair trial since the “MRT” courts were not independent and impartial, thus amounting to a violation of Article 6 of the Convention.

I. GENERAL ADMISSIBILITY ISSUES

A. Alleged loss of interest

21. The Russian Government argued firstly that it was unclear whether the applicant still wished to continue with the examination of his case, since the last document signed by him in this regard dated from 2004.

22. The Court notes that the applicant’s lawyer appended to his observations of 6 March 2015 a new authorisation form dated 30 January 2015 by which the applicant authorised that lawyer to represent him before the Court; that authorisation included empowering the lawyer to receive any award made. It was signed by the applicant in the presence of a private notary in Kiev. The Court therefore has no doubt that the applicant wishes the Court to continue with the examination of the case.

B. Jurisdiction

23. The Russian Government argued that the applicant did not come within their jurisdiction. Consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”.

24. The Court notes that the parties in the present case have positions concerning the matter of jurisdiction which are similar to those expressed by the parties in Catan and Others (cited above, §§ 83-101) and in Mozer (cited above, §§ 81-95). Namely, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction. The Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others (cited above), Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law.

25. The Court observes that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of acts undertaken and facts arising in the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others (cited above, §§ 103-07) and, more recently, Mozer (cited above, §§ 97-98).

26. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).

27. The Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova had jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).

28. In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilaşcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until at least July 2010, the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others, cited above, §§ 116-20; Catan and Others, cited above, §§ 121-22; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110-11).

29. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, and Mozer (all cited above).

30. It follows that the applicant in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci.

31. The Court will hereafter determine whether there has been any violation of the applicant’s rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).

C. Exhaustion of domestic remedies

1. The objection raised by the Moldovan Government

32. The Moldovan Government submitted that the applicant had not exhausted the domestic remedies available to him under Moldovan law and court practice. In particular, he could have asked the Supreme Court of Justice to annul his conviction by the “MRT” court. He could also have claimed compensation on the basis of Law no. 1545 of 1998 on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts (see Mozer, cited above, §§ 72 and 113).

33. The applicant submitted that at the time that he had been convicted the procedural rules then in force had prevented him from requesting the Supreme Court of Justice to quash any final judgment. While the new Code of Criminal Procedure (enacted on 14 March 2003) allowed such requests to be made by any party to a set of proceedings, it had retrospective effect only in respect of sentences imposed up to six months before the new legislation had come into effect, which had not been so in respect of the instant case. He therefore could not have obtained a Moldovan court judgment establishing the unlawfulness of his detention and conviction and thus could not have claimed compensation under Law no. 1545.

34. The Court notes that it has already rejected a similar argument raised by the Moldovan Government in Mozer (cited above, §§ 115-21). Accordingly, this objection must be dismissed in the present case.

2. The objection raised by the Russian Government

35. The Russian Government submitted that the application should be rejected for failure to exhaust domestic remedies before the Russian courts.

36. The applicant argued that the remedies available in the Russian Federation were ineffective. He noted that the Russian Government had not mentioned any specific legal provision allowing their courts to examine cases such as the applicant’s or stipulating the procedure to be followed. Moreover, the applicant’s complaint to the Russian President had simply been forwarded to the Moldovan Supreme Court of Justice (see paragraph 18 above).

37. The Court notes that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. 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. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mozer, cited above, § 116).

38. By contrast, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996-IV). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to use that means of redress (see Akdivar and Others, cited above, § 71; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).

39. As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, and available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see, inter alia, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts); Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015).

40. The Court notes the Russian Government’s submission concerning the failure to exhaust domestic remedies before the Russian courts. It observes that it examined essentially the same objection in Ilaşcu and Others, finding that:

“... the Russian Government mentioned that it was possible for the applicants to bring their complaints to the knowledge of the Russian authorities but did not state what remedies Russian domestic law might have afforded for the applicants’ situation.

It notes also that the Russian Government denied all allegations that the armed forces or other officials of the Russian Federation had taken part in the applicants’ arrest, imprisonment and conviction or had been involved in the conflict between Moldova and the region of Transdniestria. Given such a denial of any involvement of Russian forces in the events complained of, the Court considers that it would be contradictory to expect the applicants to have approached the Russian Federation authorities” (Ilaşcu and Others [GC] (dec.), no. 48787/99, 4 July 2001).

