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FERARU v. MOLDOVA - 55792/08 [2012] ECHR 108 (24 January 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/108.html
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[2012] ECHR 108
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THIRD
SECTION
CASE OF
FERARU v. MOLDOVA
(Application
no. 55792/08)
JUDGMENT
STRASBOURG
24
January 2012
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 Feraru v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and
Santiago Quesada,
Section
Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 55792/08) 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 Mihai Feraru (“the
applicant”), on 31 October 2008.
The
applicant, who had been granted legal aid, was represented by
Mr R. Zadoinov, a lawyer practising in Chişinău.
The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
The
applicant alleged, in particular, that he had been unlawfully
arrested, that the courts had not given relevant and sufficient
reasons for his detention, and that he had been held in inhuman
conditions of detention.
On
30 June 2009 the Court decided to communicate the application to the
Government. Under the provisions of former Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1974 and lives in Migieşti.
A. The applicant’s arrest and detention pending
trial
The
applicant is a tradesman specialised in installing roof drainage
systems. In May – June 2008 he accepted money from four
different people in exchange for installing drainage systems in their
houses. However, he failed to carry out the required work and
declared that he no longer had the money, promising to return it
later.
In
the early morning of 29 September 2008 he was arrested by the police
and brought to Râşcani Police
Station in Chişinău, on the grounds of having committed the
administrative offence of insulting a police officer. He was
allegedly forced to return the money which he had taken from B. I.
for installing a roof drainage system on his house.
According to the applicant, he had not managed to finish the work on
that installation when B. I. asked for the money to be returned and
also involved his relatives who worked at Râşcani
Police Station in order to intimidate the applicant and obtain full
repayment.
On 1 October 2008 B. I. made a complaint to the police,
according to which the applicant had defrauded him by accepting money
and refusing to return it, while having failed to carry out any work.
On 4 October 2008 a criminal investigation against the applicant was
initiated.
On an unspecified date one of the applicant’s
relatives paid 500 euros (EUR) to B. I., who signed a statement
to the effect that he no longer had any claims against the applicant.
On
6 October 2008 the prosecutor asked the Râşcani District
Court to order the applicant’s detention for ten days. The
applicant was accused of defrauding B. I. by accepting 8,000 Moldovan
lei (approximately EUR 560 at the time) in May 2008 as payment for
installing a roof drainage system, but failing to carry out any work.
He was also accused of two similar offences, but no details other
than the case numbers were given. Details were given at subsequent
court hearings. A hearing was scheduled for the same day at the
Râşcani District Court.
The
applicant’s lawyer was not able to read the prosecutor’s
request until immediately before the hearing and was not given a copy
at that time. He did not see any other documents being submitted to
the investigating judge to substantiate the prosecutor’s
request and no documents were shown to the defence or discussed by
the investigating judge at the hearing.
During
the hearing of 6 October 2008 the lawyer informed the court of the
payment of EUR 500 to B. I. The prosecutor present at the hearing
declared that there was no evidence of any repayment of the monies to
B. I. The lawyer then asked that B. I. be heard in order to confirm
that payment. The court did not take any formal decision in respect
of B. I. and the latter was not heard before the court adopted its
decision. During the same hearing, the applicant submitted that he
had been arrested on 29 September 2008. The prosecutor confirmed
that, stating that the applicant had been arrested on an
administrative charge and then arrested again as a suspect in the
criminal proceedings. The applicant’s lawyer argued that since
his client was suspected of having committed a crime, he should have
been arrested in accordance with the criminal procedure. The court
did not react in any way to this argument, confining its reasoning to
the applicant’s detention after 4 October 2008.
In his decision of 6 October 2008 the investigating
judge of the Râşcani District Court granted the
prosecutor’s request and ordered the applicant’s
detention pending trial for ten days. The reasons given were that:
“the act of which [the applicant] is accused is
considered a minor crime, which is a legitimate ground for detention
pending trial; the character, degree of harm and circumstances of the
crime constitute sufficient grounds for supposing that [the
applicant] will interfere with the normal course of the
investigation; the materials submitted to the court clearly confirm
that there is a reasonable suspicion that [the applicant] committed a
minor crime, and there are sufficient grounds to prevent [the
applicant] from hindering the establishment of the truth and from
absconding from the investigating authority; the materials in the
file confirm the reasonable suspicion that [the applicant] might
reoffend, as it follows from the information obtained by the
investigating authority during the operational phase of the
investigation that [the applicant] may have committed other similar
offences; ... [the applicant] has no stable income and works
periodically, there is no information about his financial status and
his state of health is not incompatible with detention; [the
applicant] and his lawyer did not submit any evidence in support of
their statements; ...”
The applicant’s lawyer appealed, complaining of
the applicant’s de facto arrest on 29 September 2008 and
his detention thereafter, and of the lack of legal assistance
available to the applicant until 6 October 2008. He submitted that
the lower court had not dealt with that complaint. He also informed
the court of the fact that he had only read the prosecutor’s
request at the hearing of 6 October 2008 and had not had time to
properly prepare for that hearing. Besides the prosecutor’s
request, no other document had been submitted to the court or shown
to the defence to substantiate the need for the applicant’s
detention. Nor had the prosecutor referred to any additional
documents or other evidence during the hearing. The applicant had
asked the first-instance court to hear a witness, who could have
confirmed that the applicant had had a contract with B. I. and that
B. I.’s relatives in the police had threatened the applicant if
he refused to return the money for the ongoing work, but the court
had refused to hear the witness without giving any reasons. Moreover,
the judge had relied on grounds which had not been mentioned by the
prosecutor, thus showing bias towards the prosecution. The lawyer
relied on Article 5 of the Convention and referred to the absence of
any evidence to support the prosecutor’s request for the
applicant’s detention pending trial, including the absence of
any judgment or other evidence concerning the other similar offences
allegedly committed by his client. In the lawyer’s opinion,
there had been no reason to believe that the applicant would abscond
or interfere with the investigation. Relying on Article 3 of the
Convention, the lawyer also complained of the inhuman conditions of
his client’s detention.
On
10 October 2008 the Chişinău Court of Appeal rejected the
appeal as unfounded, referring to similar grounds as those referred
to by the lower court, including that the applicant had allegedly
committed other similar offences “as [could] be seen from the
criminal file”.
On
13 October 2008 the prosecutor asked for an extension of the
applicant’s detention pending trial for thirty days. He
referred to three separate occasions on which the applicant had been
accused of having accepted money for installing roof drainage systems
but had failed to do so, including in respect of B. I.
On the same day the investigating judge of the Râşcani
District Court granted the request and ordered the applicant’s
detention pending trial for thirty days. The court noted that
“... a serious crime has been committed for which
the law provides a penalty of more than two years’
imprisonment; there has been no compensation for the pecuniary damage
caused; there are reasons to believe that [the applicant] could
abscond or interfere with the normal and objective course of the
investigation; the grounds on which the initial detention was ordered
remain valid.”
The applicant’s lawyer appealed, relying on the
same grounds as in his previous appeal. He added that his client had
told the lower court that he owed no debt to B. I., whom he had
reimbursed fully. Moreover, the lawyer had read the prosecutor’s
request only immediately before the hearing of 13 October 2008.
No documents other than the prosecutor’s request had been
examined by the court during the hearing or shown to the defence. The
lawyer added that the applicant had a stable home life, had two
children to support and had not been previously convicted of any
offence. He again complained of his client’s inhuman conditions
of detention, both at the Râşcani Police Station and at
the General Police Department (“the GPD”, see paragraph
22 below), and relied on Article 3 of the
Convention in that regard.
On
21 October 2008 the Chişinău Court of Appeal rejected the
appeal, relying on the same grounds as those referred to by the lower
court.
On 11 November 2008 the Râşcani
District Court ordered the applicant’s release. The court found
that
“... [the applicant] is accused of having
committed a crime for which the law provides punishment [through]
alternatives [to imprisonment]; he did not abscond from the
investigating authority; he has a permanent residence and two
children.”
On 8 May 2009 the Râşcani
District Court found the applicant guilty of fraud and sentenced him
to three years’ imprisonment, suspended for one year. In his
submissions to the court the applicant acknowledged having taken
money from B. I. in May 2008. After a while, he had manufactured the
relevant items but had not been able to install them because of
personal family circumstances obliging him to remain home with his
children. The court found that he had taken money from three other
people in May – July 2008 and had also failed to carry out the
work which he had undertaken to do for them.
B. Conditions of the applicant’s detention
According to the Government, the applicant had been
detained for one night at the Râşcani Police Station on 29
September 2008 and had then been transferred to the General Police
Department (Comisariatul General de Poliţie
or “the GPD”), where he had been detained until 11
November 2008.
The
applicant described his conditions of detention at the Râşcani
Police Station as follows: he had been held in a cell without a bed
or any other furniture; there had been no ventilation, toilet or
running water in the cell; he had not been given any food and had had
to beg for it from other detainees; the cell had been overcrowded and
many detainees had smoked, exposing the applicant to passive smoking;
and the cell had been damp.
According to the applicant, at the GPD he had been
placed together with seven other people in a cell measuring 12 square
metres. The cell had been dirty and infested with parasitic insects
and rats. There had been no furniture in the cell, and the detainees
had slept directly on the floor, in their own clothes. The cell had
been damp and very cold. A low-intensity lamp, covered by a metal
sheet, had been switched on twenty-four hours a day and there had not
been a window in the cell. The toilet had not been separated from the
rest of the cell, offering no privacy. Due to the large number of
people using it, the toilet had been occupied most of the time and
had smelt bad. The applicant had not been given any personal hygiene
items, clean clothes or bed linen. He had had to continually wear the
clothes in which he had been arrested. The applicant had received
little food, which had been of a very bad quality (a cup of warm
water in the morning and evening and boiled vegetables with warm
water for lunch). Even though he had had a stomach ulcer and high
intracranial blood pressure, he had not received any medical
assistance. He had been detained in such conditions for twenty-four
hours a day, without any right to take exercise or to take part in
recreational activities.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law and practice
The relevant provisions of domestic law have been set
out in Ostrovar v. Moldova (no. 35207/03, 13 September 2005),
Sarban v. Moldova (no. 3456/05, 4 October 2005), Becciev
v. Moldova (no. 9190/03, 4 October 2005), and other similar
cases in respect of Moldova.
The
Government submitted a list of laws, regulations, Ministry orders and
other acts or bills yet to be enacted which are aimed at improving
various aspects of prison conditions and the medical treatment of
detainees.
The Government annexed to their observations copies of
judgments in the cases of Drugaliov v. the Ministry of Internal
Affairs and the Ministry of Finance; Gristiuc v. the Ministry
of Finance and the Penitentiaries’ Department; Ipate v.
the Penitentiaries’ Department; and Ciorap v. the
Ministry of Finance, the Ministry of Internal Affairs and the
Prosecutor General’s Office, all cases in which the
applicants had been awarded compensation for ill-treatment and/or
inhuman conditions of detention.
B. Independent reports
The relevant findings of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) read as follows:
a. Visit to Moldova of 14-24 September
2007
“A. 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.
[...]
9. Persons placed on remand should as a rule
be detained in prisons under the authority of the Ministry of
Justice. However, such persons may continue to be held in police
temporary detention facilities (izolatoare de detenţie
preventivă, abbreviated “IDP”) under the
authority of the Ministry of Internal Affairs, if this is required
for the purposes of the criminal investigation or if the transfer to
a pre-trial establishment cannot be effected promptly. It is also
possible for remand prisoners to be transferred back from prison to
an IDP when necessary for the purposes of the investigation or the
court proceedings, for periods of up to 10 days at a time.
At the time of the 2007 visit, the delegation noted that
the average length of stay in IDPs of persons remanded in custody had
decreased. For example, at the IDP of the General Police Directorate
in Chişinău, the majority of persons who had been remanded
in custody were being transferred to Prison No. 13 within a week.
This is a welcome development. Nevertheless, the delegation also
gathered evidence of persons remanded in custody spending extended
periods of time in IDPs (e.g. uninterrupted stays of up to 70 days at
Anenii Noi; up to 40 days at the Operational Services Department in
Chişinău). As regards the practice of repeated transfers of
remand prisoners between prisons and IDPs, it continued unabated.
As stressed by the CPT in the past, IDPs will never be
capable of providing conditions of detention suited for holding
persons remanded in custody. The Moldovan authorities are well aware
of the limitations of the existing IDPs and, following a decision to
transfer the responsibility for these facilities to the Ministry of
Justice by the beginning of 2008, have been exploring the possibility
of constructing eight new remand prisons in different regions of the
country. During the 2007 visit, the delegation was informed that this
project was still at the conception phase, due to the lack of
budgetary resources. The Ministry of Justice was approaching various
donors, banks and the public sector in the hope of raising the
necessary funding (estimated at approximately 3 mln USD per remand
prison).
The CPT calls upon the Moldovan authorities to give the
highest priority to the implementation of the decision to transfer
the responsibility for persons remanded in custody to the Ministry of
Justice. The objective should be to end completely the practice of
holding remand prisoners in police establishments. The return of
remand prisoners to police facilities, for whatever purpose, should
be sought and authorised only when there is absolutely no other
alternative, and for the shortest time possible.
[...]
11. In previous visit reports, the CPT
recommended that administrative arrest be no longer exploited by
operational police officers to detain and question persons suspected
of criminal offences, without their being offered the safeguards
inherent in the criminal procedure. Nevertheless, during the 2007
visit, the delegation came across a number of persons who were
officially being held in IDPs for having committed administrative
offences (e.g. at the Operational Services Department and the General
Police Directorate in Chişinău), but were in fact being
questioned as criminal suspects, apparently without being allowed to
contact a lawyer. Resolute steps should be taken to stamp out this
abusive practice, which amounts to circumventing the legal provisions
concerning the length of police custody in respect of criminal
suspects. The CPT reiterates its previous recommendation that firm
instructions be issued to law enforcement officials that persons
suspected of criminal offences are to be held and questioned strictly
in accordance with the provisions of the Code of Criminal Procedure.
The Committee also calls upon the Moldovan authorities to ensure that
compliance with this requirement is closely supervised.
[...]
4. Conditions of detention
a. temporary detention facilities (IDPs)
34. Following the CPT’s visit in 2004,
the Moldovan authorities launched a programme for improving material
conditions in IDPs, with a view to implementing the Committee’s
recommendations. However, it became clear from the discussions held
with Ministry of Internal Affairs officials at the outset of the 2007
visit that the programme had not progressed as rapidly as envisaged,
due to the lack of funding. At one of the establishments visited, the
IDP in Străşeni, the refurbishment had been suspended, and
it was unclear when the works would be finished. That said, the
delegation was pleased to note that the cells’ envisaged
occupancy levels once the refurbishment had been completed would be
in accordance with the CPT’s standards (i.e. cells measuring
some 12 m² would hold two persons each), and that the in-cell
toilets would be partitioned off.
35. Despite the above-mentioned programme,
conditions of detention in the IDPs visited remained, in general,
very poor. The cells had either no windows (e.g. at the IDP of the
Operational Services Department in Chişinău, some of the
cells at Călăraşi IDP, one cell at Anenii Noi IDP) or
their windows were covered by shutters which substantially limited
access to natural light. As for artificial lighting, it was, as a
rule, dim. Particular mention should be made of one cell at Anenii
Noi, in which there was no electric bulb; staff had reportedly told
the detainee that he should provide a new bulb himself. Further, the
cells were often stuffy, despite the presence of a ventilation system
(which was rarely turned on because of the noise it made). Detainees
slept on wooden platforms, which took up most of the floor space; no
steps had been taken in respect of providing mattresses and blankets
(the presence of an occasional blanket was attributable to detainees’
families). The only exception was the IDP in Călăraşi,
where most of the cells were fitted with bunk beds with mattresses.
At the time of the visit, the number of persons held at
the IDPs was well below their official capacity. Nevertheless,
overcrowding was observed in some of the cells (e.g. three persons in
a cell measuring 7 m² at Leova). Further, the delegation came
across several cells which were very small (4 m² at Leova; 5.5
m² at Anenii Noi). Cells of such a size are only suitable for
short periods of detention.
36. The arrangements in respect of food
varied from one establishment to another: at the two IDPs in
Chişinău, three meals a day were being provided, whereas in
Leova, the number of daily meals was two, and at Călăraşi
and Anenii Noi, only one. The delegation received numerous complaints
about the insufficient quantity and poor quality of the food. It was
clear that most detainees relied primarily on food parcels delivered
by their families.
37. On a more positive note, all the IDPs
visited possessed exercise yards. Detainees were in principle
entitled to one hour of outdoor exercise a day. However, at the IDPs
in Călăraşi and the General Police Directorate in
Chişinău, the delegation heard widespread allegations that
the outdoor exercise periods were limited to 5 to 15 minutes, and did
not take place every day. Apart from outdoor exercise, there were no
activities (e.g. access to books, newspapers, radio, board games).
38. To sum up, the conditions prevailing at
the IDPs visited continue to render them unsuitable for accommodating
persons deprived of their liberty for prolonged periods of time
(which continues to be case of both persons remanded in custody and
administrative detainees). Reference has already been made in
paragraph 9 to the envisaged transfer of responsibility for IDPs to
the Ministry of Justice and the setting up new remand prisons, which
should correspond to the requirements of Moldovan legislation and the
CPT’s standards. In the meantime, the Moldovan authorities
should redouble their efforts to find the financial means necessary
for providing for the fundamental needs and preserving the dignity of
detained persons. In particular, urgent steps should be taken to
ensure that:
- all detained persons are provided with a clean
mattress and blankets;
- detained persons receive food of sufficient quantity
and improved quality;
- in-cell lighting (including access to natural light)
and ventilation are adequate;
- there is a minimum of 4 m² per person in
multi-occupancy cells;
- detained persons have ready access to communal toilet
facilities, and in-cell toilets are equipped with a partition;
- detained persons are ensured access to washing
facilities and are supplied with essential personal hygiene products;
- all detained persons have access to outdoor exercise
of at least one hour per day.
The CPT also recommends that steps be taken to provide
some form of activity in addition to outdoor exercise to persons held
in excess of a few days at IDPs.”
b. Visit to Moldova of 27 to 31 July 2009
“10. During the 2009 visit, the
delegation observed that the practice of holding remand prisoners in
police temporary detention facilities (izolatoare de detenţie
preventivă, abbreviated “IDP”) continued
unabated. In the report on the 2007 visit, the CPT called upon the
Moldovan authorities to give the highest priority to the
implementation of the decision to transfer the responsibility for
persons remanded in custody to the Ministry of Justice. In response,
the Ministry of Internal Affairs indicated that it was in favour of a
temporary transfer of responsibility for IDPs to the Ministry of
Justice, pending the building of pre-trial establishments under the
latter Ministry’s authority. However, at the end of the 2009
visit, the Minister of Justice indicated that the responsibility for
the IDPs could not be taken over by his Ministry because conditions
of detention in these facilities were substandard.
The CPT shares the view that IDPs do not offer suitable
conditions for holding persons remanded in custody. The Committee
would nevertheless like to stress that, in the interests of the
prevention of ill-treatment, the sooner a criminal suspect passes
into the hands of a custodial authority which is functionally and
institutionally separate from the police, the better. The
delegation’s findings from the 2009 visit support that; most
cases of alleged police ill-treatment in the context of the April
events had emerged only after the persons concerned had been
transferred to an establishment under the Ministry of Justice or
released. The CPT recommends that, pending the building of new
pre-trial establishments, the Moldovan authorities take steps to
transfer the responsibility for IDPs to the Ministry of Justice.
Further, the Committee would like to receive up-to-date information
on progress made to build new pre-trial establishments under the
Ministry of Justice.
11. The legal framework for deprivation of
liberty of administrative detainees is provided by a new
Contravention Code, which entered into force after the April events,
on 31 May 2009, and replaced the 1985 Code of Administrative
Offences. According to the new legal provisions, the persons
concerned may be sentenced to up to 15 days of deprivation of
liberty, a period which may be extended to 30 days if they have
committed more than one offence.
In the past, the CPT repeatedly recommended that
detention for administrative offences no longer be exploited by
operational police officers in order to detain and question persons
suspected of criminal offences, without their being offered the
safeguards inherent in the criminal procedure. The delegation’s
findings from the 2009 visit suggest that such abusive practices were
widespread in the context of the April events. The CPT is therefore
pleased to note that the new Contravention Code restricts the powers
of the police to hold persons, on their own authority, for more than
three hours. However, the delegation heard some recent allegations
from detained persons that proceedings under the Contravention Code
(for insulting law enforcement officials, for instance) had been
initiated against them after they had refused to confess to a
criminal offence, despite their correct behaviour vis-à-vis
the police, and that their objections had little weight before
prosecutors and judges. The lack of access to a lawyer in practice,
at this stage of the procedure, had exacerbated this situation. The
CPT recommends that prosecutors and judges be encouraged to be
particularly vigilant as to the possible exploitation by the police
of the provisions of the Contravention Code to circumvent the length
of police custody in respect of criminal suspects. Reference is also
made to paragraph 34 as regards access to a lawyer.
According to the Enforcement Code, persons under
administrative arrest by virtue of the Contravention Code should be
detained, as a minimum, in conditions provided for sentenced
prisoners placed under an “initial” regime in
penitentiary establishments. That said, it appeared during the 2009
visit that a number of persons under arrest continued to serve their
administrative sentences in police establishments, which certainly do
not offer such conditions. The CPT recommends that the Moldovan
authorities take all the necessary measures to ensure that persons
under administrative arrest serve their sentences in penitentiary
establishments.
[...]
36. The CPT
notes with satisfaction that the cells of the IDP of the General
Police Directorate in Chişinău had been fitted with beds
and that some repair works had been carried out a few months before
the visit. However, the conditions prevailing in this facility were
still not suitable for the prolonged periods for which remand
prisoners and administrative detainees were being held in it: high
official occupancy levels in the cells (e.g. 4 places in a 10 m²
cell), poor in-cell lighting, access to outdoor exercise limited to
some 15 minutes. The CPT recommends that these shortcomings be
remedied (see also the recommendations made in paragraphs 10 and
11).”
The
relevant findings of the United Nations Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment (Human
Rights Council, 10th
session, Report on the special rapporteur’s mission to Moldova,
document A/HRC/10/44/Add.3, 12 February 2009) read as follows:
“Police custody
38. Despite
international and national minimum standards, conditions in some
police custody facilities are a source of major concern. Whereas some
police stations were suitable at maximum for short-term police
custody, in some cases, notably in Bălţi, Comrat, and at
Chişinău police headquarters, the conditions amounted to
inhuman treatment. In those police stations, persons were held in
small, badly ventilated cells with little or no daylight sometimes
for several weeks or even months. However, according to official
sources, some of the police custody facilities had been closed in
order to improve conditions (Criuleni, Ialoveni, Straseni, Cantemir,
Glodeni, Stefan-Vodă, Edinet, Donduseni, Ciadâr-Lunga).
39. Notwithstanding
some measures taken by the Government, many persons in police custody
complained about the quality and quantity of the food, although some
said that it had slightly improved. Detainees in some police stations
(e.g. Comrat) indicated that they received food only once per day.
Lack of access to medical care was another major concern. Some of the
cells were not equipped with mattresses and persons in police custody
were not given blankets to sleep on.
40. The
Special Rapporteur received consistent allegations that the minimum
time required by national law for exercise (one hour per day) is not
respected in many cases. At several police stations, detainees
indicated that they are allowed to walk only for about 15 minutes per
day. This is exacerbated by the fact that some spend long periods of
up to several months in police custody. The one shower per week
requirement is not always respected. Moreover, the toilet in the
cells consists normally of a bucket or an open toilet without flush,
at best separated by one meter high walls. Since often more than one
person is detained in a cell, these sanitary facilities deprive the
detainees of their privacy. Furthermore, this situation generates not
only an unpleasant smell, but also a critical hygienic situation.”
In their reply to the above-quoted report, the Moldovan authorities
acknowledged the seriousness of the problem of ensuring appropriate
conditions of detention in Moldova and stated that most of the
necessary legislative measures had already been taken. The lack of
financing for implementing the measures decided upon was the single
most serious impediment to solving the problem.
The
relevant findings of the United Nations Committee Against Torture,
adopted at its 43rd
session on 2-20 November 2009 (document CAT/C/MDA/CO/2)
read as follows:
“Conditions of detention
18. The
Committee welcomes the amendment in December 2008 of the Criminal
Code, which reduced minimum and maximum penalties, prompted a general
review of penalties and reoffending, and provided for alternatives to
detention, thus contributing to the reduction in the total number of
prison population in the State party. The Committee also welcomes
reconstruction, repairs and maintenance work carried out in a number
of penitentiary institutions starting from 2007. Despite the State
party’s efforts to improve the conditions of detention, the
Committee remains concerned at overcrowding in certain facilities and
that conditions remain harsh, with insufficient ventilation and
lighting, poor sanitation and hygiene facilities and inadequate
access to healthcare. The Committee is concerned about reports about
inter-prisoner violence, including sexual violence and intimidation,
in places of detention. (art. 10)
The State party should:
(a) Take
the necessary measures to alleviate the overcrowding of penitentiary
institutions, inter alia, through the application of alternative
measures to imprisonment and through initiating at its own initiative
a review of sentences with a view of bringing them in compliance with
the December 2008 amendments of the Criminal Code. The State party
should continue making available the necessary material, human and
budgetary resources to ensure that the conditions of detention in the
country are in conformity with minimum international standards; ... ”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been detained in inhuman and
degrading conditions, in breach of 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
The
Government submitted that the applicant had failed to exhaust
available domestic remedies in respect of this complaint. In
particular, he could have lodged a civil court action seeking
compensation for the alleged violation, similar to those brought
successfully by the applicants in the above-cited cases of Drugaliov,
Gristiuc, Ipate and Ciorap (see paragraph 27
above). Moreover, he had not complained about the conditions of his
detention to any domestic authority.
The
applicant disagreed.
The
Court reiterates that an individual is not required to try more than
one avenue of redress when there are several available (see, for
example, Airey v. Ireland, 9 October 1979, § 23, Series A
no. 32). It is clear from the documents submitted to the Court by the
parties that, when the applicant was still in detention, his lawyer
complained of the inhuman conditions of his client’s detention
and relied expressly on Article 3 of the Convention (see
paragraphs 14 and 18
above). The Government have admitted in the past that such a
procedure constitutes an effective remedy against alleged breaches of
Article 3 (see Holomiov v. Moldova, no. 30649/05, §§
102 and 105, 7 November 2006).
Moreover,
the civil action remedy referred to by the Government could not
result in an immediate improvement of the applicant’s
conditions of detention and did not as such constitute an “effective
remedy” in respect of ongoing violations of Article 3 of the
Convention, as already established by the Court (see Holomiov,
cited above, § 107).
The
Court finds, therefore, that this complaint cannot be declared
inadmissible for non-exhaustion of domestic remedies and accordingly
the Government’s objection must be dismissed. It considers
that this complaint raises questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of the merits. No other grounds for declaring it
inadmissible have been established. The Court therefore declares this
complaint admissible.
B. Merits
1. Arguments of the parties
The
applicant complained of the inhuman and degrading conditions of his
detention and gave a detailed description of those conditions (see
paragraph 24 above).
The Government argued that the applicant had been
detained in conditions compliant with Article 3 requirements. The
Government averred that the applicant had not submitted any evidence
to support his allegations and that the absence of any complaints to
the prison authorities had confirmed the applicant’s acceptance
of his conditions of detention as appropriate. Moreover, they
considered that CPT reports could not lead to automatic findings of a
violation of Article 3 in the absence of evidence of the applicant’s
individual suffering (Gorea v. Moldova, no. 21984/05,
§§ 40-51, 17 July 2007). As in Gorea, the
applicant in the present case had been detained at the GPD for a
short period of time (six days at the Râşcani Police
Station and twenty-one days at the GPD).
2. The Court’s assessment
The
Court recalls that to fall within the scope of Article 3,
ill-treatment must attain a minimum level of severity. The assessment
of this minimum is relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the sex, age and state of health
of the victim (see, for example, Ireland v. the United Kingdom,
18 January 1978, § 162, Series A no. 25).
The
State must ensure that a person is detained in conditions which are
compatible with respect for his human dignity, that the manner and
method of the execution of the measure do not subject him to distress
or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands
of imprisonment, his health and well-being are adequately secured by,
among other things, providing him with the requisite medical
assistance (see, Kudła v. Poland [GC], no. 30210/96,
§ 94, ECHR 2000 XI). When assessing conditions of
detention, account has to be taken of the cumulative effects of those
conditions and the duration of the detention (see Ostrovar v.
Moldova, no. 35207/03, § 80, 13 September 2005).
In the present case the Court firstly notes that in
accordance with the Government’s submissions the applicant had
been detained for one night at the Râşcani Police Station,
in addition to five days’ administrative arrest there. The
parties did not submit that the applicant had been detained in any
detention facility other than the two mentioned above. The Government
acknowledged that the applicant had been arrested on 29 September
2008 and released on 11 November 2008. It follows that he spent
forty-three days in detention, of which six days at the Râşcani
Police Station.
The Court is aware of the fact that it is very
difficult, if not impossible, for a detainee to submit evidence of
his or her conditions of detention, given the prohibition on using
photo/video equipment in prison and on securing evidence in other
ways. One manner in which detainees may proceed is by describing the
conditions of their detention in detail and by complaining to the
authorities about those conditions. Another very important means is
to refer to the findings of independent observers such as the CPT or
other national and international human rights monitoring
organisations (see, amongst many other authorities, Salman v.
Turkey [GC], no. 21986/93, §§ 69-73, ECHR 2000 VII;
Becciev v. Moldova, no. 9190/03, §§ 31-32, 4 October
2005; and Ramishvili and Kokhreidze v. Georgia, no. 1704/06,
§§ 70-71, 27 January 2009). In the present case the
applicant’s lawyer complained twice of inhuman conditions of
detention and relied expressly on Article 3 of the Convention in that
regard (see paragraphs 14 and 18
above). The Court did not see any response to those complaints in the
domestic courts’ decisions or in any other documents.
The
Court also notes the findings of the CPT concerning Moldovan
temporary detention facilities (“IDPs”) in general and
the GPD’s IDP in particular (see paragraph 28
above). It is clear from the reports following the CPT visits that
the conditions of detention in the IDPs under the authority of the
Ministry of Internal Affairs were substandard, even in the eyes of
the domestic authorities (see the opinion of the Minister of Justice
quoted in the CPT report for 2009). The CPT added that “IDPs
[would] never be capable of providing conditions of detention suited
for holding persons remanded in custody”. The specific findings
made almost a year after the applicant’s detention in GPD’s
IDP (which belongs to the Ministry of Internal Affairs) coincide at
least in part with the applicant’s description, in particular
severe overcrowding and insufficient time for exercise, as well as
the lack of furniture before 2009.
The
Government relied on Gorea v. Moldova, cited above. The Court
considers that that case differs in several important ways from the
present one. The duration of detention was fourteen days for Mr Gorea
and forty-three days for the applicant in the present case
(thirty-seven at the GPD, see paragraph 41
above). To the Court, Mr Gorea’s failure to complain about his
conditions of detention was an important element in dismissing his
complaint. The applicant in the present case, on the other hand,
complained through his lawyer twice but failed to obtain any response
to his complaints, let alone any improvement in his conditions of
detention.
Moreover,
the Court takes note of the strong opinion of the CPT that persons
should not be held in detention on remand at the facilities of the
Ministry of Internal Affairs. The applicant was detained for one
night at the Râşcani Police
Station, in addition to the five-day administrative detention at the
same facility. Given the conditions in Moldovan local police stations
as noted by the CPT, detention for several days in such conditions is
clearly in breach of the Convention standards.
In
the light of the above, the Court finds that the applicant was held
both at the Râşcani Police
Station and the GPD in conditions contrary to the requirements of
Article 3 of the Convention. There has, accordingly, been a violation
of that provision in the present case.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant submitted that he had been arrested in the absence of a
reasonable suspicion that he had committed a crime. He relied on
Article 5 § 1 of the Convention, the relevant part of which
reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
A. Admissibility
The
Court considers that this complaint raises questions of fact and law
which are sufficiently serious that their determination should depend
on an examination of the merits. No other grounds for declaring it
inadmissible have been established. The Court therefore declares this
complaint admissible.
B. Merits
The Government considered that the applicant had been lawfully
arrested on suspicion of having committed fraud. He was subsequently
convicted of that offence (see paragraph 21
above), which confirmed in their view the legitimacy of the initial
suspicion.
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, they cannot
“... stretch [...] 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, 30 August 1990, § 32, Series
A no. 182, and Stepuleac v. Moldova, no. 8207/06, §
68, 6 November 2007).
The
Court notes that the applicant was initially arrested for having
committed the administrative offence of insulting a police officer.
Even though the applicant referred to his entire period of detention
as being unlawful, he did not give any details in respect of the
administrative arrest and detention. The Court considers that using
administrative arrest as a means of detaining and questioning a
suspect in a criminal case is contrary to Article 5 of the
Convention. It is also contrary to Moldovan law (see, for instance,
Grădinar v. Moldova, no. 7170/02, § 20, 8 April
2008, where a Moldovan court found that administrative detention
effected for the real purpose of questioning a suspect in a criminal
case was unlawful).
However,
it cannot be excluded that a person who is arrested for an
administrative offence is identified, during such administrative
detention, as the suspect of a crime, and that both the
administrative detention and the subsequent detention within the
framework of the criminal investigation be bona fidae. The Court
would then have to decide whether the administrative detention had
been genuinely caused by an administrative offence which the
applicant had committed or whether such detention was only a pretext
in order for the police to have more time to detain him before
bringing him before the investigating judge.
In
the present case, the applicant did not expressly argue that he had
been subjected to an administrative arrest with the real purpose of
investigating the criminal case against him. Even assuming an
implicit complaint to that effect, he did not submit a copy of the
relevant administrative court decision, the decision of the higher
administrative court in response to his eventual appeal or other
related documents in order to show that his arrest had been made for
another aim than that officially declared.
In
such circumstances, the Court does not have any reason to find that
his administrative detention was in any manner related to the
criminal proceedings against him or that it was “unlawful”
within the meaning of Article 5 of the Convention. It will further
examine the period of detention starting from 4 October 2008, when he
was officially arrested within the framework of the criminal
investigation.
The
Court notes that on 1 October 2008 B. I. made a complaint in which he
identified the applicant as the person who had allegedly defrauded
him by taking money and failing to carry out the work to be
undertaken in exchange for his payment (see paragraph 8
above). The prosecution was in possession of materials concerning
three other instances of similar alleged offences. The Court
considers that, in the circumstances of the present case, the
authorities had a “reasonable suspicion” that the
applicant had committed one or several offences, all the more so
given that he did not deny taking money and failing to carry out work
which had been paid for.
Moreover,
it is apparent from the documents in the file that this was not a
case of a business person simply being unable to fulfil his
contractual obligations. It was established by the courts that he had
continued to take money from other people even after telling his
first clients that he could no longer carry out the work for personal
reasons (see paragraph 21 above).
In
the light of the above, the Court finds that there has been no
violation of Article 5 § 1 of the Convention in the present
case.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained of the domestic courts’ failure to give
relevant and sufficient reasons for ordering and extending his
detention pending trial. He relied on Article 5 § 3 of the
Convention, which 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
The
Court considers that this complaint raises questions of fact and law
which are sufficiently serious that their determination should depend
on an examination of the merits. No other grounds for declaring it
inadmissible have been established. The Court therefore declares this
complaint admissible.
B. Merits
The
Government submitted that the courts had properly reasoned their
decisions to detain the applicant pending trial, in view of the
circumstances of the case and the risks posed by the applicant’s
release. When the need to detain him had ceased to exist, a court had
ordered his immediate release on 14 November 2008.
The
Court refers to the general principles concerning the domestic
courts’ obligation, under Article 5 § 3 of the Convention,
to give relevant and sufficient reasons for ordering a person’s
detention pending trial, as established in its case law (see, amongst
many other authorities, Sarban v. Moldova, cited above,
§§ 95-99).
It
notes that in the present case the applicant advanced substantial
arguments against his detention before the national courts, such as
having a permanent residence in Chişinău and having to
support children, as well as the absence of any reason to believe
that the applicant would abscond or interfere with the investigation.
The
Court further notes that the domestic courts devoted no consideration
to any of these arguments in their relevant decisions, apparently
treating them as irrelevant to the question of the lawfulness of the
applicant’s detention pending trial. This is striking, given
the fact that on 14 November 2008 the trial court had found that
a number of those factors, which had existed when the previous
decisions had been taken, militated against the applicant’s
detention. The other courts either did not make any record of the
arguments submitted by the applicant or made a short note of them and
did not deal with them. In their decisions, they limited themselves
to repeating the formal grounds for detention provided by law in an
abstract and stereotyped way. These grounds were cited without any
attempt to show how they applied to the applicant’s case (see
paragraphs 13 and 17
above).
The
Court also notes that the court which ordered the applicant’s
initial detention characterised the offence allegedly committed by
the applicant as a minor one (see paragraph 13
above). Moreover, by the time of the hearing the applicant had
already paid the entire sum allegedly taken from the victim, which
the lawyer informed the court of. No consideration was given to these
facts in the court’s decision.
In addition, in his appeal the applicant’s
lawyer noted that he had not seen any materials at the hearing other
than the prosecutor’s request for his client’s arrest,
nor had he seen any materials being submitted to the court (see
paragraph 14 above). The minutes of the hearing
do not disclose any discussion of additional documents. The Court
considers that had the case file in fact contained materials relevant
to the question of the applicant’s detention, the failure to
disclose them to the defence would have raised a problem of equality
of arms. However, since the higher court did not mention the
existence of any such materials in the case file before the lower
court and did not contradict the applicant’s lawyer’s
submissions as to the absence of such materials during the hearing of
6 October 2008, it must be assumed that the lower court had based its
decision only on the prosecutor’s request, without seeing any
additional materials.
The
Court considers that ordering a person’s detention based only
on the prosecution’s submissions and in the absence of any
materials to substantiate those submissions is incompatible with the
requirements of Article 5 § 3 of the Convention.
Accordingly, it considers that the reasons relied upon by the
domestic courts in their decisions concerning the applicant’s
detention pending trial were not “relevant and sufficient”.
There
has therefore been a violation of Article 5 § 3 of the
Convention in this respect.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant complained that he and his lawyer had not had access to any
materials on which the domestic courts had based their decisions, and
that a witness had not been heard in deciding on the need to detain
the applicant pending trial.
He
relied on Article 5 § 4 of the Convention, which 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.”
A. Admissibility
The
Court considers that these complaints raise questions of fact and law
which are sufficiently serious that their determination should depend
on an examination of the merits. No other grounds for declaring them
inadmissible have been established. The Court therefore declares
these complaints admissible.
B. Merits
The
Government submitted that the applicant and his lawyer had had
sufficient time and facilities to prepare for the relevant hearings.
Moreover, their failure to ask for additional time to prepare for the
hearing had confirmed their familiarity with the materials of the
case.
The
Court refers to its finding (see paragraph 64
above) that the court which ordered the applicant’s initial
detention had not examined any material apart from the prosecutor’s
request. It follows that the part of the complaint concerning the
failure to give the defence access to the relevant materials
concerning the reasons for the applicant’s detention is
superfluous for the reason that there were no other materials in the
case file submitted to the domestic court.
The
Court also notes that while the prosecution referred to several
investigations against the applicant, his arrest was expressly based
on the alleged defrauding of B. I. The applicant’s lawyer
submitted to the domestic court that the damage allegedly caused by
his client to B. I. had been remedied by the repayment of EUR 500.
The Court considers that the issue whether the applicant had indeed
repaid the damage was relevant to an assessment of the risks of
releasing the applicant or applying other non-custodial preventive
measures, and therefore ultimately to the issue of the lawfulness of
his continued detention pending trial. Moreover, there was a factual
disagreement between the prosecution and the defence, the prosecution
denying having seen any relevant information concerning any such
payment by the applicant. In these circumstances, the applicant’s
lawyer asked for B. I. himself to be heard in order to clarify the
issue. It appears that the court did not decide anything in respect
of that request or at best implicitly rejected it without having
established whether the alleged damage had been remedied.
The
Court recalls that where there is evidence which prima facie appears
to have a material bearing on the issue of the continuing lawfulness
of detention, it is essential, for compliance with Article 5 §
4, that the domestic courts examine and assess it (see mutatis
mutandis, Chahal v. the United Kingdom, 15 November 1996,
§§ 130-131, Reports of Judgments and Decisions
1996 V; Hussain v. the United Kingdom, 21 February
1996, § 60, Reports 1996 I; Becciev v. Moldova,
cited above, § 72; and Ţurcan and Ţurcan v.
Moldova, no. 39835/05, § 67, 23 October 2007).
In
the present case, it was primarily for the domestic courts to decide
what weight to give to the evidence referred to by the applicant at
the relevant stage of the proceedings. However, the failure to
properly deal with the applicant’s lawyer’s request to
hear B. I. and to clarify the issue of repayment of the debt deprived
the defence of its chance to convince the investigating judge of the
absence of a particular risk in ordering the applicant’s
release rather than maintaining his detention.
In
the light of the above, the Court considers that by refusing, without
giving any explanation, to have B. I. questioned on the issue of
repayment of the debt, the Râşcani
District Court breached the applicant’s rights
guaranteed by Article 5 § 4 of the Convention (see Becciev,
cited above, §§ 73-76; and Ţurcan and Ţurcan,
cited above, §§ 68-70).
VI. 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. Non-pecuniary damage
The
applicant claimed EUR 7,000 for non-pecuniary damage caused to him as
a result of the violation of his rights.
The
Government considered that the amount claimed was excessive in the
light of the Court’s similar case law in respect of Moldova.
Having
regard to the violations found above, the Court considers that an
award of compensation for non-pecuniary damage is justified in this
case. It accepts in full the applicant’s claim.
B. Costs and expenses
The
applicant’s lawyer claimed EUR 1,500 for costs and expenses
incurred before the Court. He submitted a contract and a detailed
time sheet.
The
Government considered the amount claimed excessive and disputed the
number of hours worked by the applicant’s lawyer.
In
view of the legal aid given to the applicant by the Council of Europe
and of the quality of his lawyer’s submissions, the Court
considers that no further award is necessary in respect of costs and
expenses.
C. Default interest
The
Court considers it appropriate that 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 the application admissible;
Holds that there has been a violation of
Article 3 of the Convention;
Holds that there has been no violation of
Article 5 § 1 of the Convention;
Holds that there has been a violation of
Article 5 § 3 of the Convention;
Holds that there has been a violation of
Article 5 § 4 of the Convention in respect of the failure
to hear a witness;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,000
(seven thousand euros) in respect of non-pecuniary damage, to be
converted into Moldovan lei at the rate applicable at the date of
settlement, plus any tax that may be chargeable to the applicant
thereon;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Section Registrar President
