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THIRD
SECTION
CASE OF HARITONOV v. MOLDOVA
(Application
no. 15868/07)
JUDGMENT
STRASBOURG
5 July
2011
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 Haritonov v.
Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Mihai
Poalelungi,
Kristina Pardalos, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
deliberated in private on 7 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15868/07) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Ghenadie Haritonov
(“the applicant”), on 20 March 2007.
- The
applicant was represented by Ms Halina Yakovyshyn, a lawyer
practising in Mamaevtsy. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant alleged that he had been detained in inhuman and degrading
conditions contrary to Article 3 of the Convention. He also alleged
numerous breaches of his rights guaranteed by Article 5 of the
Convention.
- On
7 December 2009 the Court decided to give notice of the application
to the Government. On the same date the Ukrainian Government were
informed of their right to intervene in the proceedings in accordance
with Article 36 § 1 of the Convention and Rule 44
§ 1(b), but they did not communicate any wish to
avail themselves of this right. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Comyshany, Ukraine.
- On
24 May 2006 the applicant was arrested in Chişinău on
charges of possession of false identity papers. After a search of his
girlfriend’s apartment, where he lived, the police discovered,
inter alia, false identity papers with the applicant’s
and his girlfriend’s photos and blank identity papers. Later,
as the criminal investigation progressed, the applicant was also
charged with the offence of being a member and head of a criminal
gang specialised in the forgery of documents and trafficking in
persons and the police identified approximately thirty different
cases of forged documents and trafficking.
- The
applicant was placed in detention and was periodically taken to a
court where his detention was extended for periods of thirty days
until 7 January 2007. The reasons for keeping the applicant in
custody were that he was accused of a serious offence and there was a
risk of him absconding because he was a foreigner who had no
permanent residence and no family in Moldova. Moreover, there was a
risk that he might tamper with the investigation of the case and
re-offend. All his habeas corpus requests based on the lack of
evidence and reasons in support of detention were dismissed.
- On 7 January 2007, upon the expiry of the period of his
detention provided for in the latest detention order, the applicant
requested to be released but to no avail. On 9 January 2007 the
applicant was taken to a court where a judge extended his detention
for ninety days. The applicant challenged the court order and on 17
January 2007 the Court of Appeal quashed the lower court’s
decision and ordered the applicant’s release. The court found
that the reasons for the applicant’s continued detention were
still valid; however, in view of his detention contrary to Article 5
§ 1 of the Convention between 7 and 9 January 2007, he was to be
released.
- On
9 February 2007 during a hearing in the criminal proceedings, the
prosecutor requested again that the applicant be remanded in custody
in view, inter alia, of the risk of his absconding. The court
upheld the prosecutor’s request and ordered the applicant’s
detention. According to the applicant, he challenged that decision on
the same day. According to the stamp applied by the court on the
appeal application, the decision was challenged three days later.
- On
16 February 2007 the applicant’s appeal was scheduled to be
examined by the Court of Appeal. However, the panel of judges in
charge of the case decided to withdraw from the case on grounds of
lack of objective impartiality in view of the fact that they had
previously examined the applicant’s appeal and had ordered his
release. A new panel of judges was appointed.
- On
21 February 2007 the new panel of judges of the Court of Appeal ruled
on the applicant’s appeal, quashed the decision of the lower
court and ordered the applicant’s release. After his release
the applicant fled Moldova, allegedly for Ukraine, and has not
returned to date.
- During his detention the applicant was held in three
detention facilities: between 24 May and 2 August 2006 and between 23
August and 6 September 2006 in the detention facility of the
General Directorate for Fighting Corruption and Organised Crime of
the Ministry of Internal Affairs (“GDFOC”), between 2 and
23 August 2006 and between 6 September 2006 and 17 January 2007
in Prison no. 13 and between 9 and 21 February 2007 in the detention
facility of the Chişinău General Police Department. The
applicant states that the cells in all the detention facilities were
overcrowded, infested with vermin, the food was of poor quality, the
inmates were allowed to take showers only once a week for two minutes
and had walks of 15-20 minutes two or three times per week. The
Government disputed the applicant’s allegations about the poor
conditions of his detention.
- On
15 June 2007 the applicant was found guilty as charged and sentenced
to seventeen years’ imprisonment. He did not appeal against the
sentence and alleges to have learned about it from the Government’s
observations.
