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Cite as: ECLI:CE:ECHR:2018:0605JUD007444114, CE:ECHR:2018:0605JUD007444114, [2018] ECHR 459

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SECOND SECTION

CASE OF BOTNARI v. THE REPUBLIC OF MOLDOVA

(Application no. 74441/14)

JUDGMENT

STRASBOURG

5 June 2018

This judgment is final but it may be subject to editorial revision.

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

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

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

Having deliberated in private on 15 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 74441/14) 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, Ms Viorica Botnari ("the applicant"), on 20 November 2014.

2. The applicant was represented by Mr A. Postica, a lawyer practising in Chișinău. The Moldovan Government ("the Government") were represented by their Agent, Mr L. Apostol.

3. The applicant alleged that she had been detained in inhuman and degrading conditions of detention and that she was not provided with adequate medical care in breach of Article 3 of the Convention. She also complained under Article 13 of the Convention about a violation of her right to an effective remedy in respect of her complaints under Article 3.

4. On 27 January 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1972 and is currently detained in Chișinău.

A. The applicant's arrest and the conditions of detention

6. On 17 March 2010 the applicant was arrested by police office and charged with fraud and forgery of official documents. She was placed in the detention centre of the General Directorate for Fighting Organised Crime of the Ministry of the Interior ("the GDFOC").

7. According to the applicant, she was held there in an underground cell which offered substandard conditions of detention.

8. The applicant further submitted that she was transferred to Prison no. 13, where she was detained in a cell with sixteen other inmates and was subjected to passive smoking. She was not provided with bedding and was not able to sleep normally. The cell was infested with vermin and the food was of a very poor quality.

9. According to the Government, the applicant was transferred from the detention facility of the Ministry of the Interior to Prison no. 13 on 29 March 2010. On 30 March 2011 she was released from detention and was placed under house arrest. On 26 January 2012, after having been declared a wanted person, the applicant was again arrested and again placed in detention in Prison no. 13. On 19 September 2012 she was released from prison and was placed under house arrest. On 5 June 2013 the applicant was again placed in detention in Prison no. 13. On 10 June 2013 the Centru District Court found the applicant guilty as charged and sentenced her to thirteen years and six months' imprisonment. The case was pending before the Chişinău Court of Appeal at the time of the parties' observations.

10. According to the Government, during her detention in Prison no. 13 after 5 June 2013 the applicant was held in cells nos. 108 and 110, each designed to hold eight detainees and measuring 18 sq. m, and in cell no. 109 designed to hold six detainees and measuring 18 sq. m. Cell no. 109 was lit by a 100-W bulb and had a window, as well as a tap and a toilet separated from the rest of the cell by a partition. All the cells were regularly disinfected.

B. The applicant's medical condition while in detention and the medical care provided to her

11. On 26 February 2003 the applicant was diagnosed with non-Hodgkin lymphoma ("NHL" - a type of blood cancer). This disease affected her spleen, bone marrow and lymph nodes. She was also diagnosed with chronic hepatitis.

12. According to the applicant, while being detained in the detention facility of the GDFOC, her medical treatment was interrupted and the GDFOC administration refused to transfer her to a hospital. After she had been transferred to Prison no. 13, she was not provided the medical assistance required for her condition.

13. According to the applicant, while in detention, her state of health deteriorated. In both detention facilities there was no specialist oncologist and chemotherapy was unavailable. The applicant undertook her last chemotherapy session in a specialist civilian hospital in April 2013 while under house arrest. Following an enquiry lodged in December 2013 by the applicant's lawyer about the medical care received by the applicant while in detention, the Prisons Authority replied on 14 February 2014 that she had been registered as an oncology patient since 5 June 2013 and had been provided with medical treatment in line with her diagnosis.

14. According to two extracts from the applicant's medical records dated 26 June 2014 and 9 July 2015 and signed by the head and the deputy head of the medical unit of Prison no. 13, the applicant was in need of specific medical treatment from the Institute of Oncology and her medical condition was qualified as being of medium seriousness.

15. The Government submitted that from 24 April 2010 to 9 July 2012 the applicant had refused on several occasions to be hospitalised either in the prison hospital (Prison no. 16) or in the medical section of Prison no. 13. On two occasions the applicant had refused to undergo inpatient treatment at the Institute of Oncology, which was a specialist civilian hospital. The applicant had been examined on several occasions by a therapist and a haematologist and given medical treatment. Every year, the Prisons Authority concluded a service contract, with a budget amounting to 35,000 Moldovan lei (MDL - approximately 1,555 euros (EUR)), with the Institute of Oncology. Accordingly, specific types of treatment such as chemotherapy and radiotherapy were available.

II. RELEVANT MATERIAL

16. The Court refers to the relevant material cited in its previous case-law concerning the Republic of Moldova (see, for instance, Shishanov v. the Republic of Moldova, no. 11353/06, §§ 50-61, 15 September 2015, and Valentin Baştovoi v. Republic of Moldova, no. 40614/14, §§ 13-14, 28 November 2017).

17. In its reports for 2013, 2014 and 2015 on conditions of detention, the Centre for Human Rights in Moldova ("the Human Rights Centre", which also acts as the Moldovan Ombudsman) found serious problems in Prison no. 13, notably concerning overcrowding, food quality, ventilation and access to daylight. In view of its findings it recommended in its reports for 2014 and 2015 that Prison no. 13 be closed or, if that was not possible, that the conditions of detention there be urgently improved.

18. The relevant parts of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT") report concerning its visit to the Republic of Moldova between 14 and 25 September 2015 read as follows:

"44. Prison no. 13 in Chișinău has been visited by the Committee on several occasions. Being one of the oldest prisons in the country (dating from the 1850s), its replacement by a new prison establishment has long been planned. The delegation was informed during the 2015 visit that the opening of a new 1,500-place remand prison in the Chișinău area, financed in large part by a loan from the Council of Europe Development Bank, was now envisaged for June 2018.

Chișinău Prison, with an official capacity of 1,000 places, remains the largest prison establishment in the Republic of Moldova and operates primarily as a remand facility, with a very high turnover of prisoners (according to the management, between 13,000 and 15,000 prisoners were admitted to the prison every year). At the time of the visit, the establishment was accommodating 1,186 inmates in three separate accommodation blocks, including 81 female adults and 22 male juveniles. The inmate population also included 56 sentenced prisoners (who mainly worked in the prison's general services) and two persons serving administrative sanctions. In addition, eight life-sentenced prisoners were temporarily held in the establishment as they had a case pending before a court in Chișinău.

...

45. At the time of the 2015 visit, the Moldovan prison population had increased by some 1,300 inmates as compared to the CPT's previous visit in 2011 and stood at approximately 7,770 (some 20% on remand). This represents an incarceration rate of some 220 per 100,000 inhabitants - one of the highest among Council of Europe member states. The Moldovan authorities recognised that the size of the prison population and the resulting overcrowding in prisons constituted a major challenge. Indeed, the delegation observed for itself that the national standard of at least 4 m2 of living space per prisoner was far from being met in most of the prison establishments visited; in particular at Chișinău and Soroca Prisons, the levels of overcrowding had reached disturbing proportions. In this context, the delegation was told by the authorities that the increase in the number of prisoners was largely attributable to the rising re-offending rates and excessive resort to remand detention, as well as to reluctance on the part of judges to grant early conditional release.