41. In the present case, the Russian Government did not specify which of their courts had jurisdiction over complaints against the actions of the “MRT” authorities. Moreover, no details were given as to the legal basis for examining such complaints and to the manner in which any decision taken would be enforced. In addition, the Russian Government continued to deny any involvement in the Transdniestrian conflict or participation by their agents in the alleged breaches of the applicants’ rights in the present cases. Given those circumstances the Court is not satisfied that the remedies referred to by the Russian Government were available and sufficient.

42. It follows from the above that the Russian Government’s objection must be dismissed.

D. Six-month rule

43. The Russian Government argued that the application had been lodged outside the six-month time-limit established in Article 35 of the Convention. The applicant had been convicted on 30 December 1999, but had lodged the present application only on 24 September 2001.

44. The applicant argued that his complaint referred to a “continuous situation”.

45. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to an applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Mocanu and Others, cited above, § 259).

46. The Court notes that at the time of lodging his application the applicant was detained in a “MRT” prison. He was being held in conditions which he considered incompatible with the requirements of Article 3 of the Convention. Accordingly, this aspect of the complaint concerned a continuous situation affecting the applicant throughout his detention. It follows from the above that the Russian Government’s objection concerning this aspect of the application must be dismissed.

47. The Court considers that the question of whether the applicant missed the six-month time-limit for lodging his complaint under Article 5 of the Convention is closely linked to the merits of that complaint. It therefore joins this objection to the merits of that complaint.

48. As for the complaint under Article 6 of the Convention concerning the applicant’s conviction by an “MRT” court on 30 December 1999, the Court notes that it was lodged more than six months after that date and that the applicant did not refer to any impediment in lodging his application earlier, having been able to lodge the present application while he was still detained in an “MRT” prison (see paragraphs 1 and 12 above). The Court refers to its finding that the applicant had no effective remedies in either the Republic of Moldova or the Russian Federation in respect of breaches of Convention rights by the “MRT” authorities (see paragraphs 32-42 above), and reiterates that it does not consider an appeal to the “MRT” Supreme Court to constitute such a remedy either (see Mozer, cited above, § 150). In the absence of any remedy and with respect to an instantaneous act, such as a court decision, the applicant should have complained about his conviction by the “MRT” court within six months.

49. It follows that this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

50. The applicant complained that he had been detained in inhuman conditions of detention and had not been provided with the medical assistance that his condition required. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

52. The applicant referred to his description of the conditions of his detention (see paragraphs 13 and 14 above).

53. The Moldovan Government submitted that they could not verify the facts of the case in view of their lack of effective control over the “MRT”.

54. The Russian Government made no submissions in respect of this complaint.

2. The Court’s assessment

55. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009; Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 159, ECHR 2016 (extracts)).

56. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see see Kudła, cited above, § 94; Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 116, ECHR 2014 (extracts); and Khlaifia, cited above, § 160(c)).

57. In the present case the Court notes that the respondent Governments did not comment on the applicant’s description of the conditions of his detention. However, it has already reviewed the material conditions in “MRT” prisons in Mozer (cited above, § 181 with further references, notably to visits to the region by the European Committee for the Prevention of Torture and the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and found a violation of Article 3 of the Convention on account of inhuman conditions of detention (ibid, § 182).

58. On the basis of the material before it and in the absence of any material contradicting the applicant’s submissions, the Court finds it established that the conditions of the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3, in particular on account of the insufficient food that he received, the presence of parasitic insects leading to skin disease, and the failure to treat that disease, as well as his undisputed solitary confinement for a lengthy period in a cell without access to daylight or to basic facilities.

3. Responsibility of the respondent States

(a) The Republic of Moldova

59. The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicant’s rights under Article 3 of the Convention (see paragraph 26 above). In Mozer the Court held that Moldova’s positive obligations related both to the measures needed to re-establish its control over the “MRT” territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants’ rights (see Mozer, cited above, § 151).

