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FOURTH
SECTION
CASE OF
MODARCA v. MOLDOVA
(Application
no. 14437/05)
JUDGMENT
STRASBOURG
10 May
2007
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 Modarca v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14437/05) 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 Vladimir Modârcă
(“the applicant”), on 20 April 2005.
- The
applicant was represented by Mr A. Tănase,
a lawyer practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent, Mr V.
Pârlog.
- The
applicant alleged, in particular, that he had been held in inhuman
and degrading conditions and deprived of medical assistance, that he
had been unlawfully detained and that the courts had not given
relevant and sufficient reasons for his detention, that he had had no
access to the relevant parts of his criminal file in order
effectively to challenge his detention pending trial and that he had
been prevented from holding confidential meetings with his lawyer.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 16 September 2005 a
Chamber of that Section decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1949 and lives in Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant worked as the Head of the Architecture and Planning
Department of the Municipal Council of Chişinău, one of the
branches of the Chişinău Mayor's Office. Between 24
September 2004 and 23 February 2005 he was held in the remand centre
of the Centre for Fighting Economic Crime and Corruption (CFECC). On
23 February 2005 he was transferred to the Remand Centre No. 3 of the
Ministry of Justice in Chişinău (“prison no. 3”,
which was subsequently re-named “prison no. 13”). The
applicant suffers from “diffuse osteoporosis, discopathy at
L3 L4 L5 S1, hernia of the L5-S1 disc, radiculopathy
at L5-S1 and sciatic pain”.
1. The criminal file against the applicant and his
detention pending trial
- On
23 September 2004 the CFECC opened a criminal investigation against
the applicant under Article 327(2)(c) of the Criminal Code for abuse
of power in connection with the privatisation of a plot of land. On
24 September 2004 he was taken into custody by CFECC officers.
- On 27 September 2004 the Buiucani District Court issued
an order for his detention pending trial for 30 days. The reasons
given by the court for issuing the order were as follows:
“The criminal case was opened in accordance with
the law, on the basis of Article 327 § 2 of the Criminal
Code. [The applicant] is suspected of committing a serious offence
punishable under the law by deprivation of liberty for more than two
years; the evidence presented to the court was obtained lawfully and
the investigating judge was shown relevant evidence that [the
applicant] was indeed a danger to society, was liable to reoffend if
at large and to destroy evidence, abscond from justice, obstruct the
normal progress of the criminal investigation and influence evidence
and witnesses”.
- The
applicant claimed that his lawyer had requested access to certain
documents from the criminal file in order to challenge the grounds of
his detention pending trial but had been denied access.
- In his appeal against his detention pending trial, the
applicant submitted, inter alia, that he was ill and required
medical treatment in order to prevent a worsening of his state of
health and that no evidence had been submitted to the court about the
danger of his absconding or influencing witnesses. He submitted that
he had a family and permanent residence in Chişinău, a job
and no previous convictions. On 1 October 2004 the Chişinău
Court of Appeal upheld the decision of the Buiucani District Court of
22 November 2004. The court gave similar reasons for detaining the
applicant pending trial, adding that his state of health was not
incompatible with detention.
- On
8 October 2004 the prosecution initiated a new criminal investigation
in respect of the applicant under Article 327 of the Criminal Code
for abuse of power in connection with the granting of a construction
permit to a private company in breach of a municipal decision. The
two cases against the applicant were joined on 3 January 2005.
- The applicant requested replacement of his detention
pending trial with house arrest. On 19 October 2004 the investigating
judge of the Buiucani District Court rejected that request. Recalling
general provisions of the Criminal Procedure Code regarding
preventive measures, including detention and house arrest, he found
that the applicant and his lawyer had not requested that the
detention order be rescinded and replaced with alternative measures.
The judge went on to find that his detention pending trial continued
to be necessary because:
“... the circumstances which formed the basis for
detention remain valid; [the applicant] is liable to obstruct the
normal progress of the criminal investigation and the establishment
of the truth, to influence witnesses and abscond from justice.”
On 24
October 2004 the case file was submitted to the trial court.
- On
26 October 2004 the Chişinău Court of Appeal found that on
24 October 2004 the 30 days of detention pending trial ordered
by the lower court had expired and that it was primarily for the
trial court to examine any matters concerning the applicant's
detention pending trial. The lawyer's request for access to certain
elements of the case file against the applicant was allegedly again
refused.
- On
1 November 2004 the applicant requested that the charges against him
be dropped as unfounded and that the order for his detention pending
trial be rescinded or replaced by a personal guarantee from three
well-known citizens.
- On
2 November 2004 the Centru District Court rejected these requests as
unfounded. It found that the grounds for detention remained valid and
that there was no reason to believe that the applicant could not be
given medical assistance in the remand centre of the CFECC. The
applicant appealed twice but the appeals were not examined, the
courts finding that no appeal lay against such decisions in the
course of preliminary proceedings.
- On
15 November 2005 the court ordered the replacement of the applicant's
detention with house arrest.
2. Alleged interference with communication between the
applicant and his lawyer
- The
applicant's lawyer asked for permission to hold confidential meetings
with his client. They were offered a room where they were separated
by a glass partition and allegedly had to shout to hear each other.
It appears from the video recording submitted by the Government that
in the lawyer-client meeting room of the CFECC detention centre, the
space for detainees is separated from the rest of the room by a door
and a window. The window appears to be made of two plates of glass.
Both plates have small holes pierced with a drill. Moreover, there is
a dense green net made either of thin wire or plastic between the
glass plates, covering the pierced area of the window. There appears
to be no space for passing documents between the lawyer and his or
her client.
- Having
refused to meet under such conditions on several occasions, the
applicant requested the Buiucani District Court to oblige the
authorities in the CFECC remand centre to allow confidential
meetings. On 13 October 2004 the court rejected that request as
unfounded, finding that no rights of the applicant had been violated
and that the meeting had taken place “in the conditions of the
remand centre of the CFECC and in conformity with Article 187 of the
Criminal Procedure Code”.
- On
1 November 2004 his lawyer again requested the court to oblige the
remand centre authorities to allow confidential meetings with his
client. On 2 November the Centru District Court granted this request.
- On
4 November 2004 the applicant's lawyer presented that decision to the
CFECC authorities and asked for a separate room in order to meet with
his client in confidence. However, they had to meet in the same
office separated by a glass partition.
- On 16 November 2004 the applicant's lawyer again
requested the Centru District Court to oblige the CFECC authorities
to allow confidential meetings with his client. On 19 November 2004
he informed the Prosecutor General of his and his client's inability
to meet on five separate occasions between September and November
2004 because of the lack of confidentiality, and of the applicant's
hunger strike in protest against this situation, a strike which he
had ended only when the court had granted his request for
confidential meetings on 2 November 2004. He referred to a strike by
the Moldovan Bar Association in April-May 2003 in protest at the lack
of confidentiality of meetings with clients. Moreover, the prosecutor
in charge of his case supported his request for confidential
meetings.
- On
23 November 2004 the Centru District Court found that its decision of
2 November 2004 had not been enforced and ordered the Head of the
CFECC to pay a fine to the State.
- On
26 November 2004 the applicant's lawyer again requested the Centru
District Court to oblige the CFECC authorities to allow confidential
meetings. In its decision of 3 December 2004 the court cited a letter
from the remand centre authorities declaring that no recording
devices had been installed in the meeting room. The court also found
that the glass partition did not prevent confidential discussion and
that it was necessary to protect the applicant's health and safety
and prevent “any destructive action aimed at impeding
determination of the truth”. The court ordered the CFECC to
allow confidential meetings in the same meeting room as before. It
did not set aside its decision of 2 November 2004.
- According
to the applicant, in early February 2005 he held discussions with his
lawyer in the meeting room about certain documents relevant to his
case and told him the whereabouts of those documents. When the lawyer
went to pick up the relevant documents, CFECC officers were already
at the address. During the same period, he was allegedly asked by the
CFECC authorities to refrain from using impolite words about them,
words which he had used in a discussion with his lawyer in the
meeting room. The Government have not commented on these allegations.
3. Conditions of detention and medical assistance in
the remand centres
- According
to the applicant, he had not been given any medical assistance while
he was detained in the CFECC remand centre, in the absence of any
medical personnel there. He complained in several of his habeas
corpus requests of the possible worsening of his state of health
as a result of his detention. Moreover, the medical assistance given
in Prison no. 3 had been inadequate and he had had to rely on
medication sent to him by his wife.
- The
applicant's doctor had recommended that he receive osteopathic
treatment once every three months and during flare-ups in pain, that
he avoid cold and damp and be given balneotherapy every six months.
- According
to the applicant, the cell in which he had been detained between 23
February 2005 and 15 November 2005 in prison no. 3 provided an area
of 10m2 for four detainees. Since more than half that
surface was occupied by bunk beds, a table, a sink and a toilet, the
free space left amounted to 4.78m2 or 1.19m2
per detainee. The cell had very limited access to daylight since the
window was covered with three layers of metal netting. It was not
properly heated or ventilated. The applicant and other detainees had
to bring their own clothing and bed linen and to repair and furnish
the cell. Moreover, the State allocated approximately EUR 0.28
per day for purchasing food for each detainee (representing 35-40% of
the sum required for food, as estimated by the authorities), and the
food was inedible. Water and electricity were only provided on a
schedule and were unavailable for certain periods, including during
the entire night. Detainees had to refrain from using the toilet
during such periods in order to limit the smell. On bath day there
was virtually no running water in the cell throughout the day. The
toilet was situated right across the table and smelt bad. Finally,
the area for daily walks was situated just under the exhaust opening
of the ventilation system in the part of the remand centre where
detainees with tuberculosis were treated, creating a real danger of
infection. The Government have not commented on this latter
allegation.
- According
to the Government, the conditions of the applicant's detention were
appropriate, as shown on a videotape of the cell and other parts of
the prison. The cell was in a good hygienic state and was properly
furnished, ventilated and heated and was designed to accommodate
persons whose previous functions exposed them to the threat of
violence from other detainees. One hour daily walk and a weekly visit
to the shower facility were allowed. Moreover, the applicant had been
visited regularly by various doctors from a prison hospital and
received all the necessary assistance. Finally, the Government
submitted medical evidence demonstrating that the doctor's
recommendation regarding osteopathic treatment had not been followed
during the year prior to the applicant's arrest.
II. RELEVANT NON-CONVENTION MATERIAL
A. Relevant domestic law and practice
- The
relevant domestic law and practice have been set out in Boicenco
v. Moldova, no. 41088/05, § 64-71,
11 July 2006. In particular, as regards the exhaustion of
domestic remedies, the Government relied on the following.
- The
Government referred to Article 53 of the Constitution, Article 1405
of the Civil Code and Law No. 1545 on compensation for damage caused
by the illegal acts of the criminal investigation organs, prosecution
and courts, as well as to the case of Drugalev v. the Ministry of
Internal Afairs and the Ministry of Finance, mentioned in
Boicenco, cited above, §§ 68-71).
- The
relevant part of Article 66 of the Code of Criminal Procedure reads
as follows:
“...
(2) The accused ... has the right:
...
(21) to read the materials submitted to the court in
support of [the need for] his arrest;”
- Between
1 and 3 December 2004 the Moldovan Bar Association held another
strike, refusing to participate in any proceedings regarding persons
detained in the remand centre of the CFECC until the authorities had
agreed to provide lawyers with rooms for confidential meetings with
their clients. The demands of the Bar Association were refused (see
Sarban v. Moldova, no. 3456/05, § 126, 4
October 2005).
- On
26 March 2005 the Moldovan Bar Association held a meeting at which
the President of the Bar Association and the applicant's lawyer
informed the participants that they had taken part, together with
representatives of the Ministry of Justice, in a commission which had
inspected the CFECC detention centre. During the inspection they had
asked that the glass partition be taken down in order to check that
there were no listening devices. They pointed out that it would only
be necessary to remove a number of screws and proposed that all the
expenses linked to the verification be covered by the Bar
Association. The CFECC authorities rejected the proposal.
- The
applicant referred to the case of Paladi (decision of
20 September 2005), in which a complaint about the insufficiency
of medical assistance in a prison hospital and a request to receive
such assistance in a specialised hospital had not been examined for
almost three months, despite an express invocation of Article 3 of
the Convention.
- On
24 October 2003 the Parliament adopted decision no. 415-XV,
regarding the National Plan of Action in the Sphere of Human Rights
for 2004-2008. The plan includes a number of objectives for 2004-2008
aimed at improving the conditions of detention, including the
reduction of overcrowding, improvement of medical treatment,
involvement in work and reintegration of detainees, as well as the
training of personnel. Regular reports are to be drawn up on the
implementation of the Plan. On 31 December 2003 the Government
adopted a decision on the Concept of reorganisation of the
penitentiaries' system and the Plan of Action for 2004-2013 for the
implementation of the Concept of reorganisation of the
penitentiaries' system, both having the aim, inter alia, of
improving the conditions of detention in penitentiaries.
- At
an unspecified date the Ministry of Justice adopted its “Report
on the implementing by the Ministry of Justice of Chapter 14 of the
National Plan of Action in the sphere of human rights for 2004-2008,
approved by the Parliament Decision no. 415-XV of 24 October 2003”.
On 25 November 2005 the Parliamentary Commission for Human Rights
adopted a report on the implementation of the National Plan of
Action. Both those reports confirmed the insufficient funding of the
prison system and the resulting failure to fully implement the action
plan in respect of the remand centres in Moldova, including prison
no. 3 in Chişinău. The first of these reports mentioned,
inter alia, that “as long as the aims and actions in
[the National Plan of Action] do not have the necessary financial
support ... it will remain only a good attempt of the State to
observe human rights, described in Parliament Decision no. 415-XV
of 24 October 2003, the fate of which is non-implementation, or
partial implementation.”
B. Report of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
- In
its report of the visit on 20-30 September 2004, the CPT found that
(unofficial translation):
“55. The situation in the majority of
penitentiaries visited, faced with the economic situation in the
country, remained difficult and one recounted 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 penitentiaries visited did not
work at their full capacity – as is the case of prison no. 3 in
which the number of detainees was sensibly reduced in comparison with
that during the last visit of the Committee – they continued to
be extremely congested. In fact, the receiving capacity was still
based on a very criticisable 2m2 per detainee; in practice
often even less.
79. The follow-up visit to prison no.3 in Chişinău
does not give rise to satisfaction. The progress found was in fact
minimal, limited to some current repair. The repair of the
ventilation system could be done due primarily to the financial
support of civil society (especially NGOs), and the creation of
places for daily walk was due to support by the detainees and their
families.
The repair, renovation and maintenance of cells is
entirely the responsibility of detainees themselves and of their
families, who also pay for the necessary materials. They must also
obtain their own bed sheets and blankets, the institution being able
to give them only used mattresses.
In sum, the conditions of life in the great majority of
cells in Blocks I-II and the transit cells continue to be miserable.
...
Finally, despite the drastic reduction of the
overcrowding, one still observes a very high, even intolerable, level
of occupancy rate in the cells.
83. ... everywhere the quantity and quality of
detainees' food constitutes a source of high preoccupation. The
delegation was flooded with complaints regarding the absence of meat,
dairy products. The findings of the delegation, regarding both the
food stock and the communicated menus, confirm the credibility of
these complaints. Its findings also confirmed that in certain places
(in Prison no.3, [...]), the food served was repulsive and virtually
inedible (for instance, presence of insects and vermin). This is not
surprising, given the general state of the kitchens and their modest
equipment.
Moldovan authorities have always emphasized financial
difficulties in ensuring the adequate feeding of detainees. However,
the Committee insists 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. ...”
C. Acts of the Committee of Ministers of the Council of
Europe
- Resolution
(73) 5 of the Committee of Ministers of the Council of Europe
concerning the Standard Minimum Rules for the Treatment of Prisoners
(adopted by the Committee of Ministers on 19 January 1973), in so far
as relevant, reads as follows:
“93. An untried prisoner shall be entitled, as
soon as he is imprisoned, to choose his legal representative, or
shall be allowed to apply for free legal aid where such aid is
available, and to receive visits from his legal adviser with a view
to his defence and to prepare and hand to him, and to receive,
confidential instructions. At his request he shall be given all
necessary facilities for this purpose. In particular, he shall be
given the free assistance of an interpreter for all essential
contacts with the administration and for his defence. Interviews
between the prisoner and his legal adviser may be within sight but
not within hearing, either direct or indirect, of a police or
institution official.”
- Recommendation
Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules (adopted by the Committee of Ministers on 11
January 2006 at the 952nd meeting of the Ministers' Deputies),
insofar as relevant, reads as follows:
“23.1 All prisoners are entitled to legal advice,
and the prison authorities shall provide them with reasonable
facilities for gaining access to such advice.
...
23.4 Consultations and other communications including
correspondence about legal matters between prisoners and their legal
advisers shall be confidential. ...
23.6 Prisoners shall have access to, or be allowed to
keep in their possession, documents relating to their legal
proceedings.”
THE LAW
- The
applicant complained of a violation of his rights guaranteed by
Article 3 of the Convention. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant also complained that his detention after the expiry of the
last detention order, on 24 October 2004, had not been “lawful”
within the meaning of Article 5 § 1 of the Convention, the
relevant part of which provides:
“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:
...
(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;”
- The
applicant also complained that his detention pending trial had not
been based on “relevant and sufficient” reasons. The
relevant part of Article 5 § 3 reads:
“3. Everyone arrested or detained in accordance
with the provisions of paragraph 1 (c) of this Article
shall be ... entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for
trial.”
- The applicant also complained under Article 8 of the
Convention that conversations with his lawyer were conducted through
a glass partition and were overheard or possibly even recorded and
that the authorities had failed to provide proper conditions for
private discussions with his lawyer. Although his complaint was not
communicated, the Government nevertheless submitted comments on it.
In his observations, the applicant referred to this complaint under
Article 5 § 4 of the Convention. The Government, having been
given the possibility to comment on this change, did not submit any
further comments in respect of this complaint. The Court, which is
master of the characterisation to be given in law to the facts of the
case (see Guerra and Others v. Italy, judgment of 19 February
1998, Reports of Judgments and Decisions 1998 I, § 44),
considers that it is more appropriate to examine the problem raised
by the applicant under Article 5 § 4 of the Convention.
The
relevant part of Article 5 § 4 reads:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful”
I. ADMISSIBILITY OF THE COMPLAINTS
A. Complaints under Article 3 of the Convention
1. Conditions of detention
- The
applicant complained that the lack of medical assistance in the CFECC
remand centre and the conditions of his detention in Prison no. 3
amounted to inhuman and degrading treatment contrary to Article 3
of the Convention (see paragraphs 26-28 above).
- The
Government argued that the applicant had not exhausted available
domestic remedies in respect of the complaints under Article 3 of the
Convention.
- In
so far as the remedy of a civil action to request an immediate end to
the alleged violation is concerned (the Drugalev case), the
Court has already found that it did not constitute sufficient
evidence that such a remedy was effective at the relevant time (see
Holomiov v. Moldova, no. 30649/05, § 106,
7 November 2006). Not having been informed of any development
since the Drugalev decision, the Court does not see any reason
for departing from that finding in the present case. It follows that
this complaint cannot be rejected for failure to exhaust available
domestic remedies.
2. Alleged lack of medical assistance
- In
respect of the complaint concerning the lack of medical assistance in
the CFECC remand centre, the Court notes that the applicant made
general complaints about the possible worsening of his state of
health (see paragraphs 11 and 26 above). However, he never asked the
remand centre personnel to provide him with medical assistance in
relation to any specific problem; moreover, he was visited on a
number of occasions by doctors from the prison hospital. While it
appears that the applicant's doctor recommended regular treatment
which was not administered during the applicant's detention, it is
also clear that that treatment had not been followed in the year
prior to his arrest (see paragraphs 27 and 29 above).
- The
Court considers that the lack of medical assistance in circumstances
where such assistance was not needed cannot, of itself, amount to a
violation of Article 3 of the Convention. Accordingly, the Court
concludes that this complaint is manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention.
B. Complaints under Article 5 of the Convention
- The
applicant alleged that his rights guaranteed by Article 5 §§
1, 3 and 4 of the Convention had been violated because he had been
detained without a legal basis after 24 October 2004; the courts had
not given “relevant and sufficient reasons” for their
decisions to remand him in custody and to prolong his detention; his
lawyer had not had access to any part of the criminal file in order
effectively to challenge his detention pending trial and to formulate
habeas corpus requests; and he had been unable to meet with
his lawyer in private.
- The
Government submitted that, in accordance with the principle of
subsidiarity, it was primarily for the domestic courts to determine
the lawfulness of the applicant's detention. Had he been found by the
domestic courts to have been unlawfully detained, he could have
claimed damages in accordance with the law. Moreover, the courts had
the power to apply the Convention directly. The applicant disagreed.
1. Access to the relevant materials of the file
- The
Court notes that the parties dispute whether oral requests were made
for access to the materials in the case file. The Court has no means
of establishing whether such requests were in fact made. However, it
notes that the applicant did not submit any evidence that he had
complained about the prosecution's refusal to allow him or his lawyer
access to the relevant materials in his case file, even though he was
entitled to have such access in accordance with the law (see
paragraph 32 above).
Accordingly,
this complaint must be rejected for failure to exhaust domestic
remedies, pursuant to Article 35 §§ 1 and 4 of the
Convention.
2. The alleged lack of a valid legal basis for the
applicant's detention after 24 October 2004
- The
Court observes that the applicant did not raise his complaint under
Article 5 § 1 before the domestic courts. It recalls that under
Article 35 § 1 of the Convention normal recourse
should be had by an applicant to remedies which are available and
sufficient to afford redress in respect of the breaches alleged. The
existence of the remedies in question must be sufficiently certain
not only in theory but in practice, failing which they will lack the
requisite accessibility and effectiveness (see, among other
authorities, the Akdivar and Others v. Turkey judgment of
16 September 1996, Reports of Judgments and Decisions
1996-IV, p. 1210, § 66).
- It
appears to the Court that there was a general practice in Moldova of
detaining defendants without issuing a court order to that effect
following the submission of their case files to the trial court. It
notes the respondent Government's position in a number of recent
cases (see Boicenco, cited above, § 146, Holomiov,
cited above, § 123, and other cases pending before the
Court), in which the Government considered the practice to be lawful
and based on a number of provisions of the Code of Criminal
Procedure. They did not submit examples of domestic courts' departure
from the practice described above. Indeed, the applicants in both the
cases mentioned above had expressly raised the issue before the
domestic courts, but their complaints were rejected.
- Furthermore,
in the present case the Court of Appeal expressly mentioned the
expiry of the 30-day period of detention pursuant to the last court
order to detain the applicant (see paragraph 14 above), and relied on
the submission of the case file to the trial court in deciding not to
examine his appeal against the decision rejecting his habeas
corpus request.
- In
view of the above, the Court considers that the applicant had no real
prospect of success in lodging a complaint regarding the lack of a
legal basis for his detention, given the general practice permitting
the authorities to detain him in the absence of an order issued by a
court. The practice appears to have been consistently applied by the
courts in rejecting any challenge to detention and was fully
supported by the Government.
3. Alleged lack of “relevant and sufficient”
reasons for detention
- The
Court also notes that the applicant raised his complaint under
Article 5 § 3 before the domestic courts, which found no
appearance of a violation (see paragraphs 11 and 13-16 above). In
such circumstances, it would be unreasonable to expect the applicant
to initiate new proceedings claiming compensation for alleged
violations which the courts have already dismissed.
C. Conclusion
- In
view of the above, the Court concludes that the complaints under
Article 3 regarding the conditions of detention and the complaints
under Article 5 regarding the lack of a legal basis and of relevant
and sufficient reasons for detention cannot be declared inadmissible
for non-exhaustion of domestic remedies. Accordingly the Government's
objection in respect of these complaints must be dismissed. No
objection was raised as to the complaint regarding the refusal to
allow confidential meetings with the applicant's lawyer (Article 5 §
4 of the Convention).
- The
Court further considers that the applicant's complaints under
Articles 3 (regarding the conditions of detention) and 5 §§
1, 3 and 4 of the Convention raise questions of fact and law which
are sufficiently serious that their determination should depend on an
examination of the merits. It therefore declares these complaints
admissible. In accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 5 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about a violation of his rights guaranteed by
Article 3 of the Convention in respect of the conditions of his
detention in prison no. 3 in Chişinău between 23 February
and 15 November 2005 (see paragraphs 26-28 above). He also relied on
the findings of the CPT and of the domestic authorities (see
paragraphs 37 and 38 above).
- The
Government submitted that the conditions of the applicant's detention
in that remand centre were acceptable (see paragraph 29 above). In
addition, the authorities had taken a number of actions aimed at
improving the conditions of detention (see paragraph 36 above).
- The
Court recalls 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). The Court refers to further
principles well-established in its case-law in respect of conditions
of detention in particular (see Sarban, cited above, §§ 75-77,
4 October 2005).
- In
the present case it is not disputed that the applicant was detained
with three other persons in a cell measuring 10m2 (2.5 m2
per detainee). Moreover, the Government have not disputed the
applicant's calculations and plan of the cell, according to which
more than half of that space was occupied by the cell furniture and
each detainee was left with 1.19m2 of free space (see
paragraphs 28 and 29 above). It is noted that the CPT considers that
4 m² per prisoner is an appropriate and desirable guideline for
a detention cell (see Ostrovar v. Moldova, no. 35207/03, § 82,
13 September 2005).
- The
Court has already held that severe overcrowding raises in itself an
issue under Article 3 of the Convention (see Kadiķis v.
Latvia (no. 2), no. 62393/00, § 52, 4 May 2006). It
also notes that the applicant had to spend 23 hours a day in cramped
conditions (see paragraph 29 above) and that the only hour allowed
for daily walks appears to have exposed his health to risk of
infection with tuberculosis (see paragraph 28 above).
- The
Court notes that the Government have not disputed the presence of
three layers of metal netting on the cell window which, according to
the applicant, blocked most of the daylight. Similarly, there was no
response to the applicant's claim that the provision of electricity
and water had been discontinued for certain periods, notably during
the night, and that the detainees in the applicant's cell had to
refrain from using the toilet during such periods in order to limit
the smell (see paragraphs 28 and 29 above).
- It
was not disputed that the applicant had not been provided with bed
linen or prison clothes and had to invest, together with other
inmates, in the repair and furnishing of the cell. Moreover, the
dining table was situated close to the toilet, which smelt bad.
- It
was also undisputed that the daily expenses for food had been limited
to EUR 0.28 per day for each detainee. The Court notes that the CPT
has confirmed that in October 2004 the situation in this respect left
a lot to be desired, the food being “repulsive and virtually
inedible” (see paragraph 38 above).
- To
sum up, the applicant was detained in extremely overcrowded
conditions with little access to daylight, limited availability of
running water, especially during the night and in the presence of
heavy smells from the toilet, while being given insufficient quantity
and quality of food or bed linen. Moreover, he had to endure these
conditions for almost nine months, which is much longer than the
fifteen days which the applicant had to endure in Kadiķis
(cited above, § 55).
- In
the Court's opinion, the cumulative effect of the above conditions of
detention and the relatively long period of time during which the
applicant had to endure them amounted to a violation of Article 3 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant argued that since the expiry of the last court order for
his detention pending trial no other court decision had provided for
his further detention. He considered that the legal provisions
referred to by the Government were not foreseeable in their
application, contrary to the requirements of Article 5 of the
Convention. He relied on Baranowski v. Poland (no.
28358/95, ECHR 2000 III).
- The
Government stated that after the applicant's case file had been
submitted to the trial court on 24 October 2004, it was for the trial
court to deal with any requests regarding the applicant's detention
pending trial, which was based on the clear provisions of the law.
They relied on the same legal provisions as those relied on in
Boicenco (cited above, §§ 64-71).
- The Court recalls that it found a violation of Article
5 § 1 of the Convention in Boicenco (cited above, §
154) and Holomiov (cited above, § 130). Having
examined the material submitted to it, the Court considers that the
file does not contain any element which would allow it to reach a
different conclusion in the present case.
- The Court finds, for the reasons given in the cases
cited above, that the applicant's detention pending trial after 24
October 2004, when the last court order for his detention expired,
was not based on any legal provision.
- There has, accordingly, been a violation of Article 5
§ 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
A. The submissions of the parties
- The applicant complained that the courts had not given
“relevant and sufficient reasons” for their order to
detain him pending trial. In particular, the courts had failed to
give any details or evidence supporting their findings regarding the
alleged dangers posed by the applicant's release. The applicant had
submitted arguments in respect of each ground on which the domestic
courts had relied in a general manner, but the courts had not
responded in any way.
- The Government disagreed, finding that the courts had
given relevant and sufficient reasons based on the case file before
them. The Government added that the reasons for detention pending
trial need not be so detailed as to prove a suspect's guilt. They
added details about the applicant's activities and the likelihood of
his influencing witnesses or absconding, none of which had been
mentioned by the domestic courts.
B. The Court's assessment
- The
Court recalls the general principles established in its case-law in
respect of the reasons for pre-trial detention (see, for instance,
Sarban, cited above, §§ 95-99).
- The Court will assume the existence of a reasonable
suspicion that the applicant had committed a crime, given the lack of
sufficient evidence to the contrary. However, it notes that the
reasons relied upon by the domestic courts in their decisions to
remand the applicant in custody and to prolong his detention (see
paragraphs 9 and 13 above) were virtually identical to the reasons
used by the domestic courts to remand the applicant in Sarban
(cited above, at §§ 11 and 14). As in Sarban,
the domestic courts limited themselves to paraphrasing the reasons
for detention provided for by the Code of Criminal Procedure, without
explaining how they applied in the applicant's case. Accordingly, the
Court does not consider that the instant case can be distinguished
from Sarban in what concerns the relevancy and sufficiency of
reasons for detention.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention in this respect.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that he had not been allowed to meet in private
with his lawyer and had been separated from him by a glass partition,
preventing normal discussion or work with documents. As a result they
had had to shout to hear each other and had both refused on several
occasions to meet in such conditions, informing the court that they
were unable to prepare for hearings. The applicant lodged his initial
complaint under Article 8 of the Convention but in his subsequent
observations he referred to it under Article 5 § 4 of the
Convention.
- The
Government submitted that the applicant had not been prevented from
meeting in private with his lawyer and that the law expressly
provided for such a right. In fact, they had met 18 times during the
applicant's five month detention in the CFECC remand centre. No
CFECC officer had been present at the meetings. Moreover, the
correspondence between detainees and their lawyers could not be
censored and the applicant had to be handed any document from his
lawyer within 24 hours.
- According
to the Government, the glass partition was necessary to protect
detainees and lawyers and did not prevent normal communication. The
applicant had not provided proof that his discussions with the lawyer
had been intercepted, which would be contrary to the law in any case.
They further referred to the case of Kröcher and Möller
v. Switzerland (no. 8463/78, DR 26, p.40) by way of
justification for the glass partition.
- In
Reinprecht v. Austria (no. 67175/01, § 31, ECHR
2005 ...) the Court summarised the principles arising from its
case-law on Article 5 § 4 as follows:
“(a) Article 5 § 4 of the
Convention entitles an arrested or detained person to institute
proceedings bearing on the procedural and substantive conditions
which are essential for the “lawfulness”, in Convention
terms, of their deprivation of liberty (see, among many others,
Brogan and Others v. the United Kingdom, judgment of 29
November 1988, Series A no. 145-B, pp. 34-35, § 65).
(b) Although it is not always necessary
that the procedure under Article 5 § 4 be attended by the
same guarantees as those required under Article 6 of the Convention
for criminal or civil litigation, it must have a judicial character
and provide guarantees appropriate to the kind of deprivation of
liberty in question (see, for instance, Assenov and Others
v. Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998 VIII, p. 3302, § 162, and Włoch
v. Poland, no. 27785/95, § 125, ECHR 2000-XI,
both with reference to Megyeri v. Germany, judgment of 12 May
1992, Series A no. 237 A, p. 11, § 22).
(c) The proceeedings must be adversarial
and must always ensure “equality of arms” between the
parties (see Lamy v. Belgium, judgment of 30 March
1989, Series A no. 151, § 29). In case
of a person whose detention falls within the ambit of Article 5 §
1(c) a hearing is required (see Nikolova v. Bulgaria
[GC], no. 31195/96, § 58, ECHR 1999 II; Assenov and
Others, cited above, § 162, with references to Schiesser
v. Switzerland, judgment of 4 December 1979, Series A no. 34, p.
13, §§ 30-31; Sanchez-Reisse v. Switzerland,
judgment of 21 October 1986, Series A no. 107, p. 19, § 51; and
Kampanis v. Greece, judgment of 13 July 1995, Series A no.
318 B, p. 45, § 47).
(d) Furthermore, Article 5 § 4
requires that a person detained on remand be able to take proceedings
at reasonable intervals to challenge the lawfulness of his detention
(see Assenov and Others, cited above, p. 3302, § 162,
with a reference to Bezicheri v. Italy, judgment of 25
October 1989, Series A no. 164, pp. 10-11, §§ 20-21).”
- Article
6 has been found to have some application at the pre-trial stage
(see, for instance, Imbrioscia v. Switzerland, judgment of
24 November 1993, Series A no. 275, p. 13, § 36, and John
Murray v. the United Kingdom, judgment of 8 February 1996,
Reports, 1996 I, p. 54, § 62) during which
the review of the lawfulness of pre-trial detention typically takes
place. However, this application is limited to certain aspects.
- The
guarantees provided in Article 6 concerning access to a lawyer have
been found to be applicable in habeas corpus proceedings (see
for example Winterwerp v. the Netherlands, judgment of 24
October 1979, Series A no. 33, § 60). In Bouamar v. Belgium,
(judgment of 29 February 1988, Series A no. 129, §60), the Court
held that it was essential not only that the individual concerned
should have the opportunity to be heard in person but that he should
also have the effective assistance of his lawyer.
- The Court's task in the present case is to decide
whether the applicant was able to receive effective assistance from
his lawyer so as to satisfy these requirements.
- One
of the key elements in a lawyer's effective representation of a
client's interests is the principle that the confidentiality of
information exchanged between them must be protected. This privilege
encourages open and honest communication between clients and lawyers.
The Court recalls that it has previously held that confidential
communication with one's lawyer is protected by the Convention as an
important safeguard of one's right to defence (see, for instance,
Campbell v. the United Kingdom, judgment of 25 March 1992,
Series A no. 233, § 46 and Recommendation Rec(2006)2 (see
paragraph 40 above)).
- Indeed,
if a lawyer were unable to confer with his client and receive
confidential instructions from him without surveillance, his
assistance would lose much of its usefulness, whereas the Convention
is intended to guarantee rights that are practical and effective
(see, inter alia, the Artico v. Italy judgment of
13 May 1980, Series A no. 37, p. 16, § 33).
- The
Court considers that an interference with the lawyer-client privilege
and, thus, with a detainee's right to defence, does not necessarily
require an actual interception or eavesdropping to have taken place.
A genuine belief held on reasonable grounds that their discussion was
being listened to might be sufficient, in the Court's view, to limit
the effectiveness of the assistance which the lawyer could provide.
Such a belief would inevitably inhibit a free discussion between
lawyer and client and hamper the detained person's right effectively
to challenge the lawfulness of his detention.
- The
Court must therefore establish whether the applicant and his lawyer
had a genuine belief held on reasonable grounds that their
conversation in the CFECC lawyer-client meeting room was not
confidential. It appears from the applicant's submissions that his
fear of having his conversations with his lawyer intercepted was
genuine (see paragraph 22 above). The Court will also consider
whether an objective, fair minded and informed observer would have
feared interception of lawyer-client discussions or eavesdropping in
the CFECC meeting room.
- The
Court notes that the problem of alleged lack of confidentiality of
lawyer-client communications in the CFECC detention centre was a
matter of serious concern for the entire community of lawyers in
Moldova for a long time and that it had even been the cause of strike
organised by the Moldovan Bar Association (see paragraph 33 above).
The Bar's requests to verify the presence of interception devices in
the glass partition was rejected by the CFECC administration (see
paragraph 34 above), and that appears to have contributed to the
lawyers' suspicion. Such concern and protest by the Bar Association
would, in the Court's view, have been sufficient to raise a doubt
about confidentiality in the mind of an objective observer.
- The
applicant's reference to indirect proof of the fact that his
discussions with his lawyer had been overheard (see paragraph 25
above) is far from proving that surveillance was carried out in the
CFECC meeting room. However, against the background of the general
concern of the Bar Association, such speculation might be enough to
increase the concerns of the objective observer.
- Accordingly, the Court's conclusion is that the
applicant and his lawyer could reasonably have had grounds to believe
that his conversations in the CFECC lawyer-client meeting room were
not confidential.
- Moreover,
the Court notes that, contrary to the Government's contention to the
effect that the applicant and his lawyer could easily exchange
documents, it is apparent from the video recording provided by the
Government (see paragraph 18 above) that this was not the case
because of the lack of any aperture in the glass partition. This, in
the Court's view, rendered the lawyers' task even more difficult.
- The
Court recalls that in the case of Sarban v. Moldova it
dismissed a somewhat similar complaint, examined under Article 8 of
the Convention, because the applicant had failed to furnish evidence
in support of his complaint and because the Court considered that the
obstacles to effective communication between the applicant and his
lawyer did not impede the applicant from mounting an effective
defence before the domestic authorities. However, having regard to
the further information at its disposal concerning the real
impediments created by the glass partition to confidential
discussions and exchange of documents between lawyers and their
clients detained in the CFECC, the Court is now persuaded that the
existence of the glass partition prejudices the rights of the
defence.
- The
Government referred to the case of Kröcher and Möller
v. Switzerland in which the fact that the lawyer and his
client were separated by a glass partition was found not to violate
the right to confidential communications. The Court notes that the
applicants in that case were accused of extremely violent acts and
were considered very dangerous. However, in the present case the
applicant had no criminal record (see paragraph 11 above) and was
prosecuted for non-violent offences. Moreover, it appears that no
consideration was given to the character of the detainees in the
CFECC detention centre. The glass partition was a general measure
affecting indiscriminately everyone in the remand centre, regardless
of their personal circumstances.
- The
security reasons invoked by the Government are not convincing as
there is nothing in the file to confirm the existence of a security
risk. Furthermore, in exceptional circumstances where supervision of
lawyer-client meetings would be justified, visual supervision of
those meetings would be sufficient for such purposes.
- In
the light of the above, the Court considers that the impossibility
for the applicant to discuss with his lawyers issues directly
relevant to his defence and to challenging his detention on remand,
without being separated by a glass partition, affected his right to
defence.
- There
has accordingly been a violation of Article 5 § 4 of the
Convention.
VI. 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 13,000 euros (EUR) in compensation for the damage
caused to him by the violation of his rights, including EUR 9,000 for
the violation of the various provisions of Article 5 of the
Convention. In support of his claims he relied on the Court's
case-law in respect of similar complaints.
- The
Government disagreed with the amount claimed by the applicant,
arguing that it was excessive in the light of the case-law of the
Court. They submitted that the judgments cited by the applicant dealt
with situations which had nothing in common with his case in terms of
the nature and seriousness of the alleged violations, the effects on
the applicant and the attitude of the State authorities. The
authorities had taken all the necessary measures to accommodate the
applicant's needs and his treatment did not reach the minimum
threshold required by Article 3 of the Convention. Any finding of a
violation of Article 5 of the Convention should constitute in
itself just satisfaction.
- The
Court considers that the applicant must have been caused a certain
amount of stress and anxiety as a consequence of the authorities'
failure to respect his rights guaranteed by Articles 3 and 5 (§§
1, 3 and 4) of the Convention, namely his detention in inhuman
conditions, as well as his detention without a proper legal basis or
relevant reasons for over a year, and the failure to allow him to
meet his lawyer in confidence. It awards the applicant the total sum
of EUR 7,000 for non-pecuniary damage (see Ječius
v. Lithuania, no. 34578/97, § 109, ECHR 2000 IX).
B. Costs and expenses
- The
applicant claimed EUR 8,208 for legal costs and expenses. He
submitted a list of hours worked by his lawyer in preparing the case
(amounting to 77 hours) and the hourly fee for each type of activity,
which corresponded to a decision of the Moldovan Bar Association
adopted on 29 December 2005 recommending the level of
remuneration for lawyers representing applicants before international
courts.
- The
Government considered these claims to be unjustified given the
economic realities of life in Moldova. They argued that the applicant
had not submitted a copy of any contract for his representation and
questioned the number of hours spent on researching the Court's
case-law and drafting the applicant's observations.
- The
Court recalls that in order for costs and expenses to be reimbursed
under Article 41, it must be established that they were actually and
necessarily incurred and were reasonable as to quantum (see Croitoru
v. Moldova, no. 18882/02, § 35,
20 July 2004). According to Rule 60 § 2 of the
Rules of Court, itemised particulars of claims made are to be
submitted, failing which the Chamber may reject the claim in whole or
in part.
- In
the present case the Court notes that, while the applicant has not
submitted a copy of a contract with his lawyer, he properly
authorised the lawyer to represent him in the proceedings before this
Court. However, the amount requested is excessive and should be
accepted only in part. Regard being had to the itemised list of hours
worked, the number and complexity of the issues dealt with, the Court
awards the applicant EUR 1,800 for legal costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares inadmissible the complaints under
Article 3 of the Convention insofar as they relate to the alleged
lack of adequate medical treatment and under Article 5 insofar as
they relate to the failure to give access to the case materials, and
the remainder of the application admissible;
- Holds that there has been a violation of
Article 3 of the Convention as regards the conditions of the
applicant's detention in prison no.3;
- Holds that there has been a violation of
Article 5 § 1 of the Convention in respect of the
applicant's detention after 24 October 2004 without a legal basis;
- Holds that there has been a violation of
Article 5 § 3 of the Convention in respect of the
insufficiency of the reasons given for the prolongation of the
applicant's detention;
- Holds that there has been a violation of
Article 5 § 4 of the Convention in respect of the
interference with the applicant's right to communicate with his
lawyer under conditions of confidentiality;
- Holds:
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention,
EUR 7,000 (seven thousand euros) for non-pecuniary
damage and EUR 1,800 (one thousand eight hundred euros) for
costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable;
(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 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas
Bratza
Registrar President
