European Court of Human Rights

 

 

SECOND SECTION

CASE OF A.C. v. THE REPUBLIC OF MOLDOVA

(Application no. 60450/13)

 

 

 

 

JUDGMENT

STRASBOURG

30 November 2021

 

 

 

 

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

In the case of A.C. v. the Republic of Moldova,

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

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 60450/13) 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”) on 12 September 2013 by a Moldovan national, A.C., born in 1987 and living in Bălţi (“the applicant”) who had been granted legal aid and was represented by Mr A. Lungu, a lawyer practising in Durlești;

the decisions to give notice of the application and subsequently of the complaint under Article 34 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr L. Apostol;

the decision not to have the applicant’s name disclosed;

the decision from 9 April 2019 to declare inadmissible the complaints under Article 3 of the Convention concerning material conditions of detention;

the parties’ observations;

Having deliberated in private on 9 November 2021,

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

SUBJECT-MATTER OF THE CASE

1.  The case concerns the adequacy of medical care in detention and the hindrance of the applicant’s right of individual application.

2.  The applicant, diagnosed, among others, with HIV, hepatitis C, tuberculosis complained that he did not receive adequate medical treatment for other health conditions while detained in prison no. 11 in Bălți from May 2012 to September 2014. According to the prison medical file, the applicant received treatment for various medical conditions albeit sometimes with a certain delay.

3.  After the communication of the case to the Government in April 2014, the applicant complained that the prison doctor had warned him about the possible consequences of his application to the Court. Furthermore, the prison guards had threatened him with the worsening of detention conditions (transfer to prison no. 18 where he feared for his safety, and seizure of a cooking plate), and that his cell had been searched more frequently in order to put pressure on him to withdraw his application before the Court. On 29 July 2014 a cooking plate was seized from the applicant’s cell and on 25 September 2014 the applicant was transferred to prison no. 18, where according to him he obtained personal protection.

4.  The applicant relied on Articles 3 and 34 of the Convention. He also complained under Article 13 of the Convention about having no effective remedy in respect of his complaint on medical care.

THE COURT’S ASSESSMENT

I.         DISJOINDER OF APPLICATIONS

5.  In view of similar complaints on material conditions of detention, in 2019 the Court decided to join this application with eleven others (see Tălămbuță and others v. the Republic of Moldova (dec.), nos. 23151/09 and 11 other applications, § 12, 9 April 2019) and declared the applications partially inadmissible.

6.  The Court now considers that it is necessary to disjoin this application from the other eleven and to examine it separately.

II.      ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

7.  The applicant complained under Article 3 of the Convention about inadequate medical care in prison. The applicant’s complaints concerned notably an incident of dental pain in March 2013 for which he allegedly received treatment fourteen days later, the alleged lack of treatment for HIV‑opportunistic diseases and an alleged interruption of his ARV therapy for five days when transferred to another prison in September 2014.

8.  The Government argued that, by omitting to claim compensation for the alleged damage caused by the alleged lack of medical care, the applicant failed to exhaust domestic remedies. The Court has already rejected such objections concerning applicants still in detention (Botnari v. the Republic of Moldova, no. 74441/14, § 23, 5 June 2018). As the Government did not submit any fresh evidence calling that finding into question, the Court concludes that their objection should be dismissed in the present case too.

9.  The Government submitted that the applicant had received all necessary treatment shortly after it was requested. The Government argued that the applicant received monthly lots of ARV therapy in tablets but always had a reserve of tablets sufficient for seven days. The applicant received a set of tablets on 20 August and then another set on 30 September 2014; during the five days in between facilities he should have been able to use the reserve he had on him.

10.  The applicant did not dispute the prison medical file submitted by the Government.

11.  In respect of the dental care, on 20 February 2013 the applicant received treatment for mouth ulcers. On 20 March 2013 the applicant called for a doctor at 11.00 a.m., at 7.10 p.m. and 8.00 p.m. requesting a painkiller (Dimidrol). He was diagnosed with acute periodontitis and received antibiotic treatment. At an undecipherable date, a tooth was extracted. The medical file does not contain any record of pain medication for that period. Therefore, the Court is ready to accept the applicant’s allegation that he had not received pain medication immediately after he had requested.

12.  In respect of the HIV-opportunistic illnesses, the applicant did not make specific submissions. According to the medical file, he was provided with medical assistance and medication on a fairly regular basis for various affections.

13.  In respect of the interruption in the ARV therapy, the applicant did not dispute the information provided by the Government, according to which he should have had a sufficient reserve of tablets to cover the days during the transfer between facilities (see paragraph 9 above).

14.  In these circumstances, the Court observes that, save for one incident in March 2013 when the applicant did not receive pain treatment immediately (see paragraph 11 above), in general he received dental care and treatment involving antibiotics and/or painkillers when he needed it. Assuming that pain treatment was indeed necessary on that occasion, the Court finds that such shortcoming was indeed regrettable; however, it cannot be considered to have severely affected the applicant’s health. In these circumstances, and having regard to the relatively short period of time in question, the Court considers that the treatment complained of cannot be considered as having caused the applicant suffering attaining the threshold of inhuman and degrading treatment proscribed by Article 3 of the Convention (see, Ciupercescu v. Romania (no. 3), nos. 41995/14 and 50276/15, § 98, 7 January 2020; by way of contrast, Drăgan v. Romania, no. 65158/09, §§ 86‑94, 2 February 2016).

15.  It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III.   ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

16.  The applicant also complained under Article 34 of the Convention that the prison administration had hindered his right of individual application after the Government had been given notice of the case in April 2014.  The applicant complained in successive letters mainly about the following elements of undue pressure: discussions in June 2014 with the prison doctor and two prison guards, threats to remove the cooking plate from his cell made in June 2014, threats to transfer him to prison no. 18 made in August 2014, multiple searches carried out from June to September 2014 with the seizure of the cooking plate in July 2014, and the transfer to prison no. 18 in September 2014.

17.  The Government submitted that the applicant’s allegations of undue pressure had not been confirmed by the investigation carried out by the Bălți prosecutor’s office and that the decision to transfer him to prison no. 18 was taken on 10 September 2014 for unrelated reasons. The Government also noted that the applicant had never complained about any action of the prison administration, including the decision to transfer him to prison no. 18. The Government argued that the applicant’s complaint should be rejected for non‑exhaustion or as manifestly ill-founded.

18.  The general principles for assessing whether the applicant was subject to pressure from authorities to withdraw or modify his complaints before the Court contrary to Article 34 of the Convention have been summarised in Sisojeva and Others v. Latvia ((striking out) [GC], no. 60654/00, § 115, ECHR 2007‑I), Salman v. Turkey ([GC], no. 21986/93, § 130, ECHR 2000‑VII), and Konstantin Markin v. Russia ([GC], no. 30078/06, § 158, ECHR 2012 (extracts)).

19.  The Court reiterates that a complaint under Article 34 of the Convention is of a procedural nature and that therefore does not give rise to any issue of admissibility under the Convention (see, among other authorities, Rasul Jafarov v. Azerbaijan, no. 69981/14, § 176, 17 March 2016, with further references).

20.  It is undisputed that after the case had been communicated, from 3 June to 25 September 2014, the applicant’s cell was searched on thirteen occasions, sometimes three-four times per week. On six occasions the searches resulted in the confiscation of prohibited objects (cigarettes, mobile phones, playing cards, charger for mobile phone, 6 kg of raw material for producing alcohol, a shaving blade). On 29 July 2014 the prison administration confiscated a hot plate because it was handcrafted and unsafe. The Government did not dispute the applicant’s submissions that his cell had not been searched so often before the communication of the case and failed to provide an explanation of why those had been necessary.

21.  As to the seizure of the hot plate, the Court notes that the applicant submitted a document, according to which on 30 January 2014 T. had brought him a cooking plate, model HP-100, and on 12 February 2014 the prison staff signed the request, authorising the applicant to use it in his cell. In the investigation carried out by the Bălți prosecutor’s office, the prison administration first denied the existence of a hot plate and only later acknowledged that one had been seized in the course of searches. The Government did not dispute the document provided by the applicant, did not provide any explanation of these inconsistencies or of the concurrence of the alleged threat to seize the hot plate, made in June 2014 and its materialisation one month later.

22.  In respect of the transfer to prison no. 18, the Court notes that according to the applicant upon his arrival in that prison he was granted protection. While the transfer could have been related to the normal management of penitentiary population, the Court notes that no explanation was provided of the concurrence of the alleged threat to transfer the applicant to prison no. 18, made in August 2014, and its materialisation in a formal decision on 10 September and in the actual transfer on 25 September 2014.

23.  In respect of the alleged discussions and threats made by the prison staff, the investigation carried out by the Bălți prosecutor’s office concluded that the applicant’s allegations of psychological pressure had not been proven true. However, the investigation relied exclusively on the statements of two prison guards and did not include interviews of the prison doctor or of the applicant’s inmates. It also failed to explain the chronological consistency between the alleged threats and their subsequent materialisation (see paragraphs 21-22 above).

24.  Given the applicant’s consistent submissions and in the absence of any other credible explanation, the Court considers that the prison administration approached the applicant to intimidate or dissuade him from pursuing his application before the Court. In these circumstances the State has failed to fulfil its obligation under Article 34 of the Convention not to hinder the effective exercise of the right of individual petition.

IV.   REMAINING COMPLAINT

25.  The applicant also raised a complaint under Article 13 of the Convention. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention.

26.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  The applicant claimed 19,000 euros (EUR) in respect of non‑pecuniary damage and EUR 3,990 in respect of costs and expenses incurred before the Court, to be paid directly to his representative. He submitted a detailed timesheet of his representative’s work.

28.  The Government argued that the claimed amounts were excessive and invited the Court to decide on equitable basis.

29.  The Court awards the applicant EUR 4,500 EUR in respect of non‑pecuniary damage, plus any tax that may be chargeable.

30.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 covering costs under all heads (which presents EUR 1,850 less EUR 850, the sum received by way of legal aid), plus any tax that may be chargeable to the applicant. Both sums are to be paid to the applicant’s representative.

31.  The Court further considers it appropriate that the default interest rate 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,

1.      Disjoins the application from the others to which it was joined;

2.      Declares the complaints under Article 3 and 13 of the Convention inadmissible;

3.      Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;

4.      Holds

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

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, 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 30 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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   Hasan Bakırcı                                                                      Carlo Ranzoni
Deputy Registrar                                                                       President