60. As regards the first aspect of Moldova’s obligation, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991 and 1992 until July 2010, Moldova had taken all the measures in its power (Mozer, cited above, § 152). Since the events complained of in the present case took place before that date, the Court sees no reason to reach a different conclusion (ibidem).

61. Turning to the second aspect of the positive obligations, namely to ensure respect for the applicant’s rights, the Court notes that the Moldovan authorities made efforts to secure the applicant’s rights. In particular, they initiated a criminal investigation into his alleged abduction by the “MRT” authorities and cooperated with the Ukrainian authorites in dealing with the complaints raised by the applicant (see paragraphs 15-17 above). The Court also notes that the applicant did not submit to the Court a copy of the complaint he made in 1997 in order that it might determine exactly what the Moldovan authorities had been asked to do. In such circumstances, and in view of the actions taken by the Moldovan Prosecutor General’s Office within the limits of what could be done in the absence of cooperation on the part of the “MRT” authorities, the Court concludes that the Republic of Moldova did not fail to fulfil its positive obligations in respect of the applicant (see Mozer, cited above, § 154) and finds that there has been no violation of Article 3 of the Convention by the Republic Moldova.

(b) The Russian Federation

62. In so far as the responsibility of the Russian Federation is concerned, the Court has established that Russia exercised effective control over the “MRT” during the period in question (see paragraphs 28-29 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Mozer, cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicant’s rights (ibidem).

63. In conclusion, and having found that the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention (see paragraph 58 above), the Court holds that there has been a violation of that provision by the Russian Federation.

III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

64. The applicant complained of a violation of Articles 5 of the Convention owing to his detention on the basis of a decision taken by an “MRT” prosecutor, who had not had the lawful power to do so. He also complained that he had not been and could not be brought before a “court” since the “MRT” courts had been unlawfully created and could not be considered independent and impartial tribunals.

65. The relevant parts of Article 5 read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

A. Admissibility

66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

67. The applicant argued that he had been deprived of his liberty following decisions taken by an “MRT” prosecutor and an “MRT” court, and that his detention had therefore not been “lawful”.

68. The Moldovan Government submitted that, in view of the Court’s conclusions in Ilașcu (cited above), and other more recent cases, there was cause to consider that the “MRT” courts were not acceptable “courts” within the meaning of Article 5 and could not order any lawful detention.

69. The Russian Government did not make any comment.

70. The Court notes that the applicant was detained on the basis of a decision by an “MRT” prosecutor and was subsequently convicted by an “MRT” court. While in his initial application the applicant referred to his detention based on the “MRT” prosecutor’s decision as the one constituting a breach of Article 5 of the Convention, he also noted that he had not and could not be brought before a “court” even though he had noted in the facts of the case his conviction by an “MRT” court. He thus clearly did not consider the “MRT” courts as lawful tribunals. Moreover, he added in his Article 6 complaint that the “MRT” courts were unconstitutional and had not been created by law. The Court, being the master of characterisation to be given in law to the facts of the case, considers that the part of the complaint under Article 6 concerning the unlawfulness of the “MRT” courts is to be examined under Article 5 § 1 of the Convention. It thus finds that, read together, the complaints under Articles 5 and 6 made in the initial application included the lawfulness of his detention after a decision of an “MRT” prosecutor and after his conviction by an “MRT” court. In his observations, the applicant supported the Moldovan Government’s submissions, the latter dealing expressly with the lawfulness of detention after conviction by “MRT” courts.

71. The Court reiterates that it is well established in its case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law; it also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013; and Mozer, cited above, § 134).

72. The Court reiterates that in Mozer it held that the judicial system of the “MRT” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer, cited above, §§ 148-49). For that reason it held that the “MRT” courts and, by implication, any other “MRT” authority, could not order the applicant’s “lawful” arrest or detention, within the meaning of Article 5 § 1 of the Convention (see Mozer, cited above, § 150).

73. In the absence of any new and pertinent information proving the contrary, the Court considers that the conclusion reached in Mozer is valid in the present case too.

74. The Court further finds that the applicant’s unlawful detention constituted a continuous situation that lasted throughout his detention, including at the moment when he lodged his application. Accordingly, the Russian Government’s objection on the basis of the application of the six-month rule under Article 35 § 1 of the Convention regarding the complaint under Article 5 (see paragraph 43 above) is to be dismissed.

75. The Court concludes that there has been a breach of Article 5 § 1 of the Convention in the present case.

76. For the same reasons as those given in respect of the complaint under Article 3 of the Convention (see paragraphs 59-61 above), the Court finds that there has been no violation of Article 5 § 1 of the Convention by the Republic Moldova.

77. For the same reasons as those given in respect of the complaint under Article 3 of the Convention (see paragraphs 62-63 above), the Court finds that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

78. 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

79. The applicant claimed a total of 250,000 euros (EUR) in respect of non-pecuniary damage, notably in the light of his detention in inhuman conditions and the number of breaches of various Convention provisions.

80. The Moldovan Government considered that the applicant’s claim was excessive.

81. The Russian Government submitted that the sum claimed was excessive and could not be paid by the Russian Federation as it had had nothing to do with the alleged breaches of the applicant’s rights.

82. The Court notes that it has not found any violation of the Convention by the Republic Moldova in the present case. Accordingly, no award of compensation is to be made with regard to this respondent State.

83. Having regard to the violations by the Russian Federation found above, the Court considers that the applicant was caused a certain amount of suffering as a result of having been unlawfully detained in inhuman conditions for more than five years. In view of the material in the file and deciding on an equitable basis, it awards the applicant EUR 22,000 in respect of non-pecuniary damage, to be paid by the Russian Federation.

B. Costs and expenses

84. The applicant also claimed EUR 560 for the costs and expenses incurred before the Court. He submitted a receipt for translation services (EUR 60) and considered that in view of the massive amount of work undertaken (and the large number of observations submitted by) his lawyer, it was obvious that the value of the legal representation greatly exceeded the sum claimed and did not need to be proved.

85. The Moldovan Government made no comment in this regard.

86. The Russian Government submitted that given the failure of the applicant’s lawyer to provide any supporting documents, the claim should be rejected.

87. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the absence from the file of any contract between the applicant and his lawyer and of any other evidence concerning the amount of work and the fees charged, the Court awards only the costs of translation, which have been proved, in the sum of EUR 60, to be paid by the Russian Federation.

C. Default interest

88. The Court considers it appropriate that the default interest rate 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,

1. Joins, unanimously, the Russian Government’s objection concerning observance of the six-month rule with respect to the complaint under Article 5 § 1 of the Convention to the merits of that complaint and rejects it;

2. Declares, unanimously, the complaints under Articles 3 and 5 § 1 admissible in respect of the Republic Moldova;

3. Declares, by a majority, the complaints under Articles 3 and 5 § 1 admissible in respect of the Russian Federation;

4. Declares, unanimously, the remainder of the application inadmissible;

5. Holds, by six votes to one, that there has been no violation of Article 3 of the Convention by the Republic Moldova;

6. Holds, by six votes to one, that there has been a violation of Article 3 of the Convention by the Russian Federation;

7. Holds, by six votes to one, that there has been no violation of Article 5 § 1 of the Convention by the Republic Moldova;

8. Holds, by six votes to one, that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation;

9. Holds, by six votes to one,

(a) that the Russian Federation 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, the following amounts, to be converted into the currency of that State at the rate applicable at the date of settlement:

(i) EUR 22,000 (twenty-two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 60 (sixty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

10. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Robert Spano
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

R.S.
S.H.N.

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You are here: BAILII >> Databases >> European Court of Human Rights >> DRACI v. THE REPUBLIC OF MOLDOVA AND RUSSIA - 5349/02 (Judgment : No violation of Prohibition of torture (Degrading treatment Inhuman treatment Positive obligations) (...) [2017] ECHR 897 (17 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/897.html Cite as: [2017] ECHR 897, CE:ECHR:2017:1017JUD000534902, ECLI:CE:ECHR:2017:1017JUD000534902