46. The CPT recommends that the Moldovan authorities make vigorous efforts - in consultation with the prosecutorial and judicial authorities - to eradicate prison overcrowding, in the light of the above-mentioned remarks. In so doing, the authorities should be guided by the relevant Recommendations of the Committee of Ministers of the Council of Europe: Recommendation R (99) 22 concerning prison overcrowding and prison population inflation, Recommendation Rec(2000)22 on improving the implementation of the European rules on community sanctions and measures, Recommendation Rec(2003)22 on conditional release (parole), Recommendation Rec(2006)13 on the use of remand in custody, and Recommendation Rec(2010)1 on the Council of Europe Probation Rules.

...

74. The women's section at Chișinău Prison displayed shortcomings similar to those observed in the men's accommodation areas, notably as regards state of repair, access to natural light and living space (for example, eight prisoners in a cell of some 20 m2). It is also a matter of concern that, like their male counterparts, female prisoners generally spent 22 hours confined to their cells; they were usually not offered any other activity apart from two hours of outdoor exercise per day. In this context, the recommendation and the comment made in paragraphs 60 and 62 should be read as applying also to female prisoners at Chișinău Prison.

75. In both prisons, the delegation received complaints from female prisoners regarding difficulties in obtaining hygiene products. Further, female prisoners at Chișinău Prison, as well as inmates under the initial regime at Rusca Prison, were entitled to shower only once a week.

The CPT recommends that steps be taken at Chișinău and Rusca Prisons to ensure that female prisoners have access to sufficient quantities of personal hygiene products; the specific hygiene needs of women should be addressed in an appropriate manner. Steps should also be taken in these prisons to allow female prisoners more frequent access to shower facilities, taking into account Rule 19.4 of the European Prison Rules."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

19. The applicant complained that the material conditions of detention and the lack of medical care both in the detention centre of the GDFOC and in Prison no. 13 amounted to inhuman and degrading treatment. She relied on Article 3 of the Convention, which reads as follows:

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

A. Admissibility

20. The Government submitted that by not claiming compensation for the damage allegedly caused by her detention in inhuman conditions and by the alleged lack of medical care, the applicant had failed to exhaust the available domestic remedies. They submitted a summary of forty-six cases examined by the domestic courts in which detainees had lodged claims seeking compensation for violations of Article 3 of the Convention. They also pointed to an explanatory decision of the Supreme Court of Justice dated 24 December 2012 concerning the compensatory remedy introduced for violations of Articles 3, 5 and 8. In addition, they submitted that the complaints concerning the conditions of detention and lack of medical assistance prior to 5 June 2013 should be dismissed for being lodged outside the six-month time-limit, arguing that the applicant had been released from prison on 19 September 2012.

21. The applicant argued that she had no effective remedies in respect of her complaints under Article 3 of the Convention and that her detention amounted to a "continuing situation". She added that she had not been provided with adequate medical care for her condition.

22. In so far as the Government's first objection is concerned, it is noted that no copies of the relevant judgments were submitted to the Court.

23. Moreover, the Court observes that it found violations of Article 13 of the Convention in Malai v. Moldova (no. 7101/06, §§ 45-46, 13 November 2008), I.D. v. Moldova (no. 47203/06, § 50, 30 November 2010), and Rotaru v. Moldova (no. 51216/06, § 47, 15 February 2011) on account of the lack of effective remedies in Moldova for inhuman and degrading conditions of detention. It also notes that the remedy suggested by the Government does not have a preventive effect in the sense of improving the conditions of an applicant's detention, but only a compensatory effect (see, for instance, Holomiov v. Moldova, no. 30649/05, § 107, 7 November 2006). It is not therefore effective in cases where people are still detained in such conditions at the time of lodging their application with the Court (see, for instance, Oprea v. Moldova, no. 38055/06, § 33, 21 December 2010). In the present case, the applicant was in detention at the time she lodged her application. The Court therefore rejects the Government's objection.

24. As to the question of the six-month time-limit for lodging the application, the Court reiterates that the object of the six-month time-limit under Article 35 is to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation (see B. and D. v. the United Kingdom, no. 9303/81, Commission decision of 13 October 1986, Decisions and Reports (DR) 49, p. 44). The concept of a "continuing situation" refers to a state of affairs which operates by continuous activities by or on the part of the State so as to render the applicant a victim (see Montion v. France, no. 11192/84, Commission decision of 14 May 1987, DR 52, p. 227; and Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108). Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26 June 2001).

25. In Koval v. Ukraine ((dec.), no. 65550/01, 30 March 2004) and in Mikhaniv v. Ukraine ((dec.), no. 75522/01, 20 May 2008), where the applicants were also detained in several different detention facilities, the Court held that each period of detention referred to specific events which had occurred on identifiable dates and that therefore they could not be construed as a "continuing situation". The Court concluded that the six-month period envisaged by Article 35 § 1 of the Convention must be counted from the date on which each particular period of detention ended.

26. The Court notes that, in the instant case, the applicant did not deny the information provided by the Government stating that on 29 March 2010 she had been transferred to Prison no. 13 and that she had been released from that prison on two occasions, but only argued that her situation should be construed as a "continuing situation".

27. The Court further notes that the application was lodged with the Court on 20 November 2014. There is nothing to suggest that the applicant was in any way impeded by the authorities from complaining before that date regarding her detention in the detention centre of the GDFOC from 17 March 2010 to 29 March 2010 and regarding the first two periods of detention in Prison no. 13 (from 29 March 2010 to 30 March 2011 and from 26 January 2012 to 19 September 2012). It is true that the applicant was deprived of liberty within the framework of the same criminal proceedings. Nonetheless, in view of the significant gap between the first period of detention and the second such period (ten months) and between the second period and the third (eight and a half months) with which the complaints are concerned, the Court cannot treat them as part of a continuing situation as described above (see Haritonov v. Moldova, no. 15868/07, § 26, 5 July 2011). In such circumstances, the Court considers that only the complaint concerning the last period of detention, in Prison no. 13 from 5 June 2013 until present, was lodged within the time-limit provided for in Article 35 of the Convention. Consequently, the complaints in respect of the other periods of detention in Prison no. 13 and the detention facility of the Ministry of the Interior must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

28. The Court considers that the remainder of the complaints under Article 3 of the Convention (about the conditions of the applicant's detention and lack of medical care in Prison no. 13 between 5 June 2013 until present) raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no grounds for declaring them inadmissible have been established. The Court therefore declares it admissible.

B. Merits

1. Conditions of detention in Prison no. 13

29. The applicant submitted that the conditions of detention in Prison no. 13 amounted to inhuman and degrading treatment, and referred in particular to overcrowding, poor food quality, passive smoking, lack of bedding and the presence of vermin in the cell.

30. The Government submitted that the conditions of detention in Prison no. 13 did not amount to inhuman and degrading treatment and argued that between 2007 and 2012, as well as in 2015, repairs had been carried out on many cells, on the bathrooms and on the heating and water supply systems. All the cells were regularly disinfected. Moreover, the detainees were provided with bedding, hygiene products tailored to their needs, and hot food three times a day in accordance with Government Decision no. 609 concerning the minimum daily food requirements for detainees.

31. The Court reiterates that the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her 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 or her health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-�XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).

32. It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are "degrading" from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39, 7 April 2005, Ananyev and Others, nos. 42525/07 and 60800/08, §§ 139-165, 10 January 2012 , §§ 145-�147 and 149, and Muršić v. Croatia [GC], no. 7334/13, § 104, ECHR 2016).

33. In the present case, the Court notes that overcrowding was confirmed by the Government's data concerning the size and occupancy of the cells (see paragraph 9 above), the Human Rights Centre (see paragraph 16 above) and the CPT (see paragraph 17 above). Moreover, the poor food quality, as found by the Human Right Centre in its reports, and the passive smoking to which the applicant had been exposed, further increased the applicant's suffering, which exceeded the unavoidable level of hardship inherent in detention. In the absence of any evidence from the Government that considerable improvements in Prison no. 13 had taken place in recent years, the Court considers that there is no reason to depart from the conclusions reached in its previous judgments (see, among recent authorities, Pisaroglu v. the Republic of Moldova, no. 21061/11, § 18, 3 March 2015; Cristioglo v. the Republic of Moldova, no. 24163/11, § 23, 26 April 2016, and Valentin Baştovoi, cited above, § 25).

34. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention in respect of the applicant's conditions of detention.

2. Medical assistance

35. The applicant submitted that she had not been provided with the specific medical care required for her condition.

36. The Government submitted that the applicant did not give any information concerning the period after 5 June 2013.

37. The Court reiterates that, although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79).

38. The Court observes that the authorities were aware that the applicant had been diagnosed with a serious illness (see paragraph 10 above) and had been prescribed specific medical treatment in line with her diagnosis within the Institute of Oncology (see paragraph 13 above). Although she had refused to undergo inpatient treatment during her previous periods of detention, there is no evidence of such a refusal after her last placement in Prison no. 13 on 5 June 2013.

39. The Court also observes that the Government did not submit any information as to the steps taken by the prison administration to implement the above-mentioned prescribed medical treatment (see paragraph 13 above), namely, whether the applicant had been transferred to a specialist medical institution. Nor did the Government provide information as to the factors, if any, that had prevented the applicant's transfer to the above-mentioned civilian hospital for the purpose of the specific medical treatment required for her condition as had been recommended by doctors, or any other evidence demonstrating her refusal to be hospitalised in a civilian hospital during her last period of detention (as opposed to the first two periods, see paragraph 14 above).

40. It follows that the applicant did not receive the medical treatment prescribed by the doctors, of which the prison administration was fully aware, due to the failure to transfer her to the Institute of Oncology.

41. The Court therefore finds that the denial of adequate medical care to the applicant amounted to a breach of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

42. Relying on Article 13 of the Convention, the applicant complained of a violation of her right to an effective domestic remedy in respect of her complaints under Article 3.

43. The Government argued that it was open to the applicant to bring a civil claim for compensation for any alleged violation of Article 3. They relied on a list of domestic cases (see paragraph 19 above). They also added that the applicant had not lodged any complaint before the domestic authorities about the conditions of detention and lack of medical care.

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

45. The Court reiterates that Article 13 guarantees the availability at national level of a remedy by which to complain of a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see De Tommaso v. Italy [GC], no. 43395/09, § 179, ECHR 2017 (extracts)).

46. In the present case, for the same reasons as those which have led to the dismissal of the Government's objection concerning the exhaustion of domestic remedies (see paragraph 22 above), the Court finds that there has been a violation of Article 13 of the Convention owing to the absence of any effective remedies in respect of complaints concerning conditions of detention in Moldova.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. 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

48. The applicant claimed 15,000 euros (EUR) in respect of non-�pecuniary damage suffered as a result of her detention in inhuman and degrading conditions and insufficient medical care.

49. The Government submitted that the amount claimed by the applicant was excessive.

50. The Court considers it appropriate to award the applicant compensation in respect of non-pecuniary damage. Deciding on an equitable basis, it awards her EUR 10,000.

B. Costs and expenses

51. The applicant also claimed EUR 1,800 for the costs and expenses incurred before the domestic courts and the Court. She relied on a contract with her lawyer, as well as an itemised timesheet outlining the hours worked by him, amounting to fifteen hours at an hourly rate of EUR 120.

52. The Government considered the amount claimed excessive and disputed the number of hours worked by the applicant's lawyer.

53. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 3 (concerning poor conditions of detention and insufficient medical care in Prison no. 13 from 5 June 2013 until present) and under Article 13 admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant's conditions of detention in Prison no. 13 from 5 June 2013 until present and the insufficient medical care given to her;

3. Holds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3;

4. Holds

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

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

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

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

Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident