(Application no. 4834/06)
7 April 2009
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 Straisteanu and Others v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 17 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. The first applicant's arrest and detention
His habeas corpus applications were dismissed and he remained in detention until 17 November 2005, when a judge ordered his release.
3. Conditions of detention
4. The action by Amnesty International
“Amnesty International is concerned that Gheorghe Straisteanu is being charged on the basis of evidence which has been extracted under torture. Amnesty International has information that a second individual gave evidence after being subjected to torture by investigating officers. However, he reportedly fears that he will be subjected to further ill-treatment if his name is mentioned. The organization is also concerned that Georghe Straisteanu is being detained arbitrarily.
On 18 August 2005 the central district court of Chişinău ordered the release of Gheorghe Straisteanu on bail, but police officers immediately re-detained him in the court room and took him back to the temporary detention facility despite the court decision. On 19 August, after his lawyer appealed against this arbitrary detention, the court declared that his detention was illegal. However, police officers again defied the court order and detained him in the court room. On 22 August Gheorghe Straisteanu was sentenced to ten days' imprisonment by the court of Riscani district in Chişinău. The ten day period was due to expire on 31 August, but the investigating authorities have declared that the investigation is closed and that the case has now been transferred to the court. This effectively prolongs Gheorghe Straisteanu's detention until the court hearing has been held.
Furthermore, Amnesty International is concerned about the conditions in which Gheorghe Straisteanu is being held at the temporary detention facility on Tighina Street. He is currently being held in a cell with ten to 12 other detainees. The only washing facility is a tap and a basin in the cell, and conditions are damp and badly ventilated. Georghe Straisteanu has contracted influenza since he has been in detention and his family report that he has difficulty breathing. He has not been given access to a doctor and he has only been able to receive the medicine that his daughter passed to him when she saw him in court....
Please send appeals to arrive as quickly as possible [to the Prosecutor General's Office, the Ministry of Internal affairs and/or to Moldovan Embassies abroad]...:
· expressing concern for the health of Gheorghe Straisteanu and asking for assurances that he will be given access to the medical care he requires in conformity with the UN Standard Minimum Rules for the Treatment of Prisoners;
· expressing concern at allegations that some of the evidence that has been used to convict Gheorghe Straisteanu has been extracted from another individual under torture;
· urging the authorities not to use any evidence extracted under torture in this case and reminding the authorities that as a party to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment they must ensure that any statement which has been made as result of torture is not used as evidence in criminal proceedings;
· expressing further concern at allegations that the police did not respect court decisions regarding the illegal detention of Gheorghe Straisteanu and that he was arbitrarily detained by police twice in defiance of court orders;
· urging an investigation into the allegations of arbitrary detention and asking for his release if the allegations are found to be correct.”
5. The President's stance
6. The alleged harassment of the first, second and third applicants
7. The civil proceedings concerning the annulment of the lease of the 5.63 hectares of land
8. The civil proceedings concerning the annulment of the sale of the 14.63 hectares of land
9. The first applicant's further detention
10. The first applicant's civil actions for damages
II. RELEVANT NON-CONVENTION MATERIALS
51. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, unofficial translation) read as follows:
“Visit to Moldova of 10-22 June 2001:
B. Establishments visited
... - EDP of Chişinău Police Inspectorate (Follow-up visit)
... b. remand centres (EDPs)
53. In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity.
54. Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. ...
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.
56. Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit.
In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m².
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. ...
...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.
59. The CPT also recommends that steps be taken to:
- reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level;
- supply persons in custody with clean mattresses and clean blankets;
- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter.
In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.”
Visit to Moldova of 20-30 September 2004
4. Conditions of detention.
a. Institutions of the Ministry of Internal Affairs
41. Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs.
The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow lifting the concern of the Committee. In fact, most recommendations made have not been implemented.
42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited such access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to pass the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives...
45. As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereals at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions.
47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.”
Visit to Moldova of 14-24 September 2007
II. Institutions of the Ministry of Internal Affairs
In so far as the conditions of detention in the police establishments are concerned, it appears that this is the field in which the least progress has been achieved. It is not necessary to enumerate here in detail all the shortcomings observed by the delegation, which are more or less the same as those observed during past visits (and of which the Ministry of Internal Affairs is perfectly aware). ... Numerous persons are still detained overnight in police establishments, in cells which should not be used to detain persons for more than a few hours. It is high time to remedy these problems, in particular by placing accused persons under the supervision of institutions of the Ministry of Justice and building new prisons corresponding to CPT standards and to the norms laid down by the Moldovan legislation.”
“(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of thirty days. The lawfulness of the warrant may be challenged, in accordance with the law, before a hierarchically superior court. The period of detention may be extended only by a court, in accordance with the law, to a maximum of twelve months.”
(2) The application for a detention warrant... shall be examined without delay by the investigating judge... at the place of the conduct of the criminal investigation, at the place of arrest or at the place of residence of the detainee's representative.
(5) A repeated application for a detention warrant... in respect of the same person and in the same proceedings, after the dismissal of a previous application, shall be possible only if new reasons for detention have appeared.
The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations.
The competent court ... shall apply the limitation period whether or not the parties request such application.
Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim.
If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected.
The limitation period does not apply:
(2) to claims by State organisations regarding restitution of State property found in the unlawful possession of ... other organisations ... and of citizens;”.
Article 6. The action in time of the civil law
“(1) The civil law does not have a retroactive character. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the already created effects of a legal situation which has extinguished or in the process of execution.”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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 ...”
“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.”
“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.”
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a tribunal ....”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
I. ADMISSIBILITY OF THE CASE
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
v. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“75. The Court considers that the observance of admissibility requirements for carrying out procedural acts is an important aspect of the right to a fair trial. The role played by limitation periods is of major importance when interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 VII, and Roşca v. Moldova, no. 6267/02, § 24, 22 March 2005).
76. The Court does not call into question the power of the legislator to establish different limitation periods for different types of lawsuits. However, no reasons were given in the present case for exempting State organisations, when claiming restitution of State property, from the obligation to observe established limitation periods which would bar the examination of such claims brought by any private person or company. This has the potential of unsettling numerous legal relations relying on the established situation and gives a discriminatory advantage to the State without any compelling reason. Therefore, the Court finds that Article 86 (2) of the old Civil Code exempting State entities from the general limitation period was itself contrary to Article 6 of the Convention (see, mutatis mutandis, Platakou v. Greece, no. 38460/97, § 48, ECHR 2001 I).
77. In the event, the domestic courts allowed the Prosecutor General, acting on behalf of the State Chancellery, to file his action against the applicant company notwithstanding the expiry of the general limitation period. The domestic courts examined the lawsuit, which resulted in the applicant company's loss of its hotel. Moreover, the Court considers that the altering of a legal situation which has become final due to the application of a limitation period, or which – as in the present case – should have become final had the limitation period applied without discrimination in favour of the State, is incompatible with the principle of legal certainty (see, mutatis mutandis, Popov v. Moldova (no. 2), no. 19960/04, § 53, 6 December 2005).”
vI. ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION
vII. ALLEGED VIOLATION OF ARTICLE 13 taken together with Articles 3, 6 and 1 of protocol no. 1 to THE CONVENTION and of Article 14 taken together with article 6
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
6. Holds that there is no need to examine the applicants' other complaints under Article 6 of the Convention;
(a) that the respondent State is to pay Mr Gheorghe Straisteanu within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage plus any tax that maybe chargeable on this amount and EUR 100 (one hundred euros) in respect of costs and expenses plus any tax that may be chargeable on this amount to the applicant;
(b) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) 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;
(a) reserves the said question;
(b) invites the Moldovan Government and the applicants to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be;
Done in English, and notified in writing on 7 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza