CEAICOVSCHI v. THE REPUBLIC OF MOLDOVA - 37725/15 (Judgment : Article 5 - Right to liberty and security : Second Section Committee) [2018] ECHR 460 (05 June 2018)

In the case of Ceaicovschi v. the Republic of Moldova,

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

Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 15 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 37725/15) 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 Tudor Ceaicovschi ("the applicant"), on 3 August 2015.

2. The applicant was represented by Mr V. Gribincea and Mr C. Scutelnic, lawyers practising in Chișinău. The Moldovan Government ("the Government") were represented by their Agent, Mr O. Rotari.

3. The applicant complained that his detention in custody had not been based on relevant and sufficient grounds and that he had not been provided with adequate medical treatment while in detention, in violation of Articles 5 and 3 of the Convention, respectively.

4. On 3 August 2015 the Court decided to give priority to the case under Rule 41 of the Rules of Court.

5. On 12 July 2017 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1966 and lives in Chișinău.

A. Background to the case

7. The applicant is the chief executive officer of a large Moldovan company specialised in the importation of medical equipement.

8. On 8 April 2015 he was arrested by the National Anti-Corruption Center (NAC) in connection with a crimial investigation opened in November 2014. He was charged with bribery in the context of public auctions. Searches were conducted at the applicant's home and at the headquarters of his company and numerous documents, computers and mobile phones were seized by the investigators.

9. More than twenty persons were accused in the same criminal case. Among them were the former Minister of Health and hospital directors. Many of them were apprehended and later released by the NAC or by the courts. As of July 2015, the applicant was the only accused who was kept in custody.

B. The applicant's detention in custody and house arrest

10. After arrest the applicant was placed in the NAC detention facility. Between 8 April and 8 October 2015 the applicant was detained in custody. Between 8 October and 4 November 2015 he was detained under house arrest.

11. The need for the applicant's detention was justified by the prosecutors in the following way: that the applicant could abscond; he could influence witnesses; he could collude with other co-accused persons; and because the offence imputed to him was sanctioned with imprisonment of up to ten years. All of the prosecutors' applications for the prolongation of the applicant's detention were identical.

12. The applicant argued every time that he was ready to give up his passport and that there were no reasons to believe that he would attempt influencing witnesses or hindering the investigation. The reasons relied upon by the prosecutors in favour of detention were stereotyped and there was no evidence that he intended to abscond or do other things imputed to him. He also argued that he had a family, children, a permanent employment and a permanent abode.

13. On 10 April 2015 the Buiucani District Court issued a detention order for a period of thirty days arguing that the applicant did not produce guarantees in favour of an undertaking not to hinder the good unfolding of the investigation if no detention was applied. That decision was later upheld by the Chișinău Court of Appeal, which added that there was also a risk of the applicant's reoffending.

14. On 7 May 2015 the Buiucani District Court prolonged the applicant's detention by twenty-five days relying on the same grounds as before. The applicant's appeal was rejected by the Court of Appeal on 14 May 2015. The Court of Appeal used the same arguments as the first time and added that one of the reaosons to hold the applicant in custody was to protect other persons involved in the proceedings from his violent actions.

15. By decisions dated 1 and 26 June, 21 July 2015 and 15 August 2015 the Buiucani District Court prolonged the applicant's detention for twenty-�five days each time. The court relied on similar reasons as before. The Court of Appeal dismissed the applicant's appeals arguing that the applicant's defence did not prove the fact that the applicant did not intend to abscond or hinder the investigation. In a decision of 11 June 2015 the Court of Appeal held for the first time that there was a risk of the applicant's absconding.

16. On 15 and 29 September 2015 the Buiucani District Court prolonged again the applicant's detention by twenty and eight days, respectively. It argued that the risk of absconding was justified by the gravity of the offence and that the prosecutor had presented evidence in support of the claim that the applicant may hinder the investigation. The court did not state what that evidence was. On 6 October 2015 the Buiucani District Court prolonged again the applicant's appeal by ninety days.

17. On 8 October 2015 the Court of Appeal examined the appeals lodged by the applicant against the decisions of 29 September 2015 and 6 October 2015. In its first judgment it dismissed the applicant's appeal after finding that all the risks enumerated by the first-instance court persisted. However, when examining the appeal against the second decision, the same panel of judges considered that the risk of the applicant's absconding was no longer justified and that there were no new reasons to consider necessary the applicant's continued detention. Therefore, the Court of Appeal ordered the applicant's house arrest.

18. On 4 November 2015 the applicant lodged a habeas corpus request and asked for the revocation of the house arrest. On the same date the Buiucani District Court accepted the applicant's request and ordered his release from house arrest.

