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THIRD
SECTION
CASE OF ARSENIEV v. MOLDOVA
(Applications
nos. 10614/06 and 10620/06)
JUDGMENT
STRASBOURG
20 March
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 Arseniev 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,
Mihai Poalelungi,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 10614/06 and 10620/06)
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 Igor Arseniev (“the applicant”), on 12
January 2006 and 1 December 2005 respectively.
- The
applicant was represented by Mr Ş. Urîtu
and Mr Ş. Burlaca from the Helsinki Committee for Human
Rights in Moldova, a non-governmental organisation based in Chişinău.
The Moldovan Government (“the Government”) were
represented by their Agent at the time, Mr V. Grosu.
- The
applicant alleged, in particular, that he had been detained in
inhuman conditions of detention, as a result of which his health had
been affected. He made a number of additional complaints under
Articles 5, 6, 8, 9, 13, 14 and 17 of the Convention.
- On 9 December 2008 and 28 January 2010 the
applications were communicated to the Government. The parties were
asked to comment on the alleged violation of Article 3 (conditions of
detention) as part of application no. 10614/06 and of Article 6 (the
right of access to a court) as part of application no. 10620/06. 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
- The
applicant was born in 1959 and lives in Chişinău. He is a
member of the Russian-speaking minority in Moldova.
A. The applicant’s conditions of detention
- On
9 December 2002 the applicant was arrested on suspicion of murder.
Since the beginning of 2003 he has been detained in Prison no. 13 in
Chişinău, Prison no. 3 in Leova and in Pruncul Hospital for
Detainees.
- The applicant submitted that he had been detained at
the same time and in the same prison, and even in the same cell, as
Mr T. Ciorap, in respect of whose prison conditions the Court had
found a violation of Article 3 of the Convention in Ciorap v.
Moldova (no. 12066/02, 19 June 2007). He considered that the
conditions of detention were no different from those in which Mr
Ciorap had been detained.
- He
described as follows the conditions of detention in Prison no. 13. In
one cell (no. 117), where he had been detained during his hunger
strike, there had been no light bulb on the first day and no bed
linen throughout his detention there. A malfunctioning tap and a
blocked sink let water gather on the floor; it was always very humid
in the cell. The cell was situated in the basement and was not
heated; it was very cold owing to the absence of glass in the window.
No attention to personal hygiene was possible in the cell.
- The
applicant submitted that, when escorted to court hearings, all
detainees had been transported in a single vehicle, regardless of
whether they were ill with infectious diseases such as tuberculosis,
which they could transmit to others. They then had to stay for hours
in cramped conditions in court-houses waiting for their turn to go
into court.
- The
applicant pointed to the low quality of the food which he had
received and the fact that when he had been escorted to a court
hearing, he had been away from his prison from 7-7.30 a.m. until
7-7.30 p.m. He thus had left the prison and had returned there
outside the hours when food had been provided. No food had been given
throughout the day to those escorted to court hearings. No medication
had been distributed during such days either, even if it had been
prescribed by doctors. The applicant claimed that he had become ill
with prostatitis and rheumatism while in prison.
- He also submitted that he had been detained for
several years in Prison no. 13, which was used as a pre-trial
detention facility with worse conditions than the prisons in which
convicted persons normally served their sentences. In particular, he
had been detained in overcrowded cells with no possibility of leaving
them for more than an hour per day. He mentioned, for instance, being
detained with five other persons in a cell (no. 55) measuring
9.5 square metres suitable for two detainees. He also mentioned
having felt ill from the smoke in the cell. In reply to his complaint
about the lack of proper ventilation, he had allegedly been informed
that the prison administration was considering a ban on smoking. The
applicant added that he had been unable to see a priest of the
Russian Orthodox Church while in detention.
- The applicant’s representative complained to the
Chişinău Prosecutor’s Office about the inhuman
conditions of detention in Prisons no. 13 in Chişinău and
no. 16 in Pruncul. In reply, on 24 March 2008 he was informed that
during 2007 and 2008 the Prosecutor’s Office had on seven
occasions drawn the attention of the above-mentioned institutions to
the shortcomings found in their activity. These notifications
concerned, in particular, the failure to secure the statutory minimum
of four square metres of living space per detainee. According to the
prosecutor, there were still more detainees than beds in those
institutions.
- On 1 December 2008 the applicant asked the governor of
Prison no. 13 to confirm or deny that he and five other persons
were being detained in cell no. 55 of that institution, measuring 9.5
square metres. He attached a list of names of all those detained in
his cell. In reply, the head of prison no. 13 informed the
applicant that before the entry into force of the new Enforcement
Code
cell no. 55 could host up to six persons. In reply to another request
from the applicant of 20 March 2008, on 4 April 2008 the head of the
Prisons Department informed him that in order to satisfy the legal
requirement of four square metres of living space per detainee, cell
no. 55 in Prison no. 13 could accommodate two persons.
- The Government submitted that since 2003 the applicant
had been detained, with certain interruptions, in Prison no. 13. He
was detained there in various cells, which measured between 7.9
square metres and 30.68 square metres, including in cell no. 55,
measuring 7.9 square metres, currently used for the medical
supervision of detainees. They also submitted a long list of medical
interventions of various types ranging from check-ups to inpatient
treatment from which the applicant benefited throughout his
detention. In particular, after his psychiatric problems were
discovered, the applicant was regularly examined and treated for his
illness. Moreover, the applicant had made 160 requests and complaints
to the Prisons Department, nine of which were complaints about the
conditions of detention, in addition to eight complaints about the
quality and/or quantity of food served. He made another 132
complaints and requests to the administration of Prison no. 13,
eleven of which concerned conditions of detention, as well as one
complaint about the quantity and quality of food served. By contrast,
he made only one request to the authorities of Prison no. 9 in
Pruncul and three requests to those of Prison no. 15 in Cricova. In
addition, the applicant initiated seven different court actions
against the Prisons Department, the administration of Prison no. 13,
the Government, and its various Ministries concerning the conditions
of detention. Three of these actions were struck out and one was
rejected as unfounded. Three more are pending.
B. Criminal proceedings against the applicant.
- On
24 May 2004 the applicant was convicted of murder by the
Botanica District Court and sentenced to twenty years’
imprisonment. That judgment was upheld by the Chişinău
Court of Appeal on 27 September 2005.
- On
20 October 2005 the applicant lodged an appeal in cassation with the
Supreme Court of Justice. On 21 October 2005 the Supreme Court of
Justice informed him that his appeal did not conform to legal
requirements. It had to include information such as dates and
references to the lower courts’ judgments, the appellant’s
identity and a summary of the reasons given by the appellate court.
Moreover, the appeal had to be typewritten and to be submitted in as
many copies as there were parties to the proceedings.
- The applicant claims that he had a short time for
appealing and that he could not typewrite his appeal since a
typewriter was not available in prison. He therefore submitted five
copies of his handwritten appeal to the Supreme Court of Justice.
- On 14 December 2005 the Supreme Court of Justice
declared inadmissible the applicant’s appeal in cassation
because it did not conform to the requirements as to form and
content. The court noted that the applicant had failed to provide
reasons for his appeal or to identify the general legal issue which
required it to intervene, that he had failed to rely on any of the
grounds exhaustively listed in the law for lodging an appeal and that
his appeal had not been typed. That decision was final.
- On 24 February 2006 the parliament amended the law by
excluding the requirement that appeals in cassation should be
typewritten. On an unknown date the applicant asked the Supreme Court
of Justice to reopen the proceedings in his case since in his opinion
his appeal had been declared inadmissible only because of the failure
to submit it in typed form. On 14 May 2008 the Supreme Court of
Justice rejected his request as unsubstantiated.
C. Civil proceedings initiated by the applicant.
- The
applicant initiated a number of civil proceedings against the prison
authorities, a newspaper, and other persons and institutions. He
submitted copies of court decisions refusing to accept for
examination his court actions because, inter alia, he had
failed to pay the court fees (decisions of 12 September and 4 October
2005, 23 January, 28 February, 3, 7 and 17 March and 7
April 2006, 28 September, 15 October and 11 December 2007). In
each of these decisions, the courts also found that the applicant had
failed to observe other legal requirements such as submitting
original documents or certified copies, submitting arguments and
evidence in support of the claim, identifying specifically the
defendant or submitting copies of documents for all the defendants
and the court.
- The applicant initiated court proceedings against the
Government, the Ministry of Justice and the Ministry of Finance,
claiming compensation for a violation of his right of access to court
and for discrimination against him. On 1 March 2007 the Buiucani
District Court left his action without examination because he had
failed to pay the court fees. The applicant appealed. On 25 July
2007 the Chişinău Court of Appeal quashed that decision and
ordered that the case be heard by the lower court in order to
determine whether the court fees should be waived in the applicant’s
case.
