BRAGA v. THE REPUBLIC OF MOLDOVA AND RUSSIA - 76957/01 (Judgment : Violation of Prohibition of torture (Degrading treatment Inhuman treatment Positive obligations) (Sub...) [2017] ECHR 896 (17 October 2017)

In the case of Braga v. the Republic of Moldova and Russia,

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

          Robert Spano, President,
          Julia Laffranque,
          Ledi Bianku,
          Işıl Karakaş,
          Paul Lemmens,
          Valeriu Griţco,
          Dmitry Dedov, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 26 September 2017,

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

PROCEDURE

1. The case originated in an application (no. 76957/01) against the Republic of Moldova and the Russian Federation 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 Andrian Braga (“the applicant”), on 14 November 2001.

2. The applicant was represented by Mr V. Nagacevschi, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Government at the European Court of Human Rights at the relevant time.

3. The applicant alleged, in particular, that he had been unlawfully arrested and convicted by the authorities of the self-proclaimed “Moldavian Republic of Transdniestria”, as well as ill-treated and prevented from effectively communicating with the Court.

4. On 23 June 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1971 and lives in Râbniţa.

A. The circumstances of the case

6. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant’s arrest and conviction

7. On 28 July 1999, the applicant was arrested in Râbniţa by virtue of a decision of a prosecutor from the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”; for further details about the “MRT”, see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-VII, and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)). He was charged with fraud and incitement to bribery.

8. On 17 May 2000, the Camenca District Court, which was under the jurisdiction of the “MRT”, convicted the applicant and sentenced him to five years’ imprisonment. According to the applicant, he appealed, but his appeal was rejected by the “MRT” Supreme Court on an unspecified date.

9. The applicant initially served his sentence in Tiraspol Prison no. 2. On 25 October 2001, he was transferred to Pruncul Prison Hospital, which was under the control of the Moldovan authorities. On 30 October 2001, he signed a form of authority authorising the Chişinău-based non-governmental organisation Lawyers for Human Rights (LHR) to represent him before this Court. That form of authority, together with the application form, reached the Court on 19 November 2001.

10. On 20 November 2001, a lawyer from LHR informed the Moldovan Prosecutor General’s Office that the applicant and seven other people were being held in Pruncul Prison Hospital on the basis that they had been convicted by “MRT” courts. He asked for their immediate release, in view of the fact that they had been convicted by unlawful courts. He also submitted that some of those eight detainees had already lodged applications with the Court, and that a failure to immediately release them or any attempt to transfer them back to the “MRT” authorities would result in the Republic of Moldova incurring responsibility. A similar letter was sent on the same day to the Minister of Justice.

11. On 21 November 2001, members of LHR organised a press conference, during which they informed the media of the circumstances of the case and of the letter sent to the Prosecutor General’s Office on the previous day.

12. Also on 21 November 2001, all eight detainees, including the applicant, were allegedly transferred back to “MRT” prisons.

13. On 23 November 2001, LHR informed the media of the detainees’ transfer back to the “MRT” authorities on 21 November 2001.

14. On 26 November 2001, the Head of the Penal Institutions Department of the Ministry of Justice informed LHR that the detainees mentioned in their request of 20 November 2001 were not being held at Pruncul Prison Hospital.

15. On 7 December 2001, the lawyer from LHR wrote to the “MRT” Ministry of Justice, asking for permission to see the applicant and stating that he was planning to lodge in the applicant’s name an application before the Court. He never received a reply to that letter.

16. On 22 January 2002, the applicant was released from prison on the basis of an amnesty act.

2. Conditions of detention

17. The applicant described the conditions of his detention in the “MRT” in the following manner. He was allegedly detained in a cell with several people suffering from tuberculosis, and risked contracting that disease himself. During his detention in Tiraspol Prison no. 2, approximately 100 detainees there died of tuberculosis. He was also affected by parasitic insects. The applicant is a person with a category 3 disability, but he was not given any medication during his detention. Food was served only once a day and was of very poor quality.

II. RELEVANT DOMESTIC LAW AND PRACTICE OF THE REPUBLIC OF MOLDOVA AND OTHER RELEVANT MATERIALS

18. Reports of inter-governmental and non-governmental organisations, relevant domestic law and practice from the Republic of Moldova and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 61-77, ECHR 2016).

THE LAW

I. JURISDICTION

19. The Russian Government argued that the applicant did not come within their jurisdiction, and that his complaint concerned the creation of the “MRT”, which had occurred well before Russia joined the Convention. Consequently, the application should be declared inadmissible ratione personae and ratione temporis in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”.

20. The Court notes that the parties in the present case have positions concerning the matter of jurisdiction which are similar to those expressed by the parties in Catan and Others (cited above, §§ 83-101) and in Mozer (cited above, §§ 81-95). Namely, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction. The Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others (cited above), Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law.

21. The Court observes that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of acts and facts occurring in the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others (cited above, §§ 103-07) and, more recently, Mozer (cited above, §§ 97-98).

22. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).

23. The Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova had jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).

24. In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilașcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until at least July 2010, the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others, cited above, §§ 116-20; Catan and Others, cited above, §§ 121-22; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110-11).

25. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, and Mozer (all cited above).

26. It follows that, with the exception of the period between 25 October and 21 November 2001, as will be explained below (see paragraphs 49 and 61 below), the applicant in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci.

27. The Court will hereafter determine whether there has been any violation of the applicant’s rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

28. The applicant complained that he had been severely beaten upon his arrest and ill-treated in order to force a confession. He had subsequently been held in inhuman conditions of detention, in breach of Article 3 of the Convention, which reads:

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

A. Admissibility

29. The Court notes that the applicant submitted no evidence of ill-treatment, nor did he allege that he had been prevented from doing so. There is, in addition, no evidence in the file that he made a complaint regarding ill-treatment, at least not during his treatment in the prison hospital under the control of the Moldovan authorities (see paragraph 9 above). It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

30. The Court notes that the complaint regarding the inhuman conditions of detention 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. This part of the application must therefore be declared admissible.

B. Merits

1. The parties’ submissions

31. The applicant referred to his description of the conditions of detention (see paragraph 17 above).

32. The Moldovan Government submitted that they could not fully verify the facts of the case, not only because they lacked effective control in the region controlled by the “MRT”, but also because some documents from 2001 had been destroyed after the three-year statutory time-limit for keeping them had expired. As a result of their inability to verify whether specific action had been taken by the Moldovan authorities in response to the alleged complaints made by the applicant, the Government invited the Court to examine only whether Moldova had fulfilled its positive obligations in the general sense of taking measures to re-establish its control over the Transdniestrian territory and ensure the protection of human rights in the region controlled by the “MRT”.

33. The Russian Government made no submissions in respect of this complaint.

2. The Court’s assessment

34. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009; Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 159, ECHR 2016 (extracts)).

35. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, and that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła, cited above, § 94; Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 116, ECHR 2014 (extracts); and Khlaifia, cited above, § 160(c)).

36. In the present case, the Court notes that the respondent Governments did not comment on the applicant’s description of his conditions of detention. However, it has already reviewed the material conditions in the “MRT” prisons in Mozer (cited above, § 181, with further references to visits to the region by the European Committee for the Prevention of Torture and the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment), and found a violation of Article 3 of the Convention on account of inhuman conditions of detention (ibid., § 182).

37. On the basis of the material before it and in the absence of any material contradicting the applicant’s submissions, the Court finds it established that the conditions of the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3, in particular on account of the presence of parasitic insects, and the food at the prison being extremely inadequate in terms of quality and quantity, which increased the risk of becoming ill with tuberculosis.

3. Responsibility of the respondent States

(a) The Republic of Moldova

38. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicant’s rights under Article 3 of the Convention (see paragraph 22 above). In Mozer the Court held that Moldova’s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants’ rights (see Mozer, cited above, § 151).

39. As regards the first aspect of Moldova’s obligation, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991 and 1992 until July 2010, Moldova had taken all the measures in its power (Mozer, cited above, § 152). Since the events complained of in the present case took place before that date, the Court sees no reason to reach a different conclusion (ibidem).

40. Turning to the second aspect of the positive obligations, namely to ensure respect for the applicant’s individual rights, the Court found in Ilaşcu and Others (cited above, §§ 348-52) that the Republic of Moldova had failed to fully comply with its positive obligations, to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the “MRT” and Russian authorities to bring an end to the violation of the applicants’ rights. In the present case, the applicant submitted that, during the period prior to 25 October 2001, when he was transferred to Pruncul, the Republic of Moldova could not be held responsible for not taking action. He argued, however, that the Republic of Moldova was fully responsible for the breach of his rights after that date.

41. The Court agrees that no responsibility can be attributed to the Republic of Moldova for any breach of the applicant’s rights prior to 25 October 2001 (see Ilașcu and Others, cited above, §§ 322-52).

42. In respect of the conditions of detention after the applicant’s alleged transfer back to the “MRT”, the Court observes that the Moldovan Government did not comment on this transfer, except to mention that no information was available owing to the destruction of documents after the expiry of the three-year statutory period for preserving complaints made to the Prosecutor General’s Office (see paragraph 32 above). They added that they could not verify the alleged transfer with the “MRT” authorities, owing to the latter’s lack of cooperation. They submitted that, in such circumstances, the applicant’s allegations could not be verified and thus could not be considered true.

43. The Court notes that on 20 November 2001 the applicant’s lawyer informed the Prosecutor General’s Office of his client’s unlawful detention. The next day a press conference was held, informing the public of the unlawful detention in the Republic of Moldova on the basis of convictions of the “MRT” courts. It is also apparent that the applicant was in fact in Pruncul Prison Hospital during October-November 2001, as evidenced by the fact that he was able to see his lawyer from LHR and sign a form of authority. Any detainee placed in a Moldovan prison would normally have been registered. The answer received on 26 November 2001 (see paragraph 14 above) did not contradict the allegations made by LHR, but merely stated the situation on the date of writing, when the applicant had allegedly already been transferred back to the “MRT”.

44. All of the above facts essentially raised before the Prosecutor General’s Office the issue of a crime having been committed by the Moldovan authorities as a result of the unlawful detention of people on the basis of convictions by “MRT” courts. Since the unlawfulness of such detention had been clearly established by the Moldovan Supreme Court of Justice in respect of the applicants in Ilașcu and Others (cited above, § 222), the Prosecutor General’s Office had to react to the complaint made by the LHR. In such circumstances, the Court finds disturbing the absence in the official documents of any trace of an investigation into such serious allegations. Moreover, in the complaint to the Prosecutor General’s Office (see paragraph 10 above), the applicant’s lawyer stated expressly that an application had already been lodged with the Court concerning the applicant’s unlawful detention. Accordingly, it finds that the destruction of documents concerning such serious allegations, in the knowledge that an application relevant to the documents had been lodged with the Court, cannot shield the Moldovan Government from its responsibility to provide evidence of having taken action.

45. The Court concludes that the Moldovan Government have not demonstrated that the authorities had verified the claim made by LHR about the applicant’s unlawful detention or that they had not transferred him back to the “MRT”.

46. Accordingly, the Court accepts that, despite having complete control over the applicant during his detention in the Republic of Moldova, the Moldovan authorities did not prevent his transfer back to the “MRT”, thus placing him back in conditions of detention incompatible with Article 3 of the Convention. The Court therefore concludes that the Republic of Moldova did not fulfil its obligation to ensure respect for the applicant’s rights.

47. In conclusion, and having found that the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention (see paragraph 37 above), the Court holds that there has been a violation of that provision for which the Republic of Moldova is responsible, in respect of the period between 21 November 2001 and 22 January 2002 (see paragraphs 12 and 16 above).

(b) The Russian Federation

48. In so far as the responsibility of the Russian Federation is concerned, the Court has established that Russia exercised effective control over the “MRT” during the period of the applicant’s detention (see paragraphs 24-25 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Mozer, cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicant’s rights (ibidem).

49. In conclusion, and after having found that the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention (see paragraph 37 above), the Court holds that there has been a violation of that provision by the Russian Federation, in respect of the entire period of the applicant’s detention except between 25 October and 21 November 2001 when he was detained in Moldova (see paragraphs 9 and 12 above).

III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

50. The applicant complained of a violation of Article 5 of the Convention, owing to his detention on the basis of a decision by an “MRT” prosecutor and subsequently a conviction by an “MRT” court, neither of which had been lawfully created.

51. The relevant parts of Article 5 read:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

A. Admissibility

52. 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

53. The applicant argued that he had been deprived of his liberty following decisions taken by an “MRT” prosecutor and an “MRT” court, and that his detention had therefore not been “lawful”.

54. The Moldovan Government submitted that, in view of the Court’s conclusions in Ilașcu and Others (cited above), there had indeed been a breach of Article 5 of the Convention.

55. The Russian Government did not make any comment.

56. The Court reiterates that it is well established in its case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law; it also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013; and Mozer, cited above, § 134).

57. The Court reiterates that in Mozer it held that the judicial system of the “MRT” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer, cited above, §§ 148-49). For that reason it held that the “MRT” courts and, by implication, any other “MRT” authority, could not order the applicant’s “lawful” arrest or detention, within the meaning of Article 5 § 1 of the Convention (see Mozer, cited above, § 150).

58. In the absence of any new and pertinent information proving the contrary, the Court considers that the conclusion reached in Mozer is valid in the present case too.

59. As for the responsibility of each respondent Government, the Court considers that it must distinguish between three different periods of the applicant’s detention: the first period, between 28 July 1999 (the date of his initial arrest) and 25 October 2001 (the date of his transfer to a prison hospital in the Republic of Moldova); the second period, between 25 October and 21 November 2001 (the period of detention in the Republic of Moldova); and the third period, between 21 November 2001 and 22 January 2002 (the date of his release from the “MRT” prison).

60. The Court finds that detention by the Moldovan authorities on the basis of a conviction by an “MRT” court or of any other decision of an “MRT” authority, as well as the transfer to any authority in order to be detained on the basis of decisions taken by various “MRT” authorities, has no legal basis. For the same reasons as those given in respect of the complaint under Article 3 of the Convention (see paragraph 46 above), it finds that there has been a breach of Article 5 § 1 in respect of the applicant’s deprivation of liberty during the second and third periods of detention mentioned in the preceding paragraph, for which the Republic of Moldova is responsible.

61. For the same reasons as those given in respect of the complaint under Article 3 of the Convention (see paragraph 37 above), the Court finds that there has been a violation of Article 5 § 1, for which the Russian Federation is responsible, in respect of the applicant’s detention during the first and third periods of detention mentioned in paragraph 59 above, namely during the periods when he was detained by the “MRT” authorities.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

62. The applicant further complained of his unlawful conviction by an unlawfully created “MRT” court, contrary to the requirements of Article 6 of the Convention. However, in his subsequent submissions he asked the Court not to continue with the examination of this complaint.

63. The Court sees no reason to continue with the examination of this complaint.

V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

64. The applicant further complained that, by transferring him back to the “MRT” authorities on 21 November 2001, the Moldovan authorities had prevented him from properly communicating with his lawyer in respect of the present application. He relied on Article 34 of the Convention, which reads:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

65. The applicant submitted that, following his transfer to the “MRT”, he had had to hide his complaint to the Court from the prison authorities in order to avoid being ill-treated. Moreover, since all correspondence in “MRT” prisons was censored, he could not freely communicate with his lawyer in respect of his complaint to the Court. Lastly, when his lawyer had wanted to meet him in the “MRT” prison (see paragraph 15 above), he had received no response and could not contact his client before his release.

66. The Moldovan Government submitted that it had no means of verifying this complaint, following the destruction of any relevant documents owing to the expiry of the three-year statutory time-limit for preserving correspondence in respect of such complaints. Since the applicant’s statements were not verifiable, they could not be considered true, and thus there was no basis for finding a breach of Article 34 of the Convention.

67. The Court notes that, in his letter of 20 November 2001, the applicant’s lawyer expressly stated that he had lodged an application with the Court in respect of the applicant’s unlawful detention (see paragraph 10 above). He also warned the Prosecutor General’s Office that any attempt to transfer the applicant back to the “MRT” would result in the Republic of Moldova incurring liability. Despite being aware of the applicant’s being represented by his lawyer in an application before the Court, the Moldovan authorities allowed his transfer back to the “MRT” and outside their effective control, thus creating difficulties in his communication with his lawyer in respect of the present application.

68. The above information is sufficient for the Court to find that the Republic of Moldova has failed to comply with its obligations under Article 34 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. 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

70. The applicant claimed 182,000 euros (EUR) in respect of non-pecuniary damage in relation to the breaches of his rights under Articles 3 and 5 of the Convention, that is EUR 200 for each day of unlawful detention in inhuman conditions, which had caused him a lot of suffering. He also claimed EUR 10,000 for the breach of Article 34 of the Convention. He asked for the money to be transferred to his lawyer’s account, in order to avoid problems with the authorities in the “MRT”, where he lives.

71. The Moldovan Government argued that, in the absence of any violation of the applicant’s Convention rights by the Republic of Moldova, the latter should not have to pay any compensation. In any event, the amount claimed was excessive, the situation being very different from that in Ilașcu and Others (cited above, § 489), where the Court had indeed awarded EUR 180,000 to each applicant for the breaches of Articles 3 and 5, and EUR 10,000 for the breaches of Article 34 of the Convention. Moreover, the applicant had failed to submit any evidence in support of his claims under Article 3, and had not indicated which part of the sums claimed was to be paid by each respondent Government. Lastly, the Government expressed doubt that the applicant still wished for the money to be transferred directly to his lawyer’s account, in view of the fact that this wish had been stated more than ten years earlier and that the lawyer had apparently not had any contact with the applicant in recent years.

72. The Russian Government argued that the applicant had not submitted any details of his claims, such as medical information or other relevant documents. Therefore, in addition to being excessive, his claims were largely unsubstantiated.

73. The Court notes first that the applicant’s lawyer’s latest submissions of 28 February 2011 were accompanied, inter alia, by a new form of authority signed by the applicant, who expressly authorised his lawyer to receive on his behalf any award made by the Court.

74. The Court considers that some damage has been caused to the applicant owing to his unlawful detention in inhuman conditions, as well as by the breach of Article 34 of the Convention. It finds, however, that the applicant’s claims are excessive. Having regard to the seriousness of the violations found and the relevant obligations of each respondent State, and deciding on an equitable basis, in respect of non-pecuniary damage, it awards the applicant EUR 3,000 to be paid by the Republic of Moldova and EUR 9,000 to be paid by the Russian Federation.

B. Costs and expenses

75. The applicant also claimed EUR 3,480 for costs and expenses incurred before the Court. He relied on a contract with his lawyer and a detailed list of hours worked on the case at a rate of EUR 120 per hour.

76. The Moldovan Government submitted that the claim for legal costs had not been accompanied by documents such as the list of hours worked on the case, which had prevented them from usefully commenting on them. In any event, the sum claimed was excessive.

77. The Russian Government submitted that, since the applicant had not submitted any evidence of the legal costs incurred, no reimbursement was due.

78. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000, to be paid by the Republic of Moldova, and EUR 2,000, to be paid by the Russian Federation, to cover costs under all heads.

C. Default interest

79. 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,

1. Declares, unanimously, the complaints under Article 3 (conditions of detention) and Article 5 § 1 admissible in respect of the Republic Moldova;

2. Declares, by a majority, the complaints under Article 3 (conditions of detention) and Article 5 § 1 admissible in respect of the Russian Federation;

3. Declares, unanimously, the remainder of the application inadmissible;

4. Holds, unanimously, that there has been a violation of Article 3 of the Convention by the Republic of Moldova, in respect of the period between 21 November 2001 and 22 January 2002;

5. Holds, by six votes to one, that there has been a violation of Article 3 of the Convention by the Russian Federation, in respect of the entire period of the applicant’s detention except between 25 October and 21 November 2001;

6. Holds, unanimously, that there has been a violation of Article 5 § 1 of the Convention by the Republic of Moldova, in respect of the period between 25 October 2001 and 22 January 2002;

7. Holds by six votes to one, that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation, in respect of the entire period of the applicant’s detention except between 25 October and 21 November 2001;

8. Holds, unanimously, that the Republic of Moldova has failed to comply with its obligations under Article 34 of the Convention;

9. Holds,

(a) unanimously,

that, through his lawyer, and within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the Republic of Moldova is to pay the applicant the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) by six votes to one,

that, through his lawyer, and within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the Russian Federation is to pay the applicant the following amounts, to be converted into the currency of that respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(c) 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;

10. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Robert Spano
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

R.S.
S.H.N.

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You are here: BAILII >> Databases >> European Court of Human Rights >> BRAGA v. THE REPUBLIC OF MOLDOVA AND RUSSIA - 76957/01 (Judgment : Violation of Prohibition of torture (Degrading treatment Inhuman treatment Positive obligations) (Sub...) [2017] ECHR 896 (17 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/896.html Cite as: [2017] ECHR 896, CE:ECHR:2017:1017JUD007695701, ECLI:CE:ECHR:2017:1017JUD007695701