II. RELEVANT DOMESTIC LAW AND NON-CONVENTION MATERIAL
- The
relevant non-Convention material concerning the conditions of
detention has been set out in the Court’s judgments in Ţurcan
v. Moldova (no. 10809/06, § 19, 27 November 2007) and
in Popovici v. Moldova (nos. 289/04 and 41194/04, §
36, 27 November 2007).
- The
relevant domestic law concerning detention on remand has been set out
in the Court’s judgment in Sarban v. Moldova (no.
3456/05, § 52, 4 October 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention about the
conditions of his detention and argued that they amounted to inhuman
and degrading treatment. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Government submitted in the first place that the applicant did not
complain about the conditions of his detention in Prison no. 13 but
only about those in the other two detention facilities. The Court
notes that, indeed, Prison no. 13 was not mentioned in the initial
application. However, the applicant complained about the conditions
of his detention for its entire duration between May 2006 and
February 2007, irrespective of the number of detention facilities in
which he had been held. Therefore the Court will examine the
applicant’s complaint in respect of all three detention
facilities.
- The
Government further argued that the applicant had failed to exhaust
domestic remedies in respect of his complaint under Article 3 and
that the applicant’s complaint concerning his detention between
24 May and 6 September 2006 had been lodged outside the six-month
time-limit.
- In
so far as the former objection is concerned, the Court recalls that a
similar objection was examined and dismissed by the Court in I.D.
v. Moldova (no. 47203/06, §§
34-35, 30 November 2010) because the Government had not shown
that an effective remedy had been available in theory and in
practice. In such circumstances and in view
of the similarity between the Government’s position in this
case and in I.D., the Court does not consider it possible to
depart from its reasoning and its findings in I.D. and
therefore dismisses the Government’s objection.
- As
to the question of the six-month time-limit rule, the Court
reiterates that the object of the six month time-limit under Article
35 is to promote legal certainty, by ensuring that cases raising
issues under the Convention are dealt with within a reasonable time
and that past decisions are not continually open to challenge. In
cases where there is a continuing situation, the six-month period
runs from the cessation of the situation (B. and D. v. the United
Kingdom, no. 9303/81, Commission decision of 13 October
1986, Decisions and Reports (DR) 49, p. 44). The concept of a
“continuing situation” refers to a state of affairs which
operates by continuous activities by or on the part of the State so
as to render the applicant a victim (see, Montion v. France,
no. 11192/84, Commission decision of 14 May 1987, DR 52, p. 227,
and Hilton v. the United Kingdom, no. 12015/86,
Commission decision of 6 July 1988, DR 57, p. 108). Normally, the
six-month period runs from the final decision in the process of
exhaustion of domestic remedies. Where it is clear from the outset,
however, that no effective remedy is available to the applicant, the
period runs from the date of the acts or measures complained of (see
D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26
June 2001).
- In
I.D. v. Moldova (cited above) where the
Court was confronted with a similar situation under Article 3,
namely, with the applicant’s detention in several prisons
without interruption, it was called to determine whether the
applicant’s detention amounted to a “continuing
situation” for the purposes of determining compliance with the
six-month time-limit. In that case the Court found that the
main negative feature of each period of detention was different and
therefore concluded that each period of detention referred to
specific events which occurred on identifiable dates and could not
therefore be construed as a “continuing situation” (see
I.D. v. Moldova, cited above, § 30). As a result a
part of the applicant’s complaint under Article 3 was declared
inadmissible for failure to comply with the six-month rule.
- A
different approach was taken by the Court in Guliyev v. Russia
(no. 24650/02, 19 June 2008) where it considered two different
periods of detention to amount to a “continuing situation”
because the main characteristic of both periods of detention was the
severe overcrowding of the cells.
- In
the present case the Court notes that in so far as the first two
periods of detention are concerned, the applicant was transferred
from one detention facility (GDFOC) to another (Prison no. 13) and
then back and that, therefore, the detention was uninterrupted. His
complaints are similar for both detention facilities and he does not
put an emphasis on any particular negative feature of his detention
specific to a particular detention facility. In such circumstances,
the Court considers it necessary to follow the approach taken in
Guliyev and to conclude that in the present case the first two
detentions amounted to a “continuing situation” with the
result that the six-month time-limit started running from the last
day of the applicant’s detention in Prison no. 13, that is,
from 17 January 2007. Therefore, the Court concludes that the
applicant’s complaint about his conditions of detention between
24 May and 6 September 2006 was lodged within six months as provided
by Article 35 § 1 of the Convention.