- On 29 October 2007 the Buiucani District Court found
that the type of court action which the applicant had initiated
(seeking a finding that a violation of his right of access to a
tribunal had taken place in other contentious procedures) was not to
be examined as a separate procedure. He had the right to appeal
against any refusal to examine his court actions in those civil
proceedings in which his actions had been left without examination
and thus exercise his right of access to a court in each particular
case. It added that the complaint concerning discrimination was
ill-founded since the applicant had conceded in court that he had
obtained translations of all judgments into Russian whenever he had
asked for them.
- The applicant submitted copies of the decisions of the
Chişinău Court of Appeal of 7 March 2006 and
11 December 2007. In the decision of 7 March 2006 he was
informed that he had missed the time-limit for paying the court fees.
Even though he had subsequently paid those fees, this was not a legal
ground for annulling the decision taken before such payment. He
could, however, re-submit his action before the lower court on the
same issue as a new case. The applicant did not inform the Court
whether he had followed the court’s advice. The Court of Appeal
noted in its decision of 11 December 2007 that the applicant had
failed to properly identify his claims, thus failing to observe legal
requirements.
- According to the applicant, on 15 February 2008 he
appealed to the Chişinău Court of Appeal. He submitted no
evidence in support of that claim. According to the Government, no
such appeal had been lodged, as confirmed by that court in a letter
of 13 February 2009.
II. RELEVANT NATIONAL AND INTERNATIONAL REPORTS AND
DOMESTIC PRACTICE
- In its report for 2010 (page 142 et seq. –
“Conditions of detention” chapter), the Centre for Human
Rights in Moldova (“the Centre”, which is the Moldovan
Ombudsman institution) found, inter alia, that:
“Non-observance of the statutory living space (4
square metres) in the living blocks of the institution
has become an unpleasant problem; it has transformed into a systemic
deficiency of the prisons in the entire country. ...
The same situation was observed during a visit to Prison
no. 13 in Chişinău on 9 September 2010. In some cells
the living space was not proportionate to the number of detainees.
...”
- The relevant parts of the report of the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) on its visit to Moldova between 20 and
30 September 2004 (CPT/Inf (2006) 7) read as follows (unofficial
translation):
“55. The situation in the majority of prisons
visited, faced with the economic situation in the country, remained
difficult and the delegation encountered a number of problems already
identified during the visits in 1998 and 2001 in terms of material
conditions and detention regimes.
Added to this is the problem of overcrowding, which
remains serious. In fact, even if the prisons visited were not at
their full capacity – as is the case of Prison no. 3 in which
the number of detainees was appreciably smaller than during the last
visit of the Committee – they continued to be extremely
congested. In fact, the receiving capacity was still based on a very
unsatisfactory 2 m2 per detainee; in practice often even
less.
79. The follow-up visit to Prison no. 3 in Chişinău
revealed an unsatisfactory situation. The progress noted was in fact
minimal, limited to some running repairs. The ventilation system had
been repaired primarily thanks to the financial support of civil
society (especially NGOs), and the creation of space for daily
recreation had been made possible only as a result of contributions
by the detainees and their families.
The repair, renovation and maintenance of cells are
entirely the responsibility of the detainees themselves and of their
families, who also pay for the necessary materials. They must also
obtain their own sheets and blankets, the institution being able to
give them only used mattresses.
In sum, the living conditions in the large majority of
cells in Blocks I and II and the transit cells continue to be very
poor indeed. ...
Finally, despite the drastic reduction of the
overcrowding, there is still a very high, even intolerable, level of
occupancy in the cells.
83. With the exception of the Lipcani prison ... the
quantity and quality of detainees’ food is a source of grave
concern everywhere. The delegation was inundated with complaints
regarding the absence of meat and dairy products. The findings of the
delegation, regarding both the quantity of food and the menus,
confirm the credibility of these complaints. Its findings also
confirm that in certain places (in Prison no. 3, [...]), the food
served was repulsive and virtually inedible (for instance, insects
and vermin were present). This is not surprising, given the general
state of the kitchens and their modest equipment.
The Moldovan authorities have always claimed financial
difficulties in ensuring that detainees receive adequate food.
However, the Committee reiterates that this is a fundamental
requirement of life which must be ensured by the State to persons in
its charge and that nothing can exonerate it from such
responsibility. ...”
- The relevant parts of the report of the CPT on its
visit to Moldova between 14 and 24 September 2007 (CPT/Inf (2008) 39)
read as follows (unofficial translation):
“46. In September 2007, the Director
of the Prison Department of the Ministry of Justice provided the
delegation with detailed information on measures already taken or
planned with a view to reforming the Moldovan prison system and
implementing the CPT’s recommendations. One particularly
welcome outcome of these measures is the reduction of the country’s
prisoner population. At the time of the 2007 visit, the total number
of prisoners stood at 8,033 (including 1,290 on remand), compared
with 10,591 in 2004. This positive trend can be attributed to
legislative changes in recent years, including the entry into force
of a new Code of Execution of Sentences in July 2005 and the adoption
of amendments to the Criminal Code and the Code of Criminal
Procedure. As a result, there has been an increase in the number of
conditional early releases, as well as a wider use of alternatives to
imprisonment and a more selective application of remand custody by
the courts.
Further, the implementation of the “Concept for
reforming the penitentiary system in the period 2004-2013” has
been supported by an increase in the budgetary allocation (from 75.8
million lei in 2004, to 166.1 million lei in 2007), as well as by a
growing input of foreign aid. This has enabled, inter alia, the
amelioration of the food provided to prisoners, an improvement of
health care, and the carrying out of refurbishment work at several
penitentiary establishments (e.g. No. 1 in Taraclia, No. 7 in
Rusca and No. 17 in Rezina).
Last but not least, there has been an important shift in
mentality through improved staff recruitment and training procedures.
The delegation was informed that the directors of many penitentiary
establishments had been changed in the last year, following a
competition and a probation period. Further, new training programmes
for staff had been developed, placing particular emphasis on human
rights issues (see also paragraph 100).
47. The CPT can only welcome the
above-mentioned measures taken by the Moldovan authorities.
Nevertheless, the information gathered by the Committee’s
delegation during the 2007 visit shows that much remains to be done.
In particular, overcrowding continues to be a problem; despite the
fact that all establishments visited were operating well under their
official capacities, there was on average only 2 m² of
living space per prisoner, rather than the standard of 4 m²
provided for in Moldovan legislation.
The CPT is convinced that the only viable way to control
overcrowding and achieve the standard of at least 4 m² of living
space per prisoner is to adopt policies designed to limit or modulate
the number of persons sent to prison. In this connection, the
Committee must stress the need for a strategy covering both admission
to and release from prison to ensure that imprisonment really is the
ultimate remedy. This implies, in the first place, an emphasis on
non-custodial measures in the period before the imposition of a
sentence and, in the second place, the adoption of measures which
facilitate the reintegration into society of persons who have been
deprived of their liberty.
The CPT trusts that the Moldovan authorities will
continue their efforts to combat prison overcrowding and in so doing,
will be guided by Recommendation Rec(99)22 of the Committee of
Ministers of the Council of Europe concerning prison overcrowding and
prison population inflation, as well as Recommendation Rec(2003)22 on
conditional release (parole).”
- The
Government attached to their observations copies of domestic
judgments in the cases of Drugaliov v. the Ministry of the
Interior and the Ministry of Finance; Gristiuc v. the Ministry
of Finance and the Prisons Department; and Ciorap v. the
Ministry of Finance, the Ministry of the Interior and the Prosecutor
General’s Office, all cases in which the applicants were
awarded compensation for ill-treatment and/or inhuman conditions of
detention.
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 10614/06 and 10620/06 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 that he had been detained in inhuman conditions,
contrary to the requirements 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 argued that the applicant had failed to exhaust available
domestic remedies at least in respect of part of his complaint, since
he had lodged his application with the Court without awaiting the
outcome of the court actions which he had initiated against the
various authorities at the domestic level.
- The
applicant considered that he had done as much as he could under the
circumstances.
- The
Court observes that it has examined and dismissed similar objections
in previous cases (see, for instance, Holomiov v. Moldova,
no. 30649/05, § 107, 7 November 2006; I.D.
v. Moldova, no. 47203/06, §§
34-35, 30 November 2010; and Haritonov v. Moldova,
no. 15868/07, § 20, 5 July 2011) because the
Government had not shown that an effective remedy had been available
in theory and in practice. In Oprea v.
Moldova (no. 38055/06, § 33, 21 December
2010) it was emphasised that the case-law referred to by the
Government “concern[ed] compensation awards for past violations
of Article 3 similar to those relied on in Holomiov”. It
is therefore clear that the remedy relied on by the Government is
only of a compensatory nature and could not improve the applicants’
conditions of detention.
- In
such circumstances and in view of the similarity between the
Government’s position in this case and that in previous cases
mentioned above, the Court does not consider it possible to depart
from its reasoning and its findings in those cases and therefore
dismisses the Government’s objection.
- 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.
B. Merits
1. The parties’ submissions
- The
applicant complained that he had been detained in overcrowded cells,
that he had not been given sufficient medical assistance, and that he
had not received food of sufficient quantity or quality, which had
undermined his immune system (see paragraphs 7 to 13 above).
- The
Government contested his arguments, submitting evidence that he had
been provided with food three times a day corresponding to the legal
requirements and with adequate hygiene facilities, as well as medical
treatment whenever necessary (see paragraph 14 above). Moreover, the
cells had been regularly cleaned of parasites and he had had access
to a shower, while his bed linen had been changed once a week. The
applicant had had access to tap water at any moment in his cell and a
number of repairs of various cells and other areas in Prison no. 13
had been carried out over recent years.
2. The Court’s assessment
- The
Court reiterates that 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 notes that the parties disagreed on most
issues concerning the applicant’s conditions of detention. It
agrees with the Government that at least in certain aspects the
applicant did not substantiate his claims, notably concerning the
inadequacy of medical treatment for his various illnesses, including
his mental condition (see paragraph 14 above).
- However,
it considers that the prevailing conditions of detention in which
detainees of the same prison were held could not differ significantly
during the same period of time. The Court notes that the applicant
has been detained in Prison no. 13 (formerly Prison no. 3) in
Chişinău since the year 2003. It also notes that it has
found the conditions of detention in that particular facility to fall
short of Article 3 standards in a number of cases examined so far
(see, for instance, Ostrovar, cited above, §§ 80-90;
Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and
8742/05, §§ 68-72, 27 March 2007; Modarca v.
Moldova, no. 14437/05, §§ 63-69, 10 May 2007; Ciorap
v. Moldova, no. 12066/02, §§ 65-71, 19 June 2007; and
Rotaru v. Moldova, no. 51216/06, §§
33-42, 15 February 2011). In all these
cases the Court referred to the findings of the CPT, which largely
corresponded to the applicants’ complaints, notably concerning
overcrowding, the quantity and quality of food, and hygiene.
- The
applicant was detained in the same prison and at the same time as the
applicants’ in all the cases mentioned above. His description
of the conditions of detention corresponds to that established in the
above cases and in the CPT reports (see paragraphs 26 and 27 above).
He submitted additional evidence, notably with respect to
overcrowding, and made a number of complaints to the authorities
about the conditions of detention (see paragraphs 11 to 13 above).
Some of the replies from the authorities partly confirmed his
submissions (see paragraph 12 above). The Government did not submit
any evidence capable of distinguishing the applicant’s case
from the above cases or to show that his conditions were somehow
different from the general conditions in prison no. 13 during his
detention.
- In
such circumstances, the Court finds that the applicant was detained
in inhuman conditions of detention, notably severe overcrowding (six
persons in a cell measuring 7.9 square metres, which is 1.3 square
metres per person, far below the statutory minimum of 4 square metres
per person), which he had to endure for many years, spending up to 23
hours a day in such conditions.
- There
has accordingly been a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained of a violation of his right of access to a
tribunal in the civil cases which he had initiated because of his
inability to pay court fees. He also complained, under the same
provision, that he had been unable to submit a typed appeal in
cassation in the criminal proceedings against him and that the lawyer
hired by him had not defended him well. The relevant part of Article
6 reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal ...”
- The Government submitted that the applicant had not
exhausted available domestic remedies. In particular, he could have
appealed against the various decisions to leave his court actions
without examination, but he had failed to do so. When he did
challenge such a decision (adopted by the Buiucani District Court on
1 March 2007, see paragraph 21 above), the higher court accepted the
complaint and directed the first-instance court to take a new
decision while replying to his claims. However, he again failed to
appeal against the new decision adopted by the court on 27 October
2007 (see paragraph 24 above). Moreover, the applicant failed to
observe legal requirements for lodging his appeal in cassation in the
criminal proceedings. Furthermore, documents from prison no. 13
proved that, for 2009 alone, the applicant had received over 7,000
Moldovan lei (MDL) – largely exceeding the amounts of court
fees, which in the cases referred to by the applicant amounted to
MDL 90-100. Moreover, he receives a monthly State pension of
approximately MDL 400.
- The
applicant submitted that in respect of one of his court actions he
had made an appeal on 16 February 2008. However, he was not informed
of any decision taken. Moreover, as a detainee he could not pay court
fees, which were sometimes paid by his mother. Finally, the lawyer
whom his mother had hired had not represented him properly since he
had visited the applicant only once and had not assisted him in
writing his appeal. A complaint to the Moldovan Bar Association did
not help in that respect.
- The
Court notes that the applicant did not submit copies of decisions
taken by higher courts in respect of most of the lower courts’
refusals to examine his civil court actions. In particular, it does
not see in the file proof of lodging the appeal on 16 February 2008
(as also confirmed by the Court of Appeal in its letter concerning
the absence of such an appeal, referred to in paragraph 24 above). He
submitted copies of decisions of the Court of Appeal of 7 March 2006,
1 March 2007 and 11 December 2007, but as is clear from
those decisions (see paragraphs 21 to 23 above) the applicant had
failed to follow the proper procedure. It is also apparent from the
decision of 7 March 2006 that the applicant had paid the court
fees, which contradicts his claim that he had not had such a
possibility and that his cases had been left unexamined precisely for
his failure to pay such fees.
- It
follows that the complaint concerning access to court in various
civil proceedings must be rejected under Article 35 §§ 1
and 4 of the Convention as manifestly ill founded.
- In
respect of the criminal case, the Court considers that in principle a
system requiring that appeals in cassation in criminal cases be
typed, while at the same time depriving detainees of access to
equipment allowing to produce such typed appeals (see the
unchallenged statement by the applicant cited in paragraph 17 above)
would be excessively formalistic and could raise an “access to
court” issue under Article 6 of the Convention. It notes with
satisfaction that the legislation has changed in that respect (see
paragraph 19 above). In the present case, the Court notes that the
applicant failed to observe several different procedural requirements
(see paragraph 18 above), not only the typed form of the appeal, and
did not submit that he could not have satisfied any of those other
conditions, which appear reasonable. Moreover, the applicant asked
for the reopening of the proceedings after the law was changed to
exclude the typing requirement, claiming that his appeal in cassation
had been rejected only because it had not been typed. However, the
Supreme Court of Justice rejected that argument (see paragraph 19
above), thus confirming that other formal requirements had not been
observed.
- As
for the alleged deficiencies in the manner in which the lawyer hired
by the applicant carried out his duties, the Court reiterates that,
given the independence of the legal profession from the State, the
conduct of the case is essentially a matter between the defendant and
his or her counsel and, as such, cannot, other than in special
circumstances, incur the State’s liability under the Convention
(see, for comparison and mutatis mutandis, Artico v. Italy,
judgment of 13 May 1980, § 36, Series A no. 37;
Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000 XI, and
Alvarez Sanchez v. Spain (dec.), no. 50720/99). In
the present case the Court is unable to find that there was any
defect in the proceedings that would engage the responsibility of the
respondent State.
- Therefore,
the complaints under Article 6 concerning the criminal proceedings
are also inadmissible and must be rejected under Article 35 §§ 1
and 4 of the Convention as manifestly ill founded.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 5, 6, 8, 9, 13, 14 and 17 of the
Convention, notably that he had encountered difficulties in lodging
his appeal in cassation because of the formal requirements such as
typewritten form or the requirement to pay court fees.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
these complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
It
follows that the reminder of the application is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 (a) and 4 of the Convention.
V. 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 a total of 50,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government considered that no compensation should be paid, in the
absence of a violation of any Convention rights. In any event, the
sum claimed was excessive and unsubstantiated.
- Having
regard to the violation of Article 3 of the Convention found above,
the Court considers that an award of compensation for non-pecuniary
damage is justified in this case. Making its assessment on an
equitable basis, and considering in particular the long period of
time during which the applicant was detained in inhuman conditions,
the Court awards the applicant EUR 15,000.
B. Costs and expenses
- The
applicant did not make any claims in respect of his first application
and claimed EUR 1,000 for legal costs in respect of his second
application. He submitted a detailed description of his
representatives’ work for 25 hours on that case.
- The
Government considered the hourly rate claimed reasonable, but
submitted that the number of hours worked on the case was excessive,
considering the lack of complexity.
- 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. In the present case, the Court notes that
it has found a violation of Article 3 of the Convention only in
respect of the conditions of the applicant’s detention and
declared inadmissible all the other complaints. It also notes that
the applicant made no claim for costs and expenses as part of his
first application, which was the only one where the parties had been
asked to comment on the complaint under Article 3 (see paragraph 4
above). Accordingly, the Court makes no award for legal costs.
At the same time, regard being had to the information in its
possession, 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
- Decides to join the applications;
- Declares the complaint under Article 3 of the
Convention 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
15,000 (fifteen 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 20 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
