BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF HADJI v. MOLDOVA
(Applications
nos. 32844/07 and 41378/07)
JUDGMENT
STRASBOURG
14
February 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 Hadji v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 32844/07 and
41378/07) 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 Iurie
Hadji (“the applicant”), on 14 July 2007 and 28 August
2007 respectively.
- The
applicant was represented by Ms M. Budan, a lawyer practising in
Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
3. The
applicant alleged, in particular, a breach of his right not to be
subjected to inhuman and degrading treatment as a result of poor
conditions of detention.
- On
29 November 2010 the Court decided
to give notice of the applications to the Government.
It was also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
24 September 2003 the applicant was arrested on suspicion of being a
member of a criminal gang specialising in the theft of cars. On
23 November 2006 the applicant was convicted and on 25 April
2007 his conviction was upheld on appeal by the Chişinău
Court of Appeal. He was sentenced to twelve years’
imprisonment. During the criminal proceedings against him the
applicant was detained in the following detention facilities:
- 26
November 2003 – 2 December 2003: Prison no. 13;
- 2
December 2003 – 14 January 2004: detention facility of the
Ministry of Internal Affairs;
- 14
January 2004 – 16 February 2004: Prison no. 13;
- 16
February 2004 – 25 February 2004: detention facility of the
Ministry of Internal Affairs;
- 25
February 2004 – 4 January 2007: Prison no. 13;
- 4
January 2007 – 1 March 2007: Prison no. 16;
- 1
March 2007 – 1 April 2008: Prison no. 13;
- 1
April 2008 – 2 June 2010: Prison no. 8;
- 2
June 2010 – 4 February 2011: Prison no. 12;
- 4
February 2011 – present: Prison no. 8.
- According
to the applicant the conditions of detention in Prison no. 13 and
Prison no. 8 were very poor and amounted to inhuman and degrading
treatment. In respect of Prison no. 13, the applicant submitted that
the cells were overcrowded and humid and there was no ventilation. He
also complained about the quality and quantity of the food. As to
Prison no. 8, he submitted that it was located on territory
controlled by the Transdniestrian separatist authorities but was
itself under the control of the Moldovan constitutional authorities.
The separatist authorities had cut off the power and water supplies
and disconnected the prison from the sewage network. As a result the
inmates had electrical power for only three hours per day and the
water was limited to fifteen litres per day, plus another fifty
litres once a week for showers and washing clothes.
II. RELEVANT
NON-CONVENTION MATERIAL
7. The
relevant parts of the Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) concerning a visit to Moldova between 14 au 24
September 2007 read as follows (unofficial translation):
“84. Penitentiary
establishment No. 8 in Bender had been the subject of three visits by
the CPT since 2003, following the decision of the municipal
authorities of Bender to deprive the establishment of running water
and electricity supply (and, as of 2005, to disconnect it from the
city’s sewage disposal system). The seriousness of the
situation confronting the establishment led the Committee to state in
the report on its visit in March 2006 that, unless the
above-mentioned problems were resolved, prisoners should be relocated
elsewhere. In their response to that report, the Moldovan authorities
indicated that they considered the situation at Penitentiary
establishment No. 8 in Bender to be under control and saw no reasons
for the relocation of prisoners to other establishments.
85. When
re-visited by the CPT’s delegation on 21 September 2007, the
establishment was holding 99 prisoners (compared with 101 on 18 March
2006). The delegation was informed that some 35 inmates had been
released since March 2006, and approximately the same number of new
prisoners had been admitted. The great majority of the prisoners
currently held at the establishment originated from the
Transdniestrian region or nearby locations. The delegation gained the
impression that all prisoners who had been admitted in the last year
had themselves asked for a transfer to Bender, in particular because
of wishing to be closer to their families. An examination of the
documentation confirmed that newly admitted prisoners had been
expressly informed of the conditions prevailing at the establishment
(i.e. absence of running water, electricity and sewage disposal) and
had confirmed with their signature their wish to be transferred
there. Further, it appeared that the few inmates who had requested
transfer to other establishments had received satisfaction.
86. As
regards material conditions,
in terms of living space per prisoner (some 6 m²), state of
repair and decoration, the dormitories in which inmates were
accommodated offered conditions superior to those witnessed at any
other penitentiary establishment seen by the CPT in Moldova. Further,
prisoners stated that the food they received was better than that
provided elsewhere. Moreover, no problems were reported as regards
the heating.
However, in the absence of any
progress in the stand-off between the municipal authorities of Bender
and the Moldovan authorities, electricity continued to be produced by
generators and was available 3 to 4 hours a day in the evenings,
enabling inmates inter alia to watch TV. Further, water was delivered
regularly by a lorry cistern and was
distributed into reservoirs supplying the kitchen and the bathroom;
inmates could take a shower once a week. As for toilets, cesspools
had been installed in the basements of the unused buildings.
87. Prisoners
could circulate freely around the establishment’s extensive
premises and engage in outdoor sports. However, there was a shortage
of organised activities.
Some 36 prisoners were employed in the establishment’s general
services (kitchen, cleaning, repairs, etc.). Further, the
establishment’s director spoke of plans to set up a carpentry
workshop; however, it was unclear when these plans would materialise.
88. The
delegation was informed that relations
with the municipal authorities of
Bender had become less tense in the last year. As a result, staff
travelling across the border between Moldova and the Transdniestrian
region were reportedly able to come to work on a regular basis.
89. To
sum up, it is clear that the Moldovan authorities have continued to
take steps to alleviate, as far as possible, the difficult situation
facing Penitentiary establishment No. 8 in Bender and to ensure that
the health and welfare of prisoners are protected. Further, there are
signs of a more pragmatic approach on the part of both parties
concerned by the stand-off. This is encouraging.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The Court considers at the outset that, in the
interests of the proper administration of justice, the applications
registered under the numbers 32844/07 and 41378/07 should be joined
in accordance with Rule 42 § 1 of the Rules of Court, as there
is common ground between the facts giving rise to the two cases.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention about the
conditions of his detention in the detention facility of the Ministry
of Internal Affairs, Prison no. 13 and Prison no. 8. In his reply to
the Government’s observations dated 15 July 2011, the applicant
also complained for the first time about the conditions of his
transportation during the criminal proceedings and the conditions of
his detention in the courts. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government submitted, firstly, that the complaint concerning the
conditions of detention prior to 14 January 2007 should be dismissed
for being lodged outside the six-month time-limit. Moreover, the
applicant had failed to exhaust domestic remedies in respect of his
complaint under Article 3.
- In
so far as the latter objection is concerned, the Court notes that a
similar objection was examined and dismissed by the Court in I.D.
v. Moldova (no. 47203/06, §§
34-35, 30 November 2010) because the Government had not shown
that an effective remedy had been available in theory and in
practice. In such circumstances, and in
view of the similarity between the Government’s position in
this case and in I.D., the Court does not find it possible to
depart from its reasoning and findings in I.D., and it
therefore dismisses the Government’s objection.
- As
to the question of the six-month time-limit rule, 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).
- The
Court notes that the applicant complained for the first time about
the manner in which he had been transported during the criminal
proceedings and about the conditions of his detention in the courts
only in July 2011, whereas the criminal proceedings against him had
ended in 2007. There is nothing to suggest that the applicant was in
any way prevented by the authorities from complaining before that
date. Consequently, the complaint has been lodged more than six
months after the alleged breach took place and must be declared
inadmissible under Article 35 §§ 1 and 4 of the Convention.
- In
so far as the conditions of the applicant’s detention prior to
his last period of detention in Prison no. 13 are concerned, the
Court notes that there was a period of almost two months in the
applicant’s detention, while he was detained in Prison no. 16,
about which he does not complain. It is true that the applicant was
detained within the framework of the same criminal proceedings
throughout his entire detention. Nonetheless, in view of the
significant gap between the two periods of detention with which the
complaints are concerned, the Court cannot treat them as a part of a
continuing situation as described above, even if the other conditions
are met (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, was lodged within six months.
Consequently, the complaint in respect of the other periods of
detention in Prison no. 13 must be declared inadmissible under
Article 35 §§ 1 and 4 of the Convention.
- Finally,
in so far as the conditions of detention in Prison no. 8 are
concerned, the Court notes the CPT’s findings to the effect
that the conditions of detention in that prison were generally better
than in other detention facilities and that the only major problem
was the disruption in the supplies of water and electricity. The
inmates who requested transfers to other
establishments on account of that disruption received satisfaction
(see paragraph 7 above). The applicant did not adduce any
evidence to show that he or his lawyer had made any requests to be
transferred to other establishments. Therefore, the Court is not
persuaded that he was genuinely dissatisfied with his conditions of
detention at the material time, that is, with the problems in the
supply of electricity and water. Accordingly, the Court concludes
that this part of the complaint under Article 3 of the
Convention is manifestly ill-founded and therefore inadmissible
within the meaning of Article 35 §§ 3 and 4 of the
Convention.
- The
Court considers that the remaining part of the complaint under
Article 3 of the Convention (about the conditions of the applicant’s
detention in Prison no. 13 between 1 March 2007 and 1 April 2008)
raises 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 it inadmissible have been established.
The Court therefore declares it admissible.
B. Merits
- The
applicant submitted that the conditions of that detention for its
entire duration amounted to inhuman and degrading treatment.
- The
Government submitted that the applicant’s description of the
conditions of his detention was not sufficiently detailed.
Alternatively, they argued that in view of the particular
circumstances of the case the treatment to which he had been
subjected had not attained the threshold of severity required by
Article 3 of the Convention.
- The
Court reiterates the general principles concerning conditions of
detention set out in Ostrovar v. Moldova (no. 35207/03, §§
76 79, 13 September 2005).
- The
Court observes that in Ţurcan v. Moldova, no. 10809/06,
§§ 35 39, 27 November 2007, it found a
violation of Article 3 of the Convention in respect of the poor
conditions of the applicant’s detention in Prison no. 13
between February and September 2006. Since the present case refers to
the same detention facility and since no evidence has been adduced by
the Government that the situation had changed between September 2006
and March 2007, the Court considers that there are no reasons to
depart from the conclusions reached in Ţurcan. The Court
thus considers that the hardship endured by the applicant during his
detention between 1 March 2007 and 1 April 2008 went beyond the
unavoidable level of hardship inherent in detention and reached a
threshold of severity contrary to Article 3 of the Convention.
Accordingly, there has been a violation of Article 3 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained of a violation of Article 3
of the Convention as a result of alleged ill-treatment at the hands
of the police. However, he did not submit any evidence to
substantiate his allegations and, therefore, the complaint is
manifestly ill-founded and inadmissible within the meaning of Article
35 §§ 3 and 4 of the Convention.
- The
applicant also complained under Article 5 of the Convention that
between 2004 and 2005 he had been detained without a warrant for his
detention. The Court notes that the applicant made this allegation
for the first time in application no. 32844/07, lodged on 14 July
2007. Consequently, the complaint was lodged more than six months
after the alleged breach took place and must be declared inadmissible
under Article 35 §§ 1 and 4 of the Convention.
- The
applicant further complained under Article 6 that the criminal
proceedings against him had been unfair and that the prosecutor’s
office had refused to initiate criminal proceedings against third
parties. The Court considers that there is nothing in the material
submitted by the applicant to suggest that the criminal proceedings
against him were unfair in any way. This part of the complaint is
thus manifestly ill-founded and therefore inadmissible within the
meaning of Article 35 §§ 3 and 4 of the Convention. As to
the second part of the complaint under Article 6 of the Convention,
the Court reiterates that the Convention does not guarantee the right
to pursue criminal proceedings against third persons and that Article
6 does not apply to proceedings aimed at instituting criminal
proceedings against third persons. It follows that this complaint is
incompatible ratione materiae
with the provisions of the Convention, within the meaning of Article
35 § 3 of the Convention, and must be rejected pursuant to
Article 35 § 4.
24. The
applicant also complained under Article 8 of the Convention that
the prison authorities had not allowed him to have long visits from
his wife. Even assuming that the applicant had such a right under
Article 8 of the Convention, it is noted that he did not use any of
the remedies available to him under domestic law to challenge the
refusal of the prison authorities to allow him long visits from his
wife. In view of the above, this complaint must be declared
inadmissible under Article 35 §§ 1 and 4 for failure to
exhaust domestic remedies.
- The
applicant also complained of the following: under Article 10 of the
Convention that he had not been informed promptly about the charges
against him, under Article 1 of Protocol no. 1 that the police had
seized some of his possessions, under Article 3 of Protocol No. 7
that he had been convicted twice for the same offence, and under
Article 13 that he had not had an effective remedy in respect of
breaches of his Convention rights. However, none of these complaints
were substantiated and the Court does not discern any signs of a
violation in respect of them. Accordingly, they must be declared
inadmissible within the meaning of Article 35 §§ 3 and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 1,000 euros (EUR) in respect
of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage
suffered as a result of his detention in inhuman and degrading
conditions.
- The
Government submitted that the applicant was not entitled to any
compensation for pecuniary damage since such damages had not been
justified in any way by the applicant and because there was no causal
link between the breach found in the case and the alleged pecuniary
damage claimed. As to the amount claimed for non-pecuniary damage,
the Government argued that it was excessively high.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, in view of the breach found in this case it considers
it appropriate to award the applicant
compensation in respect of non pecuniary damage. Deciding on an
equitable basis, the Court awards the applicant EUR 3,000.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs
and expenses incurred before the domestic courts and the Court, EUR
350 of which represented lawyer’s fees and the rest secretarial
expenses.
- The
Government contested the amount claimed by the applicant and argued
that it was excessive.
- The
Court notes that the applicant did not submit any evidence of having
paid the representative’s fees or even that such fees were due.
Accordingly, regard being had to the information in its possession
and the above-mentioned criteria, and the fact that the applicant
clearly incurred some secretarial expenses, the Court considers it
reasonable to award the applicant the sum of EUR 100 for incidental
costs and expenses.
C. Default interest
- The
Court 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
- Joins the applications;
- Declares the complaint under Article 3 of the
Convention in respect of the applicant’s detention in Prison
no. 13 between 1 March 2007 and 1 April 2008 admissible and the
remainder of the applications inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Moldovan lei at the rate applicable on the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
100 (one hundred 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
