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STEPULEAC v. MOLDOVA - 8207/06 [2007] ECHR 897 (6 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/897.html
Cite as:
[2007] ECHR 897
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FOURTH
SECTION
CASE OF
STEPULEAC v. MOLDOVA
(Application
no. 8207/06)
JUDGMENT
STRASBOURG
6
November 2007
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 Stepuleac v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8207/06) 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 Gheorghe Stepuleac
(“the applicant”), on 1 March 2006.
The
applicant was represented by Mr A. Tănase,
a lawyer practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent at the
time, Mr V. Pârlog.
The
applicant alleged, in particular, that he had been held in inhuman
and degrading conditions and deprived of medical assistance, that he
had been unlawfully detained and that the courts had not given
relevant and sufficient reasons for his detention, and that he had
had no access to the relevant parts of his criminal file in order
effectively to challenge his detention pending trial.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 23 May 2006 a Chamber
of that Section decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application
at the same time as its admissibility. Under
Rule 41 of the Rules of the Court, the Chamber decided to give
priority to the examination of the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1964 and lives in Chişinău.
He is the director of Tantal SRL, a company offering security
services.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The applicant's first arrest
On 12 July 2005 the applicant's company was informed by
a client (a petrol supply company) of damage caused to the latter by
one of the applicant's employees' having stolen fuel and damaged a
fuel pump. On 20 July 2005 the applicant responded by revealing
the results of an internal inquiry, which had established that one of
the applicant's employees responsible for guarding the relevant
petrol stations, G.N., had confessed to the above actions, but had
refused to pay for the damage. The applicant proposed to send the
relevant information to the local police and the client.
On
25 November 2005 G.N. made a complaint to the General Directorate for
Fighting Organised Crime (“GDFOC”), a subdivision of the
Ministry of Internal Affairs, about threats to him and his family by
“persons at the office of the Tantal company” who, from 5
July 2005, had threatened him with violence in order to obtain money
from him. When he refused, he was coerced into signing a receipt
which showed that he had borrowed money from T.G., another employee
of the applicant's company. Finally, G.N. complained that he had been
illegally detained between 7 and 11 July 2005 at one of the detention
centres. The complaint was registered by GDFOC officer O.
On 26 November 2005 officer M. from the prosecutor
general's Office ordered the opening of a criminal investigation into
the allegations made by G.N. and the creation, for that purpose, of a
team of twenty investigators from two departments of the Ministry of
Internal Affairs. The order described the applicant and T.G. as the
alleged perpetrators.
On
29 November 2005 the applicant was arrested. The reason given for the
arrest was “the victim directly identified the suspect as the
perpetrator of the crime; there is reason to believe that the suspect
may exert pressure on the victim and witnesses”. From that date
until 9 March 2006 the applicant was detained in the GDFOC remand
centre, except for a few days when he was on bail (see paragraph 11
below).
The prosecutor asked a court to remand the applicant
in custody, accusing the applicant of unlawfully detaining and
blackmailing G.N. in order to obtain 1,000 United States dollars
(USD) from him. On 2 December 2005 the Buiucani District Court
rejected that request. The court found that the prosecutor had not
provided sufficient evidence to prove the existence of grounds for
detaining the applicant. It further found that G.N.'s detention in
July 2005 had been sanctioned by the deputy prosecutor of Chişinău
and could not therefore be considered unlawful detention; that no
evidence had been adduced to substantiate the danger of the
applicant's exerting pressure on the victim or witnesses; and that
the applicant had a permanent residence, a job, and supported a
child. Nonetheless, the court ordered the applicant's house arrest
for ten days.
On
7 December 2005 the Chişinău Court of Appeal quashed that
decision, finding that the court had incorrectly applied the law,
which did not allow any preventive measure other than remand in
custody of persons accused of especially serious crimes. However, the
court accepted the applicant's request for release on bail, which was
set at 50,000 Moldovan lei (MDL) (3,300 euros (EUR) at the time). He
paid that amount and was released.
In the meantime, on 6 December 2005, the applicant's
company's licence was revoked at the request of one of the
subdivisions of the Ministry of Internal Affairs. The reasons given
were the company's failure to observe the rules on the wearing of
uniforms of certain colours, and the participation of the applicant
in criminal activities.
2. The applicant's second arrest
On
12 December 2005 the applicant mentioned to the media that his
prosecution and arrest had been the result of efforts by the Ministry
of Internal Affairs to monopolise the security services market by
destroying competitors, including his company.
On 15 December 2005 officer M. ordered the opening of
another criminal investigation against the applicant and two others
and the creation of a working group consisting of 24 investigators
from two departments of the Ministry of Internal Affairs. The reason
given was a complaint by H.A and another person about having been
blackmailed by the applicant and three other persons between December
2004 and September 2005. The complaint was registered by GDFOC
officer O. On the same day, the applicant was arrested, the reasons
given in the minutes of arrest being that the victim expressly
identified the applicant as the author of the crime.
On
18 December 2005 the prosecutor requested a court to remand the
applicant in custody. On the same day the Centru District Court
accepted that request and ordered the applicant's detention for ten
days. The reasons given by the court were that:
“the crime of which [the applicant] is accused is
a serious one for which the law provides a penalty of more than two
years; during the initial stage of proceedings the accused could
obstruct the investigation, could put pressure on witnesses and the
victim and could destroy evidence”.
The
applicant appealed, claiming his innocence and the insufficiency of
reasons for choosing the preventive measure of detention. On
22 December 2005 the Chişinău Court of Appeal upheld
the lower court's decision, giving similar reasons.
At
the prosecutor's request, on 23 December 2005 the Buiucani District
Court ordered the extension of the applicant's detention by
twenty-five days. The court cited the relevant provision of domestic
law and found that:
“[the applicant] is accused of a particularly
serious crime, evidence submitted to the court was obtained lawfully,
the accused could put pressure on witnesses and the victim, there is
a need to verify the submissions of a co-accused and there is a
danger of the fabrication of evidence and collusion between the
accused. Also, the [applicant] has not made any declarations to the
investigating authorities relying on his right to remain silent,
which allows him to fabricate defence evidence should he not be
detained”.
On 30
December 2005 the Chişinău Court of Appeal upheld that
decision, giving essentially the same reasons as before.
On
6 January 2006 the applicant made a habeas corpus application,
claiming that no evidence had been submitted to the courts in support
of the alleged risk if he were to be released. He also drew the
court's attention to the large number of investigators assigned to
his case, which should have allowed them to take all necessary
investigative action. Accordingly, his continued detention was not
justified by the needs of the investigation.
On
11 January 2006 the Buiucani District Court rejected that request,
finding that:
“the grounds on which the detention was ordered
remain valid. The court also considers that ... the investigation of
[the applicant's] case by a group of officers is not a ground
provided by law for changing the preventive measure”.
On 18
January 2006 the Chişinău Court of Appeal upheld that
decision, giving essentially the same reasons as before.
On
the same day the Buiucani District Court extended the applicant's
detention by a further 15 days. On 25 January 2006 the Chişinău
Court of Appeal upheld that decision. Both courts gave essentially
the same reasons as before.
Also
on 25 January 2006 the applicant's wife asked permission to give the
applicant food and newspapers on a daily basis. By a letter of
30 January 2006 from the detention centre's management she was
informed that, according to a regulation of the Ministry of Internal
Affairs, the applicant, with the approval of the investigating
officer, was allowed one parcel per week.
On 1 February 2006 the Buiucani District Court ordered
the extension of the applicant's detention by twenty days, giving
essentially the same reasons as before. In his appeal the applicant
relied, inter alia, on the Convention and the Court's judgment
in Sarban v. Moldova (no. 3456/05, 4 October
2005), submitting a copy of the judgment. On 6 February 2006 the
Chişinău Court of Appeal upheld that decision, giving
essentially the same reasons as before.
On 17 February 2006 the Buiucani District Court
extended the applicant's detention by another ten days. In his appeal
the applicant relied on Article 5 of the Convention. On 22 February
2006 the Chişinău Court of Appeal upheld that decision.
Both courts gave the same reasons as before for continuing to detain
the applicant.
The
first preliminary hearing of the trial court was scheduled for
27 March 2006, but it was postponed owing to the absence of the
prosecutor, who had not informed the court of his non-attendance or
the reasons for it. At the same hearing, the applicant made a habeas
corpus application, claiming that there was no continuing need to
detain him and that the conditions of his detention in the Ministry
of Justice detention centre were inhuman and degrading. The court
refused to examine the application because of the absence of the
prosecutor from the hearing. On 3 April 2006 the Buiucani
District Court rejected the habeas corpus request lodged by the
applicant.
In a further habeas corpus request of 22 May
2006 the applicant's lawyer relied, inter alia, on statements
made in court on 14 and 16 April 2006 by H.A. and another person,
whose complaints had earlier served as the basis for the initiation
of the second criminal investigation against the applicant (see
paragraph 15 above). The lawyer reminded the court that one of the
two alleged victims had declared before it that the signature on the
complaint was not his and that he had no claims against the
applicant. H.A., declared that he had claims against two other
persons but that he had also included the applicant's name at the
suggestion of the GDFOC officer O. He stated that there had been no
threats against him and that none of the accused had committed any
acts of violence against him. The Government did not dispute that
summary of the statements made in court by these two persons.
On 23 May 2006 the Buiucani District Court granted the
applicant's habeas corpus request and ordered his release against an
undertaking not to leave the city. The court gave the following
reasons for its decision:
“... Both accused have no criminal record, have
permanent residence and assure the court that they will not abscond
from the law enforcement authorities or the court.
The court also considers that the sole argument of the
gravity of the crime alleged to have been committed cannot serve as a
ground for detention, in the absence of any specific evidence
regarding the person's danger to society, the danger of pressuring
witnesses who have already given their statements before the court,
where none of the grounds provided for in Article 176 (1) of the Code
of Criminal Procedure has been proved, namely that the accused might
abscond, obstruct the investigation or re-offend...”
3. Conditions of detention in the GDFOC detention
centre
On 6 and 7 February 2006 the applicant's lawyer
complained to the Prosecutor General's Office about the conditions of
detention in the GDFOC detention centre. In particular, he
complained, relying on Article 3 of the Convention, of the
insufficiency and poor quality of food and that he could not receive
food from his wife on a daily basis. He also complained that he had
been detained alone in a cell and that unidentified persons had
visited him, in the absence of his lawyer, with the aim of subjecting
him to psychological intimidation to induce him to give up his
business. He asked to be transferred from the GDFOC detention centre,
as GDFOC was the institution investigating his case, to a centre
under the jurisdiction of the Ministry of Justice, in order to obtain
protection from such unlawful pressure.
There
was no response to either of the two complaints.
On
7 February 2006 the applicant claimed that his health had
deteriorated and asked to be transferred to another centre where he
could be given medical assistance, claiming that the GDFOC centre had
no medical staff.
On an unknown date the Head of GDFOC replied that the
detention centre under the jurisdiction of the Ministry of Justice
was overcrowded and that it would be impossible to transfer the
applicant there. Should the applicant need it, he would be given full
medical assistance.
In an appeal against the decision of 17 February 2006
(see paragraph 24 above), the applicant complained, inter
alia, of his conditions of detention: the cell had been situated
underground and he had had no access to daylight; low-intensity
artificial light had never been turned off; there had been very high
humidity; there had been no linen for the wood-covered stone platform
which served as a bed; loud music had been played all day long; the
ceiling had been so low as to prevent him from standing upright in
the cell; access to shower facilities had been limited to one shower
every ten days, which had only become possible following numerous
requests by the applicant's lawyers; there had been no toilet in the
cell and access to the toilet had been limited to once a day. There
had been no opportunity for daily exercise and the ventilation system
had only been switched on when the administration so decided. There
had been no medical staff in the detention centre. The applicant also
expressed the fear that he might have contracted tuberculosis.
On
22 February 2006 the applicant's wife requested the GDFOC authorities
to transfer him to another detention centre. As an alternative, she
requested permission to give him food on a daily basis and requested
that the authorities allow him daily walks and access to daylight,
switch off the artificial light at night, allow him to use the toilet
whenever he needed it (or transfer him to a cell with a toilet),
provide access to shower facilities once a week and permit him to be
seen by an independent doctor and be given necessary medication. It
is unclear whether there was any response to these requests.
In
his submissions to this Court, the applicant stated that only the
Head of GDFOC had had the keys to his cell and that the quality of
food had been very poor. He reiterated his fears that he might have
caught tuberculosis and that it was impossible to verify this without
medical assistance.
On
9 March 2006 the applicant was transferred to the Ministry of Justice
detention centre (Prison no. 13, formerly known as Prison no. 3),
where he was detained until his release on 23 May 2006.
II. RELEVANT NON-CONVENTION MATERIALS
A. Relevant domestic law and practice
The
relevant domestic law and practice was set out in Sarban
(cited above, §§ 51-56), Becciev v. Moldova
(no. 9190/03, § 33, 4 October 2005) and Boicenco
v. Moldova (no. 41088/05, § 64-71,
11 July 2006).
In particular, as regards the exhaustion of domestic
remedies, the Government referred to Article 53 of the Constitution,
Article 1405 of the Civil Code and Law no. 1545 on compensation for
damage caused by illegal acts by the criminal investigation organs,
prosecution and courts, as well as to the case of Drugalev v. the
Ministry of Internal Affairs and the Ministry of Finance,
mentioned in Boicenco, cited above, §§ 68-71).
They also referred to the direct applicability of the Convention
before the domestic courts, which, as established in the Decision of
the Plenary Supreme Court of Justice no. 17 of 19 June 2000, takes
precedence over domestic laws if the latter come into conflict with
the Convention.
In addition, the relevant provisions of the Code of
Criminal Procedure read as follows:
“Article 66
...
(2) The accused ... has the right:
...
(21) to read the materials submitted to the court in
support of [the need for] his arrest;
Article 116
(1) If the need appears for an identity parade in front
of a ... victim ..., the investigating authority shall interview him
or her about the circumstances in which they have seen the person, as
well as about special signs and particularities which could help them
identify the person. Minutes of this procedure shall be filed.
...
(6) Should the presentation of the person for an
identity parade be impossible, the identification shall be made on
the basis of his or her photograph, presented together with the
photographs of at least four other similar-looking persons. All the
photographs shall be annexed to the file.
(7) Minutes of the identity parade shall be filed in
accordance with Articles 260 and 261, with the exception that the
person to be identified shall not be informed, at the time, of the
contents of the minutes and shall not sign them.”
In an information letter submitted by the Government
(annex 8) and apparently written by the GDFOC management it was
mentioned, inter alia, that the applicant had been detained in
a 6 sq. m. cell with tap water, ventilation, bed and bedding, no
windows and a toilet situated outside the cell.
B. Documents adopted by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
The relevant parts of the CPT report concerning the
visit to Moldova between 10 and 22 June 2001 read as follows:
“22. During its 2001 visit, the CPT delegation
heard widespread allegations of physical ill-treatment of persons in
police custody. In a large number of cases, the alleged ill-treatment
was of such a severity that it could be deemed as amounting to
torture. As in 1998, these allegations concerned operational police
departments right across the country. ... The allegations mainly
concerned periods of questioning aimed at securing confessions. ...
26. In contrast, the delegation only heard a few
allegations of ill-treatment by surveillance staff in the EDPs
visited. These mainly concerned the EDP of the Chişinău
Police Inspectorate and of the Department for the fight against
organised crime and corruption, also in the capital (truncheon blows
in response to prisoner requests or as disciplinary measures,
handcuffing prisoners to the bars of a grilled door for several
hours).
30. It must again be pointed out how important it is for
the competent authorities (judges, prosecutors) to examine carefully
all the complaints of ill-treatment referred to them and, where
relevant, impose appropriate penalties. This will act as a very
strong disincentive for those who might otherwise be minded to engage
in ill-treatment. In this context, the CPT has to stress that its
delegation still received allegations from detained persons that
complaints to the relevant prosecutor or judge occasioned hardly any
reaction, or even a negative one. It was clear from certain meetings
with the competent bodies that, in many cases, the attitude and
professional conscience of such instances often left something to be
desired. The CPT recommends that judges and prosecutors be made
aware of the importance of actively pursuing their key role in
preventing ill-treatment.
54. Unfortunately, during the 2001 visit, the delegation
found barely any traces of such palliative measures, in fact quite
the opposite. For example, the renovation and reconstruction of the
cells of the EDP of the Department for the fight against organised
crime and corruption in Chişinău (reopened in 2000), which
were supposed to reflect the CPT's 1998 recommendations, turned out
to have had quite the contrary effect. All the conceptual and
organisational shortcomings highlighted by the CPT at the time had
been faithfully reproduced: cells without access to natural light,
artificial lighting of low intensity and permanently switched on,
inadequate ventilation and furnishings consisting exclusively of
platforms without mattresses (although certain prisoners did have
their own blankets). A similar conclusion can be drawn about the new
section of the Bălţi EDP set aside for administrative
detainees.
55. One can only regret that in their efforts to
renovate these premises - which under the current economic
circumstances deserve praise - the Moldovan authorities have paid no
attention to the CPT recommendations. In fact, this state of affairs
strongly suggests that, setting aside economic considerations, the
issue of material conditions of detention in police establishments
remains influenced by an outdated concept of deprivation of liberty.
57. The delegation also received numerous complaints
about the quantity of food in the EDPs visited. This normally
comprised tea without sugar and a slice of bread in the morning,
cereal porridge at lunch time and hot water in the evening. In some
establishments, food was served just once a day and was confined to a
piece of bread and soup.
58. ... Concerning the issue of access to toilets in due
time, the CPT wishes to stress that it considers that the practice
according to which detainees comply with the needs of nature by using
receptacles in the presence of one or several other persons, in a
confined space such as the EDP cells which also serve as their living
space, is in itself degrading, not only for the individual concerned
but also for those forced to witness what is happening. Consequently,
the CPT recommends that clear instructions be given to
surveillance staff that detainees placed in cells without toilets
should – if they so request – be taken out of their cell
without delay during the day in order to go to the toilet.
62. ... Access to health care during detention was
equally poor. ... For smaller EDPs, regular visits by at least a
feldsher should be ensured.
63. To summarise, it is clear that the EDPs run by the
Ministry of Internal Affairs will never be able to offer suitable
detention conditions for persons remanded in custody for prolonged
periods, even several months.
The CPT very much regrets
that the plans of the Moldovan authorities, already announced in
1998, to transfer the entire responsibility for remand prisoners from
the Ministry of Internal Affairs to the Ministry of Justice have not
been implemented.
The CPT recommends that the Moldovan authorities
intensify their efforts to implement, as rapidly as possible, their
plans to transfer total responsibility for remand prisoners to the
Ministry of Justice.”
THE LAW
The
applicant complained of a violation of his rights guaranteed by
Article 3 of the Convention. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
applicant also complained that his detention had not been based on a
reasonable suspicion that he had committed a crime, contrary to
Article 5 § 1 of the Convention, the relevant part of which
provides:
“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:
...
(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;”
The
applicant further complained that his detention pending trial had not
been based on “relevant and sufficient” reasons. The
relevant part of Article 5 § 3 reads:
“3. Everyone arrested or detained in accordance
with the provisions of paragraph 1 (c) of this Article
shall be ... entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for
trial.”
The
applicant finally complained under Article 5 § 4 of the
Convention that neither he nor his lawyer had had access to the
relevant parts of the investigation file concerning the reasons for
his detention. Article 5 § 4 reads as follows:
“4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
I. ADMISSIBILITY
The
applicant complained that the failure to give him medical assistance
in the GDFOC detention centre and the conditions of his detention
there and subsequently in Prison no. 13 amounted to inhuman and
degrading treatment contrary to Article 3 of the Convention (see
paragraphs 26-28 above).
The
Government argued that the applicant had not exhausted available
domestic remedies in respect of the complaints under Article 3 of the
Convention. They relied on the Drugalev case (see paragraph 36
above).
In
so far as the remedy of a civil action to request an immediate end to
the alleged violation is concerned (the Drugalev case), the
Court has already found that it did not constitute sufficient
evidence that such a remedy was effective at the relevant time (see
Holomiov v. Moldova, no. 30649/05, § 106,
7 November 2006). Not having been informed of any development
since the Drugalev decision, the Court does not see any reason
for departing from that finding in the present case. It follows that
this complaint cannot be rejected for failure to exhaust available
domestic remedies. The Court takes note of the direct applicability
of the Convention in the Moldovan legal system and its precedence
over domestic laws. However, it recalls that the applicant relied on
the provisions of the Convention in his complaints to the various
authorities and courts and that his complaints were rejected as
unfounded or left without examination (see paragraphs 23, 24, 28 and
31 above).
The
Court considers, in the light of the information in its possession,
that the applicant's complaint regarding the inhuman conditions of
detention at the Prison no. 13 has not been substantiated. In his
initial application the applicant did not give any description of the
conditions in that detention centre which he considered contrary to
Article 3 of the Convention. In his subsequent observations, the
applicant provided details, which focused on overcrowding and
insufficient medical assistance. This latter aspect will be taken
into account by the Court when examining the level of medical
assistance given to the applicant during the whole of his detention.
However, the Court considers unsubstantiated the remainder of the
complaint regarding the conditions of detention in Prison no. 13.
The
Court further considers that the applicant's complaints under
Articles 3 (except the complaint regarding the conditions of
detention in Prison no. 13) and 5 §§ 1, 3 and 4 of the
Convention raise questions of fact and law which are sufficiently
serious that their determination should depend on an examination of
the merits. It therefore declares these complaints admissible. In
accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
1. Arguments of the parties
The Government submitted that the applicant's
allegations concerning the inhuman conditions of detention at the
GDFOC detention centre had been abusive and untrue. The applicant had
been detained in four different cells, each measuring six square
metres and having access to daylight and electricity, with
permanently working ventilation and with wooden beds. The food had
been appropriate to his needs and he had received on a number of
occasions parcels of food from his wife and lawyer. The applicant had
two hours of exercise daily, when he chose to take advantage of it,
and had been able to take a hot bath every ten days. As for the
applicant's solitary confinement, it had been necessary in view of
the fact that he used to be a policeman and risked ill-treatment from
other detainees. There had been no other persons with links to law
enforcement at the GDFOC during the applicant's detention who could
have been placed with him in the cell. While the applicant's lawyers
had complained about alleged visits by unidentified persons to his
cell in order to put pressure on him, he had never complained to a
court following the lack of response from the Prosecutor General's
Office, which suggested that he had not wanted to pursue the matter.
On the basis of his failure to give any additional detail and his
refusal to make any statements during the investigation, the
authorities had concluded there was no need to investigate the
complaint.
Moreover, the applicant had complained five times
about his state of health and each time an ambulance had been called
to treat him. At no time had the doctors found any signs of
tuberculosis. He had been assured, in response to his request for a
transfer to another detention centre, with medical staff, that he
would be offered medical treatment when he needed it. As for the
applicant's bronchitis, the Government doubted that the family doctor
could be sure of her findings in the absence of more in-depth
investigations and specialised medical advice.
The Government also submitted photographs taken in the
GDFOC centre to confirm their statements, as well as documents
confirming the provision of food to the centre. It appears from the
latter documents that the detainees received one meal per day and in
addition some tea and bread.
The
applicant contested the Government's submissions, stating that the
cell's area was four square metres, as was evident also from the
pictures submitted by the Government. The applicant had had to bring
his own bed linen and his wife was allowed to send him food only once
a week, as proved by a letter from the GDFOC head dated 30 January
2006. In the absence of any cold storage, the applicant had not been
able to keep such foods as meat, fish or soup. The Government's
documents supported the applicant's claim that there was no toilet in
the cell but only in a separate facility, which he was allowed to
visit once a day. Neither was there any running water in the cell and
he was allowed to use lavatories during 10 minutes in the morning.
There was no heating in the cell and he had to sleep in his clothes.
The applicant also submitted that during his solitary detention for
alleged security reasons four other former law enforcement officers
and a lawyer had been detained there, thus denying the Government's
submission that no other persons could have been placed in the
applicant's cell.
The applicant submitted that he had asked about ten
times for an ambulance to be called and noted that the Government had
provided only two records of ambulance visits to him, on 6 and 7
February 2006, while having confirmed five relevant requests by the
applicant. In the ambulance visit records provided by the Government
the doctors noted that the applicant had been suffering from nausea,
vertigo, anxiety and insomnia. The applicant emphasised that these
ambulance visits and complaints had coincided with the period when he
had complained through his lawyer about visits to his cell by
unidentified persons to intimidate him (see paragraph 28 above).
Moreover, on 19 February 2006 the applicant's family doctor had
diagnosed him with obstructive chronic bronchitis, which had been
confirmed by the same doctor in the presence of the doctor from
Prison no. 13 on 18 April 2006. The applicant finally relied on
the reports of the CPT, which confirmed his description of the
conditions of detention.
2. The Court's assessment
The
Court refers to the principles established in its case-law on Article
3 of the Convention regarding, in particular, conditions of detention
and medical assistance to detainees (see, amongst others, Kudła
v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI,
Ostrovar v. Moldova, no. 35207/03, §§ 76-79,
13 September 2005, and Sarban, cited above, §§ 75-77).
a. Conditions of detention at the GDFOC
detention centre
The
Court notes that the applicant was given one full meal per day at the
GDFOC (see paragraph 51 above). It also notes that the applicant's
wife was given the right to send him food once a week. In this
regard, the Court observes that the permissions given to the
applicant's wife to send him food, submitted by the Government,
confirm that he generally received food from her once a week. The
Court can but note the clear insufficiency of food given to the
applicant, which in itself raises an issue under Article 3 of the
Convention (see Kadiķis v. Latvia (no. 2),
no. 62393/00, § 55, 4 May 2006).
The
parties submitted contradicting views regarding access to daylight in
the cells. However, the Court notes that one of the documents
submitted by the Government and issued apparently by the GDFOC
management (annex 8, see paragraph 38 above), expressly mentions that
the cells did not have windows. The Court concludes that the
applicant was detained in a cell without access to daylight.
The
Court further notes that the Government did not contradict the
applicant's claim that he was allowed to visit the toilet and running
water facilities once a day, nor that the cell was not heated and he
had to sleep in his clothes and had to use his own bedding.
The
Court finds that the description of at least some of the above
conditions of detention coincides with that made by the CPT in 2001
(see paragraphs 54-57 and 63). The CPT concluded that EDPs (detention
centres) run by the Ministry of Internal Affairs (including the
GDFOC) “will never be able to offer suitable detention
conditions for persons remanded in custody for prolonged periods,
even several months”. The Court concludes that the applicant
was detained in conditions inconsistent with Article 3 of the
Convention.
b. Medical assistance
The
Court refers to the Government's opinion that it was impossible for a
non-specialist doctor to be certain of the applicant's medical
diagnosis of bronchitis in the absence of results from in-depth
medical tests (see paragraph 50 above). It notes that, despite this
preliminary diagnosis which therefore needed confirmation, the
applicant was not subjected to any such tests, nor examined by a
specialist doctor, at least until the end of his detention at the
GDFOC and for two more weeks thereafter (see paragraph 53 above). The
Government did not deny that humidity in the cells could contribute
to deterioration in the applicant's bronchitis. Moreover, the
applicant was not given daily medical care since, as appears also
from the Government's observations, there were no medical personnel
at the GDFOC detention centre and an ambulance was called in more
serious cases. In this respect, the Court notes the answer given to
the applicant in response to his request for a transfer to a centre
staffed with medical personnel (see paragraph 30 above). He was
promised medical assistance whenever he needed it, despite his
express claim that he already needed such assistance. As a result,
the applicant was in a vicious circle where he could not get
assistance until he “really needed” it, while at the same
time he could not prove such a medical need in the absence of
qualified medical opinion to confirm his fears. It follows that the
applicant did not receive sufficient medical treatment while being
detained in the GDFOC detention centre.
c. Investigation of alleged intimidation
The Court turns to the alleged intimidation of the applicant in his
cell by unidentified persons (see paragraph 28 above). The applicant
complained about that to the Prosecutor General, but received no
reply. In the Government's view, his failure to complain to a court
about that lack of action confirmed the absence of any grounds for
reacting to his initial complaint. Moreover, he refused to give more
details on the matter.
The
Court notes that it was not argued before it that the law or practice
in Moldova required an alleged victim of illegal acts to complain
repeatedly to the prosecution before the latter would react. On the
contrary, as appears from the information in its possession (see
paragraphs 7, 9 and 15 above), the prosecuting authorities twice
opened criminal investigations against the applicant which were based
on complaints they had received, without waiting for confirmation of
their authors' intention to pursue those complaints. At the same
time, the applicant did complain twice (see paragraph 28 above) and
received no response to either of his complaints. The Government did
not submit any evidence of an investigation into the applicant's
complaints or that any attempt had been made to obtain more details
from the applicant, as the authorities were obliged to do (see
Boicenco, cited above, § 123).
The
Court also notes that the Government did not comment on the
applicant's claim that four other former law enforcement officers and
a lawyer were detained at the GDFOC detention centre at the same time
as he was and that, therefore, there was no reason for his solitary
confinement. The applicant's view was that, in such circumstances,
the only purpose of his solitary confinement was to create the
necessary conditions for his intimidation without witnesses. The
Court notes that the applicant did not request solitary confinement
and in fact complained about it, and that there was no court order to
place him in solitary confinement.
The
Court also refers to paragraph 63 of the 2001 CPT report in which the
Committee regretted the delays in transferring the responsibility for
all detention centres from the Ministry of Internal Affairs to the
Ministry of Justice (see paragraph 39 above). The Court notes that in
2006 the situation did not change in this respect and that the
keeping of an accused person in a detention centre under the same
authority as the one prosecuting him created the potential for abuse
(see paragraph 26 of the 2001 CPT report, cited in paragraph 39
above).
While
the Court was not presented with sufficient evidence that the
applicant had indeed been intimidated in his cell, it considers that
the State did not fulfil its positive obligation of properly
investigating allegations of ill-treatment, given all the
above-mentioned circumstances of the case (see, among other
authorities, Labita v. Italy [GC], no. 26772/95, § 131,
ECHR 2000-IV; Poltoratskiy v. Ukraine, no. 38812/97,
§ 126, ECHR 2003 V; Corsacov v. Moldova,
no. 18944/02, § 68, 4 April 2006, and also paragraph
30 of the 2001 CPT report, cited in paragraph 39 above).
d. Conclusion
To
sum up, the Court finds that the applicant's detention for over three
months with insufficient food and no access to daylight for up to
22 hours a day, no access to toilet and tap water whenever
needed, and insufficient medical assistance, amount to a violation of
Article 3 of the Convention. In addition, the failure to investigate
his complaints about intimidation in the prison cell, where he felt
particularly vulnerable since he was detained alone, amounts to a
violation of the procedural obligations under Article 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
1. Argument of the parties
The applicant complained that he had been arrested
without a reasonable suspicion of having committed a crime. Rather,
the law enforcement system was abused in order to intimidate him into
ceding his business to a competitor. The only ground for initiating
the criminal investigation had been G.N.'s complaint, which did not
mention the applicant's name. Nevertheless, in the decision to
initiate the investigation he was mentioned for some unexplained
reason. Moreover, the Buiucani District Court had expressed doubts
regarding G.N.'s unlawful deprivation of liberty. The second arrest
was similarly based only on the alleged complaints by two persons,
both of whom denied in court having been victims of any unlawful acts
committed by the applicant. Accordingly, the facts of the case did
not give any reason to believe that the applicant had committed
either of the two crimes with which he was charged.
The
Government submitted that the applicant's arrest had been in
accordance with domestic law. The information available at the time
of his arrest had been sufficient to substantiate a reasonable belief
of his guilt. As for the absence of the applicant's name from G.N.'s
complaint, the Government recalled that the applicant had been
arrested three days after the complaint was lodged. While at the
beginning G.N. had not been able to identify the perpetrators other
than T.G., he had later recognised the applicant, who had only then
been arrested. In view of information in their possession and the
seriousness of the alleged crimes, it had not been unreasonable for
the authorities to detain the applicant.
2. The Court's assessment
The
Court reiterates that “the 'reasonableness' of the suspicion on
which an arrest must be based forms an essential part of the
safeguard against arbitrary arrest and detention which is laid down
in Article 5 § 1 (c) of the Convention. Having a 'reasonable
suspicion' presupposes the existence of facts or information which
would satisfy an objective observer that the person concerned may
have committed the offence. What may be regarded as 'reasonable' will
however depend upon all the circumstances”. While special
circumstances may affect the extent to which the authorities can
disclose information, even “the exigencies of dealing with
terrorist crime cannot justify stretching the notion of
'reasonableness' to the point where the essence of the safeguard
secured by Article 5 § 1 is impaired” (see Fox, Campbell
and Hartley v. the United Kingdom, judgment of 30 August
1990, Series A no. 182, § 32).
a. The applicant's first arrest
In
the present case, the Court first notes that none of the courts
examining the prosecutor's actions and requests for arrest dealt with
the issue of whether there was a reasonable suspicion that the
applicant had committed a crime, despite the applicant's claim that
he was innocent. While assuming that such an exercise was implied in
the domestic courts' decisions, the Court will have to be
particularly thorough in its own review in the light of the absence
of such an express domestic review.
The
Court notes that the only ground cited by the prosecuting authority
when arresting the applicant and when requesting the court to order
his pre-trial detention was that the victim (G.N.) had directly
identified him as the perpetrator of a crime (see paragraph 9 above).
However, it also notes that the complaint lodged by G.N. did not
directly indicate the applicant's name, nor did it imply that all the
employees of the applicant's company were involved (see paragraph 7
above). Indeed, only T.G. and the applicant were arrested and not all
the employees. The prosecutor's decision of 26 November 2005 to
initiate the criminal investigation included the applicant's name
(see paragraph 9 above). It is unclear why his name was included in
that decision at the very start of the investigation and before
further evidence could be obtained. It is to be noted that the
applicant was never accused of condoning illegal activities on the
premises of his company, which might have explained his arrest as
Tantal's director, but of personal participation in blackmail.
The
Court notes the Government's view that G.N. identified the applicant
some time after lodging his complaint. However, the Government did
not submit any documents confirming such further identification,
despite the fact that such procedures should be properly documented
according to the law (see Article 116 of the Code of Criminal
Procedure, cited in paragraph 37 above). Moreover, the Court doubts
that G.N. did not know the director of the company for which he
worked given, moreover, the events described in paragraph 7 above.
Moreover,
the Court notes that the domestic court, when examining the request
for a detention order (see paragraph 11 above), established that at
least one of the aspects of G.N.'s complaint was abusive. In
particular, his complaint of unlawful detention contradicted the
official detention order issued by the deputy prosecutor of Chişinău.
This should have cast doubt on G.N.'s credibility. The conflict he
had with the company's administration (see paragraph 7 above) gives
further reasons to doubt his motives. However, rather than verifying
this information, which was easily obtainable from the law
enforcement authorities, particularly given the large number of
prosecutors assigned to the case, the prosecutor arrested the
applicant partly on the basis of his alleged kidnapping of G.N. This
lends support to the applicant's claim that the investigating
authorities did not genuinely verify the facts in order to determine
the existence of a reasonable suspicion that he had committed a
crime, but rather pursued his arrest, allegedly for private
interests. In this regard, the Court can but note that a subdivision
of the Ministry of Internal Affairs, which was the authority which
had initiated the investigation into the applicant's case, asked for
and obtained the withdrawal of the applicant's company's licence on
the ground of his participation in illegal activities before any
court had established his guilt (see paragraph 13 above) and just
after the Buiucani District Court had found the grounds advanced for
his detention in a detention centre unconvincing (see paragraph 11
above).
In the light of the above, in particular the
prosecutor's decision to include the applicant's name in the list of
suspects without a statement by the victim or any other evidence
pointing to him (see Elci and Others v. Turkey,
nos. 23145/93 and 25091/94, § 674, 13 November 2003),
as well as the prosecutor's failure to make a genuine inquiry into
the basic facts, in order to verify whether the complaint was
well-founded, the Court concludes that the information in its
possession does not “satisfy an objective observer that the
person concerned may have committed the offence”.
There has, accordingly, been a violation of Article 5
§ 1 of the Convention in respect of the applicant's first
arrest.
b. The applicant's second arrest
The
Court notes that the Government did not dispute the content of the
statements made in court by H.A. and the other person whose
complaints had served as a ground for the initiation of the second
investigation against the applicant (see paragraphs 26 and 66 above).
Following these statements and at the applicant's request, the
domestic court ordered the applicant's release (see paragraph 27
above). It follows from those statements made under oath that one of
the two alleged victims had not signed any complaint and did not have
any claims against the applicant, while H.A. complained about two
other persons but included the applicant's name only at the
suggestion of the GDFOC officer O.
The
Court finds similarities between the two arrests of the applicant.
Each time the only ground for his arrest was a complaint by an
alleged victim. It has already found that even a bona fide or
“genuine” suspicion of an investigating authority is not
necessarily sufficient to satisfy an objective observer that the
suspicion is reasonable (see Fox, Campbell and
Hartley, cited above, § 35). The Court did not have
submitted to it any other evidence supporting a reasonable suspicion
that the applicant had committed a crime. On the contrary, the second
arrest was based on an alleged crime which had been committed during
a period ending in September 2005 (see paragraph 15 above). Had the
applicant indeed committed the crime and had he wanted to pressure
the victim or witnesses or destroy evidence, he would have had plenty
of time to do so before December 2005, and no evidence was submitted
to the Court of any such actions on the part of the applicant. There
was, therefore, no urgency for an arrest in order to stop an ongoing
criminal activity and the 24 investigators assigned to the case could
have used any extra time to verify whether the complaints were prima
facie well-founded. Instead of such verification, the applicant
was arrested on the day when the investigation was initiated (see
paragraph 15 above).
More
disturbingly, it follows from the statements of the two alleged
victims that one of the complaints was fabricated and the
investigating authority did not verify with him whether he had indeed
made that complaint, while the other was the result of the direct
influence of officer O., the same person who registered the first
complaint against the applicant (see paragraph 7 above; see also
Sultan Öner and Others v. Turkey, no. 73792/01,
§§ 121-123, 17 October 2006). This renders both
complaints irrelevant for the purposes of determining the existence
of a reasonable suspicion that the applicant had committed a crime,
while no other reason for his arrest was cited (see paragraph 15
above).
The
Court is aware of the possibility of a victim retracting his or her
statements because of a change of heart or even coercion. However,
whether or not a victim signed a complaint can be verified by
objective forensic evidence and there is nothing in the file to
suggest that the person had lied to the domestic court about not
having signed the complaint. Indeed, if it were shown that the victim
had actually signed the complaint but later retracted it under
duress, the domestic court would have had serious reasons for
refusing the applicant's request for release. No such concerns were
expressed by the court (see paragraph 27 above).
All
of the above, together with the inclusion of the applicant's name in
the list of suspects without cause, established in respect of his
first arrest (see paragraph 74 above), creates a very troubling
impression that the applicant was deliberately targeted.
Whether
or not the applicant was arrested deliberately or following a failure
properly to consider the facts of the case or a bona fide mistake,
the Court does not see in the file, as in the case of the first
arrest, any evidence to support a reasonable suspicion that the
applicant committed a crime.
There
has, accordingly, been a violation of Article 5 § 1 of the
Convention in respect of the applicant's second arrest also.
IV. ALLEGED VIOLATIONS OF ARTICLE 5 § 3 AND 4 OF THE CONVENTION
The
applicant also complained of the insufficiency of reasons given by
the courts for ordering his detention pending trial and of lack of
access to the relevant parts of the file regarding the grounds for
his detention.
The
Court considers that it does not have to examine these complaints
separately, having found that the detention as a whole was contrary
to Article 5 § 1 of the Convention.
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. Damage
The
applicant claimed EUR 19,000 for non-pecuniary damage. He
referred to the stress and helplessness he had suffered as a result
of being unlawfully detained in inhuman conditions and relied on the
Court's case-law in similar cases.
The
Government disagreed with the amount claimed by the applicant,
arguing that it was excessive in light of the Court's case-law. They
submitted that the case-law cited by the applicant dealt with
situations which had nothing in common with his case in terms of the
nature and seriousness of the alleged violations, the effects on the
applicant and the attitude of the State authorities. The authorities
had taken all measures to accommodate the applicant's needs and his
treatment had not reached the minimum threshold under Article 3 of
the Convention. Any finding of a violation of Article 5 of the
Convention should constitute of itself just satisfaction.
The
Court considers that the applicant must have been caused a certain
amount of stress and anxiety as a consequence of his detention for
six months contrary to Article 5 § 1 of the Convention and in
conditions contrary to Article 3 of the Convention. Deciding on an
equitable basis, it awards the applicant EUR 12,000 (see Modarca v.
Moldova, no. 14437/05, § 103, 10 May 2007).
B. Costs and expenses
The
applicant claimed EUR 8,972 for legal costs and expenses. He
submitted a list of hours worked in preparing the case (amounting to
83 hours) and the hourly fee for each type of activity (EUR 60-100).
He referred to a decision of the Moldovan Bar Association, adopted on
29 December 2005, which recommended the level of remuneration
for lawyers representing applicants before international courts (an
hourly fee of EUR 40-150).
The
Government considered that these claims were unjustified, given the
economic realities of life in Moldova. They argued that the applicant
had not submitted a copy of any contract for his legal
representation. They questioned the need to spend so many hours
researching the Court's case-law and drafting the applicant's
observations. The Government referred to the advisory nature of the
decision taken by the Moldovan Bar Association, which was therefore
not mandatory for Moldovan lawyers. Moreover, the recommended rates
were excessive.
The
Court reiterates that in order for costs and expenses to be
reimbursed under Article 41, it must be established that they were
actually and necessarily incurred and were reasonable as to quantum
(see Sarban, cited above, § 139). According to Rule 60 §
2 of the Rules of Court, itemised particulars of claims made are to
be submitted, failing which the Chamber may reject the claim in whole
or in part.
In
the present case, the Court notes that, while the applicant has not
submitted a copy of a contract with his lawyer, the lawyer was
properly authorised to represent him in the proceedings before this
Court and they both signed the itemised list of hours worked in
preparing his case. It is also clear that a certain amount of work
has been done, considering the quality of the submissions. However,
the amount requested is excessive and should only partly be accepted.
Regard being had to the itemised list of hours worked, the number and
complexity of the issues dealt with, the Court awards the applicant
EUR 3,000 for legal costs and expenses (cf. Sarban, cited
above, § 139).
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares inadmissible the complaint under
Article 3 insofar as it concerns the applicant's conditions of
detention in Prison no. 13, and the remainder of the application
admissible;
Holds that there has been a violation of Article
3 of the Convention in respect of the applicant's conditions of
detention in the GDFOC detention centre and the insufficient medical
assistance given to him;
Holds that there has been a violation of Article
3 of the Convention in respect of the failure to investigate the
applicant's complaints about intimidation in his cell;
Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant's two
arrests in the absence of a reasonable suspicion of having committed
a crime;
Holds that there is no need to examine
separately the complaints under Article 5 §§ 3 and 4
of the Convention;
Holds:
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention, EUR 12,000
(twelve thousand euros) for non-pecuniary damage
and EUR 3,000 (three thousand euros) for costs and expenses,
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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Josep Casadevall
Deputy Registrar President