- The
Court also notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
- As
to the remainder of the applicant’s detention, the Court notes
that there was a gap of more than three weeks between the applicant’s
second and third periods of detention. It is true that the applicant
was detained within the framework of the same criminal proceedings.
Nonetheless, in view of the significant gap between the last two
periods of detention, the Court cannot treat them as a part of a
continuing situation referred to above, even if the other conditions
are met.
- Therefore,
the Court notes that the applicant’s detention in the impugned
conditions during his third period of detention was relatively short.
Even assuming that the applicant’s description of the
conditions of his detention was accurate and that they could
potentially raise an issue under Article 3 of the Convention, it is
to be observed that the applicant was only confined there for a
period of twelve days. The Court therefore considers that in the
particular circumstances of the case the applicant’s alleged
suffering did not attain the threshold of severity required by
Article 3 of the Convention. In reaching this conclusion the Court
pays attention, inter alia, to the applicant’s age, sex
and medical condition (see, among other authorities, Gorea v.
Moldova, no. 21984/05, § 49, 17 July 2007). Accordingly,
this part of the complaint is manifestly ill-founded and must be
declared inadmissible in accordance with Article 35 §§ 3
and 4 of the Convention.
B. Merits
- The
applicant submitted that the conditions of his detention for its
duration amounted to inhuman and degrading treatment.
- The
Government submitted that the applicant’s description of
conditions of his detention was not sufficiently detailed.
Alternatively, they argued that in view of the particular
circumstances of the case and of the length of the applicant’s
detention, the treatment to which he had been subjected had not
attained the threshold of severity required by Article 3 of the
Convention.
- The
Court reiterates that the general principles concerning conditions of
detention have been set out in Ostrovar v. Moldova (no.
35207/03, §§ 76 79, 13 September 2005).
- In
so far as the applicant’s detention between 24 May 2006 and
17 January 2007 is concerned the Court notes that in Ţurcan
(cited above, §§ 35-39) it found a violation of
Article 3 of the Convention in respect of the poor conditions of
the applicant’s detention in Prison no. 13 between February and
September 2006. In Popovici (cited above, § 57) a similar
violation was found in respect of the conditions of detention in the
GDFOC detention centre.
- Given
that the above cases refer to the same detention facilities at
approximately the same moment in time (see paragraph 12 above), the
Court considers that there are no reasons to depart from the
conclusions reached in them. The Court considers that the hardship
endured by the applicant during his detention between 24 May 2006 and
17 January 2007 went beyond the unavoidable level inherent in
detention and reached a threshold of severity contrary to Article 3
of the Convention. Accordingly, there has been a violation of Article
3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant further submitted that his detention between 7 and
9 January 2007, when the detention warrant had expired, had not
been “lawful” within the meaning of Article 5 § 1 of
the Convention. The relevant part of Article 5 § 1 reads:
“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 was not based on
“relevant and sufficient” reasons. The relevant part of
Article 5 § 3 reads:
“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 finally asserted that because of the length of time it had
taken to examine his last habeas corpus request, the
respondent State had breached Article 5 § 4 of the
Convention, which 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.”
A. The complaint under Article 5 § 1 of the
Convention
- The
applicant submitted that he continued to be a victim of a breach of
Article 5 § 1 of the Convention notwithstanding the finding in
the Court of Appeal’s decision of 17 January 2007 (see
paragraph 8 above) because he was not awarded compensation for
non-pecuniary damage arising from the breach.
- The
Government admitted that the applicant’s detention between
7 and 9 January 2007 had been unlawful for the purposes of
Article 5 § 1 of the Convention but argued that the applicant
had lost his victim status as a result of the judgment of the Court
of Appeal of 17 January 2007.
- The
Court refers to its settled case-law to the effect that a decision or
measure favourable to an applicant is not in principle sufficient to
deprive him or her of victim status unless the national authorities
have acknowledged, either expressly or in substance, and then
afforded redress for, the breach of the Convention (see, for example,
Ilaşcu and Others v. Moldova and Russia (dec.) [GC],
no. 48787/99, 4 July 2001).
While
Article 5 § 5 requires that there be an enforceable
right to compensation for detention in breach of the provisions of
Article 5, it does not guarantee an absolute right to compensation in
all circumstances (Kustila and Oksio v. Finland, no. 10443/02,
Dec. 13 January 2004).
- In
the present case the Court of Appeal expressly acknowledged a breach
of Article 5 § 1 of the Convention in respect of the applicant’s
unlawful detention between 7 and 9 January 2007 and ordered his
immediate release (see paragraph 8 above). The applicant’s
release has therefore been ordered as a form of redress, in spite of
the fact that the reasons in favour of his detention were still
considered by the Court of Appeal to be relevant and sufficient.
- In
the light of the above, the Court is satisfied that the prompt
release of the applicant in circumstances where he should have
otherwise been kept in detention together with the express
acknowledgement by the Court of Appeal of the wrongfulness of his
detention afforded the applicant such redress that he can no longer
be regarded as a victim. It follows that this complaint must be
declared inadmissible in accordance with Article 35 §§ 3
and 4 of the Convention.
B. The complaint under Article 5 § 3 of the
Convention
- The
applicant argued that the domestic courts repeated the same arguments
again and again and that some of their decisions were identical. He
argued that after his second release on 21 February 2007 he left
Moldova with the purpose of avoiding arbitrariness as a result of an
official offer by the Ukrainian consul in Chişinău. His
intention was to be tried by a Ukrainian court in a fair trial.
- The
Government submitted that this case was distinguishable from other
cases in respect of Moldova where the Court has found a breach of
Article 5 § 3 of the Convention. They pointed to the fact the
applicant eventually fled Moldovan justice, a fact that proves that
the reasons relied upon by the Moldovan courts to order his detention
were relevant and sufficient.
- The
Court refers to the general principles established in its case-law on
Article 5 § 3 of the Convention regarding, in particular, the
need for relevant and sufficient reasons for depriving someone of his
or her liberty (see, among others, Castravet v. Moldova, no.
23393/05, §§ 29-33, 13 March 2007, and Sarban,
cited above, §§ 95-99).
- In
the present case the domestic courts, when ordering the applicant’s
detention, argued, inter alia, that the applicant might
abscond. The Court agrees with the applicant that, as in the cases of
Sarban and Castravet, the reasons relied upon by the
domestic courts to detain him in custody appear to be very brief.
Nevertheless, the Court considers that, unlike in the above cases,
the reasons were strong enough to warrant the applicant’s
detention. Indeed, unlike the applicants in the above cases, the
applicant in the present case did not have a permanent residence, a
family or any other ties with Moldova. Moreover, the domestic courts’
fear of the applicant’s absconding appeared to have not been
unreasonable, since after the applicant’s release on 21
February 2007 he fled Moldova and has not returned to date. This
makes the present case distinguishable from all other cases in which
the Court has found a breach of Article 5 § 3 of the Convention.
In these circumstances, the Court is unable to find that the reasons
relied upon by the domestic courts were not relevant and sufficient.
Accordingly, the complaint is manifestly ill-founded and must be
declared inadmissible in accordance with Article 35 §§ 3
and 4 of the Convention.
C. The complaint under Article 5 § 4 of the
Convention
- According
to the applicant the Court of Appeal did not act with diligence in
examining his appeal with a delay of twelve days, during which period
he had been in unlawful detention. The applicant made reference to
the case of Sarban (cited above), which, in his view, was
similar to his case in respect of the Article 5 § 4 issue.
- The
Government argued that the delay in which the applicant’s
appeal was examined was of nine days and not twelve as argued by the
applicant. They also submitted that the delay had occurred because of
the withdrawal of the initial panel of judges and the necessity to
designate another panel. In their view, the delay was not excessive
and there was no breach of Article 5 § 4 in this case.
- The
Court reiterates that Article 5 § 4, in guaranteeing detained
persons the right to institute proceedings to challenge the
lawfulness of their deprivation of liberty, also proclaims their
right, following the institution of such proceedings, to a speedy
judicial decision concerning the lawfulness of detention and ordering
its termination if it proves unlawful (see Musiał v. Poland
[GC], no. 24557/94, § 43, ECHR 1999-II). The question whether a
person’s right under Article 5 § 4 has been respected has
to be determined in the light of the circumstances of each case (see,
mutatis mutandis, R.M.D. v. Switzerland, 26 September
1997, § 42, Reports 1997-VI).
- Turning
to the facts of the present case the Court notes that according to
the stamp on the applicant’s appeal application against the
decision of 9 February 2007, the date of its submission was 12
February and not 9 February 2007 as claimed by the applicant. Thus,
in the absence of any other evidence to the contrary, the Court shall
consider 12 February 2007 as the date the applicant’s appeal
was lodged. Accordingly, the appeal was examined by the Court of
Appeal nine days later and two hearings were necessary. The Court
also notes that the first hearing took place three working days after
the appeal was lodged and the second hearing took place two working
days after the withdrawal of the initial panel of judges from the
case.
- The
Court notes that in Sarban (cited above, §§ 118-124)
where a similar problem was examined by the Court, a breach of
Article 5 § 4 was found in respect of a delay of twenty-one
days. In that case the Court attached particular importance to the
applicant’s poor state of health and the absence of medical
care in the remand centre. Since no similar circumstances were
present in the present case and since the delay was considerably
shorter, the Court considers it possible to distinguish it from
Sarban. Although it would have been desirable for the Court of
Appeal to act faster, the Court is prepared to accept that, in the
particular circumstances of the case, the provisions of Article 5 §
4 were not breached. It follows that this complaint must also be
declared inadmissible in accordance with Article 35 §§ 3
and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 § 3 of the Convention
that he had not been provided with a translator from Romanian into
Russian during a procedural act in the criminal proceedings which
took place on 10 October 2006. However, it is noted that the
applicant did not use any remedies available to him under domestic
law such as, for instance, lodging an appeal against the sentence of
15 June 2007. In view of the above, this complaint must be declared
inadmissible under Article 35 §§ 1 and 4 for failure to
exhaust domestic remedies.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 25,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim and argued that it was ill-founded and
excessive.
- Having
regard to the violation of Article 3 of the Convention found above,
the Court considers that an award of compensation for non-pecuniary
damage is justified in this case. Making its assessment on an
equitable basis, the Court awards the applicant EUR 4,000.
B. Costs and expenses
- The
applicant also claimed EUR 5,038 for the costs and expenses incurred
before the Court.
- The
Government contested this amount and argued that it was excessive and
unsubstantiated.
- The
Court observes that in order for costs and expenses to be included in
an award under Article 41, it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
- In
the present case, regard being had to the itemised list submitted by
the applicants, the above criteria, the complexity of the case and
the fact that the majority of the complaints were declared
inadmissible, the Court awards the applicants EUR 1,200 for
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
- Declares unanimously the complaint under Article
3 of the Convention on account of the poor conditions of the
applicant’s detention between 24 May 2006 and 17 January 2007
admissible;
- Declares by a majority the remainder of the
application inadmissible;
- Holds unanimously that there has been a
violation of Article 3 of the Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage and EUR 1,200 (one
thousand two hundred euros) in respect of costs and expenses, plus
any tax that may be chargeable, to be converted into Moldovan lei at
the rate applicable at the date of settlement;
(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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Casadevall Deputy
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 Ziemele
joined by Judge Gyulumyan is annexed to this judgment.
J.C.M.
M.T.
SEPARATE OPINION OF JUDGE ZIEMELE
JOINED BY JUDGE
GYULUMYAN
- I
voted with the majority in finding that there had been a violation of
Article 3 as concerns the applicant’s complaints about the
conditions of his detention in various detention facilities.
Nevertheless, I had difficulty in accepting that the third period of
detention in the Chişinău General Police Department between
9 and 21 February 2007 should not be treated as part of a continuing
situation according to the Court’s definition (see
paragraphs 26-27 of the judgment) and that because that period
of detention lasted only twelve days it was too short to raise
problems under Article 3.
- This
part of the judgment, dealing with admissibility issues, is based on
the approach taken in the case of Guliyev
v. Russia (no.
24650/02, 19 June 2008), and attempts to contrast it with the
case of I.D. v.
Moldova
(no. 47203/06, 30 November 2010). In the present case there
were three separate detention periods with longer or shorter periods
of liberty in between (see paragraph 12 of the judgment). In the
Guliyev
case, the applicant was detained in two different facilities in
immediate succession – that is, the Court was faced with the
simple transfer of the applicant from one place to another. The
question of how to apply the six-month rule did not arise in the same
way as in the case before us. In the I.D.
case, the different places of detention were characterised by
different problems. Where the Court, as in the case before us, has
gone so far as to say that the main criterion for a continuing
situation is its character, even if the applicant’s detention
has not been continuous, I find it difficult to say that a three-week
gap such as that between the second and the third period – as
opposed to, for example, a seven-day gap – disqualifies the
last period from being part of a continuing situation. Certainly,
this was not the approach taken in the Guliyev
case since the facts were different; it is thus difficult to consider
that that case should provide the solution to be followed in our
case. In any event, I find that the case-law on the question of what
constitutes a continuing situation with respect to conditions in
different detention facilities at different periods of time remains
very unclear.