C. Medical assistance provided to the applicant during detention

19. On 9 April 2015, on the second day of his detention, the applicant felt an accute pain in the region of his lower back. At 10.46 p.m. an ambulance was called for the applicant. The doctors diagnosed the applicant with "lumbar radicular syndorme with pronounced algic syndrome" and prescribed him hospitalisation. However, the prison administration refused to follow the doctors' prescription.

20. Several hours later, on 10 April 2015 between 3 and 4 a.m. the applicant started experiencing again pain and asked for an ambulance to be called. An ambulance was called only at 9.27 a.m. The doctors repeated the same diagnosis and prescribed again hospitalisation. However, the prison administration refused to follow the doctors' prescription.

21. At 10.10 a.m. an ambulance was called again for the applicant. This time the doctors diagnosed the applicant with "artherial hypertension of third degree", "discopathie with agravated algic syndrome" and "lumbar radiculopathy" (sensory and/or motor deficit). Hospitalisation was again prescribed, but the prison administration refused to follow the doctors' prescription.

22. At 11.44 a.m. an ambulance was called again for the applicant. The doctors diagnosed again "lumbar radiculopathy" and discopathie with a possible lesion of the nerve. The doctors reiterated the urgent need for hospitalisation, but the administration refused again.

23. At 2 p.m. the administration invited several doctors from the Institute of Neurology and Neurosurgery who confirmed the initial diagnosis and the urgent need for hospitalisation. Only after that, the prison administration allowed the applicant's transfer to a hospital.

24. On 11 April 2015 the applicant was operated on his spine at the Institute of Neurology and Neurosurgery. He remained in hospital until 21 April 2015, when he was moved to a prison hospital.

25. On 22 June 2015 the applicant was examined by a commission of five doctors who diagnosed him with cholecystitis and fequent biliary colic. They recommended him surgical removal of his gall bladder within maximum seven days.

26. After that date the applicant and his lawyers submitted numerous requests and complaints to different authorities seeking the approval of his surgery. It was only on 3 August 2015, after the applicant's condition drastically deteriorated, that his transportation to a normal hospital was approved. He had high fever and presented a swelling. After three days of preparations, he was subjected to surgery on 6 August 2015 and remained in intensive care for another week.

II. RELEVANT DOMESTIC LAW

27. The relevant domestic law was summarised in Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 42-44, ECHR 2016 (extracts).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

28. The applicant complained under Article 5 § 3 of the Convention that the domestic courts had given insufficient reasons for their decisions to remand him in custody. Article 5 § 3 of the Convention, reads as follows:

"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

A. Admissibility

29. 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

30. The applicant contended that there were no arguments in favour of his deprivation of liberty and that neither the detention in custody nor the house arrest had been based on relevant and sufficient reasons. He pointed to contradictions in the domestic courts' judgments, which sometimes held that there had been a risk of his absconding and sometimes held otherwise without there being any change in the factual circumstances of the case.

31. The applicant also pointed to the fact that the criminal investigation had started some five months before his arrest and that during that time the investigators seized everything which could be of interest to them from his office and his house. Therefore, he could not tamper with any evidence as indicated by the courts.

32. The Government submitted that the applicant's detention was necessary in order to exclude the risk of the applicant's tampering with evidence and influencing witnesses. It was also justified by the fact that the charges against the applicant were very serious and by the complexity of the case.

33. The Court reiterates that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The requirement for the judicial officer to give relevant and sufficient reasons for the detention - in addition to the persistence of reasonable suspicion - applies already at the time of the first decision ordering detention on remand, that is to say "promptly" after the arrest (see Buzadji, cited above, §§ 87 and 102). Furthermore, when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see, for example, Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012).

34. Justifications which have been deemed "relevant" and "sufficient" reasons in the Court's case-law have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see, for instance, Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9; Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7; Letellier v. France, 26 June 1991, § 51, Series A no. 207; Toth v. Austria, 12 December 1991, § 70, Series A no. 224; Tomasi v. France, 27 August 1992, § 95, Series A no. 241-�A; and I.A. v. France, 23 September 1998, § 108, Reports of Judgments and Decisions 1998-�VII).

35. The presumption is always in favour of release. The national judicial authorities must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5, and must set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see, among other authorities, Buzadji, cited above, §§ 89 and 91). Arguments for and against release must not be "general and abstract" (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-�IX (extracts)). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).

36. According to the Court's case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of Article 5 of the Convention (see Buzadji, cited above, § 104).

37. Turning to the circumstances of the present case, the Court observes in the first place that the criminal investigation had started some five months before the applicant's arrest, during which time different investigative measures had been carried out. It does not appear from the materials of the case-file that during that period of time the applicant had made attempts to abscond, tamper with evidence and/or influence witnesses. Nevertheless, there is no indication in the judgments ordering the applicant's remand that the courts took into account such an important factor as the applicant's behaviour, between the beginning of the investigation and the moment when first ordering his remand in custody.

38. In view of the applicant's behaviour during the first five months of the criminal investigation, it was particularly important for the domestic courts to provide a good justification in favour of the applicant's detention for almost seven months. Nevertheless, the reasons relied upon by them appear to have been general, abstract and unsubstantiated. The courts merely cited different reasons for detention without explaining how they applied to the applicant's case. Nor were the courts consistent in their findings. For instance, they did not consider the risk of absconding as being a relevant and sufficient reason for the applicant's detention when ordering/prolonging his detention for the first three times. It was only on 11 June 2015 that the Court of Appeal mentioned that risk for the first time, without explaining what has caused it to believe so in the absence of any relevant new factual developments.

39. Likewise, when dismissing the applicant's appeal against the decision of the Buiucani District Court of 7 May 2015, the Court of Appeal argued that the applicant's detention was necessary in order to protect other persons involved in the proceedings from his violent actions. However, it does not appear from the materials of the case, and it was never argued by the prosecutors, that the applicant was a violent person and presented risks of violent behaviour.

40. Finally, when examining on 8 October 2015 two different appeals against two different decisions extending the applicant's detention, the Court of Appeal came to totally different conclusions concerning the existence of risks, without giving any explanation for such an outcome and in the absence of any factual justification for that.

41. In the light of all of the above factors, the Court considers that the domestic courts failed to show that there were relevant and sufficient reasons to order and prolong the applicant's detention pending trial and house arrest for a period of almost seven months. It follows that in the present case there has been a violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

42. The applicant complained that the authorities failed to provide him with appropriate medical care in due time. 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

43. 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

44. The applicant submitted that it took the prison administration fourteen hours and five recommendations by the doctors to accept transferring him to a hospital on 10 April 2015. During that time he was in terrible suffering. A similar situation occurred on 22 June 2015 when a commission of five independent doctors prescribed him surgery on his gall bladder within five days. Without giving any justification, the authorities allowed the surgery to take place only approximately forty days later. As in the case of his first surgery, the delay in transferring the applicant to a hospital in order to have surgery on his gall bladder caused him intense pain and suffering.

45. The Government submitted that the applicant received all the medical care he needed and was prescribed by doctors and argued that there has been no violation of Article 3 of the Convention.

46. The Court recalls that although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005).

47. The Court has to determine whether the applicant needed medical assistance, whether he had been deprived of it as he claims and, if so, whether this amounted to treatment contrary to Article 3 of the Convention (cf. Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004).

48. The medical documents available in the case-file show that the applicant had a serious problem with his spine between 9 and 10 April 2015 and that he experienced serious pain. An ambulance was called for the applicant four times between 10.46 p.m. and 11.44 a.m. and each time the doctors found that the applicant's state deteriorated and recommended his urgent hospitalisation. Towards the end of the above period the applicant started experiencing sensory and/or motor deficit and the doctors admitted that he might have suffered an injury to his nerve. In spite of all that, it was only after 2 p.m. that the prison administration allowed the applicant's hospitalisation. The next day the applicant underwent surgery on his spine, a fact which proves the seriousness of his health problem.

49. The Government did not present any plausible justification for the delay in transferring the applicant to a hospital after the first prescription for hospitalisation had been issued by the doctors in the evening of 9 April 2015. In the Court's view, the refusal of the prison administration to follow the doctors' prescriptions for such a long time subjected the applicant to severe pain and suffering, a treatment which amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

50. The Court further notes that, on 22 June 2015, a commission of doctors prescribed the applicant surgical removal of his gall bladder within one week. In spite of that recommendation and despite the applicant's numerous requests, he was allowed to undergo surgery only some forty days later when he presented a swelling and had high fever. As in the first case, no plausible justification was presented by the Government for such a delay. In the Court's view, the treatment in question caused the applicant pain and anxiety which amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

51. There has accordingly been a violation of Article 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52. 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

53. The applicant claimed 15,000 euros (EUR) in respect of non-�pecuniary damage.

54. The Government argued that the amount was excessive and asked the Court to dismiss it.

55. The Court considers that the applicant must have suffered stress and frustration as a result of the violations found. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

56. The applicant also claimed EUR 8,080 for the costs and expenses incurred before the Court. The applicant submitted evidence that approximately two thirds of the amount had already been paid by him to his representative.

57. The Government argued that the amount was excessive and asked the Court to dismiss it.

58. According to the Court's settled 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 (see, as a recent authority, Buzadji, cited above, § 130).

59. In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award the applicant EUR 4,000 for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. Holds that there has been a violation of Article 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand 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;

5. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident

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